Application by Habambo under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. [1]

   This is an application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) in respect of the following 28 convictions:

   1. (1)

      nine counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW) (“the Crimes Act”);

   2. (2)

      15 counts of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW);

   3. (3)

      one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act;

   4. (4)

      one count of damage property contrary to s 195(1) of the Crimes Act;

   5. (5)

      one count of suffocate without consent contrary to s 37(1A) of the Crimes Act; and

   6. (6)

      one count of choke and render incapable of assistance contrary to s 37(1) of the Crimes Act.

2. [2]

   The offences, as recorded in the sentencing remarks of Culver DCJ on 17 February 2023, involved 16 incidents or episodes of physical violence or intimidation committed by the applicant towards the complainant who was his wife at the time (now ex-wife). Those findings are summarised below.

3. [3]

   I have before me on this application:

   1. (1)

      the application, which includes submissions running to 402 paragraphs;

   2. (2)

      an affidavit sworn by the applicant, together with two volumes containing annexures to that affidavit;

   3. (3)

      the transcript of the trial before Culver DCJ;

   4. (4)

      written submissions filed on behalf of the Attorney General together with a bundle of documents referred to in those submissions, including Judge Culver’s sentencing remarks and the decision of the Court of Criminal Appeal, following the applicant’s application for leave to appeal against conviction and sentence: Habambo v R [2023] NSWCCA 328; and

   5. (5)

      submissions in reply by the applicant.

Background

1. [4]

   On 6 October 2022, a jury found the applicant guilty of 28 counts of domestic violence-related offending against his then wife. The jury found the applicant not guilty of the remaining six counts on the indictment.

2. [5]

   The offending occurred over a period of about eight and a half years between early 2012 to August 2020. There were six episodes of offending that formed the subject of the applicant’s sentence.

3. [6]

   The circumstances of the offending, as they emerge from Judge Culver’s sentencing remarks, are as follows:

   1. (1)

      Episode 1 (count 2, common assault pursuant to s 61 Crimes Act 1900): Between January and March 2012, while making their way to church, the applicant stopped the car and wrapped duct tape around the complainant’s head, trapping her hands against her head.

   2. (2)

      Episode 2 (count 3, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): In February 2013, the applicant pinned the complainant on the floor and placed a plastic bag over her head, before using duct tape to secure the bag around her neck, causing the complainant difficulties with breathing.

   3. (3)

      Episode 3 (count 5, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): Between February and April 2013, the applicant pulled the complainant’s hair back so that her neck was strained, and held a pair of poultry scissors against her hair so that she could feel the blunt end of the scissors against her neck. The applicant said, “You don’t need your hair. I’ll cut it off for you”.

   4. (4)

      Episode 4 (count 6, common assault pursuant to s 61 Crimes Act 1900; count 7, common assault pursuant to s 61 Crimes Act 1900; count 8, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): On Easter Monday 2013, that is 1 April 2013, while driving home in the car, the applicant grabbed the complainant’s wrist and twisted it forcefully, before forcing her head down between her knees while he screamed and swore at her (count 6). Once home, the applicant continued to accost the complainant and slapped her across the face (count 7). The applicant removed the complainant’s clothes until she was naked against her will, before he forced her into the shower and turned on the cold water, leaving her there (count 8).

   5. (5)

      Episode 5 (count 9, assault occasioning actual bodily harm pursuant to s 59(1) Crimes Act 1900; count 10, damage to property pursuant to s 195(1A) Crimes Act 1900; count 11, intimidate pursuant to s 13(1) Crimes (Domestic and Personal) Violence Act 2007): In November 2013, the applicant snatched the complainant’s phone from her and threw it at the ground, cracking the screen. The applicant grabbed the complainant by the shoulder and head and rammed her into a tiled wall in the ensuite bathroom, causing a laceration to her shoulder and causing her to feel dazed (count 9). The applicant left the room, and the complainant locked the door behind him. Upon his return, the applicant broke the door down (count 10) before running at the complainant and dragging her onto the floor, where he held her down with one hand over her mouth and the other pinching her nose, such that she could not breathe (count 11). The applicant released the complainant, at which point she screamed for help and ran towards the front door of the property, but the applicant prevented her from opening the front door. When police attended a short time later, the applicant told the complainant, “Don’t you dare say anything. You tell them that we argued over money”. The complainant lied to the police due to fear of repercussions from the applicant.

   6. (6)

      Episode 6 (count 13, common assault pursuant to s 61 Crimes Act 1900; counts 14 and 15, intimidation pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): In October 2015, when the applicant and complainant were situated on the bed with their 11 month old son, the applicant kicked the complainant hard in the thighs repeatedly, including after she asked him to stop (count 13). When the complainant protested, the applicant said, “Get up. This is not your house. You’re not allowed to live here, and if I could, I’d throw you off the balcony. I would” (count 14). Later that evening, when the complainant raised what had happened and said it had scared their son, the applicant re-iterated, “Yeah, if I could, I would throw you off the balcony as well” (count 15).

   7. (7)

      Episode 7 (count 16, intimidate pursuant to s 13(1) Crimes (Domestic and Personal) Violence Act 2007; count 17, common assault pursuant to s 61 Crimes Act 1900): On 26 January 2016, prior to a social event, the applicant, angry at the complainant for not being ready on time, shouted “You’re too dumb to do anything, too stupid to know any better … It’s because of your self-esteem issues that you can’t get ready on time”. The applicant went to leave for the social event without the complainant, and as the complainant tried to enter the applicant’s car, the applicant looked at the complainant and accelerated the car. The complainant started screaming and thought she was going to be crushed (count 16). Once the complainant entered the car, the applicant exited the car and walked around to the passenger side door, before unbuckling her seatbelt and throwing her to the ground. The applicant pushed the complainant a number of times before driving off (count 17).

   8. (8)

      Episode 8 (count 18, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): On Easter Sunday in April 2017, in the church carpark after a service, the applicant started an argument in which he blamed the complainant for their son’s conduct. The applicant started walking away with their daughter in a pram and said, “I’m leaving with [their daughter] and you’re never going to see her again”. The applicant then refused to take the family to Easter lunch, and took away the complainant’s phone and keys so that she could not leave the house once they returned home.

   9. (9)

      Episode 9 (count 19, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): In July 2017, following an argument, the applicant said to the complainant, “I want to put you six feet under, and I’m going to bury you under the pool”.

   10. (10)

       Episode 10 (count 20, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): In August 2017, during an argument, the applicant said to the complainant, “If you leave, you leave with nothing but the clothes on your back. You can take the kids, but you have to pay for everything for them. You won’t see a dollar for me. Or they stay with me and I’ll pay for everything for them”. The following day, the applicant told the complainant there was no way the children were growing up without him. He said, “I will tie a grenade and I will blow everything up. No-one is taking my kids away from me. These kids aren’t growing up without me”.

   11. (11)

       Episode 11 (count 21, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): On 7 October 2013, prior to attending a wedding, the applicant said to the complainant that she looked like a whore, before storming out of the house and slamming the door behind him. The applicant later sent the complainant a text message which read, “I dare you to come”.

   12. (12)

       Episode 12 (count 23, choke and render incapable of assistance pursuant to s 37(1) Crimes Act 1900): On 30 January 2018, during an argument, the applicant grabbed the complainant’s neck and ran her backwards towards the bed in their bedroom. After causing her to fall on the bed, the applicant held the complainant’s neck with both hands so that she could not breathe.

   13. (13)

       Episode 13 (count 24, common assault pursuant to s 61 Crimes Act 1900; count 26, suffocate without consent pursuant to s 37(1A) Crimes Act 1900; count 27, intimidate pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007): On 14 July 2019, the applicant pulled a blanket from under the complainant, causing their daughter who was nearby to fall forward. The complainant put out her hand to stop the applicant and her hand connected with the applicant’s crotch area. The applicant yelled at the complainant, “You punched me in the balls” before he hit the complainant in the face towards the corner of her mouth (count 24). The complainant reacted by stepping on the applicant’s foot, and he put both hands around her neck, choking her. While doing so, he said “Here, I’ll stop your breathing too”. When the applicant let go, the complainant asked her children to call the police, at which point the applicant put his hand over the complainant’s mouth and nose so that she could not breathe (count 26). The complainant asked why the applicant would do these things in front of the children. He responded, “If I was going to choke you, you would be dead. If I was going to hurt you, you would have been hurt” (count 27).

   14. (14)

       Episode 14 (count 28, intimidate pursuant to s 13(1) Crimes (Domestic and Personal) Violence Act 2007): On 24 December 2019, the applicant was angry at the time it took the complainant to open their car. He shouted, causing fear to the complainant, “Where the fuck were you? I fucking told you to come outside and open the fucking car. You come outside when I tell you to. Are you a fucking bitch? Where the fuck were you?”

   15. (15)

       Episode 15 (count 30, intimidate pursuant to s 13(1) Crimes (Domestic and Personal) Violence Act 2007): In July 2020, the applicant said to the complainant, “If you don’t have a baby [in] two years time, then you’re out”…“Whatever profit I make from the top house, you can get half of that and that’s it. You won’t get another dollar from me, but that’s only if you don’t have a kid in the next two years”.

   16. (16)

       Episode 16 (count 31, common assault pursuant to s 61 Crimes Act 1900; count 32, common assault pursuant to s 61 Crimes Act 1900; count 33, intimidate pursuant to s 13(1) of the Crimes (Domestic and Personal) Violence Act 2007; count 34, common assault pursuant to s 61 Crimes Act 1900): On 29 August 2020, the applicant pushed the complainant with two hands causing her to fall back onto an outdoor bench in the garden (count 31). They then went upstairs and onto a balcony, where the applicant pushed her against an old washing machine (count 32). The applicant told the complainant, “I’m going to put you six feet under”, and “I’m going to throw you off the balcony”. The applicant then shut the door on the complainant so she was half inside and half outside of the house and held his foot on the door so that she could not move (count 34).

