Le v R

HOEBEN CJ at CL:

The trial concerned alleged violent acts committed against the complainant, S, with whom the applicant was in a domestic relationship between 2016 and 2017.

On 19 November 2019, the jury returned verdicts of not guilty on Count 1 and guilty on Count 2. No verdict was therefore required for Count 3.

On 7 February 2020 the applicant was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 1 year and 9 months, commencing 7 February 2020.

I agree with Adamson J for the reasons given by her that an order should be made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect the complainant’s identity. I have used the same identification of the complainant, i.e. “S”, as Adamson J.

I have had the advantage of reading the judgment of Adamson J on the application for leave to appeal. Regrettably, I have reached a different conclusion to her Honour. My reasons for doing so are as follows.

The complainant and the applicant were in an intimate relationship from about July 2016 to 23 October 2017. The applicant was married when they first met but later separated from his wife. The applicant rented the complainant a unit at Blues Point Tower. The couple effectively lived together for most of their relationship, first at Blues Point Tower and from February 2017 at the applicant’s unit in York Street. The complainant also rented a small room at Ashfield for a period. It was common ground that it was a volatile relationship involving many breakups and reunions. It was also common ground that the couple had serious drug and alcohol problems when they were together.

Count 1 – The first incident was alleged to have occurred in early December 2016 just before the complainant travelled to India. The complainant alleged that the applicant slapped her across the face and body a number of times while they were arguing at home. She said that the assault caused bruising down her face and onto her neck and chest. The complainant had difficulty in giving a coherent account of the incident in cross-examination. At one point, she said:

Defence counsel suggested in cross-examination that the bruising may have occurred in the context of consensual rough sex. The complainant agreed that the couple had consensual rough sex but denied consenting to the infliction of injury. She changed her account in cross-examination when challenged with text messages about rough sex which she had sent to the applicant. The complainant also agreed that she told a friend, Laura Bramble, that she had received bruises from rough sex with the applicant. As indicated above, the applicant was acquitted of that count.

Count 2 – The Crown alleged that the second assault occurred during a lengthy argument on the evening of 10 October 2017 at the York Street apartment. The complainant said that the applicant had consumed cocaine and she had been drinking alcohol and had had a “few lines” of cocaine (T56.10). She said that they argued because she had been talking too much after sex and the applicant hit her hard on the right eye causing a large black eye. While the complainant was on the floor, she said that the applicant kicked or stepped on her left hip causing her immediate excruciating pain. According to the complainant, the applicant came to see her the next day with his friend, Steven Low, and apologised. She said that the applicant showed Mr Low her bruised face and leg. On 24 October, in the early hours of the morning, the complainant called police and said that she had been assaulted by the applicant about two weeks earlier and was scared that she was going to be assaulted again. She showed police a photo on her phone of a bruise on her hip. However, she declined to give a statement. On 30 October, the complainant attended hospital and her femur was found to be fractured. She underwent surgery on 1 November 2017. On 9 November 2017, the complainant made a video recorded statement for the police which was played at trial (MFI 4).

There was no issue that the hip injury amounted to grievous bodily harm. The complainant denied that she had fallen onto a hard surface while drunk. Expert medical evidence was called by the Crown and defence. The expert witnesses agreed that the injury was consistent with the complainant’s account but did not exclude the possibility that the injury was accidental, particularly if the complainant had fallen from stairs while drunk. The Crown also adduced evidence of complaints to various witnesses and context evidence of a series of uncharged acts described as “a cycle of abuse” (Crown closing address 15.11.2019 at 4.43). The defence adduced evidence that the applicant was suffering from a leg infection at the time of the second count and was using crutches during that time.

The Crown case commenced with the complainant and comprised the video recording of her statement, together with oral evidence. The complainant’s aunt, Vanessa, gave complaint evidence, as well as evidence of having assisted the complainant at a number of medical consultations relating to her hip injury.

Laura Bramble (statement read) was a work colleague of the complainant to whom she had made some complaint about the applicant. There was expert medical evidence from Dr Eli Olschewski, a specialist orthopaedic surgeon who treated the complainant in relation to her fractured femur, and Dr Fernando Pisani who had given an expert opinion after reviewing the statement of Dr Olschewski and relevant medical records of the complainant.

There was evidence from the two police officers, who attended on the complainant on 24 October 2017, (when the complainant called “000”. Constable Nair (statement read) detailed a number of statements made by the complainant at the time police attended. Constable Yoo, who was the officer-in-charge of the investigation, gave oral evidence in relation to the initial attendance and the investigation generally.

A statement by the complainant’s father was read. This contained complaint evidence as well as an exchange of various messages with the applicant (Exhibit J).

In the defence case, Professor Duflou, a forensic pathologist, was called in relation to possible causes of the hip fracture.

A statement was read from Hai Le (unrelated), a friend and colleague of the applicant, who gave evidence about the applicant having suffered an injury from an infected tattoo and his use of crutches from August to October 2017. An affidavit from a pharmacist (Jay Koovargee) as to the hire of crutches was read. Notes from the Royal North Shore Hospital were produced which confirmed the applicant’s attendance.

The parties agreed that the following chronology set out the dates of key events.

The applicant seeks leave to appeal against his conviction for Count 2 on a single ground of appeal:

The applicant requires leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) because this ground of appeal involves questions of fact.

The principles applying to a ground of appeal alleging that the verdict of the jury is unreasonable, or cannot be supported having regard to the evidence are well settled: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 ; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and SKA v The Queen (SKA) (2011) 243 CLR 400; [2011] HCA 13.

The relevant principles are conveniently collected in SKA at [11]-[14] as follows:

More recently, those principles were restated in Pell v The Queen [2020] HCA 12. The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) at [38]-[46] said:

Applying those principles to the facts of this case, I have concluded that there are significant inconsistencies, discrepancies and inadequacies in the account of the complainant such that the jury ought to have had a reasonable doubt about the guilt of the applicant.

The Crown case relied on a single witness and accordingly the case turned on her credibility and reliability. For the reasons herein set out, I have concluded that the complainant’s evidence is unreliable. This creates a difficulty for the Crown in meeting the “designedly exacting standard” of the criminal burden of proof (Douglass v The Queen (2012) 86 ALJR 1086; [2012] HCA 34 at [48]). To the extent that there was evidence supporting the complainant’s account, it depended on the reliability of the complainant’s account for its force. For example, the medical evidence and photograph of the bruise on the hip relied upon the complainant’s account of how she received her injury.

Complaint evidence, while not independent of a complainant, can be significant. However, in the present case, such evidence was of limited value. Almost all the complaint accounts occurred after the complaint to police, which was not only delayed but made in circumstances that cast significant doubt over the complainant’s motivations in making the complaint. This was because the alleged genesis of the first complaint, i.e. the need to complain in relation to past violence due to a present fear - was proved false, or, at least, could not be accepted. The complainant’s evidence contained fundamental inconsistencies.

Further, independent evidence that might be expected to exist and would have supported the complainant’s account was not present. For example, Steven Low, who was said to be aware of the assault and to have observed the injuries, did not give evidence. The failure of the Crown to call Mr Low was not explained. To the extent that context evidence was before the court to explain the two week delay in complaint, it was not capable of doing so in the face of the evidence which contradicted the complainant’s asserted imminent fear of the applicant at the time she called the police.

In reaching that conclusion, I have been mindful of the advantage held by the jury in seeing and hearing the evidence, particularly that of the complainant. However, the facts of this case did not preclude me from forming a doubt where the credibility of the complainant was fundamentally undermined.

As was observed by the High Court in Fennell v The Queen [2019] HCA 37 at [81] (Keifel CJ, Keane, Nettle, Gordon and Edelman JJ):

For the reasons set out below, the facts of this case were such that the subjective process of evaluating demeanour did not constitute such an advantage that it was capable of overcoming the objective deficiencies in the account of the complainant.

The first complaint to police was made on 24 October 2017, 14 days after the alleged offence and without the complainant having sought prior medical attention. A central and consistent feature of the complainant’s account was that she called “000” on 24 October because she was in fear of the applicant and scared of his imminent return. When police arrived, the complainant said “we were arguing and he got so angry I thought he was going to bash me up again like last time. I was so scared that he was going to hit me so I called but he just left” (T146.4).

When Constable Yoo asked her “why did you call us here today?”, she said “Because I feel scared. I don’t know what to do” (T149.47). The complainant told Constable Nair on the way to the police station that the applicant had hit her and left her unable to walk four times (T144.7, T147.23). When the complainant’s father collected her from the police station she told him that she was scared that the applicant would assault her that night when he returned home (T143.45). On 31 October, the complainant told an orthopaedic surgeon that she feared she was going to be attacked and ran quickly out of her home (T126.24).

In her recorded interview of 9 November 2017, the complainant said that on the night that she called the police, the applicant went crazy during an argument. The complainant said that he was hitting his head and she thought he was going to assault her (A553-557). She said that she felt terrified and “... I have never felt more concerned for my own safety, even in my whole life” (A554). The complainant said that the applicant left “and then I was in the apartment alone and I thought he’s gunna come back so that’s when I contacted police” (A557-558).

