DPP v SS [2021] VSC 563

2 The prosecution of charges 1 and 3 came before this Court by virtue of s 173(2) of the Act, having been transferred here by order of the Magistrates' Court. The case on these charges was able to be heard and determined summarily by me pursuant to s 174 of the Act, the accused having consented to this course and the prosecution not having opposed it. A plea of guilty was entered on his behalf to charge 3, and a plea of not guilty to charge 1. The summary charge of unlawful assault was a related offence to charge 1 and was transferred to this Court at the same time as the indictable charges. This charge was heard at the same time as charge 1. A plea of not guilty was entered. In compliance with s 174(3) of the Act, the hearing was conducted in accordance with Part 3.3 of the Criminal Procedure Act 2009.

3 The applicant was convicted of murder in 2000. He was made subject to a SO under the Act on 23 August 2019.[1] The order permitted the applicant to reside in the community. On a review of that SO on 8 January 2021,[2] the order was modified to contain an intensive treatment and supervision condition requiring him to reside at Rivergum Residential Treatment Centre ('Rivergum'). The applicant commenced residing at Rivergum in February 2021.

4 One of the core conditions of the SO to which the accused was subject at the time of the alleged offending provided:

[SS] must not engage in any behaviour or conduct that threatens the safety of any person (including [SS]). [3]

5 Charge 1 concerns an alleged breach of the above condition.

6 The current alleged offending arose on 9 July 2021 on the occasion of the applicant being transported from Rivergum to attend a dental appointment in Ararat.

7 As a result of an apparent deterioration in the conduct of the accused in the lead-up to this trip, arrangements were made to increase the security surrounding the applicant as he was conveyed to and from the dental appointment, which was at the Ararat Hospital only a short drive from Rivergum. As it transpired, the applicant was transported to and from the appointment in the rear seat of a Toyota Tarago people mover containing two Specialist Case Workers ('SCW') in the rear seating area with the accused and two members of the Emergency Response Group ('ERG') in the front of the vehicle. Trailing behind the Tarago as it drove to and from the appointment was a second vehicle containing a number of members of the Security and Emergency Services Group ('SESG').

8 The trip went without incident as the accused was transported to the dental appointment, and during the appointment itself. As the vehicle containing the accused was driven back towards Rivergum, and was only a short distance from the centre, it is alleged that the accused questioned the enhanced security arrangements in place for the trip. It is alleged that he launched a tirade of abuse towards the SCW worker seated next to him in the rear seat, threw his body around causing some physical contact with the worker, and threatened to assault the worker. It is alleged that the accused committed an intimidatory assault upon the worker (charge 2), and that by his conduct in the vehicle, he breached condition 2.8.

9 It was the position of the accused that events in the vehicle did not occur as indicated by the witnesses. The accused denied uttering any threat to any person, or in any way carrying out an intimidatory assault. Furthermore, it was the defence position that even taking the prosecution evidence at face value, it would not be sufficient to establish a breach of condition 2.8 or an unlawful assault.

10 Five witnesses were called on the prosecution case. These were the four occupants of the Tarago besides the accused, and the informant, Detective Leading Senior Constable Greg Mitchell, a member of the Supervision Order Specialist Response Unit ('SOSRU') at Rivergum.

11 Craig Youlden, has been a SCW at Rivergum for 2 ½ years, after earlier working as a prison officer. He was one of the staff of the centre who took the accused for a trip to the dentist in Ararat on 9 July 2021. The accused was transported to and from the dental appointment in the rear driver's side seat of the Tarago. Youlden sat in the rear middle seat, next to the accused. Carl Barry was seated in the rear passenger seat. The driver was Jacob Nyikos. The front seat passenger was Peter Jory. Another vehicle containing four SESG members followed the Tarago to and from the dental appointment.[4] Additional security measures had been put in place in response to the accused being seen as a high risk due to previous incidents. These security measures had been explained to the accused before the departure from Rivergum.

12 Youlden said there were no issues on the way to or while the accused was at the dentist. Furthermore, he seemed happy for the first half of the return journey, until they got within eyesight of Rivergum. At this point, the accused began to get agitated about the fact of there being so many people accompanying him on the expedition. Youlden told him this was a regular practice. The accused called Youlden a 'lying cunt'.[5] Things 'escalated from then'.[6] The accused became quite agitated and angry. At one point, he leaned forward to have a drink from his drink bottle, before cracking his knuckles and then leaning back into the seat, throwing his elbow back in the process, catching Youlden twice to the shoulder with some force. He said to Youlden, 'I'll smash your fucking head in, you smartarse cunt'.[7] Youlden told the accused to calm down and mentioned the prospect of the car being pulled over. After a brief pause, the accused turned to Youlden, putting his nose against Youlden's nose. He said, 'Do you wanna go on with it? We'll go on with it. Pull the car over'. Throughout it all, the accused yelled in a loud and angry voice. From the time of the threat, Youlden feared that the accused was going to immediately punch him to the face, and that he would not be able to defend himself because of the confined space in which he was situated. Youlden said that he thought his life was at risk. At some point, Barry intervened, at which time the accused started yelling at Barry, saying that they were all pricks and not his friends. The whole incident occupied between one and two minutes. At the end of it, the vehicle arrived back at Rivergum.

