Riechelmann v McCabe [2024] NSWCA 37

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Riechelmann v McCabe [2024] NSWCA 37 Hearing dates: 1 November 2023 Date of orders: 23 February 2024 Decision date: 23 February 2024 Before: Mitchelmore JA; Kirk JA; Stern JA Decision: (1) Appeal allowed. (2) The respondent is to pay the appellant's costs of the appeal. (3) Order 3 made by the District Court on 21 February 2023 is set aside and the following orders are made in lieu thereof: (a) Judgment for the cross-claimant against the cross-defendant on the Cross-claim in the sum of $136,000; (b) The cross-defendant is to pay interest on the judgment sum from 21 February 2023 pursuant to s 101 of the Civil Procedure Act 2005 (NSW). (4) As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays the cross-claimant's costs of the cross-claim. (5) Liberty to the parties to apply for any variation or addition to these orders within 14 days. (6) Mr McCabe has 14 days to show cause why this Court's judgment and the papers in this Court should not be referred to the Legal Services Commissioner. Catchwords: TORTS – Trespass to the person – Assault – Battery – Claim based on distinct accounts of alleged strangulation APPEAL – From findings of fact – Credibility of witnesses – Appeal of factual decision turning on witness testimony following long hearing – Importance of contemporary evidence Legislation Cited: Evidence Act 1995 (NSW) s 140(2) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 Muriniti v Kalil [2022] NSWCA 109 Vagg v McPhee [2013] NSWCA 29; (2013) 85 NSWLR 154 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Texts Cited: David Rolph, Contempt (Federation Press, 2023) Category: Principal judgment Parties: Julie Riechelmann (Appellant) David Terance McCabe (Respondent) Representation: Counsel: J Morris SC with M Bridger (Appellant) J W Dodd (Respondent)

Solicitors: De Luca-Leonardo Solicitor (Appellant) McCabe Partners Lawyers (Respondent) File Number(s): 2023/88479 Publication restriction: N/A Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: McCabe v Riechelmann [2023] NSWDC 44 Date of Decision: 21 February 2023 Before: Dicker DCJ File Number(s): 2018/365976

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant and the respondent have a history of conflict involving a number of verbal and physical altercations. The respondent commenced civil proceedings against the appellant for damages for trespass, battery, assault and property damage arising out of those altercations. The appellant cross-claimed against the respondent for assault and battery in relation to an incident on 31 March 2018, for which the respondent had also made a claim. The appellant alleged, ultimately, two distinct actions of choking/strangulation by the respondent, one on evidence given by the appellant, the other on evidence given by one of the appellant's witnesses, Ms Wells, who was at the time the partner of the respondent. The two distinct accounts were advanced in the alternative. The primary judge in the District Court found some but not all of the respondent's claims were made out, and dismissed the appellant's cross-claim. The appellant appealed against the dismissal of her cross-claim. There was no appeal in relation to the claims by the respondent against the appellant. The Court upheld the appeal, holding as follows: (1) A compelling basis is needed for an appeal court to overturn factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence: [6], [53]-[54]. But the appeal court is still bound to conduct a real review of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law, and it is important to take account of contemporary materials, objectively established facts and the apparent logic of events: [55]-[56]. Lee v Lee [2019] HCA 28; (2019) 266 CLR 129; Vagg v McPhee [2013] NSWCA 29; (2013) 85 NSWLR 154; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, applied. (2) The primary judge erred in using the inconsistency of Ms Wells' evidence with evidence that his Honour did not in fact accept to reach a conclusion on the unreliability of Ms Wells: [52], [67]. (3) The primary judge failed to address the contemporaneous allegations of choking/strangulation separately made by the appellant and Ms Wells, and the fact that Ms Wells had been so concerned as to what was happening on the night that she had run to the police station, in circumstances where Ms Wells' allegation was made distinctly against her interests at the time: [69], [84], [92]-[96]. (4) The primary judge erred in rejecting evidence of redness on the appellant's neck area the day after the alleged choking/strangulation incident by reason of the lack of evidence in relation to bruising five days after the incident: [98]-[105]. (5) The respondent sent a disgraceful letter to Ms Wells prior to the hearing, where the primary judge found at least one probable purpose of doing so was an attempt to discourage Ms Wells from giving evidence at any final hearing. For a person to act in a way that seeks to intimidate or frighten a witness so as to deter them from giving evidence is conduct of the most serious nature: [111]. Ms Wells came to give evidence despite the letter. These facts further undermine the respondent's own credibility and tend to reinforce the believability of Ms Wells' account: [112]. Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242, referred to. (6) That there were some inconsistencies and errors in Ms Wells' account given over four years after the alleged incident in question and without having had the benefit of being assisted by any legal representatives to refresh her memory in advance is not surprising, and in the circumstances should not be regarded as of such significance as greatly to undermine the weight of her evidence: [125]. The fact that she did not seek to change her testimony or claim any recollection after being shown video evidence goes if anything to her credit as a witness simply giving evidence as to what she then could remember: [126]. (7) It is strange that two materially different accounts should be given of an event when the appellate herself did not allege she had been choked twice. In the end there is no neat way of reconciling the two accounts but the inconsistency between them is not such that both should be ignored, especially in circumstances where there is a plausible explanation for the inconsistency: [132]-[143]. (8) On review of all the evidence the Court was comfortably satisfied to the requisite standard that there was one significant act of strangulation by the respondent directed to the appellant, being an act of the kind outlined by Ms Wells. It was not so satisfied in relation to the appellant's own account, for which the advantages of the primary judge were not outweighed by consideration of contemporaneous evidence: [161].

JUDGMENT 1. THE COURT: Ms Riechelmann, the appellant, and Mr McCabe, the respondent, have a history of conflict involving a number of verbal and physical altercations. These conflicts ended up being litigated in civil proceedings. They had an association because Ms Riechelmann was in a relationship for a number of years with Mr Jon Lavers, who was a friend of Mr McCabe and who lived in the same unit building as him. 2. Mr McCabe commenced proceedings against Ms Riechelmann in the Local Court for damages for trespass, battery, assault and property damage arising out of these altercations. Ms Riechelmann then cross-claimed against Mr McCabe for assault and battery in relation to an incident which occurred on 31 March 2018, arising from one of the interactions for which Mr McCabe had also made a claim. She alleged, ultimately, two distinct actions of choking/strangulation by Mr McCabe in that incident, which were advanced in the alternative. The proceedings were transferred to the District Court by consent. The hearing of the case occupied 18 days in that Court. Mr McCabe succeeded on some but not all of his claims. Ms Riechelmann's cross-claim was dismissed. Mr McCabe was awarded $2,590 in damages. The primary judge, Dicker DCJ, appropriately made an assessment of damages suffered by Ms Riechelmann lest he be wrong in dismissing her claims, assessing them in the amount of $146,000 if both alleged batteries were accepted but the alleged assault was not; $136,000 if only one battery was made out; or $500 if only the alleged assault was made out. 3. Ms Riechelmann has not sought leave to appeal in relation to the findings and award against her with respect to Mr McCabe's claims. She has, however, appealed against the dismissal of her cross-claim. Mr McCabe has not challenged the assessment of damages made on that claim. He did not dispute that she was entitled to such damages if she succeeded with respect to only one of her allegations of choking. Nor did he seek to maintain a claim of self-defence if this Court were to overturn the primary judge's findings on the cross-claim. 4. The notice of appeal raises 13 grounds of appeal, with many sub-grounds descending to an excessive level of detail. The core matter in dispute is that identified in the final two grounds of appeal, namely whether the primary judge erred in finding Mr McCabe had not committed a battery against Ms Riechelmann by choking/strangling her on either one or two occasions on 31 March 2018. It is neither useful nor necessary to seek to address all of the particular grounds of appeal. 5. An unusual complication of the case is that the claim of two batteries is based upon distinct accounts alleging that Mr McCabe acted to strangle Ms Riechelmann. There is Ms Riechelmann's own account alleging that she was strangled once. Then there is a significantly different account given by Mr McCabe's former partner, Ms Melanie Wells, again alleging that Ms Riechelmann was strangled once. Ms Wells gave evidence that she did not see Ms Riechelmann being choked in the way that she had claimed. Conversely Ms Riechelmann had no memory of what Ms Wells said had occurred. On appeal, as below, Ms Riechelmann seeks to rely on either or both accounts. 6. A factual decision turning on witness testimony, following a long hearing, and where the primary judge has made clear findings on credibility and reliability, is not readily overturned on appeal. Furthermore, the judgment of the primary judge is long and thoughtful. However, an appeal can succeed even in such circumstances where a compelling case is made out. This is such a case. Even allowing for the credit and reliability findings of the primary judge, and the care with which he approached his task, in our view his Honour erred most notably in failing to give due weight to the contemporaneous accounts of what occurred on the night in question. Those accounts – and most particularly the actions of Ms Wells against interest – provide a strong basis to conclude that his Honour's ultimate conclusion on the cross-claim was in error. The appeal should be upheld. 7. In what follows we will first outline the context of these matters, then address the credit and reliability findings of the primary judge and how those affect this Court's task, before considering first Ms Riechelmann's account and then Ms Wells' account of the battery.