At the trial, the complainant provided more detail. She said:

In cross-examination, the complainant confirmed that she called “000” quickly because she was frightened that the applicant would come back and agreed that she did so to be safe in the apartment:

This account was discredited in cross-examination where the following evidence was given:

Defence counsel adduced contemporaneous text messages (Exhibit 6) which revealed that the complainant was not in fear of the applicant’s return. The reality was that after the applicant left the apartment, the complainant called him repeatedly and sent him messages demanding that he return and became increasingly upset when he did not respond. The texts also made it clear that there was no need for an urgent response by police in that over two hours passed before the “000” call was made.

After unsuccessfully calling the applicant, the complainant sent the following messages:

The complainant then made six unanswered calls to the applicant (between 12:16 and 2:35am) and then sent the following messages:

The complainant made another eight unanswered calls to the applicant up to 2:41am (the approximate time of the “000” call) bringing the total unanswered calls to 14.

The complainant then wrote:

There was another unanswered call (time unknown) followed by further messages:

After another unanswered call (time unknown) the following messages were sent:

Thereafter, the sequence of calls and messages to the applicant’s phone was as follows:

As can be seen, the complainant continued to text and call the applicant after 5:38am and well after the report was made to police. She admitted that she had been drinking heavily on the night of the report (A548, T91.41). She said that she was “quite sober” when the police arrived (A549) but one of the attending police noticed that she appeared affected by alcohol with glassy eyes and slurred speech (T149.43).

After the text messages were adduced, it was put to the complainant that the applicant had turned his phone off after an argument, that this was the first time he had done this and that she was infuriated as a result. She responded “I don’t remember” (T90.20).

When it was put to the complainant that she wanted the applicant to come home, she at first demurred saying that she was stressed, confused and had been drinking (T91.41). Ultimately, she agreed that she wanted the applicant to come home and that he was ignoring her (T92.32). The complainant did not admit to being angry just before the “000” call at 2:45am, but said that the relationship was over and she was distressed (T92.38). In summary, the complainant was not able to reconcile her evidence that she called “000” because she was in fear of the applicant with the text messages sent to him. The complainant only faintly resisted the suggestion that she had lied in her evidence (T89.10).

The detail of the cross-examination was as follows:

The above conclusions are supported by the fundamentally evasive answers by the complainant when the texts were put to her in cross-examination.

The complainant was cross-examined to explain what she meant in her texts.

These responses under cross-examination were at best evasive and at worst false.

The text messages undercut a fundamental feature of the complainant’s account and demonstrate that the complainant had a motive to lie. The texts were a powerful example of a pattern, which emerged in the cross-examination, namely that the complainant would be caught in lies where independent evidence was available to test her account. There were further examples of this pattern to which reference will be made.

The complainant’s evidence was given by playing the recorded interview of 9 November 2017, supplemented by further oral evidence in chief and cross-examination at the trial. An examination of that evidence shows that it was internally inconsistent and confused.

In the recorded interview, the complainant provided an account of being on her knees apparently to show the applicant that she was scared (A427-435). When asked, however, she was unable to describe how or why she came to be lying on her right side (A453). On one version of the complainant’s account (a text to Laura Bramble), she fell to the ground after being punched but that was inconsistent with her account of choosing to be on her knees (T114.30). One of the few consistent features of the complainant’s evidence was that she said she was stepped on once on her left hip while she was lying on her side, something she demonstrated in the interview (A469) and confirmed in cross-examination (T56.4). This was not, however, consistent with what she told the various complaint witnesses. These contradictions were as follows.

The complainant told the police that she “couldn’t walk” for two days (A472). However, the complainant first told police that after the assault she and the applicant went back to bed (A475). When the interviewing police officer queried how they ended up back in bed “after such a massive argument” (Q476) the complainant changed her account and said she had left the apartment and took an Uber to Bondi (A476, 482-483). The complainant also described a conversation with Steven Low and the applicant the next day and twice referred to the discussion taking hours (A493, T24.45). For this account to be true, it was necessary for the complainant to be able to stand and walk for that period of time. The attempt by police to clarify the history failed (A498-501):

In her statement, the complainant said that she was in pain for a week and thought “I had pinched my nerve or something” (A508-510, 608). She attended a chemist and asked for treatment for a pinched nerve (A700). The obvious question raised by these answers is that if the complainant had been violently stomped on and suffered immediate and excruciating pain, which she described as “the worst pain of my life” (T23.34), she was unlikely to consider the source of the pain to have been a pinched nerve.

The allegation was of an assault in which the complainant was first punched to the eye (A399). It was a repeated and central feature of her recorded interview (A358, 399, 412, 414). If supported, the punch and resulting black eye had the potential to be powerful evidence of guilt as such an injury would suggest a violent assault inconsistent with an accident as an explanation for the complainant’s hip injury. Apart from the evidence of the complainant, there was no evidence called to support the presence of such an injury. Moreover, the complainant gave a starkly inconsistent account of the punch in her evidence (and, as outlined below, the punch did not feature at all in most complaint accounts). In the recorded interview, the complainant said she was hit while off the bed and standing up (A401). At the trial, she said she thought she was punched in the eye while still in the bed (T22.9).

As already noted above, despite the complainant’s claim, no evidence was adduced to support a large distinctive bruise to her right eye. While the complainant said that it was a hard punch and that the bruise was “really big” (A358), no family or friend saw it. This included Vanessa who saw the complainant about three to five days after the alleged offence and was with her for several hours. The complainant did not say she took any steps to hide herself or disguise the bruise by using makeup or otherwise. The complainant claimed that Steven Low saw the bruise and black eye the date after they were said to have been inflicted, but he did not give evidence. If anything, the evidence she gave of the close inspection by Steven Low operated to rebut any suggestion that she was able to hide the black eye and that was why it was not commented on.

There was no medical evidence of facial bruising or past facial trauma. There was no complaint of a punch to the face to any of the treating doctors, including Dr Olschewski, that might have prompted a thorough medical examination (T126.14). Significantly, the complainant took several photographs of the bruise on her leg in the days following her injury. In her interview, she said she did this to show the applicant “to say, look what you did” (A530-531). However, the complainant took no such steps in relation to an apparently disfiguring bruise to her face.

The doubt surrounding the black eye is important. It gives rise to a doubt with respect to a central feature of the allegation and takes on added significance given its capacity to delineate between a violent assault (on the complainant’s version) and the possibility that the injury to the hip was occasioned by some other means such as a fall.

At this stage in the analysis of the evidence it should be noted that there is a limit to the allowances that can be made for the complainant, and for the jury’s advantage in seeing and hearing her give her evidence. Put at its highest, acceptance of the Crown case required an assumption that the complainant was doing her best to provide a truthful account but was affected by the passage of time, intoxication, trauma or some combination thereof. However, where the gravamen of an assault involves a punch and a kick, and the complainant cannot recall whether she was punched standing up or lying down, and cannot say with consistency if she was kicked once or repeatedly, the line is crossed where a reasonable jury, acting rationally, could accept the account as reliable. I have concluded that the jury’s advantage of seeing the complainant’s demeanour cannot remedy this level of inadequacy. Evidence such as complaint evidence, which relies on the complainant’s account to others, cannot remedy such deficiencies. Moreover in this case, the complaint evidence only served to further highlight the unreliability of the complainant’s account.

As already set out, the complainant complained to police on 24 October 2017 and said that she was motivated to do so as she was in fear of the applicant returning to the apartment and being further assaulted by him. The evidence of the texts made it clear, however, that the complainant only called the police after she was unsuccessful over a substantial period of time in having the applicant return to the apartment. Contrary to the applicant’s evidence, the overwhelming inference to be drawn from the texts comprising Exhibit 6 was that the complainant was desperate for the applicant to return to the apartment.

At trial, evidence of complaint made to Laura Bramble and the complainant’s father was adduced. Both complaints were made after the report to police and so provided little support for the complainant’s account. Moreover, these complaints were not, as is most commonly the case, confidences made to persons with whom the complainant was close, in the context of a reluctance or inability to bring sensitive subject matter to the attention of the police or other authorities. More particularly, evidence of complaints made after the complainant had already complained to the police were incapable of rebutting the doubt arising from her false account of the circumstances motivating her police report. In addition, it is clear that the complainant’s accounts of what had occurred lacked cogency and consistency.

What is particularly noteworthy is that the complainant’s accounts to the “complaint witnesses” were different to her evidence and different as between each version. Importantly, the complainant did not give any complaint witness the version she gave at trial, namely the infliction of one hard stomp to her left hip. She told Constable Nair, who attended on 24 October, that she was kicked on her right and left sides (T147.28). Vanessa said the complainant told her that the applicant kicked her “repeatedly” (T102.24, 102.49). Vanessa also said the complainant told Dr Olschewksi, in her presence, that the applicant “repeatedly beat down” on top of her hip (T107.29).

In relation to that matter, Dr Olschewski said:

Evidence was also given of complaints made to Steven Low and Vanessa which were said to pre-date the police report. A close analysis of this evidence, however, makes that conclusion doubtful.