13 In cross-examination from Mr de Vietri, Youlden resisted the contention that the accused had not called him a 'cunt'. He refuted the contention that the contact with his shoulder when the accused leant back having taken a drink was incidental. He maintained that the accused deliberately poked him with his elbow. It was put to him that the accused had not uttered any physical threat to him. He disagreed. He also disagreed with the contention that the accused had not offered to 'go on with it'. Youlden maintained his evidence of the nose-to-nose part of the incident and of the cracking of the accused's knuckles. He agreed that he could have asked the driver to pull up at any time, but he did not feel safe having the car pulled up. The vehicle maintained a steady course and speed throughout the incident. In respect of the feelings of fear the witness had, he stated that his knowledge of the accused's background added to his fears, but did not make any real difference. In response to Mr de Vietri's suggestion that Youlden did not think there would be an immediate application of force to him, the witness disagreed.

14 Carl Barry was the other SCW involved in the expedition of the accused to the dentist on 9 July 2021. The dental appointment had finished by about 12.20pm without incident and the return trip to Rivergum commenced. The three men in the rear of the Tarago were seated 'shoulder to shoulder',[8] with the accused on the driver's side. At about 12.24pm, the accused enquired why so many people were involved in the transportation. Youlden explained the reason to him. After a short time, the accused commenced a tirade of abuse towards Youlden, calling him 'a weak maggot such and such and all that type of stuff'.[9] As Barry put it, 'his behaviour heightened up extremely high'.[10] He spoke in a loud voice. Youlden told the accused to calm down. At one point, the accused said to him, 'I will rip your head off'. At the point of saying that, the accused and Youlden were 'virtually touching nose to nose'[11] and the accused was 'extremely heightened'.[12] The look on Youlden's face indicated to Barry that he was fearing for his life. As for the accused, at the time of uttering the threat, his face had a 'horribly angry, violent, out of control type look'.[13] Barry said that the accused's physique is much larger than that of Youlden. After the verbal tirade, the accused leant forward to grab a drink bottle. Having had a drink, he expanded his chest, put his shoulders out and then pushed himself back into the seat, connecting with Youlden's right shoulder in a forceful way. At some stage, Youlden told the accused to calm down and referred to the possibility of pulling the car over. At the time of the events, the vehicle was travelling at 60-80 km/hour. In the circumstances of being in the confined space of the vehicle travelling along at that speed, Barry himself did not feel safe. At a point, Barry interjected, asking the accused to calm down. This prompted the accused to say that Barry was no mate of his. Barry did consider the prospect of the car pulling over, but believed in the circumstances that it would be better and safer to return to the secure facility of Rivergum as soon as possible. He was concerned that by the time the car was pulled up, there could have been a 'tirade' (sic) of punches from the accused, and that things could also have got ugly outside the car.

15 In cross-examination, Barry agreed that the three men seated in the back of the vehicle were right up against each other, touching. Once the tirade of abuse started, he agreed that at some point, the accused did call Youlden a liar, but disagreed that he did not refer to Youlden in vulgar terms. He indicated that as well as calling Youlden a weak maggot, he called him a 'screw'. It was put to Barry that the accused did not threaten to rip Youlden's head off. He maintained that he did. From the look on his face, he meant it. At some point, the accused said something to the effect of, 'Stop the car and we'll punch on outside'. Barry refuted the contention that the contact between the accused and the shoulder of Youlden when the former leant back in the seat was incidental. It was done in an intimidating way. He said that the accused was fully aware of the tight seating situation, and had no respect for Youlden. He agreed that he was aware of the accused being prone to frequent moody outbursts at Rivergum. As the events unfolded, he thought from his words and actions that the accused might throw a 'coward's punch'. He agreed, however, that the accused did not say that he was going to punch or hit Youlden. Barry agreed that he could have asked for the car to be pulled over, but reiterated that his concern was to keep the community safe which could be best achieved by getting the accused back to Rivergum which was only a short distance away. Barry confirmed his evidence that the noses of Youlden and the accused appeared to actually touch.

