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District Court 27 September 2023

Logue v R

[2023] NSWDC 395

Assault & violence

Citation: Logue v R [2023] NSWDC 395
Court: District Court of New South Wales
Date: 27 September 2023
Judge(s): Priestley SC DCJ

Background

The appellant was convicted in the Local Court of assault occasioning actual bodily harm following an incident on 5 August 2021 at a hotel room. The complainant, his partner, suffered head injuries that evening. She alleged the appellant had repeatedly slammed her head against a tiled bathroom wall. The appellant denied this, saying he acted defensively to ward off the complainant and that she fell to the ground twice during a struggle.

Earlier that day the complainant had consumed, by her own admission, ten glasses of wine, two cocktails, and a sip of limoncello over roughly six and a half hours. She had also slapped the appellant before the scuffle began, a fact she disclosed only when directly asked rather than volunteering it.

The appellant appealed the Local Court conviction to the District Court, contending that the complainant's evidence was insufficient to establish guilt beyond reasonable doubt.

  • Whether the complainant's evidence was sufficiently reliable and consistent to sustain a conviction beyond reasonable doubt
  • Whether inconsistencies in the complainant's accounts of the assault, including which side of her head was struck and which hand the appellant used, were material to her credibility
  • Whether the appellant's version of events, that he acted defensively rather than aggressively, might reasonably be true

Decision

Priestley SC DCJ found the complainant's evidence to be significantly variable across her accounts. In her video interview (referred to as the DVEC, a domestic violence evidence-in-chief recording), she demonstrated the appellant grabbing the left side of her face so that the right side of her head hit the tiles. At trial, however, she gave evidence that it was actually the left side of her head that struck the wall. These two versions were mutually inconsistent, and the judge found this inconsistency was not peripheral but went directly to the central mechanics of the alleged assault.

The complainant also acknowledged during her interview that her memory of the incident was "real sketchy" and that she did not remember a lot of what happened during the altercation itself. The judge regarded this as significant, reading her evidence as an admission that her recollection of the core alleged offending was substantially impaired. The level of alcohol consumed added further reason for caution about the reliability of her account.

Additional concerns arose from a prior allegation the complainant made about the appellant taking her phone. The evidence suggested the phone was likely not in the room at the time, making that allegation appear baseless. The judge also noted the complainant's progressive disclosure of details, including the extent of her alcohol consumption and the fact that she had hit the appellant, both of which emerged only in response to direct questioning.

Turning to the appellant's account, the judge found it may well have been true. That version, in which the complainant was the initial aggressor and he acted to ward her off, was consistent with agreed facts including her slapping him, the presence of a scuffle involving both parties, and the appellant subsequently helping her to the bed and wiping blood from her face. Unexplained injuries to the complainant's knees, nose, and palm were also more consistently explained by falls than by the assault as alleged.

Orders Made

  • Appeal allowed
  • Conviction set aside

Key Takeaways

  • The District Court set aside the conviction on the basis that the complainant's evidence contained material internal inconsistencies, particularly as to which side of her head struck the wall and which hand the appellant used, that undermined its reliability as proof beyond reasonable doubt.
  • A complainant's own acknowledgement of significant memory gaps concerning the central act of alleged offending is a factor that may go to the reliability of the prosecution case as a whole.
  • Where a complainant's account shifts between a video interview and trial on matters going to the mechanics of the alleged assault, those inconsistencies may be sufficient to raise a reasonable doubt even in the absence of independent corroborating or contradicting evidence.
  • Progressive disclosure by a complainant, including belatedly revealing the extent of alcohol consumption and prior physical conduct toward the accused, may affect the weight a court gives to that witness's overall account.
  • An appellant's version of events need not be affirmatively accepted for a conviction to be set aside; it is sufficient that the version might reasonably be true, such that the prosecution has not excluded it beyond reasonable doubt.

Legislation and Cases Referenced

Cases cited:
- Filip Black v Regina [2017] NSWDC 326
- Charara v R [2006] NSWCCA 244
- Dyason v Butterworth [2015] NSWCA 52
- KD v R [2020] NSWDC 237
- Lunney v DPP [2021] NSWCA 186
- Liberato v The Queen (1985) 159 CLR 507
- R v Markuleski (2001) 52 NSWLR 82
- Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1
- Browne v Dunn (1893) 6 R 67
- Fox v Percy [2003] HCA 22

Legislation: No legislation was specifically cited in the metadata or judgment text provided.