The complainant sent a text message to Steven Low on 11 October 2017 which included “... I shouldn’t have even forgiven him for being physically abusive...” (Exhibit D). If this could be properly regarded as a complaint in relation to the charged act, it pre-dated the complaint to the police. However, it was doubtful that this text could be accepted as relating to the charged count. Although at trial, the complainant said that the message referred to the offence of which Mr Low was aware and that the three of them had discussed the injuries which the applicant had inflicted on her, her account is problematic in at least three respects.

First, the complainant changed the date of the alleged offence in order to accommodate the text message in her narrative. In her recorded interview, the complainant said the offence occurred on 11 or 12 October. She appeared to be more certain of the day, Thursday, than the date (A300-302, 320-321). This would place the incident as occurring on 12 October 2017. If the recorded interview account was accurate (and it was recorded shortly after the alleged event) the text of 11 October 2017 could not have been about the charged act.

Secondly, the complaint is, in general terms, in the context of a relationship in which prior physical abuse was alleged and without reference to any particular incident. In addition, the wording of the complaint is such that it suggests a period of time had elapsed during which the complainant had forgiven the applicant and then regretted doing so.

Thirdly, if the complainant were accepted, Steven Low was a critical witness capable of giving evidence devastating to the applicant. The complainant said he was present with the applicant the following day in Bondi, was aware of the assault and saw her injuries and heard the applicant make admissions:

The evidence in the statement was:

It follows from that evidence (if it is correct) that Mr Low was a material witness whom the prosecution would be expected to call. His absence from the trial without explanation is a matter to be taken into account when assessing whether there is a doubt as to the applicant’s guilt (Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1). In the summing up, an appropriate Mahmood direction was given to the jury by the trial judge in respect of Mr Low (SU 27.5).

A further effect of the Crown’s failure to call Mr Low was that his exchange of texts with the complainant were not explained. Given his absence, there is little to be gained by setting out the whole of the texts. A brief selection is sufficient to convey the flavour of what was being said by Mr Low and his concern for both the applicant and the complainant. What does emerge from the responses by Mr Low is that no reference is made to abuse or assault by the applicant. There are, however, repeated references to the complainant hurting herself and the couple’s shared problem with drugs and alcohol.

Relevant texts are:

What can be gained from the text messages sent by Mr Low and which are referred to above is that there is no reference to violence or assaults or “injuries” originating from that source. His focus in the texts is entirely upon the self-harming conduct which he perceived as affecting the applicant and the complainant by virtue of their abuse of alcohol and drugs. Given Mr Low’s obvious concern for the welfare of both the applicant and the complainant, a reasonable inference can be drawn that had he been aware of a pattern of abusive behaviour by the applicant and the serious assault and the quite dramatic manner in which it was inflicted on 10-12 October 2017 it would have been referred to in the text messages exchanged with the complainant the next day. Against that background, it is surprising that the text messages only made reference to other issues between the applicant and the complainant. In those circumstances, I have concluded that it is doubtful that any complaint was made to Mr Low in relation to the allegation the subject of Count 2.

Vanessa was the only witness who claimed to have witnessed a complaint before the police report. However, when the complaint is considered in context, there is a strong inference available that the complaint to her was also made after the report to the police. Counsel for the Crown in this appeal accepted that Vanessa may have conflated information given to her by the complainant.

It was the evidence of Vanessa that on 15 or 17 October, she drove the complainant for about five hours on a trip up the coast (T101.46-T102.12). She said the complainant had trouble getting in and out of the car and told her that David kicked her in the hip and showed her the bruise (T102.31). Vanessa recounted the complainant as saying “David loves me. David kicked me. He didn’t mean to do it. He kicked me repeatedly. He’s helping me out, I’ve been very depressed” (T102.24).

Vanessa said that the complainant said that she was kicked in the hip and showed her the bruise, which was a horrible yellow colour. She described the bruise as “Huge. It took up the entire side of her leg”. (T102.35)

If that evidence is accepted, Vanessa was the only person to whom the complainant confided about the abuse before reporting to the police. However, Vanessa’s account does not contain any of the details that might be expected of such a disclosure to a close family member. In particular, there was no urging of the complainant to go to the police or to leave the relationship (conversations which would be unnecessary if the first complaint was after the police report).

Vanessa’s evidence would have considerably more force if she had received a complaint of a punch to the eye, or if she had observed the visible bruising around the eye, which could be expected five days after the alleged assault (or three days on the complainant’s version of an assault on Thursday 12 October).

Importantly, Vanessa’s account was inconsistent with what the complainant said. At trial, the complainant specifically said that she told Vanessa about the abuse after she went to the police (T26.35). She said that Vanessa was aware of her injury during the coast trip but she did not think she showed the bruise to her and “I said that I had hurt my leg. That’s all I said” (T27.7). Further, the complainant did not tell police in her interview that she had confided in Vanessa. If she had in fact confided in Vanessa, it might be expected that she would nominate to the police the only person to whom she disclosed the abuse before the complaint to the police. This is particularly so when the complainant had referred to Vanessa in her interview but only in the context of Vanessa convincing her to attend hospital (A617). It follows, therefore, that acceptance that there was a complaint made before that to the police, requires a rejection of the complainant’s account on that issue.

In addition, Vanessa’s account does not accord with the independent evidence. She said that a week after the coast trip the complainant contacted her and told her about being kicked and being unable to walk for two days (T102.48). The complainant said that she knew it was the same injury because there were text messages which confirmed the discussion:

It can be reasonably inferred from that communication that there would have been no need for the complainant to tell Vanessa that the applicant kicked her if she had already complained about this.

In cross-examination, Vanessa said at first “I knew about the bruise, but she didn’t speak about the circumstances in which it occurred” (T109.31). This was a telling statement, although Vanessa maintained she was told of an assault and saw the bruise. It is also significant that Vanessa attended Dr Olschewski with the complainant and provided a far more graphic account of the disclosure to Dr Olschewski than he did in his own evidence which, given his role, was likely to be more reliable (see para [65] above and T107.14).

Vanessa was also the only witness who provided evidence supportive of the context incidents. The clear flavour of her evidence was that she was trying to bolster and support her niece’s account. Whatever her motivations, I have a real doubt as to whether any complaint was made to her prior to the complaint to the police. In that regard, the following evidence of Vanessa is instructive:

As submitted by the Crown, the medical evidence was effectively neutral in the context of the issues at trial. At its highest, the evidence established that a fracture could occur in the manner alleged by the complainant and accordingly, her account could not be rejected, at least on that basis, as objectively unlikely or implausible. The evidence did not exclude the alternate hypothesis of the complainant falling on a hard surface while drunk, particularly a fall from or on the stairs.

The treating orthopaedic surgeon, Dr Olschewski, said in chief that any trauma to the hip could cause a hip fracture (T132.42). His evidence in cross-examination that fractured hips in young people were primarily caused by “high energy” falls was based on two studies (T135.45). Earlier, he expressed the caveat that those studies “aren’t great evidence” as they focused on risk factors rather than cause and effect (T134.28). He agreed that an unbroken fall due to intoxication would be higher impact (but “not necessarily” high energy) (T135.22). He also agreed that a fall from stairs would cause the same type of fracture but “... you’d be taking quite a tumble and I think you’d probably injure more than just your hip” (T135.7).

It should be noted that this comment involved a degree of speculation because there was no evidence that a fall would invariably produce other injuries. The comment also failed to take into account the potential for healing in the 21 day lapse between the event and first treatment. In fact, the Crown case assumed healing of the alleged black eye as it was not supported by medical evidence. It follows that injuries without visible signs, such as a sprained wrist, could only be excluded if the complainant’s history to Dr Olschewski was accepted as reliable. Taking the history out of the equation, Dr Olschewski agreed that the injury could be caused by any form of significant blunt force trauma (T136.7).

Dr Pisani was an emergency medicine specialist. He also agreed that falling down a flight of stairs could cause the injury (T141.40). In evidence in chief, Dr Pisani stated that the bruising to the hip indicated blunt force trauma and that blunt force trauma could be caused in a number of ways including a knock against a hard surface or a fall (T140.40). In cross-examination, he agreed that the fractured area (the neck of the femur) was the weakest part of the hip and thus needed a lesser intensity of blunt force to fracture (T141.1-7). He said “ ... falling from a height could cause that, also falling onto that area of the left hip” (T141.30). While he stated “ I wouldn’t expect a hip fracture from a person who’s a young adult with normal bone density falling onto a floor, even a hard floor ...”. Dr Pisani did not, however, exclude the possibility (T142.23). Dr Pisani agreed that the intensity of an injury might increase if a person was intoxicated and that inhibited their ability to break their fall (T142.15).

The defence expert was an experienced forensic pathologist, Professor Duflou. He agreed that intoxication increased the risk of hip fractures in young people “both as a result of falling over while on those substances, and also once you fall over slowed reflexes or incorrectly applied standard reflexes so that you don’t put your arm out while you’re falling” (T171.18). His evidence went further than the Crown witnesses in that it explored the biomechanics of a fall. He stated that a standing fall could generate up to 250-300 joules of energy and a femur required relatively low energy, about 25-30 joules, to fracture (T171.30, T171.49). That evidence was not contested and was available to be preferred by the jury.

