Schilling v Cartmill - [2025] NTSC 40

CITATION:Schilling v Cartmill [2025] NTSC 40
PARTIES:SCHILLING, Ashley Vaughan
v

CARTMILL, Robert

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 26 of 2024 (22332911)
DELIVERED:  1 July 2025
HEARING DATES:  26 February 2025
JUDGMENT OF:  Blokland J
CATCHWORDS:
APPEAL – finding of guilt – assault with circumstance of aggravation –
when consent to fight or assault not excluded – whether one out of a
number of allegations can be found proven to the requisite standard –
whether finding of guilt unsafe or unsatisfactory – whether Local Court
Judge must have experienced a reasonable doubt – whether there was
evidence of the degree of violence exceeding what had been consented to.
Appeal allowed.
Statutes
Criminal Code (NT); s 188(1) and (2)
Evidence (National Uniform Legislation) Act 2001 (NT); ss 32; 38; 43.
Davis v Chief of the Army (2011) 247 FLR 207; Lergesner v Carroll [1991]
1 Qd R 206; M v the Queen [1994] HCA 63; Morluk v Firth [2017] NTSC
91; Police v Ashley Schilling, 17 September 2024; Zijlstra v Northern
Territory [2011] NTSC 46, cases referred to.

REPRESENTATION:
Counsel:
Appellant:B Houen
Respondent: K Thomas
Solicitors:
Appellant:Maleys Barristers & Solicitors
Respondent: Director of Public Prosecutions

Judgment category classification:    B
Judgment ID Number:  BLO2507
Number of pages:  23

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Schilling v Cartmill [2025] NTSC 40

No. LCA 26 of 2024 (22332911)
BETWEEN:

ASHLEY VAUGHAN SCHILLING

Appellant

AND:

ROBERT CARTMILL

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 1^st July 2025)
Introduction

On 17 September 2024 the appellant was found guilty and convicted in the Local Court of one count of aggravated assault, contrary to s 188(1) and (2) of the Criminal Code (NT).
The conduct the subject of the charge took place on 7 August 2023. The appellant, at the time of the offending conduct and at the time of the Local Court trial, was the complainant’s domestic partner. The sole particular of the assault which was found proven was that the appellant pulled the complainant’s hair. Other elements of the initial allegations which may have constituted an assault were not found to be proven.
The appellant advances three grounds of appeal against the finding of guilt as follows:
(1)The decision of the Local Court Judge was unsafe and unsatisfactory in all circumstances.
(2)The Local Court Judge erred in the application of Morluk v Firth [2017] NTSC 91.
(3)The Local Court Judge erred in the application of Lergesner v Carroll [1991] 1 Qd R 206.