Background 1. Except where indicated, the following facts were not in dispute on the appeal. The background to the dispute was summarised in the primary judgment (J) below at [18]-[46]. 2. Both Ms Riechelmann and Mr McCabe were born in 1963. Each was turning 55 in 2018. Mr McCabe is a solicitor. Ms Riechelmann was a Qantas flight steward, who took redundancy from Qantas in early 2021. 3. In 2010, Ms Riechelmann commenced a relationship with Mr Lavers. There was a dispute as to whether Mr Lavers had ended this relationship by 31 March 2018. The primary judge did not find it necessary to determine the point, but accepted that there were at least real problems in the relationship as at that date. Mr Lavers lived on the top floor of the three floors of an apartment block in Cronulla in Sydney. Mr McCabe lived on the bottom floor of the apartment block. In 2014 Ms Riechelmann bought an investment unit on the middle level. 4. Ms Riechelmann and Mr McCabe socialised together from time to time near the beginning of her relationship with Mr Lavers, but relations deteriorated. Ms Riechelmann believed that Mr McCabe criticised her to Mr Lavers and frequently denigrated, belittled and insulted her. In September 2014, Ms Riechelmann hit the face of Mr McCabe, although the degree of force used was disputed. In October 2014 Ms Riechelmann slapped the face of Mr McCabe. Both incidents occurred in the course of some social interaction. The latter assault led to the New South Wales Police seeking an apprehended violence order against Ms Riechelmann, which was made by the Local Court on 12 December 2014 for a period of 12 months. In 2015-2016 there were incidents of interpersonal conflict between them, and in late 2016 they exchanged a series of highly critical emails. 5. In the proceedings below the primary judge upheld Mr McCabe's claim that Ms Riechelmann committed a battery against him on 3 June 2017 by throwing the contents of a glass of wine over Mr McCabe's clothes, head, shoulders and back, awarding him $500 in damages. His Honour upheld a further claim by Mr McCabe that Ms Riechelmann assaulted him on 15 June 2018 by moving a glass of wine in his direction as though she was going to throw its contents at him, awarding him $100 in damages. As regards the key night of 31 March 2018, Mr McCabe alleged that Ms Riechelmann struck him five or more times in the course of events described further below. The primary judge was persuaded that she intentionally struck him once in the face with her hand with the intention of injuring him, and awarded him $1,990 in damages including in relation to medical and psychological consultations. 6. On 31 March 2018 Mr McCabe was living with Ms Wells and her two children in his Cronulla unit. Earlier in the evening on that day, Mr McCabe, Ms Wells and her children attended a 60th birthday function for a third party. Mr Lavers also attended the function. Ms Riechelmann did not attend. 7. All three key protagonists were affected by some degree of intoxication by the time of their interactions at around 10pm. The primary judge referred to Mr McCabe's evidence that he had drunk 10-12 schooners of beer and was intoxicated but not heavily so. His Honour found that in video evidence Mr McCabe was "slurring his words, was talking loudly and slowly and was acting in an extroverted and assertive or bellicose way", but that he "did not appear … to be very heavily intoxicated" (J [643]). As regards Ms Wells, his Honour found that she had consumed at least six glasses of champagne and possibly more and that she appeared to be intoxicated "but probably was intoxicated to a lesser degree than Mr McCabe" (J [644]). In relation to Ms Riechelmann, the judge found that she was "intoxicated to some degree … but to a lesser degree than Mr McCabe and Ms Wells" (J [645]). 8. Mr Lavers left the birthday function first and went home to bed. Some time after that Ms Riechelmann arrived and commenced knocking loudly on his door. Mr and Mrs Pusell, who lived with their child in a ground floor unit next to the unit of Mr McCabe, each gave evidence in the proceedings. His Honour found – accepting Mr Pusell's evidence over that of Ms Riechelmann – that Mr Pusell went up to Ms Riechelmann on the top floor and said that it did not appear that Mr Lavers was at home and she should cease knocking on his door. Despite this, Ms Riechelmann continued to intermittently knock or bash loudly on the door of Mr Lavers' unit. 9. Mr McCabe and one of Ms Wells' children arrived back at the unit block around 10pm. Ms Wells and her other child were a little behind. Mr McCabe was met by Mr Pusell, who informed him that Ms Riechelmann was in the building and had been knocking for some time on the door of Mr Lavers' unit. 10. There were a number of video recordings in evidence of events which occurred thereafter (which each member of this bench has watched). They do not record all of the details of the interactions between the parties on that evening. However, as the primary judge found, what is apparent is that Mr McCabe took it upon himself to call out to Ms Riechelmann to "go home" as she was disturbing the residents in the block of units, particularly the children. There then eventuated an extensive verbal altercation between them. On a number of occasions, Mr McCabe told Ms Riechelmann to "go home". She responded in robust terms using colourful and obscene language and suggested to Mr McCabe that he should go away and let her be. 11. After some considerable further knocking on Mr Lavers' door, Ms Riechelmann came down the stairs filming with her telephone camera and there was a verbal and, ultimately, a physical confrontation between Mr McCabe and Ms Riechelmann. Some of this is recorded. 12. Ms Riechelmann came down the stairs filming with her phone camera. The abusive verbal dialogue between the pair continued when she was on the ground floor filming. The most significant recording is "video 8" the majority of which was recorded by Mrs Pusell from inside Mr McCabe's unit. Importantly it shows that Ms Wells participated in the altercation to some extent by goading Ms Riechelmann, taunting her that "Lavo's got a new girlfriend". Amongst other things, part of the verbal abuse exchanged between Ms Riechelmann and Mr McCabe related to Mr McCabe's sister. 13. At this point Mr McCabe, Ms Riechelmann and Ms Wells were all standing outside Mr McCabe's unit arguing. The video footage in video 8 was from inside the apartment unit and was obstructed by the partially closed apartment door. Ms Riechelmann's phone left her hand, the exact cause of which was disputed. Ms Riechelmann claimed it was knocked out of her hand by Mr McCabe (that claim is not pursued on appeal). There is a thud in video 8 which is likely to have been Ms Riechelmann's phone falling onto the floor. Immediately following the thud Ms Riechelmann asked twice "Is that assault?" The judge found that Mr McCabe kicked the fallen phone into his unit (J [656]). Ms Riechelmann attempted to enter Mr McCabe's unit to retrieve her phone and Mr McCabe was standing in the doorway obstructing her from entering, saying "get out of my unit". 14. After that the door to Mr McCabe's unit was partially closed, such that what occurred outside cannot be seen other than as dim movements through shaded glass panels in the door. Around this time the interaction became physical. Mr McCabe claimed that Ms Riechelmann hit him some five times; the primary judge was satisfied as to one punch. Mr McCabe gave evidence that he tried to get some distance between Ms Riechelmann and himself by putting his right hand out in an extended fashion with an open hand resting on her chest in order to keep her away (J [164]). 15. On Ms Riechelmann's account, Mr McCabe moved to strangle her. Her evidence was generally consistent with her pleading (noted J [667]), in which the following was alleged: [Mr McCabe] came over the top of her right shoulder with his right arm, grabbing her upper torso and chest and wrapping his arm around her throat and reaching across to her left shoulder as a consequence of which the cross-claimant was in a strangle hold … [then] when pulling his arm away from [Ms Riechelmann's] throat … pulled her backwards with her head tilted backwards so that she could see his face above her… 1. Her evidence was that after she was released she was thrown against the hall wall, landing on her right leg and right knee (J [317]). Ms Riechelmann, Mr McCabe and Ms Wells were outside in the foyer when the battery by Mr McCabe was alleged to have occurred. Mr McCabe denied the accusation. Ms Wells – who was called by Ms Riechelmann – did not support the claim that this incident occurred. 2. The video footage then shows Ms Wells returning back inside Mr McCabe's unit, leading to the door opening up somewhat. Mr McCabe can be seen barring Ms Riechelmann's further movement back towards the stairs with his outstretched hand. Ms Riechelmann can be heard repeatedly screaming out "Jon!" and Mr McCabe in turn telling her to get out and calling her a "mad woman". Ms Wells then went back out into the foyer. Mr McCabe can be seen pushing Ms Riechelmann back from the foyer stairs and Ms Wells can be seen placing her hands on Mr McCabe's chest presumably to deescalate the situation. At this point Mrs Pusell used Ms Riechelmann's phone to call the police. 3. Ms Wells then went inside Mr McCabe's unit and shut the door. Mr McCabe can be heard outside with the appellant arguing. The appellant was in the foyer repeatedly asking for her mobile phone, which Mr McCabe refused to return. 4. Mr McCabe then returned to his unit. Ms Wells can be heard to say to Mr McCabe that he "acted out of line", repeating "you did" when he denied having acted out of line. Video 8 ends at this point. 5. The evidence was that after some five minutes Mr McCabe opened the door again and went back into the foyer (eg J [255]). It was at this point that Ms Wells says that the strangulation occurred. Her evidence evolved somewhat over time, but ultimately its effect was summarised by the primary judge as follows (J [665]): Ms Wells claimed in her oral evidence that Ms Riechelmann was "strangled" by Mr McCabe and that Mr McCabe had put his hands around Ms Riechelmann's neck whilst facing her, until she could not breathe, and her face went red ... Ms Wells stated that the "strangling" incident occurred only once to her observation, when Mr McCabe and Ms Riechelmann were face to face, with Mr McCabe's arms being outstretched and both his hands being placed around her neck. At this time, Ms Wells said she was standing near the unit block entrance, away from the entrance to Mr McCabe's unit. She gave clear evidence that this "strangling" incident occurred after the end of the events as shown in video 8, part of Exhibit A. 1. What then happened, to quote Ms Wells' second written statement, was that "I was so worried about the escalating violence and the time it was taking for the Police to arrive that I decided to run to Cronulla Police Station for assistance". 2. It is not disputed that she left the unit block and then came back. By the time she returned police officers had already arrived in any event. There were some interactions involving the police officers which are described further below. 3. The key differences between the two accounts of strangulation were as to how it was done and when. Ms Riechelmann said it was done by one arm choking her from behind, whereas Ms Wells said it was by both hands from in front. Ms Riechelmann said it occurred just after the phone had been dropped and kicked into the apartment but before Mr McCabe and Ms Wells went back into the apartment for a while, whereas Ms Wells said it occurred after this. Ms Well's version of events had originally not been pleaded. Ms Riechelmann was granted leave on the 14th day of the trial to file a further amended cross-claim adding Ms Wells' account as another incident of battery by the respondent, it being put as an alternative allegation. 4. On Mr McCabe's account, after they re-opened the door Ms Wells left without saying where she was going. He said he went through the foyer to outside the unit block, where he saw Ms Riechelmann sitting on the boot of his car. He asked her to get off but she then damaged his car with her legs and hands. She then was banging on the window of his unit, and pushed on an air-conditioning unit, demanding her phone back (J [170]-[172]). In the end Mr McCabe did not pursue his claim in relation to damage to his car as that claimed damage was repaired later in the context of repairs paid for by Ms Wells (see below). 5. It was then that police officers attended at the premises, on Mr McCabe's account. Ms Riechelmann was arrested and then "un-arrested" after what Ms Wells told the police. The interactions at the scene are described further below. According to the entry in the police COPS system: "all parties including the [witness – Ms Wells] were highly intoxicated. As a result they were deemed [too] intoxicated for statements to be reliable. Contact will be made on night shift 1 April for statements to be obtained" (J [475]). 6. The COPS system then has an entry on 4 May 2018 which recorded that a statement had been obtained from the "victim", clearly meaning Ms Riechelmann, and attempts would be made to contact the "POI", meaning the person of interest – Mr McCabe. The entry then says that Mr McCabe "stated he did not wish to participate in a voluntary interview" but would provide a written statement, which he then did, along with written statements from Mr and Mrs Pusell and Ms Wells. These had all been prepared by Mr McCabe. In summary, as the COPS entry noted, they suggested that it was Ms Riechelmann who was the aggressor and that Mr McCabe had acted appropriately. The police also had access to some video recordings. The COPS entry records that having regard to the statements and the video recordings, no determination could be made in relation to the alleged assault and that it appeared Mr McCabe and Ms Riechelmann were "both aggressors in this matter". 7. The primary judge said "I find as a fact that [Mr McCabe] declined to be interviewed by Police and prepared statements for himself, Mr and Mrs Pusell and Ms Wells for the purpose at least partly of protecting himself and attempting to ensure he was not charged and in order to bring facts to the attention of Police which would make it more likely that Ms Riechelmann was charged" (J [198]). 8. Returning to the night in question, Mr McCabe accepted that a police officer said to Ms Wells and him that one of them had to leave the unit, as a result of which he went to stay at his mother's house, and soon thereafter Ms Wells and her children moved into a serviced apartment for a short while (T392), before moving back in with Mr McCabe. Ms Wells said that she was in the serviced apartment for a week (T580). 9. Ms Wells gave a version of what occurred on four occasions. The first was on the night, to the police at the Cronulla police station and then repeated at the scene. She said of this in her second written statement that "[t]he Police officer wrote down my statement in his notebook" (noted J [207]). In oral evidence she said that the officer read it back to her but she could not recall if she had signed it. In any event, her evidence was that she later called the police officer who had been on duty on the night saying she wanted to "retract my statement" because "it was causing me lots of trouble in my home life" (T580). That trouble was said to be that Mr McCabe had left the unit and that he "wanted me to change my statement because, if he got charged, then he would lose his livelihood" (T581). 10. Secondly, she signed a statement prepared by Mr McCabe dated 20 May 2018. Thirdly, having been asked by Ms Riechelmann to give evidence, she prepared her own account of what occurred in a written statement signed on 15 April 2020 (which she later annexed to a formal affidavit dated 21 April 2021). Fourthly, she gave evidence in Ms Riechelmann's case. She had declined to be interviewed by the legal team for Ms Riechelmann prior to doing so – in the legal jargon used by senior counsel for Ms Riechelmann, they called her "cold". 11. There were some inconsistencies between Ms Wells' various accounts which were of some significance to the primary judge. 12. The relationship between Mr McCabe and Ms Wells had its own significant problems after the events of 31 March 2018. It was not in dispute that later in 2018 Ms Wells "keyed" Mr McCabe's car, causing some significant damage to its outside panels (Mr McCabe said this occurred in September 2018). Initially, Mr McCabe thought it was Ms Riechelmann who caused the damage and reported it to Police. However, Mr Lavers had filmed Ms Wells damaging Mr McCabe's car with a key. Eventually, Ms Wells was charged with an offence of malicious damage. Mr McCabe retained a legal practitioner on behalf of Ms Wells to appear for her at the court hearing. Whilst the offence was found to have occurred – it was not denied by Ms Wells – the Court did not record a conviction. Ms Wells paid a sum of money to Mr McCabe to repair his car. In time the relationship between Ms Wells and Mr McCabe ended. Mr McCabe said that occurred in June 2019 (J [178]). 13. As discussed in more detail below, there were some near contemporaneous accounts by Ms Riechelmann of aspects of what occurred. She exchanged text messages with Mr Lavers. She contacted and then saw a close friend, Ms Debra Hart-Waters, the next day, 1 April 2018. They together went to a police station, although a statement was not taken. On 5 April 2018, Ms Riechelmann consulted her general practitioner, Dr Begum, who made a record of her allegations and injuries. 14. Neither Mr nor Mrs Pusell saw the alleged incidents of choking. It was not argued on behalf of Mr McCabe that it would have been expected that they would have done so, given that Mr Pusell was inside his unit and Mrs Pusell was inside Mr McCabe's. The core dispute thus turns on the evidence and actions of the three people who the primary judge found were in the foyer of the block of units at the relevant time (J [663]): Ms Riechelmann, Mr McCabe and Ms Wells. 15. Mr McCabe's firm acted for him in the proceedings.