16 In re-examination, when asked to elaborate on the vulgar terms used by the accused, Barry indicated that he said, 'You're nothing but a weak screw, fuck it, screw-maggot'.[14]

17 Jacob Nyikos, a member of the ERG, was the driver of the Tarago on the occasion of the accused's outing to the dentist in Albury. On the way back to Rivergum at about 12.30 pm, the accused asked questions about the staffing numbers for the outing. Youlden gave a response. The accused did not appear to receive the response well. He became 'very angry very quickly'[15] and started leaning in towards Youlden, who told him to calm down, and that the matter would be discussed upon their return to Rivergum. The accused seemed to calm down for a time, then, as they approached Warrak Road, he again got very angry. He started yelling very loudly at Youlden and then Barry. The witness could not recall what he said. Nyikos continued driving along the road, monitoring the situation in the rear view mirror, making eye contact and exchanging subtle nods with Youlden. On two separate occasions, separated by the short period of calmness, he observed the accused come into view, bringing himself into a position nose to nose and very close, within an inch, of Youlden while he yelled at him in a loud voice. Nyikos checked the rear view mirror more frequently than would usually be the case. He felt safe to continue driving, and considered that continuing on to Rivergum was the safest option. To stop the vehicle would have increased the risk.

18 In cross-examination, Nyikos agreed that he did not see the accused apply any force to Youlden. He said that he did not hear the accused threaten anybody in the car. He did not know if the accused did or did not threaten anyone. He did hear loud and aggressive yelling from the accused. In spite of this, he felt continuing to Rivergum was the safest course. Had he heard a threat and someone asked him to stop the car, he would have done so. In response to questions from me, Nyikos indicated that there was no car radio or other source of noise in the vehicle.

19 Peter Jory, another member of the ERG, was the front seat passenger in the Tarago. On the way back from the dentist, the accused appeared compliant until such time as the vehicle crossed over the train tracks, whereupon the accused questioned staff about the enhanced security arrangements for the outing. Youlden explained the reason for the arrangements. The behaviour of the accused 'escalated' as he began to abuse and threaten Youlden, which conduct continued for the remainder of the journey and for a time after the arrival back at Rivergum. The accused called Youlden a number of derogatory names including a 'cunt' and a 'dog'. He was yelling loudly as he did so. Youlden tried to calm the accused down. To the best of the recollection of Jory, the accused threatened Youlden along the lines of, 'I'll smash your fucking head in, you dog', or 'you cunt'. [16] At one point, Jory turned and noticed, in his peripheral vision, the accused reach forward for his drink bottle. Jory looked at his phone to see whom he could 'raise the alarm' with. Upon looking back, he saw the accused appear to puff out his chest and then aggressively sit back, making contact with his elbow to the upper rib area of Youlden. Jory's reason for not wanting to turn fully around was that he did not want to escalate the situation, and he thought eye contact with the accused might do that. He considered asking Nyikos to stop but felt the safest option was to continue on the short distance to Rivergum. At one stage, the accused seemed to calm down for a while, but then he resumed his abuse and threats towards Youlden. Threats to Youlden were repeated more than once although Jory did not remember how many times the specific threat to smash his head in was repeated.

20 In cross-examination, Jory was challenged as to the correctness of his evidence about that specific threat being used. He maintained his evidence. When it was put to him that the contact between the accused and Youlden when the former sat back from getting a drink could have been incidental, he agreed, but noted that it was a tight fit in the rear seat area and that there was no apology by the accused for the contact. Jory indicated that had he considered an assault to be imminent, he would have asked the driver to stop the vehicle. During the incident, the vehicle was driven in stable fashion, there being no change in the manner in which it was driven.

21 The informant gave evidence of his position with SOSRU. The SO was tendered through him. He gave evidence that upon the entry of the accused into Rivergum, a Corrections officer met with him and took him through the conditions of the order. The accused signed an acknowledgment of having been given a copy of the order and of the conditions having been explained to him. The informant indicated that on 8 July 2021, that is, the day before the alleged offences, Rivergum management expressed concerns about the accused's 'unregulated behaviour'[17] in light of the outing scheduled for the next day. Concern was expressed about his escalating problematic, intimidating behaviour over recent months. On 9 July 2021, about ten minutes after the return of the vehicle to Rivergum, the informant met with Youlden, who told him of having been threatened by the accused. Youlden looked as though he was recovering from a fright. He was flushed and seemed nervous. The accused was arrested just after 2 pm, with force being used to gain entrance to his unit. He was conveyed to the police station. When there, he complained of injuries and was taken to hospital, before returning to the police station at about 7.40 pm. At 9.35 pm, a tape-recorded interview commenced. The interview was played to the Court and tendered, along with a transcript. In cross-examination, the informant confirmed that the accused has not been charged with any violent offences since being in Rivergum, excluding the current charges.