His evidence confirmed that a fracture was possible from a standing height. The crux of Professor Duflou’s evidence was that the injury was caused by the application of blunt force trauma but:

It follows that the effect of the medical evidence was that it was essentially neutral and depended upon which version of the facts was accepted.

There was a body of evidence that supported the reasonable possibility that the injury was caused by a fall when the complainant was drunk. It can be distilled as follows:

In relation to the latter point, the complainant’s father and the applicant were exchanging text messages from 11 October (the day after the alleged offence) because the applicant contacted him for help with the complainant’s drinking problem (Exhibit J). In closing address, the Crown told the jury “it was a matter for them what they made of the timing”, perhaps hinting that the applicant was pre-emptively engineering a defence. However, the complainant’s father expressed independent concern about the complainant’s heavy drinking, including how she became so drunk in his presence at a family dinner on 15 October 2017 that she struggled to walk and talk and had become hostile (Exhibit J). It is difficult to conceive why the applicant would try to draw the complainant and her father closer together if he had recently violently assaulted her.

It was common ground that the applicant had suffered an infection in his right leg from an infected tattoo, had developed cellulitis and that it was still affecting him October. There was uncontradicted evidence of the applicant relying on crutches around this time. The injury did not make the offence impossible, but certainly less likely. Records were tendered which showed that the applicant had hired crutches from 19 September to 9 November 2017 (T193, Exhibit 14) and was on leave from work from 2 October to 6 October 2017 (Exhibit 12). Mr Hai Le (no relation) gave evidence of seeing the applicant when he was working from home in the first week of October. He said the applicant’s leg was elevated on the table, he had crutches and was hobbling between the furniture when he had to move (T189.15). On or around 17-19 October 2017, Mr Le saw the applicant at work. He was still using crutches and “hobbling around” (T189.30). On 29 October 2017, Mr Le said the applicant was limping and walking “very gingerly” and still looked like he was in a lot of pain (T190.14). Records from the Royal North Shore Hospital supported the diagnosis of cellulitis.

The complainant’s response to this evidence can only be said to reflect poorly on her credit. She initially denied that the applicant had ever been on crutches or had been limping and struggling to ambulate (T85). This was implausible given the couple’s regular contact during October 2017 and was contradicted by text messages sent to the applicant by the complainant referring to his leg pain, the need for crutches and expressing sympathy for his predicament (Exhibit 9).

The applicant submitted that this was symptomatic of the complainant’s evidence in that she would persist in an account showing the applicant in the possible worst light until confronted with other evidence.

Another example involved drug use. The complainant gave context evidence that the applicant introduced her to MDMA, which she said she did not like (A133-136, T7-8, T11-12), pressured her to take drugs (A129), put MDMA in her wine without her consent (A145) and had always been the one to source drugs for the pair (T42-43). Text messages adduced in cross-examination included messages from her to the applicant expressing enthusiasm for MDMA (T70.45, T71.50), planning to collect drugs before a night out (T72.40) and requesting that the applicant get her drugs (T69.22). The applicant submitted that while these examples might be seen as relatively trivial or benign in isolation, they all amounted to lies, or at least highly unreliable accounts, in the context of a troubling pattern of consistent unreliability in a case that depended on acceptance of the complainant’s honesty and reliability.

I agree with that criticism. The two examples identified, particularly that relating to crutches, gave substance to the submission.

It was not open to the complainant, as she attempted to do, to rely upon lack of memory to explain the discrepancy between her evidence as to what happened between her and the applicant on 24 October 2017 and the content of her text messages to him. She clearly had no difficulty in recounting to police when they attended on 24 October what she said happened that night. She had no difficulty in recounting those matters sixteen days later when she participated in the recorded interview. Those matters would have been fresh in her mind at that time (as would also the fact of the text messages). Her evidence at trial was generally in line with what she had said on those earlier occasions. Yet when cross-examined about the text messages, and the substantial inconsistencies and discrepancies which they created, all she could offer was that the messages did not accord with her memory. As a result, the jury were left with the fact of obvious lies which were otherwise completely unexplained.

The approach of the Crown on the appeal was to eschew an analysis of the whole of the evidence and to offer possible explanations for the discrepancies and difficulties created by the complainant’s evidence. For example, the Crown submitted that a possible explanation for the texts sent on 24 October was that the complainant was subject to confusing and contradictory emotions at the time. Of course, that was not an explanation offered by the complainant. The effect of the Crown’s approach was to assume the applicant’s guilt and then reason towards a scenario consistent with guilt by adjusting the narrative to explain the various discrepancies in the complainant’s evidence. That is the very opposite of the test required by the authorities, i.e. to consider all of the evidence and to decide whether it was open to the jury to find guilt beyond reasonable doubt.

The complainant alleged that she had been subject to months of physical abuse, escalating to weekly attacks where she would be forcibly ejected from the apartment without her possessions and that sometimes her clothes were torn (A197, A207, T44.1).

No independent evidence supported this account and no evidence, medical or otherwise, was adduced to support the complainant’s claim to police that she had been left “unable to walk” by the applicant on four occasions (T144.7, T149.23).

Aspects of the account given in the pre-recorded interview was such as to create an expectation of evidence which would support the complainant’s account. The complainant said that:

Despite the obvious capacity of independent evidence to support these claims, if true, no such evidence was adduced. The absence of such evidence cannot be lightly dismissed, particularly when most could be supported by reference to the complainant’s phone which she had with her and apparently had reference to at the time of the recorded interview (A476, 482-483). The absence of the evidence must be evaluated in the context of the onus of proof. This absence of what should have been readily available evidence, if true, was a further obstacle to the prosecution establishing the case beyond reasonable doubt and provides a basis for entertaining a reasonable doubt (Mahmood at [27]). The applicant submitted that in totality there was more independent evidence supporting the alternative hypothesis of a fall than the applicant’s detailed account of months of prolonged violence.

The applicant submitted that a reasonable jury acting rationally on the whole of the evidence ought to have entertained a doubt as to the guilt of the applicant. He submitted that the foundation of that doubt was introduced by the complainant in her very first dealing with police by falsely claiming that she had sought help because she was in imminent fear of the applicant. Such doubt builds as a result of the inconsistencies in her various accounts and the lack of coherence in central features of her evidence of the event such as her claim to have been punched in the eye resulting in what would have been an obvious injury. I agree with that assessment.

In addition to the inadequacies in the complainant’s account of central features of the event, her account of peripheral events was consistently proved unreliable whether it related to drug use, phone messages or timing. The problems in the Crown case were exacerbated when attention was drawn to the potential independent support which was lacking. There were inconsistencies in the complaint evidence, no evidence from eye witnesses to events or injuries, no evidence from Mr Low and an absence of medical evidence in relation to a bruised eye (an injury that would assist to differentiate between a fall and an assault). The alternate hypothesis, a fall while drunk, is far from fanciful in the light of the complainant’s serious alcohol issues, inability to consistently describe the assault, confusion as to the cause of her pain, the delay in complaint and her apparent anger and resentment towards the applicant when the first complaint was made to police. In totality these doubts cannot be reconciled by the advantage held by the jury and the conviction should be set aside.

It follows from the above that having considered the whole of the evidence, I have concluded that it was not open to the jury to find beyond reasonable doubt that the applicant was guilty of Count 2. I am left with a reasonable doubt as to his guilt. That doubt is reinforced by the unexplained absence of Mr Low. That is a doubt which the jury should have had.

Accordingly, the orders which I propose are:

DAVIES J: I have had the considerable advantage of reading in draft the judgments of Hoeben CJ at CL and Adamson J.

From my reading and examination of the transcripts of evidence given by the witnesses at the trial, the opening and closing addresses and the evidence tendered, I consider that the guilty verdict in relation to count 2 was open to the jury. I agree with the reasons given by Adamson J but I would add the following.

Senior counsel for the applicant said on more than one occasion that this was a single witness case. Whilst that is true to a large extent, it overlooks the significant objective evidence that the single witness, the complainant, sustained a fracture to her femur. Whilst the complainant’s reliability was a consideration for the jury and for this Court, the fact of the fractured femur meant that the evidence of the medical experts as to possible causation of the fracture assumed considerable importance.

I accept that it was suggested in cross-examination to the complainant that the fracture had occurred in other ways, most particularly, by the complainant being involved in a fall, perhaps because of her intoxication with alcohol and/or drugs. She denied any such fall, and there was no other evidence pointing to such an event. The issue was, therefore, whether the Crown had disproved a fall, or any other cause, as a reasonable possible explanation for the fracture.

Although the Crown in its written submissions suggested that the medical evidence was neutral, I do not agree that that is so. Since it is the task of the judges of this Court to make their own independent assessment of the evidence to see whether we have a doubt about the conviction, I do not consider that I am required to accept any concession in that regard.

Much of the medical evidence is summarised in the judgment of Hoeben CJ at CL at [86]-[91]. However, the following extracts from the doctors are important.