4. [7]

   The applicant was sentenced on 17 February 2023 in relation to 10 of the 28 counts, to a total aggregate sentence of 10 years’ imprisonment, with a non-parole period of six years, commencing on 4 October 2022. A two-year conditional release order and a three-year community correction order were imposed in relation to the remainder of those counts, commencing on 17 February 2023.

5. [8]

   The applicant sought leave to appeal on numerous grounds against both his conviction and the aggregate sentence. That appeal was heard by the Court of Criminal Appeal on 3 November 2023 constituted by Ward P, and Rothman and Davies JJ. The Court of Criminal Appeal published its judgment on 15 December 2023, in which it refused leave to appeal against conviction and granted leave for, but dismissed, the sentence appeal.

Legal principles

1. [9]

   Section 78 of the CAR Act permits a convicted person to apply to this Court for an inquiry into a conviction or sentence. Sections 78 and 79 of the CAR Act provide as follows:

2. [10]

   The authorities on these provisions were conveniently summarised by Yehia J in Application by Scott Gibson under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 at [13]:

3. [11]

   The Court’s power to make a referral or direction under s 79(1) is enlivened only if the “gateway” in subsection (2) is “passed”: Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [25] per Basten JA. That is, the Court may only take action under s 79(1) if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances or as to any part of the evidence in the case: s 79(2). The test is “not a demanding one”: GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314 at [137].

4. [12]

   In Sinkovich, Basten JA also noted that the question is whether “it ‘appears’ to the judge that the condition is satisfied”. His Honour found that this may be informed by matters of fact or errors of law. His Honour further stated, with respect to the test in s 79(2) (at [27]):

Grounds

1. [13]

   The application is made on the following grounds:

Ground 1D: Miscarriage of justice arising from the Crown case being undermined where it relied upon the expert evidence which was based on false and misleading information provided by the complainant

1. [14]

   The applicant’s application deals with these four grounds together. It is convenient to take the same course.

2. [15]

   These grounds relate in substantial part to what was said to be misleading evidence provided by the complainant to Professor Hayes, including allegedly that she grew up in a close-knit family where there was no violence, that the applicant controlled her outings and her friendships, that the applicant exerted financial control, and that the applicant used the children to control the complainant including by threatening to take them away.

3. [16]

   The Crown adduced evidence from Professor Hayes as to the cycle of domestic violence, counterintuitive responses to it and the concept of coercive control. The purpose of her evidence was to give evidence based on her expertise as to the behaviour of people who experience domestic violence in terms of timing of complaint, responses to domestic violence that may be perceived as counterintuitive and the nature of coercive control and the way in which coercive control can impact decisions of a victim in such a relationship.

4. [17]

   The Crown did not lead evidence from Professor Hayes before the jury as to the specifics of the applicant’s or complainant’s case. Professor Hayes had in fact examined the complainant; her expert report of 6 May 2022 (which was not placed before the jury) included opinions about the personal circumstances of the complainant, the complainant’s psychological state during her relationship with the applicant, and an examination of the impact on the complainant of the applicant’s behavioural patterns. These opinions were not placed before the jury, but the applicant’s counsel did cross-examine Professor Hayes as to some of the things the complainant is reported to have said to Professor Hayes, no doubt with a view to impugning the complainant’s credit or reliability.

5. [18]

   So far as the complainant’s statements to Professor Hayes affected the opinions Professor Hayes formed about the complainant’s psychological state or the impacts of the applicant’s behaviour on the complainant, that cannot create a doubt or question as to the applicant’s guilt because those opinions were not placed before the jury.

6. [19]

   Contrary to the applicant’s contention before me, Professor Hayes’ opinion was not used to demonstrate to the jury that the complainant was especially vulnerable having not been exposed to violence in her own family. Judge Culver explained to the jury, as soon as Professor Hayes’ evidence had been concluded, that the “general evidence” was put forward to give the jury the tools to assess the evidence of the alleged offences, and also recognised that the defence relied on the evidence of Professor Hayes as relevant to an assessment of the credibility of the complainant. In her Honour’s summing up, she stressed again the purpose for which Professor Hayes’ evidence was and was not to be used, including:

7. [20]

   It was open to the applicant’s counsel to use some of the complainant’s statements to Professor Hayes, as he did, as part of a challenge to the credibility or reliability of the complainant. To that extent, any inconsistency with the evidence before the jury was available to the jury in weighing up the complainant’s evidence. The complainant had herself been cross-examined on alleged inconsistencies between her evidence to the jury and her evidence to Professor Hayes.

8. [21]

   As a forensic matter, one may readily understand why the applicant’s counsel explored some but not all of the allegedly misleading statements made by the complainant to Professor Hayes. Cross-examination of Professor Hayes about what the complainant told her would risk bringing out further evidence from Professor Hayes’ report, which contained much material which would be plainly adverse to the applicant’s case.

9. [22]

   Ultimately, it does not appear to me that anything that the complainant said to Professor Hayes, which was not separately adduced in evidence before the jury, gives rise to a doubt or question as to the applicant’s guilt, any mitigating circumstances or as to any part of the evidence placed before the jury.

10. [23]

    Turning to the specific alleged non-disclosures or misleading disclosures by the complainant, the first is not disclosing to Professor Hayes prior allegations of domestic violence made by the complainant or members of her family against other people. The prosecution did not lead evidence of any opinion from Professor Hayes that might have been based on allegedly misleading statements by the complainant about this matter. The complainant’s own counsel took this up in cross-examination of the complainant and of Professor Hayes, as he was entitled to do as part of a challenge to the complainant’s credibility. The applicant submits that the complainant adapted her evidence in cross-examination in a way that means the jury should have entertained a doubt as to her credibility and reliability. I do not accept that. The differences in the complainant’s evidence before the jury, as compared to what she said to Professor Hayes or to the police, and the complainant’s own cross-examination, are in my view consistent with the complainant telling the truth about the fundamental allegations as to the offending conduct. I am satisfied that it was open to the jury to accept her evidence, and nothing in the material before me causes a doubt or question to appear about that matter.

11. [24]

    I do not accept the applicant’s submission that evidence of allegations of violence made against the complainant’s father and the complainant’s brother-in-law casts any doubt on the reliability of the complainant’s evidence.

12. [25]

    In this application, significant use is sought to be made of messages obtained from a Cellebrite download from an old mobile phone handset used by the complainant for a period. The evidence before me indicates that, when the complainant left the applicant, the applicant retained possession of this handset. He or his legal team retained a digital forensic expert, Mr Navid Sobbi, to download the messages stored on the handset using a Cellebrite universal forensic extraction device.

13. [26]

    It is clear that the applicant, himself or through his legal team, had access to this material from at the latest the date of Mr Sobbi’s report, 19 August 2022 (prior to the commencement of the trial). A number of the text messages obtained were put to the complainant in cross-examination and relied upon by the applicant at trial.

14. [27]

    The applicant says in his affidavit in this Part 7 application that he relied on his solicitor to go through the Cellebrite material, and that he was not personally aware of all of the contents of that material until October 2024. The applicant says that it was only in the context of Family Court proceedings in late 2024, when he had access to a laptop in custody, that he was able to review all of the Cellebrite material.

15. [28]

    That does not explain why the applicant was unable to review all of the Cellebrite material in preparation for his trial in 2022 or in considering or preparing for his appeal to the Court of Criminal Appeal in 2023. The material before me does not indicate that the Cellebrite material was unavailable to the applicant.

16. [29]

    Moreover, the position in which the applicant says he now finds himself reflects a considered forensic decision taken to obtain a tactical advantage. The transcript makes it clear that this issue first emerged during cross-examination of the complainant, and that the Crown had no knowledge of the text messages or the handset prior to that time. Mr Sobbi’s report was not served until 2 September 2022 (after the complainant had been cross-examined for some days). The applicant, in his reply submissions in this Part 7 application, confirms that this was a considered decision to ensure that the complainant did not have notice of these messages before she was cross-examined about them.

17. [30]

    After the report by Mr Sobbi was served, there was a debate about the admissibility of the text messages (the Crown being concerned that the evidence may have been obtained unlawfully and the complainant having expressed concerns about an invasion of privacy). On 19 September 2022, the defence tendered a bundle of text messages obtained from the Cellebrite download. Following argument, Judge Culver admitted the text messages over the Crown’s objection under s 138 of the Evidence Act 1995 (NSW), finding that the applicant’s deployment of the complainant’s old phone to get the messages had been improper, but that particular messages should be admitted under s 138(3) because the desirability of admitting the evidence outweighed the undesirability of doing so. The messages became Exhibit 11 in the defence case.

18. [31]

    Exhibit 11 was the subject of appeal grounds 3, 3A and 4 in the Court of Criminal Appeal proceedings. In the course of rejecting those grounds of appeal, the Court of Criminal Appeal held, among other things, that:

    1. (1)

       the applicant’s counsel had been permitted to cross-examine on text messages that were ultimately admitted, and there must have been a forensic decision not to seek to recall the witnesses once those messages had been admitted: at [292]; and

    2. (2)

       it was clearly a forensic decision of the applicant’s counsel not to forewarn the Crown or the complainant of those messages: at [296].

19. [32]

    Nothing in the material before me suggests that these decisions by the applicant’s counsel were anything other than a rational forensic decision. It is not difficult to see why no application was made to recall the complainant to be cross-examined further. The text messages on which the applicant relies in this Part 7 application are consistent with the complainant being in an abusive relationship subject to coercive control, especially having regard to the evidence of Professor Hayes about the nature of coercive control and about responses to an abusive relationship that might be regarded as counterintuitive. Cross-examining the complainant about those text messages would have provided her with an opportunity to explain the relationship between the applicant’s abuse and those text messages. On all the material before me, that would likely have reinforced the impression that the jury no doubt received that the complainant was in an abusive relationship where she was subject to coercive control.

20. [33]

    The decisions of Lonergan J in Application by Glasby pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 130 at [41] and by McCallum J in Application by Gonzales pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2019] NSWSC 1412 at [73]-[75] make it clear that an applicant may be bound by the forensic decisions of their counsel, especially where there is no basis to infer that the forensic decision was unreasonable. In considering this issue, I am mindful that, as McCallum J recognised in Gonzales at [76], the question is not whether appellate intervention is warranted but whether a doubt or question appears.

21. [34]

    Nevertheless, where a rational forensic decision has been made, a doubt or question does not appear merely because an applicant contends that they might have achieved a better outcome if a different forensic decision had been made. One area where I consider this to be important is in the context of decisions as to cross-examination of a complainant on matters of credit. It will frequently be a forensic judgment how much to explore in cross-examination, especially where particular topics may well backfire and end up giving the jury a more favourable impression of the complainant or a worse impression of the accused. Those forensic judgments may be contestable, in the sense that reasonable minds may differ as to which is the preferable course to take. In that situation, an applicant may well come to believe that if a different decision had been made it might have led to a better outcome, but that is not sufficient to engage s 79. An applicant under Part 7 does not demonstrate a relevant doubt or question merely by pointing to additional lines of cross-examination that could have been pursued but where one can discern a rational forensic reason why they were not.

22. [35]

    My view as to the rational forensic decisions of the applicant’s counsel provides a sufficient answer to the applicant’s contentions that there is additional Cellebrite material which the applicant says would have supported his case or impugned the complainant’s evidence. Nevertheless, for completeness I address the messages on which the applicant relies at various points in these reasons.

23. [36]

    The applicant relies on text messages said to undermine the complainant’s evidence that:

    1. (1)

       the applicant controlled the complainant’s outings;

    2. (2)

       the applicant used the children to control the complainant;

    3. (3)

       the complainant held fears that the applicant would abscond with the children; and

    4. (4)

       the complainant was concerned for the children’s wellbeing.

24. [37]

    The applicant relies on a number of text messages recording the complainant leaving the children with the applicant. The applicant also relies on text messages recording the complainant going out on her own, spending time with her own friends or family, and not telling the applicant about social or family events because the complainant wished to do things without the applicant. In my view, the fact that there were occasions (even many occasions) in which a mother left children with their father while she was in a controlling relationship would be regarded as entirely unsurprising. Similarly, a relationship may readily involve coercive control even if a complainant is allowed some measure of freedom – especially if it is only freedom on the controller’s terms, or freedom which needs to be kept secret from the controller. It is not to the point that a cross-examiner might have been able to use these messages to challenge the complainant. It is easy to see how such a cross-examination might have backfired, and it is therefore easy to see why there was a rational forensic decision not to explore these messages with the complainant. The decision not to do so does not cause a doubt or question to appear for the purposes of s 79 of the CAR Act.

25. [38]

    The same may be said about the applicant’s reliance on text messages or emails said to undermine the complainant’s evidence that the applicant controlled the finances. The text messages record occasions on which the complainant spent money, received the applicant’s permission or consent to spend money, or received gifts from the applicant. The applicant also relies on emails in which he asked or directed the complainant to “pay” or “sort” bills. The applicant contends that these records disclose “ordinary financial arrangements or household budgets between spouses” and a division of financial responsibility. In my assessment, the messages are consistent with a relationship in which the complainant needed the applicant’s permission to spend money. One may readily conceive an abusive relationship, characterised by coercive control, in which the abuser engages in periodic acts of generosity – it may all be consistent with the abuser asserting control over decisions, and with the complainant being given a strict budget (either in general or at particular times in the relationship) within which she had discretion as to spending decisions. Professor Hayes gave evidence that coercive control may be concerned with limiting financial independence. One can readily see why a forensic decision may have been made not to cross-examine the complainant about particular text messages or emails regarding financial matters, as they may only have provided an opportunity for the complainant to give more evidence about the ways in which the applicant controlled the expenditure recorded in those text messages or emails.

26. [39]

    The evidence on which the applicant now seeks to rely about financial matters does not, in my assessment, cause a doubt or question to appear about the applicant’s guilt or any other matter that might warrant the Court’s intervention under s 79(1).

27. [40]

    The applicant further relies on text messages from the Cellebrite material said to record the complainant and her sisters from March 2020 taking steps to preserve messages that put the applicant in a poor light (including screenshots said to be prompted by the complainant in which she provoked the applicant’s own sister to say negative things about him).

28. [41]

    As for the messages between the complainant and her own sisters, it is not at all surprising that they were taking steps to record messages in the context of the complainant being in what they considered to be an abusive relationship. As the Attorney General points out, on the Crown case the complainant had been the victim of violence since 2013. It is not surprising that, in 2020, when the violence was continuing, the complainant wished to ensure there was evidence relevant to her position.

29. [42]

    I do not accept that the messages on which the applicant relies demonstrate that the complainant manipulated the applicant’s sister. They are equally consistent with the applicant’s sister having an independent negative opinion of the applicant. The fact that the applicant’s sister later “sided” with the applicant and said she regarded herself as manipulated by the complainant has limited probative value. It is not surprising, in the context of divorce and family law proceedings, for siblings to come to feel more closely aligned with the spouse to whom they are related. Cross-examining the complainant about these matters may only have served to highlight the negative opinion which family members formed of the applicant prior to the separation.

30. [43]

    These matters do not give rise to any relevant doubt or question.

Ground 2: The jury verdicts are unreasonable and unsupported given the evidence of an independent witness

1. [44]

   The applicant contends that the verdicts are unreasonable and unsupportable in the face of evidence from Ashleigh Dixon, who lived in the same building as the applicant and the complainant in the apartment immediately below them.

2. [45]

   Ms Dixon gave evidence that she could hear things between the two floors, including conversations, and that she saw the applicant and the complainant together five or six times per week. She said she heard raised voices, which she would describe as “marital arguing”, with the complainant’s voice said to be louder than the applicant’s. She said she heard them both swear on occasion but that she did not hear the applicant swear “at” the complainant or the children.

3. [46]

   She described the applicant as “a caring, kind, family oriented … genuine … and generous person”. She said she observed them going out as a family once or twice a weekend, and that the complainant appeared to be going out on her own once a week.

4. [47]

   Cross-examination of Ms Dixon revealed the following:

   1. (1)

      Ms Dixon only lived below the applicant’s family from mid-2017 until August 2020.

   2. (2)

      Ms Dixon worked in agriculture and was required to travel for her job all over Australia. While Ms Dixon said that she travelled less for a period while she was recovering from an injury, she confirmed that during the period she travelled all over Australia and was absent for days at a time. She also said that she sometimes went away with her partner.

   3. (3)

      While Ms Dixon’s bedroom window gave her a view onto the driveway, there were often occasions when the blinds were pulled down so that even when she was in the bedroom she would not be able to see what was happening beyond the window at all times.

   4. (4)

      While Ms Dixon gave evidence in chief that she heard the complainant swearing at the children, she said in cross-examination that there was only one occasion on which she could definitely hear that, and it was in the context of home schooling during COVID lockdown.

5. [48]

   In light of this evidence elicited in cross-examination, the Crown was right to say to the jury that they might think that Ms Dixon’s evidence was of little assistance. Ms Dixon’s impression of the applicant’s character was not necessarily probative of the applicant’s behaviour towards the complainant when they were alone. Ms Dixon’s absence from her apartment on many occasions means her evidence did not tend to disprove the complainant’s allegations. The jury was able to make its own assessment, taking into account Ms Dixon’s evidence, of whether it was satisfied beyond reasonable doubt of the charges. That was properly left to the jury.

6. [49]

   Ms Dixon’s evidence, considered in the context of the evidence as a whole, does not create a doubt or question as to the applicant’s guilt or any other relevant matter under s 79 of the CAR Act. I have also considered Ms Dixon’s evidence in the context of the additional material which the applicant places before the Court on this application. As I explain further below, no relevant doubt or question appears.

Ground 5: The judge erred by excluding the Washington Post screenshot

1. [50]

   The applicant’s application deals with these three grounds together. It is convenient to take the same course.

2. [51]

   The applicant makes submissions about a number of individual counts. They include counts in respect of which the jury returned a verdict of not guilty, but where the applicant says the evidence raises a doubt as to the complainant’s credibility and the applicant’s guilt. The facts for the counts of which the applicant was convicted are summarised at [6] above.

3. [52]

   The Crown case was that the applicant smashed an egg over the complainant’s head and then took a photograph of her. The defence case was that the applicant, in jest, cracked two eggs together above her head and that the contents fell onto her head.

4. [53]

   Having taken a photograph of the complainant with egg in her hair, the applicant emailed it to the complainant. The complainant provided the photograph to the police but did not provide them with the email which attached it. The email was not tendered in chief but was only raised in cross-examination. The complainant was cross-examined about this, with the suggestion that the email made it clear that the incident was in jest.

5. [54]

   The applicant says this is an example of the complainant’s unreliability and involved what the applicant describes as the intentional omission of critical evidence. The evidence does not require that conclusion at all. It was entirely appropriate for this to be assessed by the jury, who were at liberty to believe the complainant’s evidence in some respects while disbelieving it in others (see, eg, R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290).

6. [55]

   No relevant doubt or question emerges from this.

7. [56]

   The Crown led evidence from the complainant’s three sisters, Maree-Antoinete Rachwan, Sueallen Rachwan and Caroline Rachwan to the effect that the complainant called Sueallen after the incident and that all three sisters went round to see the complainant immediately.

8. [57]

   The applicant relies on what he says are inconsistencies and similarities in the sisters’ evidence:

   1. (1)

      While the applicant asserts that Maree-Antoinete gave inconsistent evidence about whether she was in her car or on the street when Sueallen called her, it is clear from the transcript that she gave consistent evidence that she was not in the car when she received the call, but got into the car upon being called.

   2. (2)

      Sueallen gave evidence that she and Caroline travelled to the complainant’s house together and Maree-Antoinete arrived after them, whereas Caroline said she remembered going to the complainant’s home with Maree-Antoinete in her Range Rover. While I recognise that this is an inconsistency, it is the kind of inconsistency that is to be expected with the passage of time. The jury was well-placed to take it into account. It does not give rise to a relevant doubt or question.

   3. (3)

      The applicant also says that since both Caroline and Sueallen described the timing of the event by reference to “sunset”, this suggests prior discussion of their evidence. I do not accept this. The fact that the sisters located the time by reference to whether it was light is entirely understandable. The fact that they had slightly different recollections (“probably just after sunset”, “before sunset”, “a bit dark”) does not suggest that their evidence was unreliable.

9. [58]

   I am not persuaded by any of the applicant’s criticisms in respect of the complainant’s own evidence:

   1. (1)

      The complainant gave evidence about making a detour during the drive that formed part of the incident, but could not remember where they had gone or the reason for the detour – she just remembered being stopped at a particular location (which necessarily implied the detour).

   2. (2)

      Next, the applicant says that although the complainant described her new boots being ripped in the incident, there was a later photograph of the complainant wearing the boots without visible damage. When challenged about this in cross-examination, she said the boots were repaired a few days later although she could not recall where.

   3. (3)

      The applicant also sought to rely on a photograph taken the next day, tendered at trial, said to show the complainant “smiling lovingly” at the applicant.

10. [59]

    None of these matters give rise to a doubt or question. The jury was able to weigh them all up in its assessment. The first two are consistent with human memory, in which some matters are recalled and others are not. The photograph the next day is readily explained when Professor Hayes’ evidence is borne in mind about the way victims may respond to being in an abusive relationship.

11. [60]

    At the time of this incident, police were called by neighbours. The applicant says that the COPS record undermines the complainant’s account. According to the COPS record, both the applicant and the complainant said they had been arguing about money; the complainant said she scratched the applicant after injuring herself by slipping in the shower; and the complainant was offered but declined a “yellow card” (ie, a domestic violence referral card).

12. [61]

    The applicant relies on inconsistencies between this and the complainant’s account, which included that the applicant rammed her head into the wall, causing the laceration to her shoulder, and that at one point he held one hand over her mouth tightly and pinched her nose so that she could not breathe. The complainant also said that one of the officers gave her a card.

13. [62]

    I am not persuaded that there is a material inconsistency between the police recording that a yellow card was offered but declined, and the complainant’s evidence that a police officer gave her a card. It is easy to see how those slightly differing recollections may arise.

14. [63]

    As for the more substantive inconsistencies about how the injuries were caused, the complainant was cross-examined robustly about this. She denied scratching the applicant but said that the applicant told her what to say to the police. It was a matter for the jury whether to accept the complainant’s evidence. If the complainant was in a relationship characterised by abuse and coercive control – as was the Crown case – then the complainant’s statements to police were readily explicable. No relevant doubt or question arises in connection with them.

15. [64]

    The Crown called evidence from Dr Khuu, whom the complainant saw at the Campsie Medical and Dental Centre at 9.40pm on 22 November 2013.

16. [65]

    Dr Khuu was called to give complaint evidence (and the jury was cautioned not to use the evidence for the truth of what the complainant said to Dr Khuu). Dr Khuu said, both on a voir dire and before the jury, that he had no recollection of the event but had typed progress notes recording the complainant saying that her partner had pushed the left side of her head against the wall and tried to suffocate her. Those typed progress notes were tendered and became Exhibit W.

17. [66]

    Dr Khuu was also asked about a handwritten note which it appeared he gave to the complainant at the time of the consultation. When he gave evidence on an initial voir dire over two weeks before his evidence before the jury, he did not recall that handwritten note and said at first that he did not think he wrote it. However, when he gave further evidence on a voir dire on the morning of the day when he gave evidence before the jury, he gave evidence that the handwritten note was in his handwriting. He also referred to another handwritten note, referring to two pillows, which he said he had seen and was not his handwriting. However, it is reasonably clear that he confirmed that the handwritten note he had given to the complainant was (at least in part) in his writing.

18. [67]

    When he gave evidence in chief before the jury, Dr Khuu was not asked by the Crown about this handwritten note. However, the applicant’s counsel raised it in cross-examination before the jury. The handwritten note had been given to the complainant because it had advice about what to do in light of the head injury. When Dr Khuu’s evidence before the jury is read as a whole, it is clear that the note included a record that the left nostril was blocked, and that the advice included that the complainant should sleep on her back with her head up, using two pillows. It is not clear whether Dr Khuu wrote that part of the note, but he confirmed that this was his advice (either that he gave it to the complainant or that it was his practice to give such advice).

19. [68]

    In the course of the cross-examination, there is reference to two pillows and suffocation. The applicant now contends that this would have given the jury the misleading evidence that there was medical evidence of suffocation with pillows. I do not accept that. Reading the cross-examination as a whole, I am satisfied that the jury would have understood that this was not Dr Khuu’s evidence. The fact that there were some potentially confused questions and answers is a consequence of the way the defence counsel posed the questions (including that defence counsel chose to raise this in cross-examination and did not put the handwritten note before the jury). Any potential confusion was cleared up by the time Dr Khuu’s evidence was completed.

20. [69]

    The applicant also complains that no statement had been prepared by Dr Khuu. I see no unfairness in that, in circumstances where his evidence had been led on a voire dire over two weeks before he gave evidence to the jury, and his evidence was that he did not recall anything beyond what appeared in the documentary record.

21. [70]

    The Crown called evidence from the applicant’s younger sister, Rita Harb. Ms Harb’s evidence gave versions of events which conflicted in certain respects with the complainant’s, but the Crown recognised its duty to call Ms Harb as a material witness. The Crown sought and obtained leave to ask questions as though cross-examining her, because she was an unfavourable witness (indeed, the applicant’s counsel accepted that she was an unfavourable witness). In those circumstances, there can be no merit in the applicant’s complaint that the Crown accused her of lying in front of the jury. The Crown had a basis for doing so. There was nothing improper in the Crown’s approach to Ms Harb’s evidence.

22. [71]

    While Ms Harb’s evidence was unfavourable, it included evidence about text messages she sent to the complainant calling the applicant a “girl basher” and saying the complainant should punch him in the teeth. When asked about this, Ms Harb said that was just the way she talked. The applicant now seeks to rely on Cellebrite material that is said to corroborate Ms Harb’s evidence (including messages to the complainant calling the applicant retarded and saying her advice to the applicant was to punch him in the teeth and tell him to grow up). The applicant says this Cellebrite material would have supported Ms Harb’s evidence that this was just the way she talked and would tend to undermine the suggestion that the complainant had suffered a serious assault.

23. [72]

    It is easy to see why a forensic decision would have been made by the applicant’s counsel not to rely on these messages. They tend to reinforce the impression that the complainant was in an abusive relationship with the applicant. No relevant doubt or question arises in respect of them.

24. [73]

    I note further for completeness that Ms Harb’s evidence was the subject of challenge in the Court of Criminal Appeal. In that forum, grounds 1, 1A and 2 of the applicant’s appeal related to text messages exchanged between the complainant and Ms Harb on 23 November 2013, after the incident the subject of counts 9, 10 and 11 (Exhibit C). At trial, the Crown had relied upon Exhibit C as being relevant to Ms Harb’s credibility, in respect of evidence she had given – in the context of counts 9, 10 and 11 – that the complainant had only told Ms Harb that the applicant had “forcefully pushed” her. On appeal, the Court of Criminal Appeal held that the trial judge had not been required to intervene to reject the evidence, nor had there been a miscarriage of justice due to defence counsel’s failure to object to the admission of it: Habambo v R [2023] NSWCCA 328 at [221]-[234].

25. [74]

    The applicant seeks to rely on an email allegedly sent by him to the complainant on 24 November 2013 in which the applicant apologised for “dragging your sisters into this” and said he would never hurt the complainant. The complainant was shown this email in cross-examination but said she could not remember receiving it or reading it. The Crown objected to the tender of this email and it was never admitted. While the applicant says this resulted in a miscarriage of justice, I reject that submission. The applicant elected not to give evidence and accordingly the authenticity of the email was not proved.

26. [75]

    In any event, I have read the email, and I do not accept that it gives rise to the appearance of any relevant doubt or question under s 79 of the CAR Act.

27. [76]

    The applicant relies on other asserted inconsistencies in the evidence of Crown witnesses.

28. [77]

    First, it is said that some of the witnesses who gave complaint evidence used language which the applicant described as “exaggerated and inflammatory”. One friend says she was told that the applicant pushed the complainant so hard that her head “impaled” the wall, which she explained to mean “went through the wall”. One of the complainant’s sisters said she understood the applicant “bashed” the complainant’s head against the wall. Another sister said the applicant “slammed [the complainant’s] head against a wall”. It is not at all surprising that these witnesses would use strong language in their reports of what the complainant told them, or that each witness may have come to visualise the event slightly differently.

29. [78]

    Second, the applicant says there was conflicting evidence about whether family members told her to go to the doctor on the evening of 22 November 2013 (the incident having occurred on the night of 21/22 November 2013 with the police arriving shortly after midnight), or the following day. It would not be at all surprising – and I would not expect the jury to find it surprising – that family members had slightly differing recollections of precisely when they encouraged the complainant to see a doctor. It is clear from Dr Khuu’s records that the complainant in fact saw Dr Khuu on the evening of 22 November 2013.

30. [79]

    Third, the applicant says that the photographs tendered by the Crown – taken by the complainant’s sister Maree-Antoinete later in the day of 22 November 2013 – do not support the complainant’s version of events because there are no injuries on her head or face. This is said to be inconsistent with the evidence that the applicant “slammed” or “bashed” the complainant’s head against the wall. The applicant also relies on police evidence that they would have looked for injuries and recorded them, and that the only injury they recorded was a cut on the applicant’s shoulder. I have addressed above the language used by the complaint witnesses. The fact that there was no physical evidence of an injury to the plaintiff’s head or face is entirely consistent with the applicant having pushed her into the wall with sufficient force to cause the cut to the applicant’s shoulder and contribute to the headache which the complainant reported. No relevant doubt or question appears from consideration of this evidence.

31. [80]

    The complainant gave evidence that she made a note in her phone of what occurred at the time, and a screenshot of this note was tendered as Exhibit D.

32. [81]

    The note on its face is unfinished. The complainant gave evidence that she could not finish the note because the applicant was present and could see her typing on her phone. The applicant now relies on Cellebrite material produced by Mr Sobbi which is said to indicate that the electronic record was only created on 16 November 2015.

33. [82]

    The difficulty for the applicant is that having made the forensic decision not to deploy this material at trial, the applicant has deprived the prosecution of the opportunity to test the record. In fact, examining the record on its face, the relevant electronic record is not the note taken but a .jpg file (ie, an image). It may well be that the screenshot of the note was only taken on 16 November 2015, but that would be entirely consistent with the note itself having been created on the day of the incident. It is clear from the image that the record on which the applicant relies is only part of the text note made by the complainant.

34. [83]

    Furthermore, as the Attorney General submits, a note created one month after the event would still be relatively contemporaneous and reliable – and the passage of time may have affected the complainant’s memory about the precise circumstances in which the note was created. None of this was explored with the complainant because of the forensic decision the applicant made. None of it gives rise to a relevant doubt or question, in the circumstances of the case.

35. [84]

    The applicant also relies on Cellebrite material showing that the complainant and the applicant exchanged texts at 7.35am and 7.42am on the morning of the incident, 12 October 2015. This is said to contradict the complainant’s evidence that they were in bed together that morning before the applicant kicked her in the thighs and made the threat about throwing her from the balcony. Contrary to the applicant’s submission, those texts are consistent with the complainant’s evidence, which did not specify the time in the morning when the assault occurred.

36. [85]

    Having myself reviewed the text messages and the other evidence on which the applicant relies, I do not accept that they give rise to the appearance of any doubt or question under s 79 of the CAR Act.

37. [86]

    The complainant said that after the applicant drove away, she “kept trying to call him”. The applicant seeks to rely on Cellebrite material which records a missed call from the applicant to the complainant at 2.30pm on 26 January 2016 but does not record missed calls from the complainant to the applicant. Having made the forensic decision not to rely on this evidence at trial and not to forewarn the prosecution of the Cellebrite material, the applicant deprived the prosecution of the opportunity to test this evidence. In particular, it is not obvious that the extract produced by the applicant purports to record calls made from the complainant’s mobile phone to the applicant – rather it records a text message to the complainant’s mobile phone of a missed call from the applicant. That does not contradict her version of events.

38. [87]

    The applicant further says that he gave instructions that, on his version of events, he told the complainant that he was going to take their son for a short drive and then called the complainant at 2.30pm to see whether she was ready. The applicant says that this version of events and the additional Cellebrite material was not put to the complainant. As I have indicated, I regard the Cellebrite material as consistent with the complainant’s case, and the fact that it was not put to the complainant reflected a rational forensic decision. The complainant was cross-examined at length about the truthfulness of her evidence. The applicant’s counsel could not sensibly put to the complainant what the applicant said was going through his mind when he called the complainant at 2.30pm. The applicant’s counsel in closing address stressed what the complainant said had an “air of invention”. The jury clearly did not accept the applicant’s counsel’s criticism. No relevant doubt or question appears under s 79 of the CAR Act.

39. [88]

    The applicant relies on text messages said to undermine the complainant’s version of events and support the version which the applicant’s counsel put to the complainant in cross-examination. In particular:

    1. (1)

       The applicant says that text messages being sent from the complainant’s phone from 3.28pm contradicts the complainant’s evidence that the applicant took the complainant’s phone away at one point. I do not accept this – the complainant’s evidence was that the applicant took the complainant’s phone away but then gave it back.

    2. (2)

       The applicant relies on a text sent by the complainant at 5.36pm referring to the applicant “having a shower to go out for dinner with johnny”. Also tendered was a text message from 7.02pm from the applicant’s sister, apparently confirming a 3.00pm start “at George and remys house tomorrow”. This is said to contradict the complainant’s evidence that the applicant forced her to go to his family’s home that evening. The complainant was cross-examined about the earlier of those two text messages and maintained her evidence that they went to the applicant’s family that evening. The text from 7.02pm is consistent with the complainant’s recollection. Furthermore, even if the complainant’s evidence were unreliable as to the day on which she was required to go to the applicant’s family for Easter, it would nevertheless be open to the jury to accept that the applicant was being truthful about the intimidation which comprised count 18 and for which the applicant was convicted.

    3. (3)

       The applicant says that the evidence from the complainant’s mother and sister (that they did not speak to the complainant until at least the next day) was untrue and undermined their credibility. Maree-Antoinete was cross-examined about communicating with the complainant by text on the afternoon of 16 April 2017 and said she did not remember that. I do not see that these text messages materially undermine the complaint evidence given by the complainant’s family members. It would be natural for there to be some lack of clarity in their memories as to precisely when it occurred.

40. [89]

    No doubt or question appears.

41. [90]

    The Crown tendered photographs of the complainant’s neck, which the complainant described as photographs with red marks around her neck where the applicant grabbed her. The applicant’s counsel cross-examined the complainant about this, including putting to her that the photographs do not show anything like bruising or contusions or anything that would be suggestive of being choked for 10 seconds.

42. [91]

    The applicant now says that there was Cellebrite material including a text message exchange on the morning of 30 January 2018 with Maree-Antoinete about having lunch that day, and a text message exchange with Sueallen on the same morning asking about where to buy thin gold choker necklaces, and then sending a photograph of a neck and chest area with thin gold chains (in order to describe the kind of chains the complainant was asking about).

43. [92]

    Dealing first with the text message sent to Sueallen, it is plain from the applicant’s material that his legal team had access to this Cellebrite material. One can readily see why the applicant’s counsel did not wish to tender the text exchange with Sueallen and the photograph – the applicant’s counsel proposed to advance a case that one could not see any bruising or contusions in Exhibit G. Tendering a photograph, potentially taken later that morning, showing an unmarked neck would give the jury two photographs to compare side by side. If anything, that would tend to highlight the redness visible (albeit not obvious or severe) in Exhibit G. I am unable to accept that the decision not to tender (or the failure to tender) the photograph sent to Sueallen could have operated adversely to the applicant.

44. [93]

    As for the text message exchange with Maree-Antoinete, the applicant submits that Maree-Antoinete only gave a statement about this lunch after the Cellebrite material had been brought to light. Plainly, the applicant and his legal team were aware of the text message exchange. There is nothing in the text messages which is inconsistent with the complainant’s evidence or Maree-Antoinete’s corroborative evidence.

45. [94]

    According to the applicant, Maree-Antoinete’s statement addressing this lunch included text messages in which she asked the complainant if she could tell their parents. The applicant says these messages do not corroborate the complainant’s evidence, because they do not say what the applicant is alleged to have done and because, when Maree-Antoinete asked if it was “bad” if she told them, the complainant replied, “It’s not bad but I don’t think it’s necessary to worry them”. None of this would tend to undermine the complainant’s evidence. These text messages do not cause any relevant doubt or question to appear.

46. [95]

    The applicant also says that the Cellebrite indicates that the complainant sent eight photographs but Maree-Antoinete’s statement only included seven, and the applicant says the redness is not visible on the eighth photograph. This does not cause a relevant doubt or question to appear. I have adverted above to the risks for the applicant in adducing additional photographs of the complainant’s neck without the redness. It would tend to undermine the defence which the applicant’s counsel was advancing (and which was a matter permissible to put before the jury), being that the photographs in Exhibit G did not disclose bruising or contusions of the kind one might expect.

47. [96]

    For these reasons, the applicant’s complaint about the competence of his counsel in relation to Exhibit G and these other photographs also fails. The applicant’s counsel wished to advance a case that the photographs in Exhibit G did not disclose the kind of bruises or contusions of the kind one would expect to see. Tendering the other photographs would only tend to highlight the red marks which are visible but not severe in Exhibit G – thereby undermining the defence the applicant’s counsel was trying to advance, an attempt which was understandable even though it did not ultimately cause the jury to entertain a reasonable doubt.

48. [97]

    I also reject the applicant’s suggestion that his counsel failed him by not highlighting the complainant’s evidence that the complainant was holding a tooth-whitening pen when the incident started but also that when the choking commenced she was gasping for air and trying to remove his hands. I do not accept the applicant’s contention that there is anything implausible or inconsistent in those two pieces of evidence.

49. [98]

    No doubt or question appears in relation to the guilty verdict for count 23.

50. [99]

    The applicant raises four matters as giving rise to a doubt or question in relation to these counts:

    1. (1)

       a screenshot of a Washington Post article about strangulation in the context of domestic violence, which the applicant says was taken on 12 July 2019 (ie, two days before the incident);

    2. (2)

       a text message exchange between the applicant and the complainant on 19 June 2019, several weeks before the incident, obviously in jest, about a wife choking to death on her husband’s penis;

    3. (3)

       a text message exchange between the complainant and her mother on 16 July 2019; and

    4. (4)

       a photograph from the Cellebrite download showing the complainant’s face on 16 July 2019, which the applicant says depicts no visible signs of bruising, redness or injury.

51. [100]

    The screenshot is of an article apparently published in The Washington Post about the seriousness of strangulation. It includes: “Strangulation inhabits a category all its own in domestic violence as a marker of lethality. A kick, a punch, a slap, a bite – none of these, though terrible, portend homicide like strangulation does.” According to the applicant’s Cellebrite evidence, the screenshot was taken on 12 July 2019.

52. [101]

    When the applicant’s counsel tendered this screenshot, the Crown objected. During argument on admissibility, the trial judge noted – correctly in my view – that the screenshot may well be prejudicial by highlighting for the jury a link between strangulation and homicide. Her Honour also noted that, on the Crown case, the complainant had already been the victim of choking, which might shed light on why the complainant might save and highlight this article (if that is what she did) on 12 July 2019. After these concerns had been articulated, the applicant’s counsel withdrew the tender of the screenshot. That is a readily understandable forensic decision. To do otherwise risked placing seriously prejudicial material before the jury.

53. [102]

    I would add that on the material the applicant has placed before me, there was also a (somewhat crude) exchange in jest several weeks earlier between the applicant and the complainant about a wife choking to death on her husband’s penis. The complainant had responded with a text indicating laughter. Such a response was entirely consistent with Professor Hayes’ evidence about the varying responses of a victim in an abusive, controlling relationship. Had that material been placed before the jury it may only have served to provide another reason why the risk or threat of choking was at the front of the complainant’s mind three weeks later when she is alleged to have taken a screenshot of the Washington Post article.

54. [103]

    This does not cause any relevant doubt or question to appear.

55. [104]

    The complainant’s text message exchange with her mother on 16 July 2019 is said to undermine the Crown’s reliance on a later text message exchange of 9 December 2019, which was tendered as Exhibit L. In Exhibit L, the complainant said to Ann-Marie that if the complainant ever texted “now” in a message on its own, Ann-Marie should call the police to the complainant’s house.

56. [105]

    The applicant says that the text exchange on 16 July 2019 undermines this because it involved the complainant saying, “like we said if it happens again, babysis will call them straight away”. This is said to be evidence of an “undocumented plan” and that therefore Exhibit L should have been dismissed as an attempt to create corroborating evidence. While the text of 16 July 2019 is consistent with there being a previous discussion or understanding about “babysis” doing something if the applicant were violent again, it is entirely consistent with a concrete plan with a “codeword” being proposed by text message on 9 December 2019.

57. [106]

    Furthermore, it would be understandable or natural, especially in light of Professor Hayes’ evidence, that if the complainant was in an abusive relationship she might vacillate about whether or when to leave. It would also be understandable or natural, if the complainant had been the victim of violence on a number of occasions, that her family might discuss steps to take to protect her, and that this might take multiple different forms over time. None of it causes a doubt or question to appear in my assessment of the evidence as a whole.

58. [107]

    The applicant also suggests that the complainant’s mother, in her text message exchange of 16 July 2019, did not show concern for her welfare or wellbeing because she said, “Fuck him tell him it’s not a game of u want to leave go I don’t care. Ill speak to u later just don’t stress at all ok”. I do not see how that text in any way undermines a mother’s concern for her daughter in an abusive relationship. It is expressing understandable anger at the applicant’s behaviour. It shows a mother recognising the pressures and difficulties, some of which were the subject of evidence from Professor Hayes, that a victim may face if they are in an abusive and controlling relationship. It is readily understandable why the applicant’s counsel did not tender them. They do not cause any doubt or question to appear to my mind.

59. [108]

    The applicant says the Cellebrite material includes a photograph two days after the incident showing an unblemished face. As with the applicant’s complaints about the photographic evidence in respect of incident 12, one can readily see how tendering this photograph may have operated prejudicially to the applicant, by highlighting the visible injuries in the photographs that were in fact tendered, taken shortly after the incident on 14 July 2019.

60. [109]

    Having an unblemished face two days after an assault is entirely consistent with having visible injuries immediately after the assault.

61. [110]

    Far from creating a doubt or question, withholding this evidence from the jury could only have operated in the applicant’s favour.

62. [111]

    I have considered the applicant’s challenges individually. I have also considered them collectively in the context of the evidence as a whole. Having done so, I do not accept that there appears to be a doubt or question as to any of the matters under s 79.

Ground 6: Inadequate police investigation led to miscarriage of justice

1. [112]

   I do not accept that any of the applicant’s complaints about the police investigation led to a miscarriage of justice or cause a relevant doubt or question to appear as to the applicant’s guilt or another matter that falls within s 79 of the CAR Act.

2. [113]

   The applicant’s complaints include the following (with my observations about the complaint in parentheses):

   1. (1)

      investigating police did not interview Ms Dixon who gave evidence favourable to the applicant and did not obtain timestamps for photographs or other electronic evidence provided by the complainant (as to which, the jury had the benefit of Ms Dixon’s evidence and the applicant’s legal team had an opportunity to test the time stamps);

   2. (2)

      investigating police did not contact police officers who had attended the events on 22 November 2013 and 29 August 2020 until Yehia J ordered them to (as to which, the applicant’s own submissions acknowledge that these officers were contacted before the trial);

   3. (3)

      the officer who took the complainant’s original statement on 21, 22 and 23 October 2020 was excused from giving evidence on the basis of a medical certificate indicating PTSD (as to which, it is not uncommon for witnesses to be excused on medical grounds, and it was open to the applicant to make any application he might be advised to make about that);

   4. (4)

      the officer who took carriage of the matter, becoming the officer in charge in April or May 2022, gave evidence about noticing that the file was missing relevant and material witness statements, which that officer attempted to obtain (as to which, it would not be surprising if a new officer taking carriage of the matter formed the view that new evidence should be obtained, and no prejudice to the applicant is shown from the fact that evidence was obtained when it was).

3. [114]

   One of the applicant’s complaints relates to the evidence given by the second officer in charge, Senior Constable Ford, about the applicant’s family. Senior Constable Ford said that he had attempted to contact the applicant’s family members but received information that they had declined to provide a statement. He later received emails saying they were happy to give a statement, and as a result he obtained statements from all but two of them.

4. [115]

   The applicant says that his family members had attempted to contact the police earlier in 2021 or 2022 but were unable to get through, and subsequently prepared statements with the applicant’s lawyers. The applicant says further that Senior Constable Ford accepted in cross-examination that two family members emailed him with the statements they had prepared with the applicant’s lawyers. In relation to one of those two family members, Senior Constable Ford replied that the family member said he was happy to give a statement, but “didn’t provide any information at that point”. The applicant says that in fact the email attached the family member’s statement. Even on the assumption that this is true, I do not accept that this evidence was prejudicial to the applicant. It demonstrated that the family members had prepared statements with the assistance of the applicant’s lawyers, that the current officer in charge had approached them and that at least some of the family members were proactive in wishing to assist. I do not accept that it might have given the impression that the applicant’s family was not cooperating.

5. [116]

   The applicant says further that there are police notes which are said to undermine the complainant’s credibility.

6. [117]

   On 31 August 2020, shortly after the complainant had separated from the applicant, the complainant contacted the police because the applicant had picked up their daughter from daycare at a time when the children were staying with the complainant. According to the COPS report, police informed the complainant that the applicant had the same rights to children as she did and that, when police asked about the welfare of the daughter, the complainant said she did not have concerns but wanted her daughter to stay with her. Police advised her to contact a family lawyer. I do not accept that this indicates that the complainant was lying, indeed it demonstrates that even at a time of stress when she and the applicant were actively fighting, she was honest about not having immediate fears for her daughter’s safety.

7. [118]

   This record comes in the context of a number of COPS reports at around this time of the police being called due to fights between the applicant and the complainant, including over children. The police recorded that the events were the applicant’s word against the complainant’s word, and that police were not in a position to bring charges.

8. [119]

   According to a COPS report dated 10 September 2020, the complainant contacted the police on 7 September 2020 about an earlier COPS report, which police assume she obtained through freedom of information legislation. The complainant disagreed with some aspects of the earlier COPS report. According to the record dated 10 September 2020, the complainant’s “version of events has continued to change based on her emotions and desired outcome”. The report also records that the complainant said that officers had offered to check on her daughter’s wellbeing, but the report says this was incorrect.

9. [120]

   I am unable to accept that any of this is evidence of lying. It is not surprising that the complainant’s recollections and perceptions at a time of heightened emotion may change over time. There is no suggestion that these reports were not available to the applicant’s legal team. It is not difficult to see why the applicant’s lawyers did not deploy them – they include the complainant making allegations about violence or aggression by the applicant. They also record the applicant making good on his alleged threats to impede access to the children.

10. [121]

    None of the police records on which the applicant relies cause a relevant doubt or question to appear.

Ground 7: Prosecutor conduct contributed to a miscarriage of justice

1. [122]

   The principles governing the conduct of Crown prosecutors in a criminal trial are set out in Hughes v R (2015) 93 NSWLR 474 at [265]-[275] per the Court of Appeal. They include that a Crown prosecutor:

   1. (1)

      should never use language calculated to inflame the jury: at [267] and see R v Livermore (2006) 67 NSWLR 659 at [24];

   2. (2)

      is not prohibited from forcefully and firmly putting the prosecution case to the jury (McCullough v R [1982] Tas R 43; (1982) 6 A Crim R 274 at 285; R v Rugari (2001) 122 A Crim R 1; [2021] NSWCCA 64 at [52]) nor from utilising rhetoric (Libke v The Queen (2007) 230 CLR 559 at 560): see [269]; and

   3. (3)

      is entitled to mount a firm attack on the evidence and submissions (with regard to both fact and law), although great care should be taken to ensure that a personal attack is not made on one’s opponent himself or herself, unless there are very sound bases for doing so: see Hughes at [274].

2. [123]

   Comments which belittle or ridicule any part of an accused’s case may justify the censure of the Court: Livermore at [31].

3. [124]

   The conduct of a Crown prosecutor in a criminal trial is capable of leading to a miscarriage of justice: Hughes at [272]. It is necessary to examine exactly what was said or done, and consider it in the context of the entirety of the trial, including any remedial steps taken by the presiding judge: Hughes at [275].

4. [125]

   The applicant raises three issues with the conduct of the Crown:

   1. (1)

      alleged inflammatory or improper comments in front of the jury;

   2. (2)

      alleged misstatements of evidence; and

   3. (3)

      alleged failure to ensure a fair trial and maintain objectivity.

5. [126]

   The applicant’s submissions provide a number of complaints (and I indicate my view about those complaints) as follows:

   1. (1)

      the Crown said to the jury in closing address that “I’m going to turn to the defence case in these proceedings, and I’m going to make submissions to you about why you can disregard it” (which is unexceptionable – the Crown needed to exclude the defence case beyond reasonable doubt);

   2. (2)

      the Crown put to Rita Harb that she was lying in relation to whether she knew that the complainant was no longer living with the applicant at the time of a particular text message (and having read the relevant parts of the transcript I am satisfied that it was open to the Crown to put that proposition, given Ms Harb had given evidence that was inherently implausible on that topic);

   3. (3)

      the Crown relied in its closing address on evidence of Ms Harb’s text messages as corroborative of the complainant’s case but submitted that the jury should reject her oral evidence because it was inconsistent with the text messages (a submission I am satisfied was properly available to the Crown on the evidence);

   4. (4)

      the Crown said to the jury that “the accused family members, perhaps naturally, do not want to see their brother or son get into trouble” but stressed that this did not make their evidence untrue (an entirely proper submission);

   5. (5)

      the Crown addressed the jury on Dr Khuu’s progress notes recording what the complainant said about the applicant having pushed her against a wall and suffocated her, saying “you can rely on these notes, on these progress notes, to reflect the fact that she said those words to the doctor” (as to which, I do not accept the applicant’s contention that the jury should have been told they could only rely on the progress notes to prove that the complainant went to the doctor that day);

   6. (6)

      the Crown submitted that the jury might think Ms Dixon’s evidence was of little assistance, given she acknowledged she was not upstairs and did not see what happened. The applicant says without specifics that the Crown misstated Ms Dixon’s evidence (as to which, I am unable to accept that there was any material misstatement – for the reasons set out above when I deal with Ms Dixon’s evidence, one may readily conclude that her evidence was not likely to be of assistance);

   7. (7)

      the Crown submitted to the jury, in respect of counts 9 to 11, that “[t]here is no reasonable evidentiary basis upon which to assert that the complainant was not telling the truth”. The applicant says this ignores the evidence that the complainant told police that she had attacked the applicant (as to which, I have addressed the evidence above; the Crown was submitting to the jury that it could and should be satisfied beyond reasonable doubt that the complainant’s evidence at trial on this issue was true – a submission that was perfectly proper);

   8. (8)

      the Crown objected to the applicant’s tender of footage of him and his children post-separation, inter alia in reliance on s 7 of the Surveillance Devices Act 2007 (NSW) on the basis that it was unlawfully recorded. The applicant says this was a misapplication of the law because the applicant, as their father, could consent on their behalf thereby engaging the exception in s 7(3)(a) of the Surveillance Devices Act. (I am unable to find that the applicant was able to consent on behalf of his children, even if that is the general operation of s 7(3)(a), a matter on which I need not rule conclusively. The applicant would need to adduce evidence of the parenting arrangements in place, including any orders of the Family Court, before I could conclude that the applicant had the power to consent on behalf of his children. It is unnecessary to investigate this further because the trial judge held that the recording “survives consideration of the Surveillance Devices Act”. The question of the tender of the recording was deferred on the basis that the applicant might be going into evidence and that would be the appropriate context in which to tender it. It does not appear that the applicant’s counsel renewed the tender. Without the applicant being willing to go into evidence it is difficult to see how the applicant could have established the provenance of the recording);

   9. (9)

      the applicant says the Crown ignored or downplayed the various contradictions of the complainant and other Crown witnesses during the trial (a submission which I do not accept, having reviewed all parts of the transcript to which the applicant directed my attention – it would be entirely appropriate for the Crown to submit that inconsistencies are consistent with honest evidence and that the jury is entitled to accept part only of a witness’ testimony);

   10. (10)

       the Crown objected to the applicant’s counsel leading evidence from a former romantic partner of the applicant to the effect that the applicant had never been violent towards her. It is necessary to understand how this arose and how the trial judge and counsel dealt with it. The applicant’s counsel indicated an intention to lead evidence from the former romantic partner as to the applicant’s character. The Crown raised a concern, shared by the trial judge, that evidence could be led as to the applicant’s character under s 110 but that if the evidence went beyond character evidence it would be tendency evidence which required compliance with ss 97 and 100. The applicant’s counsel did not set out to establish that the evidence was admissible as tendency evidence under ss 97 and 100, indeed the applicant’s counsel stressed that the former partner was not being called to give evidence that the applicant had not been violent towards her. The applicant’s counsel expressly consented to the trial judge informing the witness, in the absence of the jury, that she was not asked to give evidence about whether the applicant was or was not violent during their relationship. The trial judge proceeded accordingly. (In light of the acquiescence by the applicant’s counsel in the procedure adopted, and in light of the fact that the applicant had the benefit of the ex-partner’s evidence that her experience of him was that he was “kind, compassionate, caring, loving, very respectful”, I am unable to accept that the position taken by the Crown or the procedure adopted caused or contributed to a miscarriage of justice, or raises any relevant doubt or question as to a relevant matter under s 79);

   11. (11)

       the applicant also says, in relation to the evidence of this ex-partner, that the Crown “was intent on not allowing evidence … to provide insight into the relationship and whether there was violence” (a submission which I reject for the reasons set out in the preceding subparagraph);

   12. (12)

       the Crown cross-examined the ex-partner to establish that although the relationship lasted for 9 months, ten weeks of that time was spent with the applicant and the ex-partner living in different countries, and even when they lived in the same country they only spent five to six weeks living in the same home (as to which, this was a legitimate line of cross-examination, and I do not accept that the Crown inappropriately minimised or downplayed the relationship).

6. [127]

   The applicant complains that the Crown prosecutor put propositions to defence witnesses in cross-examination that were not otherwise in the evidence. I have considered those propositions and cannot accept that they gave rise to any unfairness. They were propositions that may properly be put based on ordinary human experience, even if they were contestable or rejected by the witness (such as having blinds pulled down in a bedroom, or that people in a relationship but living separately sometimes stay with each other), or they were propositions about which it is easy to understand the Crown making an innocent error or assumption (such as the number of windows in an apartment, or whether the applicant and the complainant stayed overnight on a family trip to a farm owned by the parents of one of the applicant’s witnesses). When the applicant’s counsel objected, saying “I don’t know where the Crown is getting the ability to suggest these things”, the trial judge expressed the view that it was “[s]omewhat a matter of logic”. The Crown prosecutor did not press the question. None of this suggests misconduct by the Crown or any want of fairness.

7. [128]

   In addition to these specific complaints, the applicant contends that, “[t]hroughout the trial, the Crown prosecutor was observed rolling her eyes, laughing, and making comments during evidence given by defence witnesses in front of the jury”. The applicant cites certain transcript extracts, which I address below in their full context.

8. [129]

   In Whitehorn v The Queen (1983) 152 CLR 657 at 663 to 664, Deane J said:

9. [130]

   It is important to recall the nature of the Court’s inquiry under Part 7 of the CAR Act. The issue is not whether any of the prosecutor’s conduct warrants the censure of this Court, nor is it whether the prosecutor engaged in conduct that might warrant disciplinary consequences independently of any miscarriage of justice. It would be a stark denial of procedural fairness to conduct any such inquiry without giving the prosecutor an opportunity to be heard.

10. [131]

    The issue is whether, on the material before this Court, a doubt or question appears as to the applicant’s guilt, or as to any mitigating circumstances, or as to any part of the evidence in the case: see s 79(2) of the CAR Act. While it may not be necessary for an applicant to demonstrate affirmatively that there has been a miscarriage of justice, there must appear to be a doubt or question about one of the matters identified in s 79(2).

11. [132]

    In making this assessment, I have considered carefully the exchanges on which the applicant relies, assessed in the context of the transcript and evidence as a whole.

12. [133]

    The applicant’s submissions quote selectively from the exchange between bench and bar about the conduct of counsel and control of their facial expressions. The whole of the relevant sections of the transcript shows a trial judge who was astute to maintain an environment of courtesy and focus, while recognising that in a long trial tensions can arise and counsel on both sides might let their standards slip.

13. [134]

    The exchanges on which the applicant relies commenced on Friday 16 September 2022:

14. [135]

    Plainly, her Honour’s concern was not directed solely or principally towards the prosecutor. Indeed, the prosecutor specifically sought guidance, asking if there was something particularly of concern, and the trial judge said there was not.

15. [136]

    While the applicant’s submissions did not draw attention to this, her Honour had made a remark earlier that day apparently directed towards the applicant’s counsel, Mr Hogan:

16. [137]

    The prosecutor returned to this issue at the end of the same day:

17. [138]

    This exchange occurred on a Friday afternoon. On the following Monday, 19 September 2022, there was a further exchange shortly after midday:

18. [139]

    The incident to which Mr Hogan referred, where he apologised to the Court, had also occurred the previous week. The trial judge admonished Mr Hogan for a lack of courtesy and he apologised. Following a further discussion about the procedural issue at hand, her Honour recognised the weight that rests on the shoulders of defence counsel, and acknowledged that it is easy to say things that are intemperate when tensions are high.

19. [140]

    For completeness, I note a further exchange during closing addresses in which the applicant’s counsel complained about the conduct of the Crown prosecutor, although it is not suggested that the conduct complained of occurred in front of the jury:

20. [141]

    Among other things, this highlights Mr Hogan’s readiness to raise the prosecutor’s conduct with the judge where he was concerned about them – even where, as here, the conduct was not in front of the jury.

21. [142]

    Exchanges of the kind extracted or described above arise from time to time in long trials. While prosecutors should strive at all times to avoid conduct that might justify complaints of the kind raised by the applicant’s counsel, occasionally prosecutors might fall short of the high standard to which they are held. I make no finding that this occurred in the present case – as I have said, to do so would be procedurally unfair. The prosecutor firmly rejected the defence counsel’s allegations, and if they occurred, they were such that the trial judge did not notice them.

22. [143]

    It is plain from the exchanges that the trial judge regarded any lapses in decorum as matters for which she should be vigilant, but also as matters that arise from time to time in long trials. While her Honour recognised some tension at various points, nothing suggests that the conduct or facial expressions in front of the jury may have reached the point of creating a possible miscarriage of justice. This is an issue in respect of which the trial judge has a substantial advantage, being able to assess the mood of the courtroom. Her Honour’s observations clearly demonstrate that her Honour was alive to the possible impact on the jury of counsel conduct.

23. [144]

    Nothing in the material before the Court indicates that this case goes beyond the first situation described by Deane J in Whitehorn in the passage quoted above. Any alleged failure by the Crown to observe the requisite standard, on the evidence before me, was insignificant in the context of the trial as a whole. Any such failure would be regrettable, but nothing in the material before me suggests that it would or might warrant the interference of an appellate court. In those circumstances, no relevant doubt or question appears to me in respect of the applicant’s allegations as to the conduct of the prosecutor during the trial.

Ground 8: Inadequate legal representation

1. [145]

   The applicant’s complaints about his counsel’s non-deployment of some of the material from the Cellebrite download are addressed above. I do not accept that they indicate incompetence or a lack of preparation. I am satisfied that there was a rational, forensic judgment available as to what Cellebrite material to deploy. I do not think there was or might have been a miscarriage of justice through the non-deployment of other material. Moreover, the Court has received and considered the Cellebrite material on which the applicant relies, in the context of considering the application under Part 7 of the CAR Act. As I have indicated, that material does not cause any relevant doubt or question to appear.

2. [146]

   On the subject of the adequacy of the applicant’s counsel’s preparation, the applicant relies on a lengthy text sent to him by the applicant’s counsel on Saturday 20 August 2022 (when the trial was due to commence on Monday 22 August 2022). The text message extracts an exchange between the applicant’s counsel, Mr Hogan, and the applicant’s solicitor, Ms Orsini. The exchange suggests a level of tension between Mr Hogan and Ms Orsini but does not suggest that Mr Hogan regarded himself as unprepared for the trial. The exchange indicates that Mr Hogan had said he was not (yet) ready for the trial on the Thursday, but that does not warrant a conclusion that he was not ready for the trial by the time it began. While Ms Orsini’s messages indicate that she did not think Mr Hogan was ready and wanted a vacation of the hearing date, Mr Hogan clearly communicated that he considered himself to be ready, that a vacation of the hearing date was not warranted and that it may be refused. He noted that it was open to Ms Orsini to withdraw her instructions – if those were the client’s instructions – but that if so, the Court might not grant an adjournment and she might nevertheless be forced to commence the trial herself.

3. [147]

   It is not unusual, in the stressful environment of preparing for a long trial, for conflict to arise between an instructing solicitor and counsel. It also occurs from time to time that there are conflicting views within a legal team about whether or not counsel is ready to start the trial. The exchange recorded in Mr Hogan’s text message is entirely consistent with the kind of conflict or disagreement that may arise from time to time within a legal team. It cannot support a conclusion that there may be a doubt or question as to the fairness of the applicant’s trial.

4. [148]

   The applicant also says that he was given inadequate representation because his counsel did not call him to give evidence. The applicant has placed before this Court text messages he received from his counsel towards the end of the trial indicating counsel’s view that the trial was going well and that he (Mr Hogan) was performing strongly. Those text messages, while they are sometimes light-hearted or crude, indicate that counsel was pleased with his own performance and the performance of his instructing solicitor. They also indicate a belief that the favourable evidence had “landed” with the jury. There is no reason to doubt that Mr Hogan held this view. However, I am unable to accept that they were apt to convey to the applicant that there was no risk of conviction. They included, in one text before the defence case had closed, an observation that, “The closing address is crucial to tie it all up & persuade the Tribunal of Fact to get to verdicts”. This plainly communicated that the defence team was engaged in an exercise of persuasion, and it must have been obvious that it would be a matter of doubt whether the jury would in fact be persuaded.

5. [149]

   The applicant says that, towards the end of the trial, he had a discussion with Mr Hogan and Ms Orsini in which Mr Hogan said the applicant would not need to give evidence. According to the applicant, “I recall [Mr Hogan] saying that we had the trial in the bag because the jury would be able to see through the Complainant and her family’s lies”. Assuming Mr Hogan said this (and I do not have evidence from him or Ms Orsini on the topic), there is every reason to assume that it reflected his honestly-held view. Nevertheless, even on the incomplete information before me, it is clear that Mr Hogan communicated that they were engaged in an exercise of persuasion. There is nothing in the material before me to suggest that the applicant received incompetent or inadequate advice in relation to whether or not he should give evidence.

6. [150]

   In light of all the evidence – including the additional material which the applicant has placed before the Court on this application – it would have been extremely risky for the applicant to expose himself to cross-examination. The applicant may well have ended up with a worse outcome than he did, noting that the jury returned not guilty verdicts for a number of charges. It is impossible to know how the applicant’s cross-examination might have proceeded, but the evidence before me clearly indicates that a considered forensic judgment was made at the time, no doubt informed by the substantial risks that would attend the applicant going into evidence. I am not persuaded that a doubt or question appears as to one of the matters in s 79(2) on the basis that the applicant now believes that this decision contributed to him being convicted.

Ground 9: Fresh evidence of messages with complainant’s mother gives rise to a miscarriage of justice

1. [151]

   According to the applicant, his mother has told him about communications from the complainant’s mother in 2024 upon which the applicant relies in this application.

2. [152]

   The applicant says that the complainant’s mother told the applicant’s mother in September 2024 that she (the complainant’s mother) wishes the applicant was there with the family and children, and that she (the complainant’s mother) knows that the applicant is innocent. The applicant has provided text messages in Arabic (but without translations) which the applicant says record the complainant’s mother saying the applicant is innocent and that she regrets the breakdown of the relationship between the applicant and the complainant.

3. [153]

   The applicant says this stands in contrast to the evidence which the complainant’s mother gave in the Federal Circuit and Family Court in November 2024, which was that she (the complainant’s mother) feels relief knowing that the applicant is in prison and that her daughter and grandchildren are safe. The applicant says he cross-examined the complainant’s mother about the September 2024 text messages and the complainant’s mother began screaming and accusing him of “cheating” on her daughter. The applicant asks the Court to set this evidence alongside evidence the complainant’s mother gave at the trial that she offered to pay the complainant’s expenses to return home to the applicant, and that she tried to facilitate a reconciliation.

4. [154]

   I do not accept that this evidence indicates a relevant doubt or question.

5. [155]

   I find nothing surprising, when two mothers who share grandchildren are communicating, in the complainant’s mother acknowledging or even affirming the applicant’s mother’s belief in her son’s innocence. There may be many entirely understandable reasons for such an exchange.

6. [156]

   The applicant contends that this “demonstrates that [the complainant’s mother] was not concerned about her daughter’s welfare or safety. Rather, she was interested that the two remain together, while at the same time, active in assisting her daughter in retaliating against the Applicant following his decision to leave the relationship”. I do not accept this. The complainant’s mother may have wished for different things at different times. Moreover, there is every reason for the complainant’s mother to be guided, when considering her daughter’s welfare, by her daughter’s wishes. The complainant’s own wishes could be expected to vary or fluctuate over time, not least because she was a victim of abuse in a relationship characterised by coercive control.

7. [157]

   When I assess this new evidence in the context of the whole of the evidence upon which the applicant was convicted, it does not cause a relevant doubt or question to appear.

Conclusion

1. [158]

   In addition to considering the applicant’s nine grounds individually, I have also considered the cumulative impact of all of the matters about which the applicant complains in this application. They do not cause a relevant doubt or question to appear, for the purposes of s 79(2), in my assessment of the case.

2. [159]

   I would add that, having considered all the material, I am not satisfied that there are special facts or special circumstances that justify the taking of further action in relation to the applicant’s conviction or sentence. Accordingly, were it necessary to do so, I would consider s 79(3)(b) engaged. This provides an additional reason for refusing the relief sought by the applicant.

3. [160]

   I dismiss the application.