Findings on credit and reliability and the nature of this Court's task

The findings of the primary judge 1. In relation to Mr McCabe, his Honour said this at [565]: There were numerous aspects of Mr McCabe's evidence which caused concern to the Court. Some of these are as follows: (a) Mr McCabe denying that he was insulting Ms Riechelmann on the night in question when he clearly was from the language he used in the video evidence; (b) His denials that he was aware that he was a person of interest to Police, when in my view, it was clear to him that the Police were considering all parties involved and wanted to take a statement from him, particularly in the light of what Ms Wells said about his conduct towards Ms Riechelmann in the presence of a Police officer. The effort Mr McCabe took in obtaining and preparing statements is strong evidence of his belief and concerns as to the risks in his position; (c) His denials that he wanted to control the obtaining of information for Police in circumstances where I am satisfied that he was doing just that by refusing an interview with Police, preparing his own statement and then preparing draft statements (and obtaining signed statements) for Police from Mr and Mrs Pusell and Ms Wells; (d) His evidence that he had never seen or read the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) and their predecessors despite being a solicitor admitted for a lengthy period of time. This, at the least, is a very surprising and concerning claim in the light of the fact that he agreed he had studied ethics. I think it likely that he did study an earlier version of the relevant solicitors Rules. However, he may well have forgotten doing so in the light of the nature of his practice. I am unable to find, on the evidence, that he lied to the Court on this matter. I accept the plaintiff's submissions on that point; (e) His apparent lack of knowledge of the ethical obligations in the various Rules in relation to conducting interviews of witnesses; (f) His approach to Ms Riechelmann's treating psychiatrist [Dr Keller] with a letter containing material attacking her without obtaining the authority of Ms Riechelmann or her solicitor (as he should have done); (g) Entering into correspondence with Ms Wells about her evidence and alleged inconsistencies with it in circumstances where she had provided a second and differing statement. I am satisfied that at least one probable purpose of this letter was an attempt to discourage Ms Wells from giving evidence at any final hearing [(this related to a letter he sent to her on 15 June 2020, which is discussed further below)]; (h) Discussing with Mrs Pusell the deletion of materials on Ms Riechelmann's phone while Mr Pusell was in the room. At the time, the plaintiff, Mr McCabe, was acting as a solicitor, was the plaintiff and was an important witness; (i) Sending a letter to Dr Roberts [an expert witness retained for Mr McCabe] in which he gave opinions on alcohol abuse and provided comments on statement evidence including an allegation that certain matters indicated a "delusional mind" in Ms Riechelmann; (j) Corresponding by text with Ms Wells' new partner which was clearly inappropriate and dishonourable as it contained intimate details allegedly about the sexual practices of Ms Wells and himself. To his credit, Mr McCabe admitted the texts were inappropriate in his oral evidence and in correspondence. 1. His Honour formed the view that "Mr McCabe was using his evidence on many occasions to promote his case, to be an advocate and to place Ms Riechelmann in a very poor light" (J [567]). He concluded that "some real caution should be exercised before accepting the evidence of Mr McCabe on the central issues unless it is consistent with, or supported by, independent or objective evidence, proper inferences, the video evidence or the logic of events". His Honour did not go so far as to accept Ms Riechelmann's submission that "Mr McCabe should be found generally not to be a witness of truth" (J [567]). 2. As regards Ms Riechelmann, the primary judge found that various matters – including her professed hatred for Mr McCabe from 2016 onwards – showed "Ms Riechelmann had a strong interest in propounding her case against Mr McCabe" (J [573]). In "some places, in my view, [she] intentionally downplayed her initial conduct on the night of 31 March 2018 in relation to her knocking on Mr Lavers' door, acting unreasonably and in insulting Mr McCabe" (J [574]). His Honour said at [575]: Ms Riechelmann's stated inability to remember in detail what occurred after the alleged battery outside Mr McCabe's doorway is also relevant to her reliability. She gave no persuasive evidence in relation to the strangulation incident alleged by Ms Wells other than claiming a "gap" in her memory. I note the expert medical evidence as to this issue. 1. As regards that medical evidence, he said of this at [578]: I have also taken into account the final reports and evidence of Drs McClure and Roberts and that of Professor Brew as to the possibility of Ms Riechelmann suffering an amnesiac event as a result of being strangled or as a result of the trauma which could explain her failure to recall the "strangling" incident outlined by Ms Wells. I accept that there is a possibility of this although in my view it is unlikely in the light of all of the evidence including the evidence of Mr and Mrs Pusell, Mr McCabe, Ms Riechelmann and the video evidence. Ms Riechelmann's conduct after the alleged first strangling incident seems to confirm a person who is alert and able to engage in conversation. For example, she discussed the matter with Police and claimed her telephone back. 1. His conclusion on her reliability and credit was expressed as follows at [579]: These matters in my view indicate that I should exercise some real caution in accepting Ms Riechelmann's evidence of the 31 March 2018 incident unless it is supported by other reliable or contemporaneous or independent or objective evidence. Having said that, Ms Riechelmann appeared to be a reasonably direct witness in her answers on many occasions and conceded many things which were against her interest, particularly in the latter stages of her evidence. This was to her credit and I take it into account in assessing her evidence. She could have taken the opportunity to embellish or expand her evidence in her favour more than she did so. 1. As for Ms Wells, the primary judge said that she "appeared to be a reluctant but intelligent witness who gave her evidence directly and confidently" (J [580]). His Honour said that it was "clear to me that despite this, she had been upset by the events of 31 March 2018 and found her involvement in providing her two statements to be difficult and confronting" (J [581]). He formed the impression that she objected to having to give detailed oral evidence and in particular to being cross-examined in some detail (J [585]). We note that that characteristic does not of itself undermine her reliability or credit. 2. His Honour noted that before Ms Wells viewed the video evidence she gave a version of events which had a number of inconsistencies with that evidence (J [582]), and in his view "once she had seen video eight, Ms Wells appeared to be much less confident in relation to her recollection of the events of 31 March 2018" (J [584]). His Honour said that her evidence as to how Ms Riechelmann's phone came out of her hand was "inconsistent and somewhat unclear and was unimpressive" (ibid). He indicated that "where it is inconsistent, her evidence in her second statement as to this incident with the telephone is to be preferred as it was recorded closer to the events in question than her oral evidence" (ibid). 3. His Honour found that given the circumstances in which Ms Wells' relationship with Mr McCabe ended, including offensive texts that Mr McCabe sent to her new partner, there existed a significant degree of animosity between them (J [586]). 4. His Honour's conclusions on point were expressed at [587]: The inconsistency between Ms Wells' initial factual version in her oral evidence and the video evidence, the significant differences between her account of the "strangling" incident and that of Ms Riechelmann, the differences as to the timing of the alleged "strangling" incident, Ms Wells' inconsistent evidence regarding paragraph 8 of her second statement and the animosity between Ms Wells and Mr McCabe, all lead me to the conclusion that some real caution should be exercised before accepting Ms Wells' evidence as to the events of 31 March 2018, particularly in relation to her version of the "strangling" incident, unless it is confirmed or supported by other evidence or may properly be inferred from other evidence. In particular, Ms Wells did not appear to be a witness of such reliability as to be preferred overall to Mr McCabe or Ms Riechelmann as to the events of 31 March 2018. 1. We will return to this issue below, but one immediate problem with his Honour's conclusion in relation to Ms Wells should be noted. One of the factors his Honour relies on to downplay her reliability was "the significant differences between her account of the 'strangling' incident and that of Ms Riechelmann", a point his Honour had earlier elucidated at J [583]. Yet his Honour did not accept Ms Riechelmann's account of that incident and, as noted, had earlier expressed real doubts about Ms Riechelmann's reliability. His Honour erred in using inconsistency with evidence that his Honour did not in fact accept to reach a conclusion on the reliability of Ms Wells.

This Court's task 1. The respondent, understandably, placed much emphasis on the difficulty of overturning a trial judge's findings of fact where based upon conclusions with respect to reliability and credit of key witnesses. The High Court has held that appellate restraint is appropriate, reflecting the natural limitations of the appellate process, in relation to "factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence": Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]. In relation to such findings – as opposed to conclusions drawn from them (see Lee v Lee at [56]) – the appeal court must consider whether "incontrovertible facts or uncontested testimony" demonstrate error by the trial judge, or that the finding is "glaringly improbable" or "contrary to compelling inferences" in the case: ibid; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29]. Put simply, a compelling basis is needed to overturn such a finding. 2. Natural limitations of an appeal court were identified in Fox v Percy (at [23], citations omitted): These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. 1. The submissions put on behalf of Mr McCabe tended to overstate the significance of the restrictions on this Court's role. The appeal court "is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law": Lee v Lee at [55], citation omitted. Beyond factual findings likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge": Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551, quoted in Fox v Percy at [25] and in Lee v Lee at [55]. 2. Further, courts have long "cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses": Fox v Percy at [30], citation omitted. That, along with more recent scientific research, has "encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events": ibid at [31]. That point is significant here in light of the contemporaneous evidence. 3. Conversely, submissions put on behalf of Ms Riechelmann tended to understate the significance of the findings of the primary judge on reliability and credit, senior counsel saying that there "weren't any demeanour findings as such". Whilst his Honour's findings may not have been expressed in terms of what he observed and heard, at the commencement of his discussion of reliability and credit he said "I had the advantage of seeing Mr McCabe, Ms Riechelmann and Ms Wells give evidence, including being cross-examined in some detail, over an extensive period" (J [562]). Moreover, where findings of credit are clearly in issue "it is unlikely that … presentation in the witness box was not keenly observed and taken into account", and in making such findings the primary judge "enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript": Vagg v McPhee [2013] NSWCA 29; (2013) 85 NSWLR 154 at [84]-[85]. 4. There can be little doubt the factual findings made by the primary judge in rejecting the two allegations of strangling are, to quote Lee v Lee at [55], "likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence". Thus for Ms Riechelmann to succeed in her appeal she must make out a compelling basis to overturn those findings. 5. Given the seriousness of the allegations, this Court – as for the trial judge (see J [542]-[548]) – is required to take account of the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362, as manifest in s 140(2) of the Evidence Act 1995 (NSW), in considering whether they are made out.