Dr Olschewski, the plaintiff’s own surgeon, gave this evidence in chief:

He was cross-examined about other causes of hip fractures in young people. He gave this evidence:

In his judgment at [88], Hoeben CJ at CL said that the highlighted passage in the extract above involved a degree of speculation because there was no evidence that a fall would invariably produce other injuries. With great respect I do not agree. This was an opinion from an orthopaedic specialist who treated the complainant, and was cross-examined by counsel for the applicant as an expert in what might be expected from various forms of trauma including falls. It was well within the doctor’s expertise to express such an opinion, as it was to express an opinion on the likelihood of a fracture in the various scenarios put to him.

The other expert called by the Crown, Dr Pisani gave this evidence in chief:

In cross-examination he gave this evidence:

The evidence of the defendant’s expert doctor, Dr Duflou might properly be described as somewhat neutral in terms of possible causes of the fracture. However, to the extent that it was suggested to him that the complainant’s injuries came from a fall due to being intoxicated, Dr Duflou said:

This evidence tended to support what was contained in the highlighted extract of Dr Olschewski’s evidence.

Dr Duflou also said that it was absolutely not the case that he was suggesting that every young person aged under 50 who fell on their hip would sustain a hip fracture. He said that was an uncommon outcome of a relatively common event.

It was well open to the jury to conclude from all of the medical evidence that there was no reasonable possibility that the fracture to the complainant’s hip came from a fall. Although a number of aspects of the complainant’s evidence can be considered to be unreliable, the medical evidence tended to corroborate the complainant’s denial that she had fallen over or fallen down the stairs.

The case was put to the jury, as well as to the complainant in cross-examination, that the story of the hip injury was done out of vengeance because the applicant had decided to end the relationship. The cross-examination concluded in this way:

In his final address, counsel for the applicant said that the applicant called Triple-0 on 24 October 2017 because she was angry, she wanted to make trouble for the applicant and she was going to blame the hip injury on him.

However, the jury had heard the statement of Constable Nair who was one of the officers who attended on the night of 24 October 2017 when the complainant rang Triple-0. He first spoke to the complainant while she was still in the flat, and she said to Constable Nair:

When Constable Nair met the plaintiff he described her as being quite upset and nervous, she was shaking slightly, the makeup around her eyes had run as if she had been crying. When Constable Nair asked her to describe the applicant she responded:

When they were back at the station, and the complainant showed them the photo of the dark red bruise on her hip, Constable Nair told her she needed to go to the hospital. The complainant responded:

Her reluctance to provide a statement that night was also inconsistent with a desire for vengeance. As with the complainant’s inconsistent reactions to the applicant on the night of 24 October, 2017, and as with the conflicting things the complainant told her aunt on the trip to South West Rocks following the assault, (“She - she said, ‘David loves me. David kicked me. He didn't mean to do it. He kicked me repeatedly. He's helping me out, I've been very depressed.’ Very conflicting things, sorry.”), these matters can be understood to be the product of an abusive relationship where the victim continued to love and/or need the abuser.

It was open to the jury to reject the case the applicant was putting forward to suggest that the complainant had made up the allegation that the applicant had stamped on her hip. A rejection of that case meant that it was open to the jury to reject as a reasonable possibility the notion that the complainant had fractured her femur in a fall or by any other means than an assault on the part of the applicant.

The jury here was told, as all juries are, that they can reject part of a witness’s evidence and accept other parts. It was well open to the jury to reject certain aspects of the complainant’s evidence as unreliable but to accept, particularly in the light of the medical evidence and a rejection of the case put forward by the applicant that the allegation was made up out of a vengeance, to accept that the hip fracture was brought about in the way the complainant said it was.

I do not have a reasonable doubt concerning the applicant’s guilt.

I agree with the orders proposed by Adamson J.

ADAMSON J: On 19 November 2019 David Le (the applicant) was found guilty by a jury of count 2 on the indictment: causing grievous bodily harm to S (the complainant) and was reckless as to causing actual bodily harm to her contrary to s 35(2) of the Crimes Act 1900 (NSW). He was acquitted of count 1. Count 3, which was an alternative to count 2, did not arise. The applicant appeals against the conviction on the sole ground of unreasonableness.

I have read the respective reasons of Hoeben CJ at CL and Davies J in draft. As I disagree with the reasons and conclusion of Hoeben CJ at CL, I propose to set out in some detail the reasons for my view that the applicant should be granted leave to appeal but the appeal should be dismissed. I agree with the additional reasons of Davies J.

The ground makes it necessary to review all the evidence before the jury to determine whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) in Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 said at [39]:

Because of the submissions made by Mr Dhanji SC, who appeared with Ms Edwards on behalf of the applicant in this Court, it is necessary to separate what the complainant said at various times and address other evidence in so far as it was relevant to her credibility. What follows is intended to be sufficient to explain my reasons but does not amount to a summary of all the evidence at the trial, which I confirm that I have read and considered.

The complainant’s evidence in chief included the playing of a video recorded interview with police which had taken place on 9 November 2017, approximately a month after the events the subject of count 2. In the course of the interview she said that she and the applicant had met in July 2016. At that time she was renting a small room at Ashfield. In about September 2016, she effectively moved in with the applicant at his apartment in York Street, although she continued to retain her room at Ashfield. At that time she described herself as being in love with the applicant. The applicant encouraged her to leave her job and bought her a ticket to India to do a program which she had been wanting to do.

In December 2016, about three days before she left for India, she and the applicant had been drinking and had gone to bed when an argument developed. The applicant had a problem with drugs and alcohol which tended to make him aggressive. The applicant hit her on the face and the chest which led to bruising over her whole face that went down to her chest. She believed that, although he hit her, he would not do it again. She defended him to her friends. After the incident, they both went to sleep. The following morning they laughed about what had happened and she told him that it was lucky that she was a make-up artist so that she could cover up the bruises and go to work. She did not seek medical attention for the bruising but showed her friends, Monique and Laura.

As the complainant did not enjoy her time in India, she changed her flight and came home early. The applicant took her to New Zealand for a holiday before Christmas. They did not fight when they were away but on their return, the applicant contacted his dealer to obtain cocaine, which upset the complainant. The applicant reacted aggressively to her criticism. She described him as being explosive and going from yelling at her and telling her that he did not want to be with her to telling her that he loved her.

They argued again on the Easter long weekend because the applicant wanted to take drugs and the complainant did not want to. She said that she would go back to her room at Ashfield for the weekend. On Easter Saturday, he phoned her and told her that she did not have to take drugs. When she came to his flat, the applicant put MDMA in her wine which made her high.

In about July 2017, the applicant took the complainant to Vietnam. She described him as being “really cruel” to her while they were there which she attributed to withdrawal symptoms from drugs which he could not obtain while there. He also assaulted her there. Their relationship continued.

In the first week of October 2017, the complainant was staying at Bondi, house-sitting for a friend, when the applicant phoned on a Thursday to invite her to come to his apartment in the city. She caught public transport and arrived at about 7pm. She had to wait outside for some time before the applicant arrived with his friend, Steve Lowe. They were talking about the applicant’s drug use. Mr Lowe advised him to seek professional help from a psychologist. The three drank together and the applicant took cocaine. The complainant estimated that she had four or five drinks. After Mr Lowe had left, the applicant and the complainant went to bed to have sex. Afterwards, the applicant wanted to sleep but the complainant wanted to talk. He lost his temper and hit the complainant in the eye which caused her to have a black eye. She moved away from the bed and cowered on the floor on her side because she was scared of him and wanted to show him that she was not going to do anything to him. She begged him not to hit her. When asked by police how she ended up on her side, she said:

He then “stepped on, kicked [her] in the hip”. She was worried that he was going to kick her down the stairs. She said that he “kicked me sort of with the bottom of his foot”, “like stood on me” and that it was “very painful” and she “could not walk for two days after it.” She thought that he had kicked her “once”. That night she went back to the house at Bondi and went to bed. In the morning the applicant came to the house because he was worried about her. Later that day, Mr Lowe visited them in Bondi. The complainant told police:

That night they fought again and she told the applicant that she did not want to sleep in the same bed. At about midnight, he left the house at Bondi. The complainant found it very painful to walk. When a large, dark bruise came up on her hip the following day she took a photo of it with her phone so that she could show the applicant what he had done to her. The photo was tendered. The complainant described their relationship to police as follows:

When she saw the applicant again she told him that she needed to go to hospital but he convinced her not to go. He told her that he had spoken to someone at work who had told him that if she sought medical attention he would lose access to his child, from whose mother he had separated some time previously. Her plan had been to go to St Vincent’s Clinic but not reveal how she had sustained the injury. He dissuaded her from going by telling her that even if she did not disclose how she sustained the injury, “they will just know”.

The pain did not ease. She guessed that the impact might have caused her to suffer a pinched nerve which she would be able to “walk out”. After she had finished house-sitting in Bondi, the complainant returned to the applicant’s apartment in the city. One night when she was with the applicant at his apartment, he said “inappropriate” things to her which upset her. He had taken drugs and she had been drinking. They argued and the applicant lost his temper. She saw him hitting his head and recognised the “pattern of him when he’s losing his temper, when he’s gunna go crazy and he’s gunna do something”. She became terrified that he was going to hurt her. He left the apartment and she contacted Triple-0. She was put through to the ambulance service and was then transferred to the police. She went downstairs and met the police, who took her to the police station.