22 In the tape-recorded interview,[18] the accused admitted that there were heated words in the car on the way back from the dentist. He claimed that he was told to shut up and that there was a suggestion that the car would be pulled over, which he took as a veiled threat that he would be assaulted because of the aggressive way in which it was said. The accused strongly denied that he had used any threatening language, saying that he would be 'crazy' to do so as there were four Rivergum workers in the car.[19] He described the allegation of the threat as being 'ridiculous'.[20] He also denied any physical assault. He said, of the enhanced security measures, that these were overkill and there was no need for them. He asked why it was being done to him, why he was being treated differently. The three of them were shoulder to shoulder in the back seat. The accused denied calling Youlden a 'lying cunt'. He did accuse him of telling a lie, however. He denied cracking his knuckles. He did lean forward to get a drink at one point before leaning back. He denied ever being face to face or nose to nose with Youlden. The accused claimed that he had always 'owned' what he had said at Rivergum. He did have issues with his recollection, but he did recall that he never threatened to smash Youlden's head in.[21] The accused said he had a good understanding of the conditions of his order. He accused the workers of making up lies that he had threatened them. He said that they should wear body cameras or have cameras in the vehicles. He said that he had been set up, and had not threatened or assaulted anyone.[22] He described his argumentative behaviour in the car and back at Rivergum as not 'flash, that's for sure, I was arguing'.[23] He said it was 'the God honest truth, I wasn't threatening in the car at all, a hundred per cent'.[24]

23 At the close of the case for the prosecution, Mr de Vietri indicated that no witnesses would be called for the defence. The accused had put his version of events in the interview and no evidence would be led.

24 Submissions as to the elements of the offences and related legal matters were made on both sides before the commencement of evidence, and after its conclusion. In addition, both sides addressed me on the evidence, and how it should be viewed in light of the matters to be proved in order for the accused to be found guilty of any offence.

25 Ms Champion submitted that the elements of charge 1 can be described thus:

(i) The accused was subject to a supervision order containing a particular condition;

(ii) The accused contravened the condition by an act or omission;

(iii) The accused did not have a reasonable excuse for that contravention.

26 Mr de Vietri did not challenge the correctness of the elements above, but raised the prospect that the second element might in some situations need to be split into two. This was not such a case.

27 In respect of the second element, Ms Champion submitted that whilst s 169 of the Act contains no 'fault element', as she put it, a consideration of s 10AB of the Sentencing Act 1991 would indicate that a restrictive condition, as condition 2.8 is, can be contravened intentionally, recklessly or otherwise than intentionally or recklessly. The prosecution case was put on the basis that the accused contravened condition 2.8, at a minimum, recklessly.

28 In respect of charge 1, the legal submissions focused on the meaning of the phrase 'threatens the safety of any person' as contained within condition 2.8. Ms Champion submitted that 'threatens' and 'safety' are ordinary English words which should be given their usual meaning. She took me to dictionary definitions of the words. In elaboration of the meaning of 'safety' and 'safe', she took the Court to the decision of R v Butcher[25] in which what she described as the related concept of 'violence' was considered. The case was authority for the proposition that the word 'violence' should be given a broad interpretation encompassing utterances or threats only, without an application of force. She posed the question, 'Is a person who has been subjected to violence safe?' She answered the question in the negative. She submitted that:

safety is not consistent with a person who has been placed or subjected to violence, and that violence can include acts, actions, words that do not involve the actual application of physical force.[26]

29 In submissions made before the evidence, and at the commencement of her submissions made after the evidence, Ms Champion put the case on charge 1 on two limbs. The first was based on what was said to be the unlawful assault upon Youlden, which threatened his safety. The second was based upon that conduct having taken place inside a vehicle travelling at speed which in the circumstances, threatened the safety of all of the occupants of the vehicle. This second way in which the case was put was subsequently abandoned by Ms Champion.

30 Mr de Vietri had, at the commencement of the case, challenged the prosecution contention as to the meaning of the words, 'threatens the safety'. He submitted that it would represent a contortion of the words of that condition to include under its umbrella the making of a verbal threat. He submitted that for the safety of a person to be threatened the physical safety of the person would need to be 'put in harm's way' or jeopardised. Mr de Vietri maintained these submissions towards the end of the hearing. Bringing in a consideration of the meaning of 'violence', he submitted, was a distraction from a consideration of the plain words of the condition. The condition does not prohibit the making of a threat. The condition would not be breached unless a person's physical safety was 'actually jeopardised'.[27] It cannot be the case that a person could be in breach of a restrictive condition of a SO by being merely intimidating.

31 In respect of charge 2, the parties were at one as to the fact that the elements of this offence in the circumstances could be considered to be the following:

(i) The accused committed an act that caused the complainant to apprehend the immediate application of force to his body;

(ii) The accused intended his actions to cause such apprehension, or was reckless as to that outcome;

(iii) The accused had no lawful justification or excuse for causing such apprehension.[28]

32 Ms Champion submitted that that there are numerous authorities for the proposition that words alone are capable of constituting an assault. She referred to Barton v Armstrong[29] and R v Ireland.[30] This proposition was not disputed by Mr de Vietri who himself relied on what is said in the entry for common law assault in the Victorian Criminal Charge Book[31] and in Slaveski v State of Victoria[32] in support of the proposition that a threat of physical harm not accompanied by physical contact can amount to assault. He submitted, however, that what is important is the immediacy of the apprehended application of force. He urged the Court to focus on that aspect when considering the evidence. He submitted that what is alleged in this case, even were I to accept all of the evidence, is not sufficient to establish the apprehension of the immediate application of force.

33 Mr de Vietri urged me further to consider the extent to which the relationship between the accused and Youlden may have a bearing on the question whether the accused intended to put Youlden in a state of apprehension of the immediate application of force. To that end, he drew the Court's attention to the decision of Barbaro v Quilty.[33]

34 In her submissions on the evidence, Ms Champion commenced with a consideration of charge 2 and how the evidence of the witnesses is relied on in proof of that charge. She submitted that the assault is constituted by 'three broad incidents'[34] which together comprise a combination of utterances and physical acts over a short period of time, amounting to one continuing transaction. The three incidents should be seen in their surrounding circumstances of Youlden being squashed and restrained by a seat belt in the back seat of a moving vehicle in close proximity to the much larger accused, with the knowledge he had of the accused being a convicted murderer residing at Rivergum under a SO. These matters were all well known to both Youlden and the accused.

35 The first incident summarised by Ms Champion was the event in which the accused leant forward, cracked his knuckles, got a drink and then leaned back, throwing his elbows back at Youlden with a high degree of force. Ms Champion took me through the evidence of the various witnesses in support of the occurrence of this incident and of the proposition that it caused Youlden to believe he was about to be punched.

36 The second incident relied upon was the threat screamed by the accused to Youlden that he would smash his head in. Ms Champion emphasised the very close proximity between Youlden and the accused at the time of the threat and the fact that Youlden's evidence was that he feared he was going to be assaulted. The only reasonable inference was that what he feared was the immediate application of force.

37 The third incident occurred when the accused leaned forward, put his nose against Youlden's nose, and asked if he wanted to 'go on with it' outside the car.

38 Ms Champion submitted that each of these three incidents caused Youlden to apprehend that he was going to be punched by the accused. Taken together, they constituted one continuing assault.

39 In respect of the requisite mens rea, Ms Champion submitted that at a minimum, the accused was reckless as to whether his conduct and words would engender in Youlden an apprehension of the immediate application of force. In fact, she submitted I could be satisfied that the accused intended to bring about that outcome.

40 Ms Champion submitted that if I look at the entirety of the accused's behaviour throughout the three incidents, I should have no trouble finding that he was threatening, aggressive and intimidating, and deliberately so. As she put it:

Why else would you yell at someone that you would smash their head in? Why else would you push your nose against their nose? Why else would you throw your back (sic) aggressively, unless you intended to cause them to fear that you might do something to them then and there.[35]

41 Ms Champion urged the Court to accept the evidence of Youlden, which was corroborated in significant respects by other witnesses.

42 Turning to charge 1, Ms Champion indicated that the words and conduct of the accused relied on in proof of charge 2 were also relied on in proof of charge 1. She submitted that the concept of 'safety' as contained in the condition is broader than the matter of physical harm. If a person is subject to violence, he or she may not be safe, depending on the circumstances. In this case, Youlden was subject to an ongoing assault which was highly aggressive and intimidating and designed to instil fear in Youlden that he was going to be badly assaulted. This constituted violence of a kind such that Youlden was not safe at that time. His safety was threatened. As for the mental element of this charge, at the very least, the accused realised that by his conduct he would probably cause the safety of Youlden to be threatened.

43 At the outset, Mr de Vietri posited two questions. First, what were the words actually uttered in the car? Secondly, other than the words uttered, what were the pieces of conduct by the accused that gave force to those words, or which by themselves might have given rise to an apprehension of the unlawful application of force?

44 Mr de Vietri submitted that before I could find the accused guilty of either charge, I would need 'to be in a position to make a finding beyond reasonable doubt as to what utterances were made by [the accused]'.[36] Furthermore, I would need to be in a position to make a finding beyond reasonable doubt about the pieces of conduct relied upon. He submitted that I should have doubt about exactly what was said by the accused and exactly what he did. In response to a question from the Court, notwithstanding the above, Mr de Vietri accepted that as a matter of law, only the elements of the crime in question are required to be proved beyond reasonable doubt, but he persisted in the submission that if I was unsure exactly what was said, then that would cast a 'reasonable doubt' over the elements.

45 Mr de Vietri then took me through the evidence of the witnesses touching on the various incidents. He submitted that the failure of Nyikos to give any evidence of a threat 'is a conspicuous absence'.[37] The evidence of Barry about a threat to rip Youlden's head off casts doubt on whether any actual threat was made, as it was of a different nature than the threat alleged by Youlden. The words Barry attributed to the accused, whilst aggressive and confrontational, would not be such as to give rise to the apprehension of the immediate application of violence.

46 As for Jory's evidence, it illustrated, submitted Mr de Vietri, that no particular battery was imminent as he saw it, and the line had not been stepped over. This was especially relevant in relation to element 2 of assault, that is, the accused's state of mind.

47 As for the leaning back in the seat, Mr de Vietri submitted that this cannot be considered to be a piece of conduct that would support the elements of assault. As he put it, 'it really does not take the prosecution case on assault much further at all'.[38] He submitted that it is possible this event was 'incidental' rather than deliberate.

48 In respect of the proximity between the faces of Youlden and the accused, the evidence in this regard was questionable. Mr de Vietri submitted that 'it is not clear, beyond reasonable doubt, as to exactly what the situation was with the - whether it was nose to nose, or close'.[39]

49 Mr de Vietri submitted that the real issue when considering Youlden's evidence is the question of the immediacy of the unlawful application of force apprehended by him. He submitted that there must be some real doubt about whether he really apprehended an immediate application of force. Later in his submissions, however, Mr de Vietri abandoned that as the real issue, and focused on whether or not it could be established that if the accused did utter the threat indicated by Youlden, he intended or was reckless as to the words raising the necessary apprehension in Youlden's mind.

50 In the end, Mr de Vietri submitted that bearing in mind Youlden's vulnerable position in the vehicle and the fear he felt as a result of the accused's volatile and unpredictable nature, in spite of his best efforts to recall what was said during this heated and intense incident, there is some doubt in light of the evidence of the other three witnesses whether Youlden got things completely right.

51 Mr de Vietri took me in some detail through the police interview. He pointed out the continual denials by the accused of any threatening words or any intention to assault. He also noted the accused's explanation for the contact with Youlden when he, the accused, leant back in the seat. Indeed, he submitted that the three aspects of the prosecution case were all 'addressed squarely'[40] by the accused in the interview.

52 In respect of the surrounding circumstances relied upon by the prosecution, namely, the squashed-in nature of things in the car, and the size discrepancy between the accused and Youlden, Mr de Vietri made the point that neither of these was within the control of the accused. He acknowledged, however, that both were within his knowledge and that of Youlden.

53 Mr de Vietri noted that the accused is known at Rivergum as someone with a short fuse who had been known to be verbally aggressive and intimidating. On the other hand, he has not assaulted anyone at Rivergum. These matters would be relevant to his intention during the events.

54 Ultimately focusing on the second element of assault, Mr de Vietri submitted that I should not be satisfied that through any of his words or conduct, the accused intended to cause an apprehension in Youlden of an immediate application of force. He urged me to find the accused not guilty of assault, and as a result, not guilty also of the charge of contravening a condition of a SO.

55 I will begin by focusing on charge 2. The evidence relied upon by the prosecution on this charge includes all of the evidence relied upon in proof of charge 1. If the prosecution case on charge 2 were to fail, the case on charge 1 would necessarily also fail. On the other hand, success on charge 2, from the prosecution perspective, would not guarantee a like outcome on the first charge.

56 The submission made by Mr de Vietri to the effect that I would not be able to find the accused guilty of either charge unless satisfied beyond reasonable doubt as to the particular utterances made by him and conduct relied upon in proof of the alleged assault is instructive as to a mistake sometimes made in criminal prosecutions. Mr de Vietri correctly accepted, shortly after having made the submission, that as a matter of law, the only things about which I would need to be satisfied beyond reasonable doubt are the elements of any offence I was considering. To be so satisfied, I would not need to be satisfied of precisely what the accused said and did in the vehicle. I would of course need to be satisfied beyond reasonable doubt that each and every element of the particular crime being considered has been made out.

57 In this case, four witnesses who were in the motor vehicle when the alleged offences occurred attested to their respective recollections of what was said and done in the vehicle. As would be expected in any case in which a number of eye witnesses are called upon to say what they saw and heard of events which took place in front of them, what unfolded before me were four separate, and different accounts about the goings on in that vehicle. It is plain that the prosecution case on the charge of assault cannot depend upon some requirement of unanimity between the versions of the respective witnesses. Such unanimity, were it to be present, may perhaps be considered to be more a source of suspicion rather than comfort.

58 Before I turn to consider the most important aspects of the evidence which are relied upon by the prosecution in proof of the charge of assault, I note that in spite of the differences between the accounts of the respective witnesses, there are some conclusions which would be well justified upon a consideration of the testimony of all of them, and of these, a number of the conclusions would not be in dispute from the accused's perspective, as indicated in his police interview and the way in which the case was conducted on his behalf. Some of these conclusions would be important background to the consideration of whether the prosecution has proved its case on the charge of assault.

59 One of these matters is the timing, and apparent cause, of the commencement of the clearly problematic behaviour of the accused in the Tarago. The evidence indicates that in spite of the fact that the security arrangements had been in place from the commencement of the outing, and that the accused had been previously told about them, any concerns in the mind of the accused about the matter did not manifest themselves until they did so, seemingly out of the blue, as the Tarago neared Rivergum on the return journey. On this matter all of the witnesses were in agreement. After an uneventful trip, the accused suddenly, it seems, became put out, and in the end, angry, about what he saw as the heavy-handed security arrangements made for the trip. He made these concerns clearly known to Youlden, who, on all of the evidence, bore the brunt of the accused's anger. On the prosecution case, the accused's anger about the matter was at the heart of his criminal conduct which followed. On this score, a central aspect of the account of Youlden was strongly supported by other evidence.

60 The accused accepted in his interview that there were heated words by him in the vehicle on the way back to Rivergum, and that these were about the security arrangements, which he saw as being unnecessary. He denied using the threatening and abusive language attributed to him by Youlden, but admitted that his behaviour was 'not flash', and that he had accused Youlden of being a liar. Both Barry and Jory supported Youlden's account of abusive and threatening language and derogatory terms having been applied by the accused to Youlden. Nyikos could not remember any particular words, but did hear loud and aggressive yelling from the accused.

61 Another matter about which there was strong support in the evidence for Youlden's account concerned the fact of the accused apparently having leaned forward to reach his drink bottle, before leaning backwards and coming into deliberate physical contact with the shoulder or torso of Youlden. Youlden indicated that the contact was by the elbow of the accused into his, Youlden's, shoulder. Barry observed the accused leaning forward for the drink bottle then leaning back in a forceful way, coming into contact with Youlden's shoulder in a forceful way. He did not accept that this contact might have been accidental. Jory also witnessed the same event, observing the accused sit aggressively back, contacting Youlden to the upper rib area. Fairly, he conceded this contact could have been 'incidental', but he remarked on the lack of apology by the accused. As for the accused, he admitted that there was an occasion when he leaned forward for his drink bottle before leaning back into the seat. He denied any deliberate contact with Youlden, although judging by the way the case was conducted on his behalf, he did not dispute contact.

62 On all of the evidence, I am satisfied that there was an incident in the vehicle, after the commencement of the episode, in which, having leant forward and had a drink, the accused brought his body back forcefully and deliberately into Youlden's shoulder or chest area. This was an act of deliberate physical aggression directed at the person who is the alleged victim of the assault. It was not charged as a battery of itself, but was relied upon as the first particular incident in the ongoing assault.

63 Turning to the second of the particular matters relied upon by the prosecution, that is, the screamed threat by the accused to Youlden that he would 'smash [his] fucking head in', that threat was heard in very similar terms by Jory. Barry did not seemingly hear that particular threat, but he heard another equally aggressive and threatening statement from the accused, uttered by a man who, on the evidence of Barry, was looking and acting 'extremely heightened and angry'. As for Nyikos, he, too, heard loud and aggressive yelling from the accused directed at Youlden. He did not hear any threat, but he was in the driver's seat and focusing on the task of driving. The fact of his not having heard the threat attested to so clearly by Youlden and Jory does not, to my mind, call the account of Youlden in this respect into question.

64 Considering, then, the accounts of the four occupants of the vehicle who gave evidence before me, all four of them described the very angry and abusive language of the accused directed at Youlden. Three of them attested to threatening words uttered by the accused. All of that evidence was contrary to the protestations of the accused in his police interview.

65 The third incident pointed to by the prosecution was the occasion described by Youlden, shortly after the shouted threat to smash his head in, in which the accused turned to Youlden, put his nose up against Youlden's nose, and said, 'Do you wanna go on with it? We'll go on with it. Pull the car over'. Barry said that he observed the accused and Youlden 'virtually touching nose to nose', at the point when the accused uttered the threat which Barry recalled was that he would 'rip [his] head off'. Barry said that he accused had a 'horribly angry, violent, out of control type look' on his face at the time. As for Youlden, he looked frightened. Nyikos, observing events through the rear view mirror, saw the accused on two separate occasions separated by a short period of calmness, bring himself into a position nose-to-nose, and within an inch or so, of Youlden.

66 In respect of this incident, too, it was apparent that the account of Youlden garnered very significant support from the others in the motor vehicle.

67 Ms Champion relied centrally on the account of Youlden in proof of the assault alleged against the accused. She submitted that Youlden's account was significantly corroborated by the evidence of the other witnesses to events inside the motor vehicle. I agree with that submission.

68 Having considered all of the evidence, I am satisfied that the accused, for reasons best known to himself, became very angry about what he saw as the unnecessary arrangements made to ensure security on the outing to the dentist. Having become thus inflamed, I am satisfied that he launched a tirade of abuse directed at Youlden, who was seated close beside him. The accused knew full well about the confined position of Youlden close beside him, the discrepancy in size between the two of them, and the knowledge that Youlden possessed as to what it was that led to the accused being a resident in Rivergum subject to a SO. I am satisfied that the accused used the insulting and derogatory terms attributed to him in the evidence, and that in doing so, he was manifesting the substantial level of anger he felt for some reason, which he saw fit to pay out against Youlden. I am satisfied that in that angry state, having leant forward to reach his drink bottle, he leant forcefully back and deliberately brought his shoulder or elbow into the shoulder or upper body of Youlden. I am satisfied that he then threatened to smash Youlden's head in. I am also satisfied that on at least one occasion, the accused deliberately brought his nose in contact with or very close to the nose of Youlden, before asking Youlden whether he wanted to go on with it, which was intended to be an invitation, or rather, a threat to be involved in a fight. I am satisfied that throughout these events, which encompassed the utterances and physical conduct of the accused, Youlden apprehended and feared that the accused was about to launch an immediate physical attack upon him. I am also satisfied that the accused intended that his words and actions would have precisely that effect upon his victim. I am satisfied that the accused had no lawful justification or excuse for his angry and deliberately intimidating conduct and words.

69 I am satisfied that each of the elements of assault has been proved beyond reasonable doubt. I therefore find the accused guilty of charge 2, unlawful assault.

70 I now turn to charge 1. The accused is charged with failing to comply with condition 2.8 of his SO. That condition is a restrictive condition of the order, because it is a core condition referred to in s 31(9) of the Act. There is no guidance in the Act, and nor has any authority been drawn to my attention which casts light on the meaning of the words, 'threatens the safety of any persons' as they appear in the condition. It may be observed that the core conditions in s 31 designated by the definition of 'restrictive condition' in s 3 of the Act are important conditions. They are conditions prohibiting the commission of serious criminal offences, engaging in conduct in residential facilities or residential treatment facilities which poses a risk to the good order of the facility or the safety and welfare of offenders or staff or visitors to the facility, and engaging in conduct that threatens the safety of any person including the offender.

71 It seems to me that I am required to attribute to the words in question their ordinary English meaning. I take into account the dictionary definitions which have been drawn to my attention.

72 The approach taken by Ms Champion to the proper understanding of the condition allegedly breached by the accused is that the focus must be on the concept of danger. As summarised earlier, she submitted by reference to the broad concept of violence as canvassed in Butcher that a person subjected to violence, even of an intimidatory kind, is by definition, not safe, safety being a state not consistent with a person who has been subjected to violence. Therefore, as she put it, if a person is subjected to any violence, even without the application of any physical force, that person's safety has been threatened. Ms Champion did submit that this will always turn on the facts, and a number of examples she gave involved the use of weapons to instil a state of fear in a victim.

73 Mr de Vietri described the reasoning relied upon by the prosecution as bringing in the consideration of the meaning of 'violence' in a manner which may add a level of complexity and tend to distract from the plain meaning of the words of the condition. It would be a contortion of those words to include under their umbrella the making of a verbal threat. As he put it, it cannot be the case that a person could be in breach of a restrictive condition of a SO, with the serious consequences flowing from that, by being merely intimidating. The condition does not prohibit a threat being made, Mr de Vietri submitted. It prohibits behaviour and conduct 'which actually threatens, puts in harm's way, or jeopardises the physical safety of the person.

74 Having carefully considered the submissions from both ends of the bar table, I confess that I have found it very difficult to determine, and in particular, to place limits upon, what may or may not amount to conduct which 'threatens the safety' of a person.

75 In the end, whilst falling short of reaching a determination that conduct amounting to intimidation and threats without the infliction of force may never be sufficient to threaten the safety of a person in the sense covered by the condition, I am not satisfied that the conduct and the words of the accused in this case are sufficient to establish the second element of the charge. Whilst the conduct of the accused, as I have already indicated, constituted the crime of assault, undoubtedly putting Youlden in fear that he was about to be assaulted by the accused, I am not satisfied that it threatened his safety in the sense required by the condition.

76 For the reasons I have stated, I find the accused not guilty of charge 1.

[1] Secretary to the Department of Justice and Community Safety v SS [2019] VSC 600.

[2] Secretary to the Department of Justice and Community Safety v SS (Review) [2020] VSC 849.

[3] Condition 2.8 in the order as it was stated following the review of the SO on 8 January 2021.

[4] The evidence of all four prosecution witnesses in the vehicle was consistent as to the seating positions in the vehicle and the overall arrangements for the escort of the accused to and from the dentist.

[7] Ibid 31. At one point in his evidence, Youlden indicated that the threat was to 'smash his fucking face in'.

[25] [1986] VicRp 4; [1986] VR 43 ('Butcher').

[28] The elements as set out are consistent with the elements of common law assault as set out in the Victorian Criminal Charge Book for assault not involving the application of force.

[29] [1969] 2 NSWR 451.

[30] [1997] UKHL 34; [1998] AC 147.

[31] Judicial College of Victoria, Victorian Criminal Charge Book, 7.4.8.

[32] [2010] VSC 441 (Kyrou J), [239]-[240].

[33] [1999] ACTSC 119.