Ms Riechelmann's version 1. Ms Riechelmann's account of being strangled by Mr McCabe is summarised above at [22]-[23]. 2. The primary judge listed 15 matters that he considered relevant to considering her account of what had happened at J [677]. His conclusion is set out at J [678]: Many of these various matters raise doubts in my mind about the reliability of Ms Riechelmann's allegations in her evidence that Mr McCabe grabbed her, put his arm around her from behind, choked or strangled her and at some time threw her against a wall and to the ground. Ms Wells did not see the actions alleged by Ms Riechelmann despite being in the foyer and gave an inconsistent version but said they could possibly have occurred. Ms Riechelmann tried to come back into the units and pass by Mr McCabe referring to his sister after the alleged strangling/choking which appears inconsistent with such a significant physical event. In the end, taking into account all of the evidence and the factors I have referred to, I am not satisfied that Ms Riechelmann's account has been established to the requisite standard. 1. The core difficulty Ms Riechelmann faces on appeal when seeking to persuade the Court that her account should have been accepted is that acceptance of that version depends upon accepting the truthfulness of her evidence, in circumstances where not only was it denied by Mr McCabe but it was not supported by the most independent of the three key witnesses, Ms Wells. As noted, the primary judge concluded that he "should exercise some real caution in accepting Ms Riechelmann's evidence of the 31 March 2018 incident unless it is supported by other reliable or contemporaneous or independent or objective evidence" (J [579]). 2. Ms Riechelmann's counsel made various criticisms of the findings of the primary judge in relation to her reliability and credit but these had limited force. Much of the submissions made on Ms Riechelmann's behalf turned on evidence which offered some corroboration of her account. That evidence is discussed below. However, that evidence is also consistent with Ms Wells' account, and overall is more strongly supportive of that account. For reasons set out below we consider that, in light of that evidence, Ms Wells' account should be accepted. In this context little is to be gained by addressing here the submissions made seeking to persuade the Court to also accept Ms Riechelmann's version of events. Ms Riechelmann herself did not claim that there had been two events. 3. The Court is not persuaded that Ms Riechelmann has made out a compelling case as to why her particular version of events relating to strangulation should be accepted.

Ms Wells' version 1. The core of Ms Wells' account is summarised above at [27]-[29]. 2. The primary judge set out 13 considerations at J [675] which he considered relevant to consideration of Ms Wells' evidence (these are quoted and discussed below at [144]-[156]). His Honour said that these matters "raise very considerable doubts in my mind as to the accuracy of Ms Wells' account of the actions of Mr McCabe and Ms Riechelmann outside Mr McCabe's unit and in the foyer area", noting that "her account is very different to Ms Riechelmann's account and Mr McCabe's account" (J [676]). His Honour concluded that he "did not find Ms Wells to be a persuasive or reliable witness having regard to the factors I have referred to in relation to her" (J [681(d)]). 3. One immediate point should be made. His Honour relied on the fact that "Ms Wells' version is inconsistent in many significant ways with Ms Riechelmann's version" (J [677(i)]) as one of the considerations militating against accepting Ms Riechelmann's version, a point he reiterated at J [681(d)]. So doing assumes there is some force in Ms Wells' account. And yet his Honour used the fact that Ms Riechelmann gave a different account as a reason for not accepting Ms Wells' version. In tending to assume the truth of one version to undermine the other, and then vice-versa, his Honour erred. 4. That error echoes the error we have already identified at [52] in relation to his Honour's finding on credit and reliability. In any event, what is of most significance is the contemporaneous evidence of what occurred – starting with Ms Wells' conduct, then Mr McCabe's conduct on the night, then evidence of Ms Riechelmann's near contemporaneous complaints, followed by evidence of Mr McCabe's conduct after the events in question. We will consider those matters in turn before considering Ms Wells' later written statements and testimony, then returning to address the 13 considerations his Honour relied upon at J [675].

Ms Wells' conduct on the night 1. Two key facts about Ms Wells' conduct on the night of 31 March 2018 jump out from the evidentiary landscape. First, Ms Wells became so concerned about what had occurred that she ran to the nearby Cronulla police station to seek their urgent attendance. Secondly, she told a police officer back at the unit block that Mr McCabe had strangled Ms Riechelmann. 2. Ms Wells' evidence was that when she saw Mr McCabe strangling Ms Riechelmann around the neck she ran immediately to the police station because she was so worried about the escalating violence and the time it was taking for the police (who had already been called) to arrive. Her evidence in her second written statement was that she told an officer at the police station that Mr McCabe "had assaulted Julie, strangling her around the throat". 3. Mr McCabe's evidence was that he did not know why Ms Wells left the unit block but he accepted that she had done so. There is no particular reason to doubt that she had gone to the police or that she had run in doing so. It would have been natural to do so if she thought that violence had escalated to strangulation. And, critically, it is not disputed that Ms Wells' view on that night was that Mr McCabe had done something to strangle Ms Riechelmann. 4. When Ms Wells returned to the unit block the police were already there. Mr McCabe's evidence was that initially Ms Riechelmann was arrested by police in relation to a charge of assault. Presumably that was based upon what Mr McCabe had told them. Ms Wells' evidence was that a police officer asked her what she had seen. She told the officer that Mr McCabe had strangled Ms Riechelmann with his hands around Ms Riechelmann's throat to the point that her face was going red and she could not breathe. 5. The officer then took Ms Wells to Mr McCabe and asked her to tell Mr McCabe what she had just told him. On Ms Wells' account, both in her second written statement and in her oral evidence, she said words to the effect of: "You had your hands around her throat and strangled her". 6. Her first statement, prepared by Mr McCabe, states that she said to the police officer at the unit that "Both of them were at each other's throats". It says that she and the officer then went into the unit, where the officer asked her to "Tell him what you just told me", whereupon she said "You had your hand around her throat". The written statement is a little odd in that what she reportedly said in front of Mr McCabe is different from what she said at first to the officer, which was that both of Ms Riechelmann and Mr McCabe were "at each other's throats". However, as the primary judge indicated, it may be more likely that this phrase was meant figuratively rather than literally (J [666]) – assuming, that is, that it was said. In contrast, there is nothing figurative about "You had your hand around her throat". In any case, as addressed further below, Ms Wells' first written statement was prepared by Mr McCabe and she said in her testimony that it was not accurate. 7. In cross-examination Mr McCabe accepted that the police officer had prompted Ms Wells to say something to him. When he was first asked about this he said she said "You had her around the neck". He was asked about it again later, where it was put to him that Ms Wells said words along the lines of "You were trying to strangle Julie". He responded that "I can't recall what words that Melanie said, but that's what occurred" (meaning that something to that effect was said). In substance he accepted that an allegation of strangulation or choking was made by Ms Wells in front of him. 8. A COPS report was entered at 6:13am on 1 April 2018 indicating that Mr McCabe was a person of interest. It records that Mr McCabe had claimed, amongst other things that Ms Riechelmann "grabbed him by the throat". It says Ms Riechelmann claimed that "she was attacked and grabbed on the throat" by Mr McCabe. And it says that a witness – which counsel for Mr McCabe accepted must have been Ms Wells – "saw both parties grabbing each other around the throat". The latter is broadly consistent with Ms Wells' first statement which recorded her telling a police officer that "both of them were at each other's throats". The oddity about all this is that, as Mr McCabe said in evidence, "I never said anything about grabbed by the throat" – that is, he never alleged that Ms Riechelmann grabbed him by the throat. Again, it may be that insofar as there was talk of each being at each other's throats, this may have been meant figuratively. A summary report entered by a police officer the next morning should not necessarily be taken as a precise account, especially as the report goes on to say that all parties "were deemed [too] intoxicated for statements to be reliable", hence indicating that statements would be taken subsequently. 9. In any event, there is no dispute that Ms Wells made an accusation in front of Mr McCabe and a police officer on the night to the effect that he had had his hand or hands around Ms Riechelmann's throat and, on some variants, had strangled her. The fact that Ms Wells said on the night that Mr McCabe had choked or strangled Ms Riechelmann does not make that fact true. The next key question is whether Ms Wells had any motive for lying or exaggerating in the account which she gave on that night. She did not. On the contrary. 10. At the time Ms Wells lived with Mr McCabe in his apartment with her two children. Mr McCabe gave evidence that she was not paying rent and he "looked after her" (T389). Ms Wells accepted that she was not financially dependent on Mr McCabe at the time of the incident (T754). Even so, in the circumstances she had every reason – financially and emotionally – not to undermine her relationship with Mr McCabe. It was obvious that making such a serious accusation in front of police would likely do so. As noted above, an immediate effect of her having done so was that Mr McCabe went to his mother's place that night, and shortly thereafter Ms Wells moved into a serviced apartment for a short while. 11. Furthermore, Ms Wells' own conduct prior to her running to the police and making the allegation of strangling is relevant. As recorded in video 8, at an earlier stage in the interactions she can be heard to say to Ms Riechelmann "Lavo's got a new girlfriend". As the primary judge put it, "[b]oth Mr McCabe and Ms Wells appeared to be goading Ms Riechelmann" (J [677(k)]). Put simply, she had been on his side as against Ms Riechelmann. 12. Thus on 31 March 2018 Ms Wells had every reason to support Mr McCabe, and had earlier acted in a way that manifested she was doing so. That fact provides substantial credence to the allegation she made on that night. There is no apparent reason why she would have made it up. The events on that night occurred some six months before Ms Wells damaged Mr McCabe's car. 13. When addressing whether or not to accept Ms Wells' account of Ms Riechelmann being strangled at J [675] the primary judge did not consider the significance of Ms Wells running to the police. His Honour did refer to Ms Wells having made the accusation, but downplayed its significance (at J [675(m)]): While Ms Wells appears to have told police on the night that Mr McCabe had his hands around Ms Riechelmann's throat, she was intoxicated and this was not repeated in her first statement, which was not entirely favourable to Mr McCabe and was confirmed and signed by her. 1. In fact, as noted, her first statement did say she said that "You had your hand around her throat". As for being intoxicated, his Honour had earlier found that Ms Wells "probably was intoxicated to a lesser degree than Mr McCabe" (J [644]). 2. His Honour concluded that "it is likely, in my view, that Ms Wells in her dealings with the police officer was referring to the interaction between Mr McCabe and Ms Riechelmann shown in Exhibit A when Ms Riechelmann was attempting to gain access to the upstairs of the unit block past Mr McCabe and discussing his sister" (J [675(m)]). Mr McCabe had similarly suggested in his evidence that Ms Wells was mistaken in believing that he had choked or strangled Ms Riechelmann because she had misconstrued the acts shown in video 8 when he was attempting to prevent Ms Riechelmann from re-entering the units (noted J [283]). The respondent sought to support this explanation in submissions to this Court. In our view it is difficult to reconcile that view with the fact that what occurred was of such significance as to cause Ms Wells to run to the police station, even knowing that they had already been called. And the pushing that was partially depicted in video 8 (which was part of Exhibit A) occurred before Mr McCabe and Ms Wells retreated inside Mr McCabe's unit, being some minutes before Ms Wells went to the police. Further, her view that Mr McCabe strangled Ms Riechelmann instead of merely holding her away from him is supported by Ms Hart-Waters' evidence of having observed redness on her neck, which is discussed further below. 3. His Honour also did not address the point that the allegation was made in circumstances where – whatever the later animosity she had to Mr McCabe – Ms Wells had no reason at the time to invent the allegation. This is contemporaneous evidence which does not depend upon accepting her credit or reliability to any significant extent. It militates powerfully in favour of a finding that Mr McCabe did do something to choke Ms Riechelmann. 4. Moreover, this point has some relevance to assessing the credit of Ms Wells. The fact that she made the accusation on the night in question, against interest, lends credence to her later reiteration of the allegation, even if there was some inconsistency in her account of precisely what occurred. It is also relevant that Ms Wells showed some moral courage in acting as she did on the night in question.