The morning after she had gone to the police station, she found it difficult to walk because she was still in so much pain. She was still hoping that it would get better if she walked on it. On the Friday she phoned her aunt, Vanessa Stacey, who told her that she needed to go to the hospital. As a result, the complainant went to Royal Prince Alfred Hospital and told the doctors in the emergency department about the injury. She had an X-ray which did not reveal an injury.

The next day, her father Patrick brought her some crutches for the weekend. On the following Monday, she obtained a referral from Dr Lilian Popovic, a general practitioner in Penrith, for an MRI scan from Nepean Radiology. Ultimately she was informed that she had fractured her hip and needed a hip replacement. She was devastated by the diagnosis. Her reaction to learning of the need for surgery was as follows:

The complainant confirmed that the hip surgery was performed in early November, about 8 days before she engaged in the recorded interview with police on 9 November 2017. She agreed that the CT scan was taken on 30 October 2017. She also agreed that she had made two further statements to police, the substance of which was elicited in examination in chief which is summarised below.

In March 2016 the complainant was 23 and working as a sex worker (she had not disclosed this occupation when making the statement to police in November 2017). The applicant was one of her clients. She saw him twice before going overseas to Europe in April 2016, once when he was her client and the second time because they had arranged to meet. He expressed affection for her. They emailed each other while she was away. By the time she got home she felt “very strongly” towards him. Some time after her return the applicant offered her a flat in Blues Point Tower. She moved into the flat in late July or early August 2016. They would take cocaine and MDMA together at the applicant’s instigation. The complainant had not taken drugs before.

After the applicant had hit her shortly before she left for India she felt defensive towards him because she was in love with him and saw him as her partner. She did not want to lose him. She said that when Laura noticed the bruising she just brushed it off.

In about February 2017, the applicant moved into an apartment in York Street. The complainant took her belongings to a “very cheap room in Ashfield” where she occasionally slept the night.

The complainant was asked about the occasion when the applicant and Mr Lowe were with her in October 2017 and they had spoken about the applicant’s mental health and drug issues. She said that Mr Lowe had left at about 10pm. The applicant said that she thought that she and the applicant were in bed when he punched her in the right eye. The following exchange occurred in the interview:

She said that she moved out of the bed closer to the stairs that led to the downstairs part of the unit. She was certain that she did not, at that stage, have any injury other than the one to her eye. When the applicant’s foot hit her left hip, she felt the “worst pain” that she had ever felt. She confirmed that she had gone back to bed but that during the night she had taken an Uber back to Bondi, where she was staying.

The applicant visited the complainant at Bondi the following morning at 6am. Later in the day, he returned, holding a bottle of vodka in his arms, with Mr Lowe to show him what he had done to her. Initially she objected to showing the bruise but ultimately she lifted her skirt to show them the bruise. Mr Lowe was the first to leave. After the applicant left, the complainant and Mr Lowe exchanged text messages.

The complainant was shown the text messages (which became Exhibit D). The first was sent by the complainant to Mr Lowe on 11 October 2017 at 10.39pm and said in part:

The complainant confirmed that the abuse she was referring to was related to the incident. Mr Lowe responded by suggesting that they both needed to “come off the coke”.

The complainant gave evidence that she contacted her aunt to let her know that her leg was hurting. She recalled that they had gone down the coast “the following weekend” and that they stayed overnight and returned the following day. Although she told her aunt that she had hurt her leg, she did not show her the bruise or tell her how she had hurt her leg.

The complainant said that, subsequently, on 22 or 23 October 2017 she had contacted police because the applicant was becoming “very, very aggressive” and “hit his head on the wall”. She said that she was very scared and asked him to go and buy her a packet of cigarettes and while he was out, she called Triple-0. The police came to the unit and she went with them to the station. Her father collected her from the police station and collected her things from the apartment in York Street. The complainant returned to Ashfield.

Subsequently, on a Friday, the complainant told her aunt that the pain in her leg was getting worse and that she needed to go to the doctor. Her aunt insisted that she go to the hospital. A CT scan taken on 30 October 2017 detected the fracture.

Mr Dennis SC, the applicant’s trial counsel, put the case to her in cross-examination in the following exchange:

The complainant agreed that she was not sober at the time of the alleged incident and that she had taken a few lines of coke and five or six drinks (of alcohol).

When she was asked about the request she made of the applicant on the night she first contacted police, she said that she convinced him to leave the apartment to get some cigarettes for her. The following exchange occurred:

Mr Dennis put to her that she wanted the applicant to return to the apartment after he had gone out for cigarettes, which she denied. He returned to that topic later in the cross-examination and put to her various text messages which she had sent to the applicant in the early hours of 24 October 2017. The complainant sent a text message to the applicant before 12.16am:

She added, “19 from now”, which she accepted was a typographical error and that she had meant to say “10 from now”. The exhibit recorded that she made six unanswered calls to the applicant’s phone before sending him further text messages after 2.35pm as follows:

The exhibit recorded that she made eight further unanswered calls to the applicant before texting:

The exhibit recorded that she made another unanswered call to the applicant before sending two more texts:

Further texts and calls were made during the night by the complainant to the applicant.

Mr Dennis directed her attention to this evidence before the following exchange:

Mr Dennis also challenged the complainant’s credibility in terms of her capacity to recollect matters. He asked her about the applicant getting a tattoo in 2017 which became infected and required him to go to hospital because his leg was hurting. The following exchange ensued:

The complainant’s aunt gave evidence that the complainant had been in touch with her in October 2017 when she was coming to Sydney. She said that they went away together to Kempsey in the South West Rocks area. The complainant’s aunt collected the complainant in her car and they drove north. During the five-hour drive north, the complainant told her that the applicant had kicked her. Her evidence was as follows:

Laura’s statement was read without objection. She was not required for cross-examination. The statement included the following:

The statement of the complainant’s father was read without objection. He was not required for cross-examination. The statement included the following:

The statement of Constable Haresh Nair was read without objection. He was not required for cross-examination. The statement included the following:

Senior Constable Yoo gave oral evidence and was cross-examined. He read from his statement, which included the following:

Dr Olschewski, an orthopaedic surgeon, diagnosed the complainant as having sustained a left femoral neck fracture which required a hip replacement. He said that it was very uncommon for someone of the complainant’s age, 23, to have a hip replacement. When it was put to him in cross-examination that the complainant could have sustained the injury in a fall, he said that “a higher energy injury [would be required] to cause that type of fracture, rather than simply a ... fall.” He explained that when a young person falls, the healthy muscle around the bone dissipates the force and prevents it from being transmitted to the bone. Dr Olschewski’s evidence was summed up in the following exchange in cross-examination:

Dr Pisani, a surgeon and forensic pathologist, gave evidence as to causation as follows:

In cross-examination, Dr Pisani confirmed that the history of being kicked or stomped or having blunt force trauma directed to that area of the body could result in such injuries. He said, of the level of force required:

He accepted that falling from a height, such as falling down a flight of stairs or falling from a ladder could cause such a fracture. He did not agree that the ingestion of illicit drugs would necessarily cause loss of bone density and therefore should not increase the risk of “easy fractures”. Mr Dennis put to him the defence case in the following exchange:

The agreed facts included that the complainant had been in India from 9-17 December 2016 and in New Zealand from 21-24 December 2016 and again between 11 and 13 January 2017. They also included that the applicant was there from 20-24 December 2016 and again between 11 and 13 January 2017. They were both in Vietnam from 24 July until 5 August 2017.

The Crown also tendered text messages which had been provided by the complainant’s father (and were marked Exhibit J). As these were tendered after the complainant’s evidence had been finished, she was not cross-examined about them. They comprise text messages between the complainant’s father and the applicant which include the following texts sent on Saturday 14 October 2017 (a few days after the alleged incident):

There is mention in the texts of the complainant’s “drinking issues”. Ultimately, they arranged to meet on the evening of Sunday 15 October 2017 at the York Street apartment. On the following day, the complainant’s father sent the applicant a text which said:

The applicant called expert evidence from Dr Duflou, a forensic pathologist. He accepted that he could not exclude the possibility that the injury sustained by the complainant was the result of being stomped on the hip or that it was the result of a fall.

The applicant called evidence of Hai Le, who was not a relation but a friend. He said that on 5 October 2017, the applicant was working from home because he had an infection on his leg. The applicant was moving with the assistance of crutches at the time. On around 17 or 18 October 2017, the applicant came to the office on crutches to attend to an internet security threat. By the end of October 2017, the applicant was still using crutches and when he walked without them he was limping. In cross-examination, Mr Le confirmed that he could not recall whether the applicant was using crutches at the end of October 2017 but that the crutches were in the car. He said that the infected tattoo did not affect the sole of the applicant’s foot.

The defence tendered text messages between the applicant and the complainant about his leg from 18 September 2017 until 28 September 2017.

The defence also tendered the applicant’s sick leave applications for 25 to 29 September 2017 and 2 to 6 October 2017.