The trial

The prosecution led oral evidence from the complainant and from the police officer who had attended on the complainant at hospital, following a report of a woman being assaulted.
In response to questions from the prosecutor about what happened on 7 August 2023, the complainant initially stated that she recalled ‘bits and pieces’ about that night and she recalled watching TV while she waited for Ashley (‘the appellant’) to come home from work.[1]
Following questions about what happened after Ashley arrived home, the complainant gave evidence that she and the appellant fought; she went to the hospital because she got hurt in the course of the fight; she was angry when she was waiting for the appellant and took out the blame on him; her injury was to her arm and to her head; he pulled her hair. She was fighting because she was angry. She could not remember where they were fighting. She then stated it happened outside the house.
A review of the transcript indicates the complainant was a difficult witness for the prosecutor to elicit evidence from, most likely due to the complainant being a vulnerable person, no doubt in difficult circumstances. Her lack of responses and apparent confusion was not the fault of the prosecutor. This seemingly straightforward case presented difficulties. Much of the complainant’s evidence was along the lines of ‘not remembering’. Unlike many cases of this kind the lack of recall was apparently genuine and treated as such by the learned Local Court Judge. The complainant commenced her evidence about the incident in the following terms:[2]
The Prosecutor: And do you remember what time he came home?---It’s only ’cause I just seen the statement before. I wouldn’t have had a clue before.
What do you remember? Is there anything you remember from when Ashley got home?---No, I don’t remember. I’ve lost my kids’ father, so my brain’s gone. He committed suicide in June, so you know, I can’t deal with anymore.
Did you ever go to the hospital that night?---Yeah.
Why’s that?---Because I was hurt.
How did you get hurt?---Fighting with Ashley.
How did this start?---I don’t know, I think I was angry and waiting for him, and going through stuff with my old partner, and I just took the blame out on him to - - -
…
Can you recall where you got hurt?---My arm.
What happened to your arm?---Suppose fighting.
…
Did you have any other injuries that night?---I think my head.
What happened to your head?---I think when he pulled my hair, I don’t know. I don’t know.
…
How hard did he pull your hair?---I don’t know.
You said you had an injury to your head; how did you get that?
HIS HONOUR: KS, it’s the Judge. You can take as long as you like to answer any question, but if you’re not sure what the question is, you want it repeated or anything like that, just say so, okay?---Yeah.
Thank you?---I don’t know.
Do you remember where you were fighting?---No, I don’t know.
Were you inside the house or outside the house?---It was outside.
Do you remember why you were fighting?---I was just angry.
When you were fighting, did the accused do anything?---What do you mean by that?
So you say you were fighting, what was it that you were both doing?---Drinking beer afterwards.
And during the fighting, what was the defendant doing?---It was so long ago, I can’t remember everything. I can’t remember.
Is there anything that would help refresh your memory?---No.
Did you go through your statement with us this morning?---Yeah, yes.
Did that refresh your memory?---A little bit.
The prosecutor was granted leave pursuant to s 32 of the Evidence (National Uniform Legislation) Act 2001 (NT) to provide the complainant with a copy of her statement. The statement was read to the complainant to refresh her memory. The prosecutor then continued examination-in-chief:
THE PROSECUTOR: So, KS, you’ve had a chance to read your statement?---Yes.
Now that you’ve had a chance, you told us before that you couldn’t remember the time Ashley got home?---No.
Has your statement refreshed your memory?---A little bit. It still doesn’t - - -
Now that you’ve read the statement, can you tell me what happened when Ashley got home?---(No audible response.)
Your Honour, the witness is reading off her statement.
THE WITNESS: “I said that he asked me if I wanted a beer.”
THE PROSECUTOR: Your Honour, I’d ask that the statement be flipped over. The point of refreshing memory is to remind her but not to read.
HIS HONOUR: Yes.
KS, the reason that the statement was given to you to read and also why the witness assistance officer read it to you was to refresh your memory. Perhaps if we could turn the statement over, and then try and rely on the things that you remember. And if - we’ll just try that first. Thank you.
THE PROSECUTOR: Do you remember why you were arguing?---Probably because he came home late. And I was just already angry anyways.
And I asked you before, what was Ashley doing when you were fighting? Is there anything - you said you couldn’t remember. Do you remember now?---No. Could you ask - could you say that again, please?
When you were fighting, what was Ashley doing?---Well he was - pulled my hair.
Do you remember what he was saying during the arguing?---Only because I read my statement. And what was he saying?---Slut.
You said earlier, you were outside the house while you were fighting. Do you remember telling us that?---No.
Do you remember how that night ended?---Only because I read the statement.
And what - how did the night end?---Going to the Hibiscus and ringing an ambulance. Or the police. But nobody came and somebody picked me up and dropped me at the hospital.
Okay. So just to take you back, why did you walk to the Hibiscus?---Because - to get away.
What was it you were getting away from?--Arguing and fighting.
Why did you need to go to the hospital?---I (inaudible). Sorry, your Honour, I didn’t hear that answer.
HIS HONOUR: I’m not going to repeat it. If you could repeat the question.
THE PROSECUTOR: Why did you go to the hospital that night?---To get it looked at. What did you have looked at?---I don’t even want to do this. I just want to go.
The prosecutor was then granted leave pursuant to s 38 of the Evidence (National Uniform Legislation) Act, to put leading questions to the complainant on the basis of her statement. The complainant continued to give evidence to the effect that she could not recall the events of the night of 7 August 2023:
THE PROSECUTOR: KS, you said in your statement that you drank a few beers out on the front, and you sat on the outside porch. Is that right?---It must be. I can’t remember though.
You said that Ashley was calling you a slut. You said that just before?---That’s because I read the statement.
Do you remember if you were sitting inside or outside while these names were being called?---Me or him?
You?---I still don’t remember. (Inaudible).
In par 14 of your statement, you say, “He kept saying that he was going to smash me.” Is that true or not?---I don’t know.
You further said in your statement, “That you turned away and started to walk away.” Is that true or not?---Like I said before, I don’t remember what happened last year. I don’t even remember what happened yesterday, (inaudible) court or not. It’s like I got dementia.
You also said in your statement, “That he pushed you and you fell face front onto the road.” Is that true or not?---I don’t know.
You also said, “When he pushed you, you landed on your left on your left side. Is that true or not?---Don’t know.
You said in your statement, “That your head hit the road.” Yes, or no?---Don’t know.
Your Honour, I would also like to play a 000 call as part of the evidence of the complainant.
HIS HONOUR: The call’s not consented to just as part of the evidence? I’m just wondering, Prosecutor.
The Prosecutor: Thank you, your Honour.
HIS HONOUR: You know, it may have some effect, but the witness has been quite steadfast in not having any recollection.
The Prosecutor: Yes. I understand.
You said in your statement, “After Ashley pushed you on the road and your head hit the road, he stood over you and started punching you to your head.” Is that right? Or no?---I do not know. If he did punch my head, my head wouldn’t be here. It would be gone if he punched my head in. I’d have fucking brain damage or something.
But you did say in your statement that he punched you - - -?---Well, I (inaudible) but I don’t remember it. You also say, “That you were yelling at him to leave you alone and to stop hitting you.” Do you remember that?---I don’t remember anything.
After this happened was when you got to your feet and went to the Hibiscus Shopping Centre. Do you remember that?---No.
…
Were you scared?---Don’t know.
…
The Prosecutor: Do you agree with me if I say that you were running from the arguing and yelling, and that’s why you went to Hibiscus?---Yes.
Would you agree with me if I said you were shook about what had happened? ---Maybe. Because I would - that’s just - - -
You’ve told us that Ashley pulled your hair. Did you have a sore head that night? ---I don’t know.
You say you can’t remember whether Ashley pushed you and you fell face first onto the road. Would you agree if I said this statement was made a few hours after this incident?---I don’t know.
Would you agree if I asked you - would you agree if I said your memory of the event was better then than it is now?---It could have been. It could be a different thing.
You say in your statement, “Your left shoulder, arm and hand were really hurting. And that your left arm was out of shape.” What do you say to that?---I still don’t remember.
You said your left arm was out of shape. Do you remember having that looked at? ---Yeah.
So you do remember some of the injuries?---I don’t remember having the X-ray. There’s nothing in - - -
Do you remember what the doctors told you?---Nope. I know it wasn’t broken.
How do you think your arm got injured?---I don’t know. Do you think the defendant caused your arm being sore?---Don’t know.
Do you think the defendant caused your head to be sore?---Don’t know.
HIS HONOUR: Except for some collateral purpose, what the defendant thinks today is probably not going to be of any material importance.
The Prosecutor: Thank you, your Honour. In your statement you say, “That the defendant caused your injuries.” That is - that’s what you said?---That’s what the police wrote down, yeah.
I asked you earlier if you signed the statement, and you said “yes”?---Well, I must have. My signature is on there, isn’t it.
And you also said, where your signature goes, that you had the statement read back to you because you couldn’t see without your glasses?---Well, it must be.
No application was made to tender the statement under s 43 of the Evidence (National Uniform Legislation) Act, hence previous representations by the complainant were not before the Court. His Honour noted the same in his reasons.
Counsel for the appellant then commenced cross-examination of the complainant. During that examination, the complainant agreed that on 7 August 2023 she drank some beers. She couldn’t remember how many. She gave evidence that she didn’t remember speaking to the police; she barely remembered what happened the previous day; she was probably taking medication on 7 August 2023, being anti-depressants; and she had previously smoked marijuana. The complainant answered questions directed to the issue of a consensual fight or consent to an assault:[3]
Okay. Now, KS, I’m sorry, you might not remember this. But do you remember this is the second time you were supposed to come to court for this?---No.
Okay. Do you remember telling the prosecutor last time you were here that this was your fault too because you were both drinking and fighting?---I don’t remember.
Okay. Is it possible that you said that to the prosecutor?---I don’t – I don’t know.
Okay?---I don’t remember anything.
Okay. I’m just going to ask you some things now. I’m going to ask you if some things are possible, okay. Is it possible that both you and Ashley were fighting with each other?---Yeah.
And you were both yelling at each other?---Probably.
Okay. And is it possible that you told him to hit you?---I don’t know.
Okay. Do you remember in your statement, you said in your statement, “He said he was going to smash me. I turned around and said, ‘Go on, then.’” Do you - - -? ---I don’t remember.
You don’t remember saying that, okay. But it’s possible you were both fighting with each other, and both hitting each other?---(inaudible).
Okay?---I don’t know.
Following the complainant’s evidence, the prosecution called former police officer David Risdale. He gave evidence about the following matters. There was a report that a female identified as KS had been assaulted. Officer Risdale was dispatched to the Hibiscus shops at 1:30am on the morning of 7 August 2023, with his colleague Constable Amy Darby. Prior to arriving at the Hibiscus shops they were told that a car had picked up KS and taken her from the area. They made enquiries and found out that KS was in hospital. The officers attended the hospital and spoke with KS about what happened. Officer Risdale observed the following injuries:
She had some swelling on her arm that made her arm look distorted. At the time, she had some grazing. I can’t remember exactly where. I do remember – she had some grazing. And I’m pretty sure I looked through her hair with my torch as well at one stage, and she had a graze on her head.
The prosecutor continued to lead evidence from Officer Risdale about his conversation with KS. He described her demeanour as ‘very subdued’. He said she told him that she was assaulted by her partner at the time, Ashley Schilling. He believed she said that it happened outside of their home address, but he could not recall the address. The prosecutor asked whether the complainant provided details about the assault and Officer Risdale responded in the following terms:
Did she go into detail about the assault at all?---I believe she did. My body-worn would have captured it, but I believe she did, but only because I took a handwritten statement from her, that night, I believe. So she must have told me, yes.
Do you recall any details about what she said had happened to her?---I believe that she had come home from work, that – there was arguments between the two of them. I believe that she has run out the front of the address at some stage, and I believe that’s where she was assaulted in front of the address, and she has ended up on the road.
There was no cross-examination of Officer Risdale.
The prosecutor then tendered a recording of two 000 calls by KS and a medical record from Royal Darwin Hospital concerning the complainant’s attendance on 7 August 2023. The medical record was tendered pursuant to the business records exception in the Evidence (National Uniform Legislation) Act. The Judge struck out reference to the word ‘assault’ from the medical record.
After hearing submissions the Judge observed that the complainant’s evidence was ‘particularly unsatisfactory’. He said her statement to police on the night was likely more detailed and comprehensive, however, it was not in evidence.
The Judge noted the complainant’s evidence that she could not recall or did not know, in response to propositions put to her that she previously told the prosecutor that it was her fault because they had both been drinking and fighting, and that she responded ‘Go on then’ after the appellant said he was going to smash her.
The Judge found it was possible that both the complainant and the appellant were fighting. He found that there was fighting at the premises, either exterior to the structure itself or/and perhaps including on the road. He found that the appellant did grab and pull the complainant’s hair.
The Judge referred to Chief Justice Grant’s decision in Morluk v Firth.[4] He observed that this decision ‘canvasses the various features of matters like this involving what is generally described as domestic violence. So physical altercations, sometimes one-sided and sometimes as between two parties, and the reasons why it is that complainants don’t give an account consistent with the contemporaneous information obtained at the time.’
In terms of consent to assault the Judge found that the test set down in Lergesner v Carroll[5] was applicable. He noted it is for the tribunal of fact to decide in respect of the assault said to have been consented to, whether the degree of violence used in the assault exceeded that to which consent had been given.
The Judge had regard to the ‘relative paucity of evidence as to what comprised the fighting’. He considered that the injury to the complainant’s arm was established, however, he could not exclude a reasonable possibility that the complainant was pushed or possibly fell.
The Judge concluded on the basis of the complainant’s evidence that her hair was pulled which exceeded a degree of violence that the complainant had consented to at the time. On that basis, he found the appellant guilty of assault to the extent that he grabbed the complainant’s hair and pulled it. As noted, all other particulars or potential particulars of assault were excluded from the finding of guilt.
Discussion of ground one
The appellant submits this Court should find the trial Judge’s findings unsafe and unsatisfactory in all of the circumstances in light of the following matters:

A. Material inconsistencies between the initial complaint and the evidence at hearing.

B. Unreliability given impairment of memory.

C. Acceptance of some level of intoxication by the complainant at the time.

D. Inherent discord between the Judge’s finding that the Court could not exclude a reasonable alternate cause of the injuries documented by the medical report and the finding of guilt in relation to the hair pull.

E. The Judge’s comment in the course of sentencing the appellant “perhaps my biases interfere in my good judgement”.

The task to be undertaken by an appellate court in deciding whether a verdict was unsafe and unsatisfactory is set out in M v the Queen:[6] The question which the Court on appeal must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury, or in this instance the Judge to be satisfied beyond reasonable doubt of guilt, bearing in mind the advantages the trial court has when assessing witnesses.
The respondent pointed out that the complainant did not provide evidence which was contrary to any particular of the assault. She was able to decide between evidence which she did and did not remember. It was simply the case that she could not recall a considerable portion of the alleged assault.
The only particular of the assault which the complainant gave in evidence was that her hair was pulled by the defendant. In response to every question about particulars of the assault, the complainant said she could not remember if that particular was true.
In terms of ground 1, inconsistencies, even material inconsistencies between the initial complaint and evidence given would not necessarily lead to the conviction being overturned. In this case there were obvious issues of substantive unreliability, as recognised by the Judge. However, there was also some confirmation or supportive evidence of injury to her head and upper limb in the medical record.[7] The mechanism of injury is partially described, although there is no reference in the medical record to a hair pull. During the 000 calls, it was accepted the complainant said she had an injury to her arm. The complainant did not refer to hair pulling in any of the complaint evidence, including 000 calls. His Honour did not take the complainant to have retracted anything in evidence, but told the Court her memory was very much in question.[8] Her demeanour in the 000 calls was noted as distressed.
The Judge noted that there were “all sorts of reasons” that complainants do not come up to proof, but that “her evidence was particularly unsatisfactory”.[9] His Honour said: “It is my finding consistent with her evidence, that there was fighting at the premises, either exterior to the structure itself or/and including on the road perhaps. It is also my finding that the defendant did grab and pull the complainant’s hair”.[10]
As mentioned, his Honour went on to note that physical altercations are sometimes one sided and sometimes as between two parties. Further, that there may be reasons in domestic violence cases, consistent with the reasoning in Morluk v Firth[11] as to why the evidence of complainants may have features which in some cases lessen reliability.
In terms of the evidence as to the nature of the altercation between them, which his Honour accepted was a fight, or rather that a fight could not be reasonably excluded, he said:
There is a relative paucity of evidence as to precisely what comprised the fighting; there is no evidence as to anything in particular which the complainant did in relation to the proposition put to her in cross-examination by defence counsel that she said to the defendant, “Go on then”. Had she adopted and agreed that she’d said that, it would not, in my view, have been determinative in any sense. I would have taken it, through my experience, to have been a last act of defiance.[12]
After discussing the relevant authorities concerning consent to fight, his Honour noted he could not exclude a reasonable possibility the complainant was pushed or possibly fell. He could not rely on other statements for consistency, including the 000 call as the complainant’s evidence was largely neutral because of lack of memory and recollection. In any event, his Honour concluded the 000 calls had no relevance in relation to whether the appellant grabbed the complainant’s hair.[13] He also observed there was not any specific evidence as to how hard any hair pulling was done in the circumstances having regard to the nature of the force applied, rather than to its extent.
The Judge specifically ruled out that the hair pulling was the cause of the minor head injury noted in the medical record. On the basis that the complainant’s hair was pulled, he said that that act “exceeded a degree of violence that the complainant had consented to at the time”.[14] His Honour considered that to be the only reasonable inference open in the circumstances and the assault was found proven on the basis that the complainant’s hair was pulled.
Given the state of the evidence as it was and accepting the complainant had vulnerabilities similar to many survivors of domestic violence; given that his Honour accepted a fight could not have been excluded with respect to the complainant’s injuries, in particular that the graze on her head was not caused by the hair pull, it was not open to infer beyond reasonable doubt that the hair pull took place separately from any consensual fight or similar activity. Such a finding was not supported by the evidence. That finding was not open if, as indeed was found, a consensual fight could not be excluded. A hair pull could not be excluded from broader fighting even taking the fairly neutral evidence of the complainant at its highest.
This was not a case of merely rejecting evidence due to inconsistencies and pressures that the complainant may have been under. Logically, if there was a reasonable possibility of a consensual fight, where the extent of the force used did not exceed the perimeters of the relevant consent, then the hair pulling, being the only particular accepted as occurring, could not be excluded from the same relevant hypothesis. A further hypothesis which his Honour said he could not exclude was that the complainant may have fallen and so sustained injuries.
The respondent submitted it was open to a trial judge to accept some part of a witness’s evidence and reject other parts as was contemplated in Morluk. Further, that some matters positively affected the assessment of the complainant’s reliability. She could recall there being a fight and some arguing and that she herself was angry that evening. She was unable to recall most particulars of the assault but was clear about a hair pull. She conceded that she had consumed illicit substances and that she was on medication at the time of the offending. Her call to the police corroborated her account that the fight had occurred. She had attended hospital with injuries after there had been a fight which were consistent also with an account of assault.
The respondent notes that the determination of whether a trial judge must have had a reasonable doubt is not to be resolved by conducting a mechanical comparison of the two accounts in order to identify inconsistencies (Morluk) and on that basis both ground one and two must fail.
In most similar circumstances I would agree with the submission made on behalf of the respondent. However, there was no evidence of the initial allegations before the Court. This was not a mere change in evidence. It was an absence of evidence which was being grappled with.
This was an unusual case. The evidence could not in any real sense be tested due to the lack of memory on the part of the complainant and very little other evidential material about the incident giving rise to the charge was available. Such a circumstance, when there is virtually no evidence and what there was could not be properly the subject of questions contributes to a finding that was unsafe.
Having reviewed the material before the Local Court and taking the complainant’s evidence at its highest, the conclusion here is the Court must have experienced reasonable doubt as the Court experienced here on review of the record. The reasons for upholding Ground 3 are also relevant to this ground.
Ground one will be upheld.
The remark during the sentencing stage was the Judge being transparent about his thinking at that time. In my view it does not show bias or erroneous thinking during the assessment of the evidence and I have disregarded it.
Discussion of ground 2
The appellant contends that the trial judge incorrectly used Morluk to justify the memory deficiencies of the complainant. A distinguishing factor of the present matter is that the complainant did not come up to proof in her evidence in chief and subsequently recant her evidence in apparent attempts to exculpate the appellant (as occurred in Morluk).
His Honour correctly took an approach which showed understanding of the complainant’s circumstances regarding the assessment of her evidence. He mentioned the features of such evidence as described in Morluk. It is well understood that evidence may be recanted due to pressures unique to survivors of domestic violence. Hence, it is accepted that the determination of whether a reasonable doubt arises is not to be resolved by conducting a mechanical comparison of the two accounts given and concluding that a reasonable doubt must arise by reason of the inconsistency. This is the case even when the accounts are “diametrically opposed”.[15] That was not what occurred here. The statement made to police was not before the Court. There was no evidence of what took place between the complainant and the appellant. There was no recanting during the hearing as the evidence in chief did not disclose offending save potentially a hair pull. The evidence disclosed a hair pull but in what circumstances that took place was unknown. The injuries were found not to be caused by the hair pull.
In my reading of the Judge’s remarks his Honour utilised what was said in Morluk in terms of discussing issues which might affect the complainant’s evidence. However, it is not apparent his Honour fell into the error suggested on behalf of the appellant of filling in gaps in the evidence or minimising the unreliability of the evidence. It was reasonable for his Honour to consider Morluk in a general sense when assessing reliability of a complainant in a domestic violence matter. He did not apply it directly to the assessment of the complainant’s reliability as her evidence was somewhat removed from the circumstances discussed in Morluk.
Ground two will be dismissed.
Discussion of ground 3
As his Honour observed, following the cases commencing with Lergesner v Carroll[16] there was an issue of consent. The relevant reasons on this point are as follows:[17]
The issue is one of consent, and an essential element of assault is absence of consent. When such an issue arises, the Queensland Court of Appeal noted that it’s for the tribunal of fact to decide in respect of the assault said to have been consented to, whether the degree of violence used in the assault exceeded that to which consent had been given.
The Crown bears the onus of proof beyond reasonable doubt; the highest standard known to the law. There is a relative paucity of evidence as to precisely what comprised the fighting; there is no evidence as to anything in particular which the complainant did in relation to the proposition put to her in cross-examination by defence counsel that she said to the defendant “Go on then”. Had she adopted and agreed that she’d said that; it would not, in my view, have been determinative in any sense. I would have taken it, through my experience, to have been a last act of defiance.
Really, the challenge for the court is to decide whether the force that has been demonstrated, and that is the pulling of the hair, exceeds the test which has been set down in Lergesner v Carroll. My understanding is that Lergesner v Carroll has at least been applied in Zijlstra. I’d also have to consider the injury to the arm. I think that injury has certainly been established, particularly through the medical record, albeit a soft tissue injury; there was no fracture or anything of the like…..
But more relevantly, complaint evidence generally only goes to the consistency or the credit of the witness’s evidence. This witness’s evidence is largely neutral because of lack of memory and recollection. So I don’t consider that that evidence in the 000 calls is relevant in relation not the proposition that the defendant grabbed the complainant’s hair and pulled it, albeit that there’s not any specific evidence as to precisely how hard that was done in the circumstances; and having regard to the nature of the force applied, rather than the extent of the force applied; but also noting the references in the medical document.
And I don’t conclude that pulling the hair created – caused the minor head injury. But on the basis of the complainant’s evidence that her hair was pulled and without any need for anymore, in my view, that did exceed a degree of violence that the complainant had consented to at the time. That is, in my view, the only reasonable inference in the circumstances open. And on that basis, I do find the defendant guilty of assault to the extent that he grabbed the complainant’s hair and pulled it.
From those remarks, it is clear the Judge accepted there was an evidential basis on which to consider consent to assault or fight. Lack of consent is an element of the offence assault.[18] In Lergesner the Court of Appeal (Qld) held that when an issue of consent arose on a charge of assault occasioning bodily harm it was for the tribunal of fact to decide in respect of the assault said to have been consented to whether the degree of violence used in the assault exceeded that to which consent had been given. This will include a consideration as to whether or not the person giving consent intended that it should be withdrawn or expire if any subsequent event should occur. On the authority of Lergesner it would seem that once consent has become an issue, the circumstances in which it is given need to be examined, including any limits and when that consent may be taken to be withdrawn.
In Lergesner, Shepherdson J dealt with a similar lack of evidence as here. With respect to the extent of consent and degree consented to, his Honour observed:[19]
The Magistrate said “that there can be no suggestion that Lergesner consented to that particular blow initially given by Carroll.” How he reached that decision is not stated. It is certain he had no details of the admitted bodily harm caused by that first blow.[20] Without that detail, I cannot see how he could properly consider the issue of unlawfulness of the first blow. It may be that he thought that the appellant struck the complainant without warning and that the complainant was consenting only to a fight after the appellant had orally accepted his offer. It may be that he thought the violence offered by the first blow – and there were no details of the bodily harm caused by that blow – effectively negatived any consent by the complainant and thus he found as early as stated. It seems to me that if the Magistrate were properly to consider Mr McCreanor’s first submission his first question was “Did the complainant consent to an assault by the appellant?” And in answering that question he had to consider whether the degree of violence offered by the appellant in the first blow exceeded that to which consent was given. The lack of particulars to which I have already referred and the lack of detail in the Magistrate’s reasons have left me with a distinct feeling of unease about the conviction which was later expressed by the Magistrate as follows “I find in respect of all elements of the offence the Prosecution has proved beyond reasonable doubt.”
Clearly his Honour found this authority relevant, however there was no consideration and indeed no evidence as to at what stage the interaction, be that a fight or other similar activity took place and at what stage hair pulling took place. Neither is there evidence of which location was relevant. The complainant offered, unpromoted in evidence that she was hurt ‘Fighting with Ashley’. She did not know how it started. That was accepted below but there was no evidence to show that the hair pulling exceeded consent to fight or assault in the sense required by Lergesner. To that extent this ground is made out. The reasoning required to be followed under the line of authority commencing from Lergesner is also relevant to allowing ground one of the appeal.
Orders
1.The appeal is allowed.
2.The finding of guilt made on 17 September 2024 is quashed.
3.A finding of not guilty of the charge is entered.
4.The reasons will be forwarded by email to the parties as previously notified.
5.If any party is seeking costs which cannot be agreed between the parties or if an order is necessary, leave is granted to approach Chambers.
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[1] Transcript, Police v Ashley Schilling, 17 September 2024 at 5.

[2] Transcript, Police v Schilling, 17 September 2024 at 6.

[3] Transcript, Police v Schilling, 17 September 2024 at 19.

[4] [2017] NTSC 91 (‘Morluk’).

[5] [1991] 1 Qd R 206.

[6] [1994] HCA 63; 181 CLR 487.

[7] Exhibit D2.

[8]Transcript, Police v Schilling, 17 September 2024 at 29.

[9]Transcript, Police v Schilling, 17 September 2024 at 35.

[10]Transcript, Police v Schilling, 17 September 2024 at 35.

[11][2017] NTSC 91.

[12]Transcript, Police v Schilling, 17 September 2024 at 35.

[13] Transcript, Police v Schilling, 17 September 2024 at 36.

[14] Transcript, Police v Schilling, 17 September 2024 at 36.

[15]Morluk at [38].

[16][1991] 1 Qd R 206, 219.

[17]Transcript, Police v Schilling, 17 September 2024 at 35-36.

[18] Davis v Chief of the Army (2011) 247 FLR 207; Lergesnerv Carroll [1991] 1 Qd R 206; Zijlstra v Northern Territory [2011] NTSC 46 at [47].

[19] Lergesner at 215.

[20] ‘Bodily harm’ was conceded in Lergesner.