Mr McCabe's failure to respond to the allegation on the night 1. Also significant is how Mr McCabe responded when Ms Wells made her accusation of strangling in front of Mr McCabe. He did not respond to it. His evidence was that he did not do so because he was shocked, saying "I couldn't say anything". When asked what caused the shock, he said: "Of that statement, because my view is I'd never had her around the neck. All I had was my arm positioned on her sternum trying to keep her away". 2. The primary judge referred at J [675(m)] to Mr McCabe's claim that he did not respond because he was shocked but his Honour did not make an assessment as to the believability of the claim. 3. In our view the claim by Mr McCabe that he was shocked into silence is implausible. The evidence does not suggest that Mr McCabe was ever lost for words during the course of the evening. It is apparent from watching the video footage – especially video 8 – that Mr McCabe was not restrained or demure in his conduct that night. As the primary judge aptly described it, although he did not appear to be heavily intoxicated in the video evidence, he did appear "slightly red in the face, was slurring his words, was talking loudly and slowly and was acting in an extroverted and assertive or bellicose way" (J [643]). 4. He apparently had no difficulty in interacting with police prior to Ms Wells returning to the unit block in such a way as to cause Ms Riechelmann to be arrested. The COPS entry made the next morning records that he had told the police, amongst other things, that Ms Riechelmann had attacked him unprovoked. 5. When he was accused of having acted "out of line" by Ms Wells earlier in the evening, as recorded in video 8, he had forthrightly and repeatedly denied it. That suggests Mr McCabe had no difficulty voicing disagreement with his partner's characterisation of his conduct that night. 6. As a matter of fact, it appears to us likely in the circumstances of this case that if there had been no basis for Ms Wells' allegation that he had done something to choke or strangle Ms Riechelmann then Mr McCabe would have denied it. That he did not do so lends some weight to the conclusion that there was some basis for the allegation.

Other contemporaneous evidence 1. That Mr McCabe did act to choke Ms Riechelmann that night is also supported by other contemporaneous evidence. 2. Ms Riechelmann sent Mr Lavers a series of text messages at 11:37pm that evening. One described the incident in the following terms: Oh police called because I was knocking on your door Mccabe punched my phone out of my hand physically took me by the throat assaulted me until mel made him stop then charged me !! Crazy women ! … 1. Thus about 90 minutes after the incident Ms Riechelmann was saying to Mr Lavers that Mr McCabe "took me by the throat assaulted me". That is consistent with her also having said to the police that she was "attacked and grabbed on the throat" (according to the COPS report). 2. On either 1 or 2 April Mr Lavers gave some assistance to Ms Riechelmann – seemingly by phone – in seeking to recover videos taken on the night in question that had been deleted from her mobile phone. Ms Riechelmann told him that she was intending to lay charges against Mr McCabe. He encouraged her not to do so. On 1 April Ms Riechelmann also sent Mr Lavers a text message thanking him for his assistance and saying "He said who do you think they will believe!!". However, Mr McCabe denied having said that, and we do not rely on it having been said. 3. The day after the incident Ms Riechelmann contacted a longstanding and close friend of hers, Ms Hart-Waters, by phone. Ms Hart-Waters gave evidence that Ms Riechelmann had told her that Mr McCabe "'tried to choke me'". Ms Riechelmann had told her that she had a "very, very sore neck and throat". In response Ms Hart-Waters suggested that perhaps she needed to seek medical attention. She said that Ms Riechelmann was crying when she told her of what happened. Ms Hart-Waters said she noticed a change in the demeanour of Ms Riechelmann after 1 April 2018, describing her being "very different … She lost a lot of confidence and was very guarded with certain situations, and really not the same as she used to be". 4. Ms Riechelmann and Ms Hart-Waters then went together either the next day or the day after that to the Miranda Police Station to file a report. They were redirected to Sutherland Police Station as there was only one policeman on duty at Miranda. They did not go to Sutherland, because Ms Riechelmann was "tired and exhausted". In any case, according to Ms Hart-Waters, whilst at Miranda Ms Riechelmann removed the scarf on her neck to show her neck, which Ms Hart-Waters described as being "very red". Ms Hart-Waters indicated that the redness she saw was on the lower part of the neck from the larynx to just above the points of the collarbone. This is consistent with Ms Riechelmann having been choked. 5. On 5 April 2018, five days after the alleged strangulation incident, Ms Riechelmann went to a general practitioner, Dr Begum. According to Dr Begum's notes, Ms Riechelmann wanted to document injuries as she was going to make a statement to the police. The doctor's notes recorded that Ms Riechelmann had told her that she was "grabbed from behind" and "h[e]ld to choke the throat". Various bruises and scratches are recorded, including a fading bruise on her right chest. Dr Begum did not record signs of redness or bruising on the throat. 6. When giving evidence on her injuries, Ms Riechelmann did not volunteer that she had suffered redness, and she was not asked about it either in chief or in cross-examination. She was asked about some photos she had taken herself of bruising. On one of these, which was part of Exhibit G, she was asked to circle "bruising that you showed Dr Begum". She circled a point on her right upper chest, and she later said that there may have been bruising closer to her right shoulder as well. She agreed that she did not suggest there was any bruising on her neck. 7. Ms Hart-Waters was shown the Exhibit G photo marked by Ms Riechelmann and agreed that what was marked was different from what she had described in relation to redness. She indicated that Ms Riechelmann's top "wouldn't have been that low for me to see" the bruise that Ms Riechelmann had marked. The primary judge attributed great importance to this difference, describing it as "very significant" (J [457]). 8. His Honour then concluded as follows in relation to Ms Hart-Waters: [463] Overall, Ms Hart-Waters appeared to be an honest witness who was doing her best to give her evidence truthfully and comprehensively to the best of her recollection. It was clear that she did not have a full recollection of the conversation with Ms Riechelmann on the morning of 1 April 2018, but did recall the allegation that Mr McCabe had attempted to choke Ms Riechelmann. This evidence is relevant to the accuracy of the allegation by Ms Riechelmann as it amounted to a recent complaint made the next day after the alleged incident. [464] However, the difference between Ms Hart-Waters' recollection of the redness on Ms Riechelmann's neck area compared to Ms Riechelmann's own recollection of her bruising is significant and raises some doubts as to the accuracy of Ms Hart-Waters' recollection. There was also no expert medical evidence on this point of difference. I find that it is likely that Ms Riechelmann, who herself had the bruises complained of, would have a better recollection as to where she had been bruised or marked on the area of her upper front torso at and near her neck. Accordingly, I prefer her evidence on this point to the extent there is any difference to that of Ms Hart-Waters. 1. His Honour later used this disparity relating to whether or not there was redness or bruising on Ms Riechelmann's neck to undermine Ms Wells' evidence, saying that "Ms Wells' account is not reflected in the bruising indicated by Ms Riechelmann in Exhibit G or by Dr Begum's record" (J [675(m)]). 2. In our view his Honour erred in his approach to this evidence. It is unfortunate that Ms Riechelmann was not directly asked about any redness on her neck. The onus to establish the cross-claim was and is on her. However, there is a difference – at least of degree – between redness and bruising. Understanding that point does not require expert medical evidence. The fact that Dr Begum did not record redness suggests there was probably none there five days later, but redness is liable to fade more quickly than bruising. Further, the fact that Ms Riechelmann did not herself give evidence of redness on her neck is one thing, but in circumstances where she was not actually asked about it we think his Honour erred in concluding that her lack of evidence on the point undermined Ms Hart-Waters' direct evidence of having observed it, where his Honour accepted her as an honest witness. Redness around the neck of someone claiming to have been choked does not seem the sort of thing that one would make a mistake of memory about. And even if Ms Hart-Waters had been mistaken about the redness, that still would not undermine the significance of the fact – which his Honour appeared to accept – that Ms Riechelmann had made a near immediate complaint that Mr McCabe had tried to choke her. 3. Moreover, to then use the point about the lack of evidence about bruising on the neck to undermine Ms Wells' account goes too far of itself. That reasoning assumes that there necessarily would have been redness or bruising, where it is not clear that that is so. 4. In sum, Ms Riechelmann's contemporaneous complaints about having been choked to Mr Lavers, Ms Hart-Waters and Dr Begum lend some, if limited, support to her claim. Of greater weight is the observation of redness by Ms Hart-Waters, being a witness whose credibility the primary judge accepted. His Honour erred in not taking these matters into account as supporting the cross-claim. As noted above, these matters are substantially consistent with either of Ms Riechelmann's and Ms Wells' accounts of what occurred.

Mr McCabe's subsequent conduct 1. As noted above, his Honour expressed a list of concerns about Mr McCabe's evidence at J [565]. Those concerns included the following: (b) His denials that he was aware that he was a person of interest to Police, when in my view, it was clear to him that the Police were considering all parties involved and wanted to take a statement from him, particularly in the light of what Ms Wells said about his conduct towards Ms Riechelmann in the presence of a Police officer. The effort Mr McCabe took in obtaining and preparing statements is strong evidence of his belief and concerns as to the risks in his position; (c) His denials that he wanted to control the obtaining of information for Police in circumstances where I am satisfied that he was doing just that by refusing an interview with Police, preparing his own statement and then preparing draft statements (and obtaining signed statements) for Police from Mr and Mrs Pusell and Ms Wells … 1. Thus following the incident on 31 March 2018 Mr McCabe actively sought to control the information that went to the police. As the primary judge indicated, his conduct suggests that Mr McCabe was concerned about his position. So, too, do a number of the other concerns that his Honour listed at J [565] (which is quoted in full above at [43]). That being said, such conduct could possibly be explained as inappropriate behaviour by someone of a controlling temperament which did not necessarily indicate consciousness of guilt. 2. What is of significance, however, is the concern that his Honour alluded to at J [565(g)]. After Mr McCabe had learned that Ms Wells had prepared a second statement in April 2020 which she had provided to Ms Riechelmann's legal team, he sent a letter to her dated 15 June 2020 on his firm's letterhead (recalling that his own firm was acting for him). The letter was in evidence. In it, Mr McCabe stated that Ms Wells would be subpoenaed to give evidence, and that she would be "treated as a 'hostile witness' because we are of the view you have deliberately given a different version of events from the one you provided to Police on the 31.03.2018". The letter goes on to say that when she appeared in court "we will request that you take an oath before giving evidence and cross examination". We pause to note that that remark is disingenuous; any competent solicitor would know that a witness taking an oath or affirmation when giving evidence in court is not something that is optional at the request of a party. The letter goes on to say that "[i]f you commit perjury, and you are found to make a statement knowing it to be false or not believing it to be true, it is a serious offence …". There is a bullying tone to the letter. But that is not the matter of greatest concern. 3. The letter enclosed two statements by Mr McCabe dated 20 May 2020. Neither statement was in evidence – for good reason – but the content of one of them was raised by senior counsel for Ms Riechelmann in his examination in chief of Ms Wells: Q. You received the letter in front of you-- A. Yep. Q. --which included the two statements, and one of the statements contained information about your sexual history? A. Correct. Q. When you read that letter and read those statements, what was your concern about coming along and giving evidence for Ms Riechelmann? A. That my sexual history would be discussed in a very public forum. Q. Notwithstanding that threat, you've agreed to come along and give evidence today? A. Yes. 1. Ms Wells' sexual history had no conceivable relevance of any kind to the matters at issue in the proceeding below. No reasonable person, let alone an experienced solicitor such as Mr McCabe, could have thought otherwise. 2. Counsel for Mr McCabe accepted that Mr McCabe had done "some disgraceful things". The conduct described above plainly was disgraceful, but it may be more serious than that. His Honour found that "I am satisfied that at least one probable purpose of this letter was an attempt to discourage Ms Wells from giving evidence at any final hearing" (at J [565(g)]). That quite understandable finding was made despite Mr McCabe's denial of that purpose in cross-examination. For a person to act in a way that seeks to intimidate or frighten a witness so as to deter them from giving evidence is conduct of the most serious nature, particularly when done by a solicitor: note the cases collected in David Rolph, Contempt (Federation Press, 2023) at 382-389. It is "of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice": Ex parte Bread Manufacturers Ltd (1937) 37 SR (NSW) 242 at 249 per Jordan CJ. Whether or not there should be consequences for that conduct is not a matter for this Court in this matter (subject to the issue raised below at [163]-[164]). 3. What is relevant here is that the fact that Mr McCabe engaged in such conduct, and was prepared to act in an untoward manner to seek to discourage Ms Wells from giving evidence, suggests a concern on his part about her evidence. The primary judge referred to the fact that Ms Wells was asked about the statement prepared by Mr McCabe (J [421]) but did not otherwise take it into account. In our view his Honour should have done so. It not only further undermines Mr McCabe's own credibility; it tends to reinforce the believability of Ms Wells' account. And the fact that Ms Wells came to court to give evidence despite being faced with the possibility of this material being addressed in the proceedings lends credence to her testimony. It tends to suggest that she is a person of some moral strength and character (even allowing for her own distinct criminal conduct in "keying" Mr McCabe's car at a certain stage of their relationship – see above at [40]). That behaviour is consistent with the moral courage she exhibited on the night of 31 March 2018.

Ms Wells' statements and testimony 1. As explained above, Ms Wells' evidence was in the form of two statements and oral evidence. The first statement was dated 20 May 2018, approximately two months after the alleged incident, and the second was made on 15 April 2020, approximately two years after the alleged incident. Ms Wells made the second statement without having first watched the video recordings and thus relied upon her memory alone. She prepared the second statement herself at home, although there was some unclear evidence suggesting that some typing or retyping of it may have been done by Ms Riechelmann's solicitor. 2. In his paragraph listing matters relevant to consideration of Ms Wells' evidence, the primary judge said the following at J [675(g)] about the two statements: There is a substantial difference in the accounts given by Ms Wells in her two statements. Even though Mr McCabe prepared the first statement in draft, Ms Wells expressly approved it and signed it and accepted that she must have spoken to him to provide him with details relating to it prior to its preparation. The first statement was also not entirely favourable to Mr McCabe. The second statement was prepared well after the events of 31 March 2018. Although Ms Wells gave evidence that part of the first statement was inaccurate and she had "no choice" but to give it, the differences in the two statements raise real concerns about the accuracy of her accounts, despite her explanation as given for the differences … 1. At J [681(d)], in the course of a paragraph setting out his conclusions, the primary judge relevantly said the following: "I did not find Ms Wells to be a persuasive or reliable witness having regard to the factors I have referred to in relation to her. Her account was very different to Ms Riechelmann's account". In effect his Honour seems to have set aside all of Ms Wells' evidence as being too unreliable. As summarised above at [48]-[51], his Honour had earlier concluded at J [587] that "some real caution should be exercised before accepting Ms Wells' evidence as to the events of 31 March 2018". In that regard his Honour had referred to inconsistencies in Ms Wells' oral evidence. His Honour had indicated a preference for Ms Wells' evidence in her second statement over her oral evidence in relation to one issue because it was recorded closer to the events in question (at J [584]). 2. There is no doubt that there were inconsistencies between Ms Wells' various accounts. However, there were also core points which were consistent, and some of the inconsistencies were explained or of limited significance. In our view his Honour went too far in setting aside her accounts, even making allowance for the natural advantages his Honour had in having seen her give evidence.

Ms Wells' first statement 1. As regards Ms Wells' first statement, notably, it recorded that Ms Wells said to Mr McCabe, in front of a police officer, that "[y]ou had your hand around her throat". That only referred to one hand, albeit it still alleged something approaching choking. The statement also said that "[h]aving been told of the actual events that led up to David McCabe holding Julie Riechelmann away, I now believe that David McCabe acted in a reasonable manner". 2. In the course of Ms Wells' examination-in-chief she identified various points in the statement which she said were incorrect including, notably, the following: 1. She said that the assertion that "I cannot recall everything that occurred or what I said to the police", and that her memory was impaired by alcohol consumption, was incorrect. 2. The statement said that "I cannot remember the events that occurred before the incident. I can remember David with his outstretched right arm, with his hand up against Julie Riechelmann's chest and neck area". The incorrect point in the statement, she said, was in relation to not being able to remember the events, and that "he had both of his arms, not just the right arm, around Julie's neck". 3. Senior counsel for Ms Riechelmann got her to agree that there was "no mention made of the strangulation", which arguably is incorrect. In any event, she said that that was so because Mr McCabe "didn't want anyone to know that he strangled [Ms Riechelmann]". 4. As for the statement that "I now believe that David McCabe acted in a reasonable manner", she said in fact she thought it was not reasonable behaviour but extremely aggressive. 1. Ms Wells' evidence was that her first signed statement was prepared by Mr McCabe to be provided to the police. The primary judge appeared to accept that he had prepared a draft statement for her, along with Mr and Mrs Pusell (at J [565(c)]). At the time that this first statement was prepared Ms Wells was still living with Mr McCabe in his unit with her two children although, as discussed, she had moved out for about a week following the incident. As noted above, Ms Wells gave evidence that she had rung the police to "retract my statement" given on the night in question because "it was causing me lots of trouble in my home life", saying that Mr McCabe had wanted her to change her statement because of a concern he would lose his livelihood. Ms Wells said she signed the statement in front of Mr McCabe. 2. The evidence has to be assessed in circumstances where the primary judge found Mr McCabe had wanted to control the evidence given to police (J [565(c)]), where Ms Wells and her children lived with Mr McCabe and he "looked after her", along with her evidence that she had rung the police to retract what she had said on that night (which we see no reason not to accept, and the primary judge seemed to have accepted at J [675(m)]). In that context, we see no reason then not to accept her explanation in Court that she had felt pressured to tone down her real views in her first statement. 3. The primary judge suggested that the fact that Ms Wells accepted that "she was prepared to let the police rely on [the first statement] due to what Mr McCabe had said to her about the effect on his livelihood and due to tensions in the household" was evidence that "did not reflect well on Ms Wells' credit or reliability" (J [419]). Even assuming that this did reflect on her credit, the acceptance of the truth of her evidence that she did so does not undermine her later evidence in light of the plausibility of her explanation for having acted as she did. Further, as explained above it is clear that Ms Wells did accuse Mr McCabe, in front of police, of having done something to choke Ms Riechelmann on the night. Her first written statement clearly seeks to downplay things in comparison, suggesting that in fact Ms Wells was downplaying her views in that statement. 4. In the circumstances we see no reason to doubt that Ms Wells was truthful in saying that she had made a choice to downplay things, for the reason that she gave. In our view, his Honour erred to the extent that he regarded inconsistencies involving Ms Wells' first statement as weighing to a material extent against accepting her later evidence.

Ms Wells' second statement and her oral evidence 1. Ms Wells' second statement contains a clear allegation that "David … strangled Julie around the throat". However, this is said to have occurred after a particular thing had been said relating to Mr McCabe's sister, where video 8 shows that thing was said prior to Mr McCabe and Ms Wells retreating into Mr McCabe's unit and closing the door. Her second statement was some two years after the alleged incident. She prepared it by herself and apparently without having viewed any of the video footage from the night in question. 2. Ms Wells was shown video evidence (apparently for the first time) during cross-examination. The primary judge noted, correctly, that "[b]efore she viewed in court the video evidence … Ms Wells gave a version of events which had a number of inconsistencies with the video evidence, particularly video eight" (J [582]). The most notable inconsistency was as to the timing of the strangulation, in particular vis-à-vis the thing said about Mr McCabe's sister. There were also some inconsistencies in relation to what happened to Ms Riechelmann's phone (noted J [584]). His Honour went on to say that "once she had seen video eight, Ms Wells appeared to be much less confident in relation to her recollection of the events of 31 March 2018" (J [584]). That conclusion, too, can be accepted. Nevertheless, she maintained her evidence that they "ended up back out in the hallway and that's when he strangled her" (T638), after which "I ran to the police station" (T641). Her evidence in that regard was maintained under persistent questioning. 3. Ms Wells was giving evidence in June 2022, over four years after the night in question, and without having had the benefit of being assisted by any legal representatives to refresh her memory in advance by, for example, showing her the videos. That there were some inconsistencies and errors in her account is not surprising. In the circumstances, we do not regard them as of such significance as greatly to undermine the weight of her evidence. Taking her oral evidence as a whole it is apparent that she was incorrect in some of her earlier testimony (in light of video 8), and there were many other details that she could not remember, but she was not shaken in her recitation of the core description of strangling. The following extract from the cross-examination is illustrative: Q. That is, do you want to change any of the evidence you gave this morning having seen the video? A. No. Q. You saw the picture on the video, yourself and David inside the unit; is that right? A. Yes. Q. And does that accord with your recollection? A. I don't remember being in that unit with him. Q. But you agree that you're depicted on the video as being inside the unit with him? A. Yes. Yeah, yes. I don't remember how long I was in there with him either. Q. Okay. And what did you do next? A. I don't know. All I know is that we ended up back out in the hallway and that's when he strangled her. I was more towards the front door, standing right towards the entry way to the unit block. 1. The fact that Ms Wells did not seek to change her testimony in light of the video, or claim any recollection of being inside the unit with Mr McCabe despite the video clearly showing that she was, if anything goes to her credit as a witness simply giving evidence as to what she then could remember. 2. There was one unusual part of Ms Wells' testimony in which she said that "I think the video's reconstructed", then adding, in response to a clarificatory question, that it might have been falsified in some way (noted J [430]). There is no plausible basis in the evidence for any such suggestion. However, in context this suggestion appears to be more of a retort by a witness who was somewhat exasperated. As mentioned above, the primary judge recorded that Ms Wells "objected to having to give detailed oral evidence and, in particular, objected to being cross-examined in some detail and tested on her evidence" (J [585]). And her use of the word "reconstructed" was in response to the cross-examiner's suggestion that "what you're doing now is trying to reconstruct" having been confronted with the video. In this context this part of her testimony does little to undermine her evidence. 3. That being said, the primary judge was obviously correct to recognise the significance to assessing her credibility and reliability of the fact that by the time she was giving evidence Ms Wells and Mr McCabe had undergone an acrimonious relationship breakdown, in the course of which Ms Wells had gone so far as to deliberately damage Mr McCabe's car. As his Honour said, that conduct "evinces a substantial degree of anger by Ms Wells towards Mr McCabe at the time" (J [675(b)]). 4. Nevertheless, it is also significant that although some details were different in significant respects, Ms Wells' evidence in her second statement and in her oral testimony was consistent with the allegation that it is undisputed that she made, against interest, on the night in question having run to the police station by reason of the escalating violence: that Mr McCabe had done something to choke or strangle Ms Riechelmann. That core consistency militates against discounting her evidence on the topic.

Inconsistencies between Ms Wells and Ms Riechelmann's version 1. As discussed, there were two main inconsistencies between Ms Wells' and Ms Riechelmann's versions of the strangulation. First, as to timing, Ms Riechelmann's evidence was that it was shortly after her phone fell, whereas on Ms Wells' account as given in oral testimony it was some minutes after that, following Mr McCabe and Ms Wells having come back out of Mr McCabe's unit. Secondly, as to the method, Ms Riechelmann's evidence was that she was strangled by the respondent from behind, using one arm, whereas Ms Wells indicated that it was from the front using both hands. Ms Riechelmann gave evidence that she could not remember being strangled in the manner alleged by Ms Wells. And Ms Wells gave evidence that she did not see Ms Riechelmann being choked in the way that Ms Riechelmann had claimed. These differences are significant. 2. As addressed above at [52] and [68], we consider the primary judge erred in discounting Ms Wells' account and her credibility because her account was inconsistent with Ms Riechelmann's account in a context where his Honour had already discounted Ms Riechelmann's account and her credibility because her account was inconsistent with Ms Wells' version. 3. Even so, it is strange that two materially different accounts should be given of an event. Ms Riechelmann herself did not allege she had been choked twice. That being said, Ms Riechelmann's evidence was that she had a "gap" in her memory. For example, she said the following in her evidence in chief: A. … I remember being strangled. I remember being thrown against the wall. I remember going upstairs and calling out for Jon Lavers. Q. After you were released, have you got any idea of the sequence as to which event occurred first? A. After I was - well, I believe I was released because I could breathe, Mel called out, which stopped the pressure, and then I was thrown against the wall in the hallway. … Q. Do you recall, after you were released, wanting to go somewhere? A. Yes. I - I wanted to get Jon. I just wanted to go upstairs. Get safe. Even though I - I didn't even think that he wasn't there. Q. What did you try to do? A. I just tried to go up the stairs. Just tried to go upstairs. Q. What happened? A. I don't remember. I don't know. I remember going upstairs and knocking on his door and leaning up against his door and crying and knocking on his door and calling out. And then it was really quiet, so I just went downstairs and went out and waited for the police. 1. The gap in her memory was said to be between her account of being strangled and then going upstairs to Mr Lavers' unit. Ms Riechelmann was called to give evidence after Ms Wells had started giving evidence. By this stage it was apparent that Ms Wells' account of the strangulation was quite different to Ms Riechelmann's version. Earlier, in October 2020, Ms Riechelmann had told the psychiatrist retained by Mr McCabe in the proceedings, Dr John Roberts, that "she had memory problems over the last few years". However, that seems to have been a more generic problem than one explaining a particular loss of memory. 2. After the issue emerged, Ms Riechelmann obtained three medical reports relating to her claimed inability to recall the events described by Ms Wells. Dr Andrew McClure, a psychiatrist, prepared a report which put forward three possible explanations for Ms Riechelmann's claimed lack of memory of the incident: alcohol intoxication, hypoxic brain injury and the effect of trauma on memory storage. As for the former two, he suggested that these were more issues appropriate to be addressed by a neurologist or a drug and alcohol physician than a psychiatrist. 3. Dr Roberts referred to one of those explanations, hypoxia, as a possibility. He said that "transiently circumscribed loss of awareness [is] a not unanticipated consequence of an act of strangulation". 4. Dr Bruce Brew, a neurologist, said that he considered a "neurological cause" was unlikely to explain the "amnestic event". He also considered alcoholic intoxication an unlikely explanation given the evidence as to how much she had drunk and her state of intoxication. As regards hypoxia, he considered "[s]trangulation causing hypoxia leading to amnesia" was a "possible but not definite" explanation, although he suggested that the lack of neck bruising would be unusual for "hypoxia secondary to strangulation". He also said that there were "many" possible causes of an amnestic event, and did not address Dr McClure's suggestion of trauma (no doubt because that was more of a psychiatric issue). 5. None of the medical evidence is conclusive. In light of the evidence of Dr Brew in particular, the primary judge was not satisfied "that these opinions support a finding of either alcohol induced amnesia or a neurological cause" (J [619]). That left the possibility of a trauma-related cause. His Honour accepted the opinion of Dr McClure that "a highly traumatic event may lead to a lack of conscious recollection of the event including in the context of PTSD" (J [622]). His Honour had earlier found that Ms Riechelmann did suffer from PTSD (J [612]). As to that condition, his Honour found that "if it is established that [Ms Riechelmann] was subject to a tortious battery (or batteries) or an assault by Mr McCabe on 31 March 2018, I find that that tortious act (or acts) aggravated the plaintiff's depression and caused PTSD" (J [615]). 6. In any case, in light of various factors (identified at J [623]), his Honour concluded that the effect of trauma was a possible but not likely explanation for Ms Riechelmann's apparent inability to recall the incident to which Ms Wells had testified (J [626]). In submissions to this Court Ms Riechelmann was critical of this conclusion. There is some force in the critique. Many of the factors relied upon by his Honour do not appear necessarily inconsistent with the suggestion of a trauma-induced gap in the memory, including the facts that Ms Riechelmann was able to give detailed evidence of the "first incident", that she could recall events after the gap in her memory, and that video 8 records her having a lucid conversation with Mr McCabe. None of the doctors suggested that it was not plausible that there should be such a gap, with memories before and afterwards. The presence of such memories is thus not directly to the point. Further, video 8 was completed some minutes before the strangulation occurred on Ms Wells' account of events. 7. In the result, Dr McClure's unchallenged evidence as to a possible traumatic cause provides a possible explanation for the gap in Ms Riechelmann's memory. Whether or not there was such a gap in the end turns on acceptance of Ms Riechelmann's claim that the gap existed. In the end, it suffices for us to conclude that there is a plausible explanation for there being a gap in Ms Riechelmann's memory. 8. Returning to the significance of there having been two differing accounts, it is conceivable that both accounts are true and that Ms Wells' simply did not observe or did not recall the events recounted by Ms Riechelmann, whilst the gap in Ms Riechelmann's memory explains her lack of recall of a second incident of strangulation. Yet Ms Wells seems to have been present at all material times, excluding an explanation that she did not observe what occurred on Ms Riechelmann's account. And the suggestion that Ms Wells' did not recall it seems unlikely. If both accounts are true, why would Ms Wells remember one shocking incident on the night but not another? 9. It is also conceivable that Ms Riechelmann's version of events is correct, and that Ms Wells' has remembered the fact of strangulation but not the details of it, which she has then reconstructed in her mind in some way. But that seems unlikely given the consistency of Ms Wells' core allegation about strangling or choking by Mr McCabe using his hands, rather than his arm. Conversely, it is conceivable that Ms Riechelmann's memory of the nature of the strangulation is scrambled, particularly given the possibility of traumatic amnesia, and she has reconstructed events in her own mind in a mistaken way. 10. In the end there is no neat way of reconciling the two accounts. As each was pleaded in the alternative, the ultimate question is whether we are persuaded of one or the other. For the reasons explained above at [62]-[64], we are not sufficiently persuaded of Ms Riechelmann's account to uphold it on appeal. 11. We do not consider that the inconsistency between the two accounts is such that both should be ignored, especially in circumstances where there is a plausible explanation for the inconsistency. This is not a case where two witnesses had an interest in concocting a claim but without the wit to get their stories straight. Ms Wells made her allegation immediately on the night in question, against interest, and has maintained that allegation, albeit with some inconsistencies along the way.

The factors relied upon by the primary judge 1. The primary judge ultimately concluded that he was not comfortably satisfied by the accounts of either Ms Riechelmann or Ms Wells (J [681(d)]). On that basis Ms Riechelmann's cross-claim was not made out. In reaching that conclusion his Honour did not place any particular weight on the evidence of Mr McCabe himself. That is unsurprising in light of the conclusions he had reached as to the credit and reliability of Mr McCabe. The conclusion rather turned on whether his Honour was persuaded based upon the evidence of Ms Riechelmann and Ms Wells. We, too, do not place any great weight on Mr McCabe's denial of what occurred, taking account of the concerns that the primary judge (justifiably) had about his conduct and evidence. 2. His Honour set out 13 matters relevant to consideration of Ms Wells' evidence at J [675]. It is appropriate to address all of those factors here in order to draw together the threads of this judgment. The first four were as follows: (a) On the evidence, there is clearly a substantial degree of animosity held by Ms Wells towards Mr McCabe; (b) Their relationship was also to some extent volatile – Ms Wells was found to have "keyed" Mr McCabe's car during their relationship causing substantial damage to the vehicle even though (on the evidence) a conviction was apparently not recorded against her. She admitted this conduct in her evidence. This evinces a substantial degree of anger by Ms Wells towards Mr McCabe at the time. Ms Wells herself described the relationship as "volatile" in her oral evidence; (c) Their prior relationship ended with some ill-feeling between them; (d) The text messages sent by Mr McCabe to Ms Wells' new partner caused her both trauma and real embarrassment (Mr McCabe accepted the texts were inappropriate). The texts were clearly inappropriate and offensive … 1. These points are all correct. They constitute reasons for approaching the evidence of Ms Wells given after those events with some initial caution. Yet they do nothing to undercut the significance of Ms Wells' conduct on the night in question. And the core consistency of her evidence with her conduct on that night militates against devaluing her evidence because of the animosity that arose subsequently between her and Mr McCabe. 2. Next, his Honour said this: (e) Ms Wells was intoxicated on the evening in question which is relevant to the reliability of her perceptions and recollections – see my analysis above. See also paragraph 5 of her first statement dated 20 May 2018 and the differing evidence in her second statement; (f) There is no video evidence to support directly her account of Mr McCabe's alleged actions, including the alleged "strangling" occurring with two hands after the events shown in video 8 (part of Exhibit A) … 1. There was no real dispute that Ms Wells was intoxicated to some degree. However, his Honour himself found that Ms Wells "probably was intoxicated to a lesser degree than Mr McCabe" (J [644]). This does not suggest that she was so intoxicated as to substantially devalue her evidence. The absence of video evidence directly supporting her account does not undermine her account. There is no suggestion that anyone was videoing what occurred after Mr McCabe and Ms Wells came back out of the unit where they had retreated earlier. 2. His Honour's next three factors were as follows: (g) There is a substantial difference in the accounts given by Ms Wells in her two statements. Even though Mr McCabe prepared the first statement in draft, Ms Wells expressly approved it and signed it and accepted that she must have spoken to him to provide him with details relating to it prior to its preparation. The first statement was also not entirely favourable to Mr McCabe. The second statement was prepared well after the events of 31 March 2018. Although Ms Wells gave evidence that part of the first statement was inaccurate and she had "no choice" but to give it, the differences in the two statements raise real concerns about the accuracy of her accounts, despite her explanation as given for the differences; (h) There are also differences between the Wells' version (a grab or a knock) and the Riechelmann version (a slap or punch to the hand) in relation to how the Riechelmann phone hit the ground. Mr McCabe's version is again very different; (i) There are very substantial and significant differences between Ms Riechelmann's version of the battery/choking incident and Ms Wells' version of the "strangling". Ms Riechelmann gave evidence that Ms Wells was in the foyer when the alleged battery occurred. Ms Wells stated that the "strangling" incident occurred after the events in video 8, not earlier. She stated that the strangling occurred face to face with Mr McCabe's hands outstretched: T771-T772. Ms Riechelmann gave evidence that it occurred from behind and involved pulling Ms Riechelmann's head back forcefully. Ms Wells said it occurred after the discussion about Mr McCabe's sister in the foyer whereas Ms Riechelmann said it occurred much earlier. The inconsistencies were significant and several in number and are concerning. I take into account the evidence of Drs McClure, Roberts and Professor Brew in relation to a possible explanation for the gaps in Ms Riechelmann's memory … 1. In relation to the differences between Ms Wells' two written statements, as addressed above at [116]-[122] we consider that these are understandable and do not significantly undermine her account. As we conclude there, in our view his Honour erred to the extent that he regarded inconsistencies involving Ms Wells' first statement as weighing to a material extent against accepting her later evidence. As we explained at [123]-[129], in relation to various inconsistencies in her evidence more broadly we do not consider these are such as to undermine the force of the core consistency in Ms Wells' evidence that she saw Mr McCabe choke Ms Riechelmann. 2. As regards the inconsistencies between Ms Riechelmann's account and Ms Wells' account, that is a notable and unusual feature of this case. However, we consider the primary judge erred in discounting one version based upon the other, then vice-versa. As addressed above at [130]-[140], we do not consider that the inconsistency between the two accounts is such that both should be ignored, especially as there is a plausible medical explanation for Ms Riechelmann's lack of recollection of Ms Wells' version of events. 3. Next, his Honour said the following: (j) There is some uncertainty in my view as to whether Ms Wells' "out of line" comments to Mr McCabe referred to the events immediately outside Mr McCabe's unit or the events which later occurred near the stair balustrade when Mr McCabe appeared to be attempting to prevent Ms Riechelmann coming back into the block of units. On Ms Wells' evidence, the comments were made before the "strangling" had occurred; (k) I could not discern on the video footage the part asserted by Ms Riechelmann of "you just stra…" I therefore cannot be satisfied that it was a claim by Ms Riechelmann that Mr McCabe had just "strangled" her. On Ms Wells' evidence, no strangling had occurred to her observation by this time … 1. The first of these points is neutral. On Ms Wells' account, the "out of line" remarks she made to Mr McCabe occurred prior to the choking incident. She also gave evidence that "I said on a number of occasions during the evening that he needed to stop, and to leave her alone". The second point is also neutral as regards Ms Wells' account. 2. His Honour's final two considerations were these: (l) Ms Riechelmann attended her general practitioner Dr Begum on 5 April 2018: Exhibit B page 91. The account recorded has Ms Riechelmann stating "punched phone out of R hand while recording verbal conversation" not that Mr McCabe struck Ms Riechelmann's hand (although she may have intended the same action). There is also a reference to "hold to choke the throat." However, the examination by Dr Begum does not refer to marks or bruises on the throat or neck areas but rather "R chest – fading bruise 2.5 x 3 cm". The notes may, of course, not be complete, but Ms Riechelmann did attend to record her injuries and this was noted. Thus, Dr Begum would likely have been careful in recording his findings. I take into account the comments in Mason v Demasi [2009] NSWCA 227 per Basten JA at [2]. Mr McCabe does not dispute that he had his hand out in front of him contacting Ms Riechelmann's upper chest as she advanced towards him but denies any form of strangling or choking of her. See also Exhibits G and H and the difference between Ms Riechelmann's marked bruising and Ms Hart-Waters marked redness. I have accepted the former as likely being more accurate; (m) While Ms Wells appears to have told police on the night that Mr McCabe had his hands around Ms Riechelmann's throat, she was intoxicated and this was not repeated in her first statement, which was not entirely favourable to Mr McCabe and was confirmed and signed by her. The police account at Exhibit B page 56 seems to be different to both the McCabe and Riechelmann versions. It records in relation to Ms Wells (it appears): "A witness states she walked in after the incident had started and saw both parties grabbing each other around the throat." Mr McCabe says he did not respond to Ms Wells' version stated in front of the police officer as he was shocked by it. Ms Wells' account is not reflected in the bruising indicated by Ms Riechelmann in Exhibit G or by Dr Begum's record. The police recorded that Ms Riechelmann "had no visible injuries": Exhibit B page 56. Having considered the differing versions, it is likely, in my view, that Ms Wells in her dealings with the police officer was referring to the interaction between Mr McCabe and Ms Riechelmann shown in Exhibit A when Ms Riechelmann was attempting to gain access to the upstairs of the unit block past Mr McCabe and discussing his sister. It appears only one hand was used by Mr McCabe at this time (video evidence). See also Ms Wells' first statement paragraph 26, Exhibit F, where there is a reference to one hand. If Mr McCabe had really controlled the finalisation of this statement of Ms Wells, one would not expect adverse material to him to have remained in the statement. I accept the submissions of the plaintiff on this issue. 1. As we have addressed at [96]-[105], in our view Ms Riechelmann's contemporaneous complaints about having been choked to Mr Lavers, Ms Hart-Waters and Dr Begum lend some limited support to her claim. The direct observation of redness by Ms Hart-Waters, being a witness whose credibility the primary judge accepted, is of greater weight. We consider that his Honour erred in discounting the evidence of Ms Hart-Waters in relation to her observations. 2. As to the matters raised at (m), we have already addressed the significance of Ms Wells being intoxicated and of the limited nature of Ms Wells' first statement. 3. For the reasons expounded at [53]-[59], the appellant faces a significant hurdle in seeking to have this Court overturn factual findings based in part upon impressions formed by the primary judge after a long trial, and involving serious allegations. However, as explained, there are some facts which stand out and which are substantially not in dispute. On the night in question Ms Wells became so concerned about the escalation in what was occurring that she ran to the police station (see above at [69]-[85]). Shortly thereafter she repeated in front of Mr McCabe an allegation she had already made to the police: Mr McCabe had had his hands (or hand) around Ms Riechelmann's throat and strangled her. When faced with this most serious allegation, Mr McCabe said nothing. We are unpersuaded by his subsequent claim that this was due to being shocked by the allegation (see above at [86]-[91]). 4. That clear, contemporaneous conduct speaks powerfully in this matter. When Ms Wells made that allegation it was distinctly against her interest. She was making an allegation against her then partner, with whom she and her two children lived, in support of a woman whom she had no reason to like, and whom she had been taunting alongside Mr McCabe only a few minutes before. 5. That contemporaneous conduct is consistent with the near contemporaneous complaints of Ms Riechelmann, along with Ms Hart-Waters' observation of redness on the neck. These points offer significant support for Ms Riechelmann's cross-claim, based on Ms Wells' version of events, even before one comes to consider Ms Wells' subsequent statements and testimony. The points themselves tend to reinforce the credibility of the core of Ms Wells' testimony. So does the fact that Ms Wells gave evidence despite the disgraceful apparent attempt by Mr McCabe to deter her from doing so. 6. In light of the conflicting evidence of Ms Riechelmann and Ms Wells it is possible that there were two incidents of strangulation, or one or the other, or neither. Our conclusions must take account of the significance of the allegation, and the natural advantages of the primary judge in having heard and seen all the witnesses give evidence over the course of a long trial. 7. In the end, we are comfortably satisfied to the requisite standard that there was one significant act of strangulation by Mr McCabe directed to Ms Riechelmann, being an act of the kind outlined by Ms Wells which caused her to run immediately to the police station. We are not so satisfied in relation to Ms Riechelmann's account, for which the advantages of the primary judge are not outweighed by consideration of contemporaneous evidence. 8. For these reasons the appeal should be upheld.

Concerns about the conduct of Mr McCabe 1. As explained above, the primary judge listed a series of concerns about Mr McCabe's conduct at J [565]. His Honour's concerns appear well-based. Most particularly, the conduct we have discussed above at [108]-[111] raises questions of grave significance as to whether Mr McCabe may have acted in contempt of the District Court, acted criminally, and in breach of his ethical obligations as a legal practitioner. 2. Consistently with the course discussed in Muriniti v Kalil [2022] NSWCA 109 at [105]-[107], Mr McCabe should be provided an opportunity, should he wish to avail himself of it, to show cause why the Court should not refer the papers in this matter, including this judgment, to the Legal Services Commissioner.

Orders 1. The appeal should be allowed. As noted, Mr McCabe did not seek to support any claim of self-defence in this Court, nor did he seek to dispute the damages assessed contingently by the primary judge. Costs in this Court should follow the event. 2. The notice of appeal did not properly grapple with what orders should be made in the event that the appeal succeeded. After this was raised at the hearing further proposed orders were filed on Ms Riechelmann's behalf by leave of the Court. Those orders sought judgment in the amount of $146,000, based upon the assessment of the primary judge, along with orders for interest and costs below. However, in relation to one component of that assessment his Honour said that "I would allow $20,000 in aggravated damages for both batteries and $10,000 if only one battery is accepted" (at J [706]). Only one battery has been made out. On his Honour's assessment, thus, damages are fixed at $136,000. 3. Mr McCabe was given an opportunity to respond to the orders proposed by the appellant and he appeared to accept that they were appropriate if the appeal was successful. However, his position was not entirely clear. In that context it is appropriate to allow liberty to apply lest the Court has misunderstood the position. 4. The orders of the Court will thus be as follows: 1. Appeal allowed. 2. The respondent is to pay the appellant's costs of the appeal. 3. Order 3 made by the District Court on 21 February 2023 is set aside and the following orders are made in lieu thereof: 1. Judgment for the cross-claimant against the cross-defendant on the Cross-claim in the sum of $136,000; 2. The cross-defendant is to pay interest on the judgment sum from 21 February 2023 pursuant to s 101 of the Civil Procedure Act 2005 (NSW). 1. As regards costs of the proceedings in the District Court, orders 2 and 3 made by that Court on 20 July 2023 in relation to costs of the cross-claim are set aside, and in lieu thereof it is ordered that the cross-defendant pays the cross-claimant's costs of the cross-claim. 2. Liberty to the parties to apply for any variation or addition to these orders within 14 days. 3. Mr McCabe has 14 days to show cause why this Court's judgment and the papers in this Court should not be referred to the Legal Services Commissioner.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 February 2024