The defence tendered hospital records which showed that the applicant was admitted to, and discharged from, Royal North Shore Hospital on 22 September 2017, following an infection after a tattoo which had been performed six days previously. An affidavit of Jay Koovargee, a pharmacist, was read without objection. He was not required for cross-examination. The hire agreement for crutches was tendered. Mr Koovargee deposed that the crutches were rented on 19 September 2017 and returned on 8 November 2017.

Mr Dhanji submitted that the Crown case was, in substance, a single witness case which depended on the reliability of the complainant. He contended that there were three matters which, taken together, established that the verdict was unreasonable: the complainant’s account of the event; the circumstances surrounding her bringing the matter to the attention of police; and the absence of any supporting evidence. It is convenient to address these three matters in turn, while accepting that, consistent with the authorities, a global approach is to be taken to the evidence in the trial.

Mr Dhanji made much of the circumstance that the complainant described a black eye having been inflicted shortly before the applicant had stomped or kicked her hip. He contended that it was curious that no one gave evidence to support the proposition that she had sustained a black eye at about that time, although she was seen by others in the period following the incident. He submitted that, if she had a black eye, it could be expected to have been seen by the complainant’s aunt, when they went away either the following weekend or the weekend afterwards. He also submitted that, if he had actually given her a black eye, she could have been expected to photograph that as well as the bruise on her hip. Mr Dhanji also submitted that it ought not be inferred from her evidence that she was a make-up artist that she covered up the black eye which she alleged had been inflicted on 10 October 2017 since she did not give evidence that she had used make-up to conceal it.

He argued that the evidence that she had been given a black eye was unreliable and indicated that the complainant’s evidence at trial about the event generally, including the evidence about the alleged injury to her hip, was insufficiently credible to prove the Crown case beyond reasonable doubt.

Mr Dhanji also pointed to inconsistencies between the complainant’s accounts of how she had been injured. He referred to her version to police on 9 November 2017 in the recorded interview that he had punched her in the eye and kicked her (implicitly once) and compared it with the version she had given on 24 October 2017 to Constable Nair that he was “kicking her” on her left side just below her hip and on her right side. I pointed out that Ms Stacey’s evidence was that the complainant had told her that the applicant had kicked her repeatedly. He contended that the differences in these versions revealed significant reconstruction.

Mr Dhanji also relied on the complainant’s incorrect self-diagnosis that she had a pinched nerve and contended that this was inconsistent with the complainant having been injured in the way she had described in her evidence.

Further, he relied on the text messages about the proposed dinner on the evening of Sunday 15 October 2017 as being inconsistent with the alleged attack. Mr Dhanji asked rhetorically why the applicant would have instigated an invitation to the complainant’s family if he had actually attacked her and she was still obviously struggling from the injury and had, as the complainant’s evidence indicated, a black eye which could be expected still to be visible.

Mr Dhanji submitted that, given these inconsistencies, the complainant’s evidence was unreliable and that, as the verdict was based on her evidence, the verdict was unreasonable.

Mr Dhanji relied on the apparent inconsistencies between, on the one hand, the version which the complainant gave to police on 24 October 2017, that she was scared of the applicant and thought that he might attack her, and, on the other, the contemporaneous text messages which she had sent to the applicant and the unanswered calls she had made to him before calling Triple-0 and immediately thereafter which indicated that she wanted him to come back to the apartment. He submitted that it would appear from her texts and phone calls that she actually wanted him to return and called Triple-0 when he did not respond, not out of fear but out of another motive. He contended that this could not be put down to faulty recollection because the police officers were told of what had occurred immediately before she called Triple-0 as soon as they arrived at the unit. Mr Dhanji submitted that this amounted to “clear dishonesty” and “significant artifice” as to the genesis of the complaint.

Mr Dhanji submitted that it was not for this Court to theorise about what had motivated her to tell untruths to the police (revenge and a desire to manipulate the applicant being two of the available possibilities), since the crucial matter was the level of dishonesty which surrounded her complaint to the police.

Mr Dhanji submitted that while complaint evidence can be corroborative, complaints made after she had gone to police did not serve to corroborate her account. He contended that one could understand a reluctance to tell authorities of a matter which one was prepared to tell a close friend but that if the disclosures to close friends occurred after complaints to police, this did not support the complainant. He submitted that the only complaints before she had called the police were made to her aunt and to Mr Lowe and that the communication to Mr Lowe had not been shown to be related to the event.

Mr Dhanji submitted that the Crown had failed, on the medical evidence, to exclude as a reasonable possibility that the complainant had fractured her hip by falling on the floor. He also relied on the inherent unlikelihood of the applicant being able to kick the complainant on 10 October 2017, given his indisposition as a result of the tattoo infection, which had caused him to need crutches.

Mr Dhanji also relied on the absence of any evidence from Mr Lowe and submitted that his unexplained absence fortified the unreasonable verdict ground.

The starting point is to be found in the directions which are required to be given to juries. Trial judges direct juries that they can accept part of what a witness says and reject another part. Other than this direction and directions required when witnesses are thought to belong to a category of witnesses that might be unreliable, directions are not given to juries about the assessment of the credibility of witnesses. The reason for this is that it is a fundamental foundation of the jury system that jurors know how to assess credibility, this being pre-eminently a matter for a tribunal of fact.

These principles form part of the rationale for the test for an unreasonable verdict which I set out at the outset. In The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court (French CJ, Kiefel, Bell, Keane and Gordon JJ) said:

Another important principle, which is reflected in directions given to juries, is that the jury does not need to be satisfied of every fact in the Crown case. It is sufficient that the jury is satisfied of each element of the offence beyond reasonable doubt to return a verdict of guilty.

The question is whether it was open to a reasonable jury, properly directed, to find that the Crown had established its case beyond reasonable doubt. In the present case, this required the jury to be satisfied that the applicant had stomped or kicked the complainant in the left hip and that this was what caused her hip to fracture.

It is important to note that the question is not whether the members of this Court believe the complainant on the material facts which go to proof of the elements of the offence. Nor is it appropriate for this Court to ask, in relation to each piece of evidence which is said to be inconsistent with the complainant’s account, whether it was nonetheless reasonably possible that the account was true: Pell v The Queen at [46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

It is useful to consider the complainant’s evidence against the following chronology, which has been established by the evidence summarised above. In March 2016, the complainant met the applicant in the course of her work as a sex worker. She was then aged about 22 and he was 39 years old. Shortly after meeting him, she travelled to Europe. While she was away, she and the applicant communicated in such a way which led the complainant to feel very strongly towards him. In about July or August 2016, the applicant paid the rent for an apartment for her to live in in Blues Point Tower. The applicant also paid for the complainant to go to India to do a course which interested her. Shortly before she left for India on 9 December 2016, he slapped her. She was away in India for just over a week and cut short her trip because it did not meet her expectations. On her return, she joined the applicant in New Zealand. They arrived back in Sydney on Christmas Eve 2016. From February or March 2017, the complainant usually lived with the applicant in his apartment in a building in York Street, Sydney, although she retained the room in Ashfield where her belongings were stored and where she occasionally slept.

The incident the subject of the charge occurred on 10 October 2017. On that night, the complainant sustained an undisplaced fracture to her left hip which caused her terrible pain. At the time, she did not appreciate the seriousness of the injury, from which she expected to recover within a relatively short period. She believed, mistakenly, that walking, though painful, would help her recovery.

After the incident, the complainant returned to the house in Bondi which she was house-sitting at the time. On the following day, 11 October 2017, the applicant visited her, both alone, in the early morning and, later that day, in the company of Mr Lowe, who was shown the bruise on her left hip. The complainant communicated with Mr Lowe by text after that meeting about the applicant’s conduct towards her. She expressed conflicting sentiments: disapproval of the applicant’s conduct as well as loyalty and concern for him.

Either that weekend (15-16 October 2017) or the following weekend (22-23 October 2017), the complainant and her aunt drove to South West Rocks, on the north coast of NSW. In the course of this trip, the complainant told her aunt that the applicant had kicked her and that her hip was very sore. She maintained that he still loved her. She continued to have trouble walking.

On Sunday 16 October 2017, the applicant and the complainant had dinner with the complainant’s father and brother. The applicant purported to be very concerned about the complainant’s drinking. The complainant drank to excess that evening. She exhibited difficulty in walking and talking. Her father and brother may have considered the former to have been solely caused by the alcohol as they were unaware that she had sustained a serious injury on 10 October 2017.

On 24 October 2017, the applicant and the complainant argued. The applicant went out, leaving the complainant inside the apartment. The complainant rang and texted him several times to persuade him to return. When no response was forthcoming, the complainant called Triple-0 and told the police that she was scared and would meet them downstairs. Police arrived but she refused to provide details of the applicant to them because she did not want to get him into trouble. They took her to the police station where she described the applicant kicking her and injuring her hip. She was not, however, prepared to make a statement or participate in a recorded interview. Her father came to the station to collect her and take her back to her room in Ashfield.

The pain in the complainant’s hip got worse. Her attempts to “walk it out” did not ease the pain. Ultimately, on 27 October 2017, the complainant called her aunt who took her to hospital where an undisplaced hip fracture was diagnosed. The complainant was told that she had to have a hip replacement, which was performed on 1 November 2017. On 9 November 2017, after she had been discharged from hospital, the complainant returned to police and gave a recorded statement, which was tendered as part of her evidence in chief.

The present is not a case like Pell v The Queen, where several objective facts and other uncontroverted evidence made it extremely unlikely that the sexual assaults had been committed in the way the complainant recalled. In the present case, the complainant herself was the source of most inconsistencies. As the jury saw and heard her recorded interview and her oral evidence, it was in a superior position to assess the complainant’s evidence and credibility. Its verdict indicated that the jury found her both credible and reliable as to the elements of count 2.

Thus, it was, for example, for the jury to determine whether the applicant’s conduct in proposing dinner with the complainant’s family on the evening of Sunday 15 October 2017 was inconsistent with that of a man who had just assaulted the complainant and caused her serious injury which, to his knowledge, had resulted in at least a substantial bruise on her hip and in her having difficulty walking. One might postulate, as Mr Dhanji did in argument, that it would be odd for a man who had assaulted his partner to want to expose her to the gaze of her family soon after the event when the effects of the injury would still have been obvious. On the other hand, a jury might regard it as consistent with their plainly abusive relationship that the applicant would oscillate between drug-fuelled violence and affectionate, inclusive gestures to perpetuate the complainant’s emotional dependency on him and her compliance with the dictates of their relationship. The jury might have regarded the applicant’s conduct in expressing concern about the complainant’s welfare, including her consumption of alcohol, as a smoke screen to assuage her family’s concerns.

It was also for the jury to determine whether it considered that the black eye said to have been inflicted in the course of the same incident was a blow to the head which did not result in any particularly marked bruise or whether it considered that the complainant had made it up to dramatise the relevant injury, being the one to her left hip.

The jury would presumably have considered, in the course of its deliberations, whether the apparent inconsistency between what the complainant told police on 24 October 2017 and her texts to the applicant before and after she called the police undermined her credibility and reliability about the alleged assault. It was for the jury to determine whether her refusal to divulge the applicant’s full name, date of birth or appearance to the police when she first called them evidenced her continuing love or emotional and financial dependency on him and whether it was inconsistent with his having inflicted a serious injury on her a fortnight before. It was also for the jury to assess the relevance and the weight of the circumstance that the complainant wanted her father to take her back to her room at Ashfield after collecting her from the police station although his preference was to take her home to his place or to her mother’s place. It was for the jury to assess whether this showed that the complainant wanted to be in a position to move back to the applicant’s apartment and continue their relationship as soon as he had calmed down.

Although Mr Dhanji made much of the alleged “neutrality” of the medical evidence (which the Crown appears to have conceded in this Court) the jury may have regarded it as a significant piece of circumstantial evidence which they were entitled to take into account in deciding whether the Crown had proved its case. At trial the Crown relied on the medical evidence in support of its case and contended that it supported the complainant’s account of how she sustained the injury to her left hip. The probative force of the medical evidence did not depend on whether the experts could exclude the hypothesis that a fall had caused the injury. The jury was entitled to take into account that it was highly unlikely that such a fracture would be sustained in a young woman aged 23 as the result of a fall, even on a hard surface, in the absence of blunt trauma to the hip. The jury was also entitled to take into account the improbability of a single dark bruise being the consequence of a fall down the stairs. The medical evidence was, relevantly, a strand in the rope (to quote the oft-used analogy used when directing juries about circumstantial evidence) which could strengthen the Crown case. The Crown’s concession on appeal cannot absolve this Court of the responsibility of having regard to the whole of the evidence, including the medical evidence, as the jury was required to do.

As for the text to Mr Lowe on 11 October 2017, it was open to the jury to accept that the applicant had divulged the bruise to Mr Lowe and encouraged the complainant to regard him as a confidant so that she would not divulge it to anyone else and so that she would be persuaded that he had her interests at heart in addressing the applicant’s drug problems. Mr Dhanji’s submission about the fact that Mr Lowe was not called must be seen in the context of the principle expressed in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 where the High Court (Gaudron ACJ, McHugh, Gummow, Kirby, Hayne and Callinan JJ) held that in a criminal trial where a witness, who might have been expected to be called to give evidence, is not called by the Crown, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused: see also Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1 at [27].

In Dyers v The Queen (2002) 210 CLR 285; [2002] HCA 45, the High Court (Gaudron and Hayne JJ) said at [6]:

It was not suggested that the Crown, by not calling Mr Lowe, who was reluctant to assist, was in breach of the prosecutor’s duty to call all material witnesses. In those circumstances, there was no warrant for the trial judge to give a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 direction and no such direction was given: see Chidiac v The Queen (No 2) [2016] NSWCCA 120 (Bathurst CJ, Button and Fagan JJ) at [232]. Her Honour’s direction in accordance with Mahmood v The Queen was not the subject of criticism:

In these circumstances, I do not regard the absence of Mr Lowe as a witness as particularly bearing on the credibility of the complainant or the strength of the Crown case.

None of the matters referred to above is, as Mr Dhanji would have it, a matter of “making excuses” for the complainant’s inconsistencies. The jury could have formed the view that the complainant was prepared to endure an injury inflicted by the applicant if it was one from which she could recover because she had come to love and depend on him, both financially and emotionally, and believed that he loved her. The jury might have considered that once the complainant appreciated, as she did at the end of October 2017, that he had fractured her hip and that she would have to undergo a serious operation, she realised that he had not been acting in her interests and had permanently harmed her. It was open to the jury to infer that, from that time on, she stopped making excuses for him, as she had done up until that point, both when confiding in her aunt and in telling the police on the first occasion in October 2017 before she knew of the diagnosis. The jury might have considered that this was what led the complainant to participate in a recorded interview in November 2017, having been so reluctant to go on the record or identify the applicant when she was taken to the police station on 24 October 2017 following her call to Triple-0.

While the applicant was on crutches for at least some of the time between hiring them on 19 September 2017 and returning them on 8 November 2017, he was still able to travel to Bondi alone in an intoxicated state on the morning of 11 October 2017, go out to dinner on 17 October 2017 with the complainant and her father and brother and leave the apartment on the night of 24 October 2017 and stay away for several hours. I do not regard the evidence of his infected tattoo which led him to seek treatment on 22 September 2017 as casting doubt on his ability to stomp on the complainant’s hip on 10 October 2017 with sufficient force to break it when she was lying on her side on the floor at the time.

I do not regard any of the matters raised by Mr Dhanji, taken together or separately, as necessarily undermining the complainant’s credibility about the subject incident in any material way. Although the transcript extracted above is consistent with the complainant having admitted that she lied, it was a matter for the jury to interpret her evidence. The word “fine” is, in such a context, notoriously ambiguous in that it could indicate agreement or the opposite. The trial judge’s interjection provides some indication of the difficulty. The complainant’s conduct towards the applicant involved the inevitable conflict inherent in an abusive relationship: notwithstanding that he hurt her she loved him and did not want to lose him. It may be that when she called police on 24 October 2017, she did so to assist her in her dual aims of keeping the relationship with the applicant on foot and yet stopping him from assaulting her. Her descriptions to her aunt and to the police of how she sustained the injury to her hip were broadly consistent. I do not consider it to be of any particular significance whether she reported a single kick or more. It is understandable that the jury might have considered that the diagnosis caused her to rethink the relationship and stop making excuses for the applicant.

In these circumstances and for the reasons outlined above, I am not persuaded that the jury’s verdict was unreasonable. I do not have any doubt about the guilt of the applicant. However, if I had a doubt, I consider that it would fall into the category of those which the jury’s advantage in seeing and hearing the complainant’s evidence would be capable of resolving: M v The Queen at 494.

Mr Crown sought an order under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act) to protect the identity of the complainant. He submitted that she did not want it known that she had worked as a sex worker. He relied on s 8(1)(e) of the Act and submitted that it was “otherwise necessary in the public interest for the order to be made and that the public interest significantly outweighs the public interest in open justice”. He submitted that if sex workers believed that their occupations would generally be publicised in judgments, they may be disinclined to report crimes committed against them and may be loath to give evidence against those who had inflicted injuries on them.

In deciding whether to make an order under the Act, this Court is to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: s 6.

Although the anonymisation of the complainant encroaches on the principle of open justice, it does so to a very limited degree. All the other facts are set out and able to be read by the public. The only effect of the order would be that the complainant could not readily be identified. There is a significant public interest in the victims of alleged crimes coming forward to report them to police and being prepared to give evidence at any eventual hearing or trial. If such persons believe that they will be humiliated by reason of an occupation which tends to be taken up by those who are young and desperate, they may be unwilling to come forward to report crimes or unwilling to give evidence because the personal cost may be too high. I do not regard it as fatal to the application that it was not sought in the Court below. Those participating in criminal trials might not appreciate the extent to which judgments are published and accessible on the internet. This Court’s judgments are almost invariably published online and, because of their authoritative effect, tend to attract a wider readership.

In these circumstances I am persuaded that it is necessary to make an order under the Act to protect the identity of the complainant.

For the reasons given above, I propose the following orders: