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[2014] ACTSC 291
Supreme Court of the ACT
2014-10-28
Murrell CJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - PARTICULAR OFFENCES - Judge alone trial - burglary - theft - attempt to choke and render insensible - - assault occasioning actual bodily harm - common assault - threat to cause property damage
Crimes Act 1900 (ACT) ss 24, 26, 27(3) 49
Criminal Code 2002 (ACT) ss 44, 306, 308, 311, 407(1)
Supreme Court Act 1933 (ACT) s 68B
R v Prasad (1979) 23 SASR 161
1. In accordance with s 68B of the Supreme Court Act 1933 (ACT), on 3 February 2014 the accused elected to be tried by a judge alone in relation to the relevant offences and his lawyer certified that he had received advice and made the election freely.
2. When arraigned, the accused pleaded not guilty to committing the following offences on 26 October 2013:
4. The Crown alleged that the accused was a friend and former partner of the complainant. On 26 October 2013 the complainant and the accused went shopping, then returned to the complainant's apartment. The Crown alleged that, when the complainant received an incoming telephone call, the accused became jealous because he suspected it was from a male. The complainant asked the accused to leave her apartment. The accused remained. He pushed and attempted to choke the complainant, held a knife to the throat of the complainant's cat, and stole the complainant's mobile telephone.
5. The case for the accused was that he remained in a relationship with the complainant, albeit a fragile relationship. He implied that he suspected that the incoming call was from a male. He denied that he attempted to choke the complainant or held a knife to the throat of her cat. He agreed that he pushed the complainant and restrained her, but said that he did so in self defence. He agreed that he took the complainant's mobile telephone, but said that he did so only for the purpose of checking the data on the telephone and that he "never had the intention to keep the phone".
6. At the close of the Crown case, the accused sought a "Prasad direction" (see: R v Prasad (1979) 23 SASR 161) in relation to counts 1, 2 and 3. The Crown agreed that such a direction could be given in a trial by judge alone.
7. The full reasons for my decisions on the applications for a Prasad direction are published: R v Mazaydeh (No 1) [2014] ACTSC 279.
8. In summary, in relation to counts 1 and 2, the accused submitted that each required proof beyond reasonable doubt that he intended to permanently deprive the complainant of her mobile telephone. In relation to count 1, the Crown had to prove that the accused remained in the complainant's apartment with intent to commit theft of property in the apartment, i.e. with intent to permanently deprive the complainant of her mobile telephone. In relation to count 2, the Crown had to prove that, at the time of the appropriation, the accused intended (meant) to permanently deprive the complainant of her mobile telephone. I noted at [4]-[11] of my decision that s 306 of the Criminal Code extends the meaning of intention to permanently deprive to include circumstances where a perpetrator who borrows property "intends to treat the property as (his or her) own to dispose of regardless of (the true owner's) rights", provided that the borrowing is for a period and in circumstances "making it equivalent to an outright taking or disposal" (emphasis added). I accepted that to fall within the s 306 extended meaning, a borrowing must have "a quality of permanence": see the Report prepared by the Model Criminal Code Officers Committee dated December 1995, chapter 3, p 67. I decided that, as the accused had taken the complainant's telephone on a temporary basis for the purpose of either himself extracting data from the telephone or using the telephone to persuade the complainant to provide the information, there was insufficient evidence of an intention "to dispose of" the mobile telephone and the taking lacked the necessary "quality of permanence". Consequently, I returned a verdict of "not guilty" on each of counts 1 and 2.
9. In relation to count 3, the accused submitted that an element of the offence was an intention on his part that, by choking the complainant, he would render her insensible or unconscious and, on the complainant's evidence, there was insufficient evidence to justify a finding that he had intended to render her insensible or unconscious. The complainant's evidence was that the accused pushed her, forcing her back onto her bed. He pinned her to her bed, putting his knees on either side of her body, near her knees. He put his hands around her neck and started squeezing with such force that she began to struggle for air. She had difficulty breathing for 3 to 6 breaths, and she began to feel faint. According to the complainant, when she felt that she may be about to pass out:
It got to the point when I think (the accused) noticed I wasn't getting any more breaths in. And it was at that point I felt faint, as though I was about to pass. Just before I felt like I would pass out, (the accused) let go of me.
I feel he let go because he could see that I wasn't getting any more air in after that.
10. The Crown submitted that the actions of the accused when he placed his hands on the complainant's throat and applied pressure demonstrated an intention to render her insensible or unconscious during the period that he persisted with those actions, an intention which he then abandoned.
11. I found that the actions of the accused as described by the complainant were readily explained by an intention to frighten the complainant, and the material was insufficient to support a conviction on the basis that the accused intended to render the complainant insensible or unconscious. I returned a verdict of "not guilty" on count 3.
12. The trial proceeded in relation to count 4 and the related charges, which the parties agreed should be the subject of evidence on the trial in relation to count 4.
13. I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at verdicts on count 4 and the related charges.
14. I am aware that the charges are being heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.
15. I am aware that, in relation to count 4 on the indictment, a statutory alternative of common assault is available, and is to be considered if there is a verdict of "not guilty" on count 4.
16. I am aware that the Crown has the task of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge unless and until the Crown proves him guilty beyond reasonable doubt in relation to that charge. Suspicion must play no part in my function as the judge of the facts. If I feel that the accused may be guilty and even if I feel that he probably is guilty, as long as I have a reasonable doubt about his guilt on a particular charge I must return a verdict of not guilty on that charge.
17. I am aware that the Crown does not have to prove the truth of each fact asserted in the prosecution case. What the Crown must prove beyond reasonable doubt is each legal element (or ingredient) of a charge (and any facts that are essential to establish a legal element).
18. I am aware that in making findings of fact I must rely upon the evidence, that is, the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
19. As a matter of practical reality, in this trial I must be satisfied beyond reasonable doubt that the complainant was a truthful and reliable witness in relation to each of the charges.
20. The complainant was the only prosecution witness who was capable of giving direct evidence of what occurred. Therefore, I must examine her evidence very carefully before deciding whether I am prepared to accept it beyond reasonable doubt in relation to the critical matters.
21. Because it is up to the prosecution to prove the charges beyond reasonable doubt and the accused does not have to prove anything, it is not up to the accused to explain why the complainant may have lied or been mistaken. In this case, it was suggested that, in the context of a disintegrating relationship attended by jealousy and volatility, the complainant became very angry with the accused on the day in question and was angry and upset when he took her mobile telephone. Because of these feelings, she invented (or twisted to favour her position) the allegations against the accused.
22. I must consider that suggestion. However, it is not up to the accused to advance an explanation as to why the complainant may have lied or been mistaken. It is up to the prosecution to prove the case beyond reasonable doubt, and that means convincing me that the complainant's evidence about the critical events should be accepted beyond reasonable doubt.
23. In this case, the accused gave evidence. He was not obliged to do so. It is not up to an accused to prove his innocence, but for the Crown to prove his guilt beyond reasonable doubt. As the accused did give evidence, I must assess his evidence in the same way that I would assess the evidence of any witness.
24. Even if I completely reject the evidence of the accused (as I do), that rejection does not strengthen the Crown case. It merely neutralises the evidence of the accused. The question remains: on the evidence admitted in the prosecution case, has the Crown proved the charges beyond reasonable doubt?
25. The complainant gave evidence that, on the afternoon of 26 October 2013, she accompanied the accused on a shopping expedition. At about 2.30 pm the accused and the complainant returned to the complainant's apartment. The possibility that the accused would go socialising with the complainant and her friends that evening had been canvassed.
26. When the accused and the complainant were in the lift travelling up to the complainant's apartment, the complainant received a telephone call but silenced her telephone. The accused inquired as to the identity of the caller and the complainant lied, saying that it was a female friend.
27. The complainant began to prepare to go out that evening and asked the accused to leave. Instead, the accused lay down on the couch and fell asleep. The complainant was irritated that the accused would not leave. She nudged him awake. He demanded to know the identity of the caller. She repeated that the caller was a female friend. The accused did not accept that answer. When the accused became insistent, the complainant told him that it was none of his business. He adopted a confrontational and angry tone of voice, accusing her of "cheating" on him and "sleeping around with lots of random guys". He said that he wanted to recover the gifts that he had given to her. The accused began to rifle through drawers looking for items that he had given to the complainant, and the complainant began to gather items to be returned to the accused.
28. The accused continued to call the complainant names and accuse her of "sleeping around". She asked him to "please get out". She walked towards him, put her hands on his arms and started to push him towards the door. He pushed back against her upper arms, forcing her back into her bedroom. He pushed her hard, forcing her onto her bed, and causing her body to bounce back up and strike the bedroom wall (Count 5).
29. The accused said that he wanted the complainant's telephone and he again demanded to know the identity of the caller. The complainant refused to give him the telephone and told him to leave. She sat on her bed until she sensed that he had left.
30. The complainant's telephone rang several times. The name of the caller was displayed; it was the accused. The complainant did not answer her telephone. She silenced it.
31. The accused sent the following text messages (Exhibit 6):
1553: Answer your phone u fucking slut
1555: Im outside
1603: Bring it all down stars u fucking rat u slut fuck bring it now
1604: Dont make me come up their
1606: I swear to god this is your last warning answer your phone
32. The complainant heard a sound like a small rock hitting the window of her apartment. She then heard sounds on the balcony. She saw the accused climbing over the balcony railing. His mobile telephone was raised to his ear and she heard him saying words to the effect: "I want everything I ever bought for you over the time that we were dating ... I can't get back down from the balcony. I just want the stuff and then that's it."
33. Later, the complainant saw that she had received a voice message from the accused (at 1612, see Exhibit 6). The complainant told the accused that she didn't want to let him into the unit. He picked up a chair from the balcony and held it over his head with one hand on each leg, saying "I'll break the door myself". The complainant opened the door and allowed him to enter because she wanted to avoid damage to her balcony door.
34. After the accused entered the apartment, he resumed his search through the complainant's drawers, throwing items into plastic bags. The complainant assisted to gather items into bags. The accused became increasingly angry. He accused the complainant of ruining his life. The complainant told him to leave and at one stage screamed loudly "Get out".
35. The accused pushed the complainant's shoulders or upper arms, forcing her back onto her bed (Count 6). He pinned her to her bed, putting his knees on either side of her body, near her knees. He put his hands around her neck and started squeezing with such force that she began to struggle for air (Counts 3 and 4). She had difficulty breathing for 3 to 6 breaths, and she began to feel faint. When she felt that she may be about to pass out: "It got to the point when I think (the accused) noticed I wasn't getting any more breaths in. And it was at that point I felt faint, as though I was about to pass. Just before I felt like I would pass out, (the accused) let go of me." In cross-examination the complainant stated, "I feel he let go because he could see that I wasn't getting any more air in after that".
36. The accused went to the kitchen. The complainant followed him and saw that he was next to a chopping block of knives. The accused grabbed one of the knives and repeated his accusation that the complainant was ruining his life. He returned the knife to the chopping block, opened the cutlery drawer and grabbed a much bigger knife. It was about 30 cm in length. The accused seized the complainant's cat Tyson by the scruff of its neck with his left hand and held the knife to the cat's throat with his right hand (Count 7). He was "ranting and raving". When the complainant agreed to give her mobile telephone to the accused, he dropped the cat and put the knife on the kitchen bench.
37. The accused switched on the complainant's mobile telephone and began to scroll through the call register, apparently looking for missed calls. He told the complainant that he could not find the call in question. The complainant said words to the effect: "I'll tell you who it is. It is a male friend to whom I sent a text message last night to congratulate them as they had just recently gotten engaged."
The accused responded: "Why? Why would I get angry over that?"
The complainant then responded: "You don't like me talking to male friends and that's why I didn't want to say that it was him calling."
The accused said nothing in reply. He put the complainant's telephone in his pocket, saying "I could use a new phone" (Count 2). The complainant attempted to retrieve her phone and, in the process, ripped the pocket of the accused's pants. The accused placed his hand on the complainant's hand, saying: "You are a slut. I'm not going to give your phone back." The accused reached over and grabbed the complainant's shirt on the front left side, ripping it (Count 8). He left, saying "I'm not going to give your phone back."
38. The complainant followed the accused to the lifts on her floor. She entered a lift with the accused. While in the lift, she repeatedly asked him to return her telephone. When the accused exited the lift, the complainant followed him to his car, continuing to request the return of her telephone. The accused drove off. The complainant drove to the nearby home of her cousin, Michelle Fisher. Ms Fisher was not at home. The complainant saw Ms Fisher's partner, Brendan Patterson.
39. Mr Patterson gave evidence that the complainant was crying and upset. She was hyperventilating. Her shirt was torn. She said words to the effect: "I have just been hit. I have had a fight with Mohammed. I have just left the house. He took my mobile telephone. He climbed the balcony. I want to get my phone back." The complainant repeatedly insisted that she needed her telephone back. She asked whether someone could access her phonebook and messages. In her evidence, the complainant confirmed that her main concern was to retrieve her mobile telephone. She did not want the accused to access any messages from her friend that may still be on her telephone. At Mr Patterson's suggestion, she arranged for her mobile telephone to be "barred".
40. Ms Fisher arrived home. She observed that the complainant was distressed and crying. The complainant told her:
When we returned home from shopping, my telephone continued to ring. Mohammed was getting angry. He thought it was another man. We started to fight and he grabbed me and tore my shirt. He picked up the cat and put a knife to the cat. He got on the balcony. He still has my phone and I want it back.
41. Ms Fisher agreed to telephone the accused and ask him to return the complainant's telephone. When she did so, the accused was aggressive and abusive towards her, warning her "you better watch your back". She hung up. In a second telephone conversation, the accused refused to return the complainant's telephone until he had spoken to the complainant. In a third telephone conversation, the accused was very apologetic. He repeated the request that the complainant speak to him. Eventually, the complainant telephoned the accused. In the course of the conversation, the accused said "I have no use for (your phone)".
42. Ms Fisher and the complainant went to the accused's home for the purpose of collecting the complainant's telephone. The complainant went to the front door of the premises. When the accused came to the door, he said: "Before I give it back I want an explanation about what happened. I want a proper explanation or I won't return it."
43. The complainant returned to the car and sat with Ms Fisher. The accused approached the car and reiterated his demand for a full explanation. According to Ms Fisher, he was distressed and angry. He continued to demand the identity of the caller. The complainant provided a further explanation. The accused returned to his house. The complainant went to the front door and provided a yet further explanation regarding the caller. The accused telephoned his brother to confirm the complainant's version of events. The accused then returned the complainant's telephone, saying words to the effect: "You have one month to leave Canberra or I will make your life hell and also your family. If you go to the police, just be careful because I only need to find you once."
44. Later, Ms Fisher received a call from the accused regarding collection of the complainant's belongings, an ATM receipt and the sum of $135. Subsequently, the complainant realised that the sum of $135 was missing from her wallet. An SMS message from the accused at 1934 reads: "Hey nicole there is 135$ and a transaction copy Here that is yours do u want to pick it up I have to go soon so please let me know."
45. At 2332 and 2344 on 26 October 2013, the complainant sent text messages to a friend complaining that someone had barged into her apartment, strangled and hit her, trashed her apartment, stolen property and threatened her cat with a knife (Exhibit C, p 177). At 2339 on 26 October, she sent a text message to a friend saying that she was going to the police tomorrow and "Im fucking him sideways, I got enough Info to have them kick his door down": (Exhibit C, p 176).
46. On 27 October 2013 the complainant went to the police station and made a complaint to Constable Browning.
47. That evening, the accused attended the complainant's apartment complex, where he was arrested by police. He indicated that the complainant's possessions were on the back seat of his car and that he was there to return them to the complainant. When told that he was under arrest for assault, the accused said: "I didn't assault her. She grabbed me and I pushed her off. That's not assault. She has put assault charges on me?"
48. The accused said that, as at 26 October 2013, he was still in a relationship with the complainant but they were not living together.
49. As he and the complainant were returning to the complainant's apartment after the shopping expedition, the complainant's telephone rang three times and the complainant did not answer her telephone. The accused became suspicious. When he expressed his concerns, the complainant became angry and began to swear at him. He became upset and left the apartment. While he was at the apartment, no physical force was used by himself or the complainant, and he was not abusive towards the complainant. There was "a little argument" but he felt relief when he left the apartment because the relationship had been "on the rocks" for some time.
50. When the accused entered his car, he realised that he had left some belongings (including jewellery and a wallet) at the complainant's apartment, and he returned. He telephoned the complainant many times. He became frustrated when the complainant refused to accept his telephone calls. He threw pebbles "lightly" at her balcony window to attract her attention and, when she continued to ignore him, he climbed up onto the balcony. He did not raise a chair and threaten to smash the balcony door. At first, he said that he merely asked her to return his possessions. However, in cross-examination, he agreed that he had left a voicemail message demanding "Everything I ever fucking got you, everything".
51. The accused said that the complainant opened the balcony door and let him in but then began to abuse him. She was upset and screaming. She threw a bag at his face and it hit his nose. He became a bit upset. He saw the complainant's mobile telephone sitting on the kitchen bench and he examined it in an attempt to identify the caller. He placed it in his pocket. He felt that the complainant had been unfaithful.
52. The accused said that the complainant then attacked him, grabbing him and slapping him with open palms. As she kept coming at him, he pushed her away and she lay on her bed.
53. When the accused was at the front door and was about to leave, the complainant grabbed and hit him many times. After trying to push her away, he attempted to restrain her. He pushed her to the ground and calmed her down.
54. At one stage, the complainant grabbed at his shorts pocket, where the telephone was located. She ripped his singlet and his shorts.
55. The accused gave evidence that he did not grab and rip the complainant's shirt, he did not threaten her cat and he did not attempt to choke the complainant.
56. The accused said that the complainant followed him to his car. He sat in the car and examined her telephone in an endeavour to ascertain the identity of the caller. He asked the complainant to sit in the car and talk to him, but she refused. He drove a short distance away to check the call register in the complainant's telephone. However, he could not identify the caller because the complainant had "wiped the phone". He drove back to the complainant's apartment and parked. He rang her doorbell many times but she did not answer. He wanted to return her telephone.
57. Later, he received a telephone call from the complainant's sister, who spoke to him rudely. He hung up. He then telephoned Ms Fisher, spoke to the complainant and invited the complainant to collect her telephone. Ms Fisher and the complainant came to his home. He spoke to the complainant on the front balcony. She continued to refuse to identify the caller. She returned to the car. He followed her to the car and spoke to Ms Fisher, who seemed sympathetic towards his position. The complainant then returned to his house and he followed her. She explained who had called her and, after verifying her story with his brother, he returned her mobile telephone and said that he did not want to see her again.
58. When he discovered that she had left money and an ATM statement in his car, he called her. On the following day, he attended her apartment for the purpose of returning her property.
59. There was no attack on the credit of Ms Fisher or Mr Patterson and I accept their evidence.
61. The assertion of the accused that he remained relatively calm throughout the incident and that it was the complainant who behaved aggressively and irrationally is implausible. The accused conceded that he was concerned to identify the person who had called the complainant; so concerned that he removed her mobile telephone for that purpose and declined to return it until she identified the caller. I accept the Crown's submission that the action of the accused in scaling the first-floor balcony was consistent with him being extremely upset at that time. He did not, for example, first attempt to gain entry by utilising the front door buzzer. The voicemail captured in Exhibit 4 evidences his anger at the time that he scaled the balcony.
62. The accused lied in relation to his intentions at the time that he climbed onto the balcony. Initially, he maintained that, at that time, he merely wanted to take possession of his own property. It is clear from the voicemail messages that he wanted to recover property that he had previously given to the complainant. The fact that the accused wanted to immediately recover gifts is consistent with the accused being angry towards the complainant.
63. I do not accept that the complainant was behaving in an irrational or aggressive fashion such that she required forcible restraint. The proposition is contrary to common sense. Both the accused and the complainant said that the accused was concerned to ascertain the identity of the complainant's caller and, to that end, he took the complainant's mobile telephone. On the other hand, the complainant was reluctant to disclose information about the caller. This scenario is consistent with the accused becoming jealous and angry and with the complainant being defensive and resistant, i.e. the scenario tends to be consistent with the complainant's version of events rather than with that of the accused. Further, the complainant was a slight woman, who weighed about 60 kg. The accused was a solid, well built man who (on his own account) was so athletic that he found it easy to scale the first-floor balcony.
64. The accused did not impress as a reliable witness. He appeared to be evasive. His version of events was, at times, unclear, and the manner in which the story unfolded suggested that parts may have been made up as it progressed. The accused appeared to be overly concerned to shift all blame to the complainant and he was most reluctant to concede any fault on his part. Although it would be unsafe to place too much emphasis on this impression as I do not know the normal demeanour of the accused, he had a tendency to both hesitate and smirk when answering questions.
65. Counsel for the accused relied on the fact that, when spoken to by police on the day after the incident, the accused immediately rejected any suggestion that he had assaulted the complainant and asserted that the complainant had grabbed him. This is a fact to be considered, but I have concluded that, when confronted by police, the accused decided to provide a response that was untrue and which asserted his innocence. The answers given by the accused in cross examination show that he is capable of lying when confronted with damaging allegations.
66. On the other hand, the complainant appeared to be a reliable witness. Her manner was forthright. She made appropriate concessions.
67. Counsel for the accused made the following points in relation to the complainant's evidence:
68. The complainant's evidence was corroborated in two important respects. First, within 24 hours of the incident, the complainant made consistent complaints to five people: Mr Patterson, Ms Fisher, the friend to whom she send text messages, Constable Browning and Dr Parekh. Second, the injuries observed by Dr Parekh and the symptoms of which the complainant complained to Dr Parekh are consistent with the complainant's version of events.
69. It is true that the fingermark injuries that Dr Parekh observed on the complainant's upper arms are also consistent with the accused's version of events, but it is my view that the accused constructed a version of events for the purpose of explaining that otherwise persuasive evidence.
Elements of assault occasioning actual bodily harm (s 24 Crimes Act)
Section 24(1) of the Crimes Act provides:
(1) A person who assaults another person and by the assault occasions actual bodily harm is guilty of an offence...
70. The elements of the offence that the Crown must prove beyond reasonable doubt are:
Intentional use of force against the complainant.
71. The intentional use of force may be by striking, touching or by some other application of force by the accused towards the complainant.
72. In this case it is alleged that, having pushed the complainant onto her bed and pinned her down with his knees, the accused placed his hands around the complainant's neck and started to squeeze until she struggled for air. The complainant had difficulty breathing for 3 to 6 breaths. When the complainant began to feel faint, the accused released her.
73. These facts satisfy the requirement of intentional use the force.
74. The complainant gave evidence that she was very fearful and felt that she might pass out. In any event, common sense dictates that a person who found herself in the complainant's circumstances would feel fearful.
The complainant did not consent to the use of force.
75. There may be cases where a complainant consents to the use of force, e.g. in the case of medical treatment or when playing sport. In this case, there was no suggestion of consent. Indeed, there seems to have been no opportunity for the complainant to have consented because of the rapidly unfolding circumstances in which she was pushed onto her bed, pinned down and choked.
There was no lawful excuse for the use of force.
76. There may be cases where there is a lawful excuse for the use of force, e.g. by the police, or in the case of medical treatment. In this case, there was no suggestion of lawful excuse.
The use of force caused actual bodily harm to the complainant
77. Actual bodily harm means any injury that is of some significance; that is more than trivial or transient.
78. In this case, the accused submitted that there was no corroboration of the complainant's assertions concerning the physical impact of the choking. Further, even on the complainant's version of events, there was insufficient evidence to justify a finding beyond reasonable doubt that the complainant suffered sufficient injury to constitute actual bodily harm.
79. At 2.15 pm on 27 October 2013, the complainant told Dr Parekh that, at the time of the choking, she felt that she was going to pass out. Afterwards, she felt tender when swallowing. By the time that she spoke to Dr Parekh, the tenderness was starting to improve but it hurt to "swallow, eat, drink and yawn". The complainant continued to experience a sore neck and throat at the time that she was examined by the doctor. Dr Parekh gave evidence that signs and symptoms of strangulation include neck pain, difficulty breathing and swallowing and light-headedness. Dr Parekh observed no external symptoms of soft tissue injury, but said that the lack of visible external signs was not inconsistent with attempted strangulation.
80. I accept that, at the time that she saw Dr Parekh, the complainant continued to experience the above symptoms of which she complained, that those symptoms occasioned significant interference with the complainant's well-being at the time that she spoke to Dr Parekh, and that the symptoms related to the attempted strangulation. The persistence of significant symptoms for a period of almost 24 hours constitutes actual bodily harm.
81. I find this offence proven and I return a verdict of "guilty".
82. Section 26 of the Crimes Act provides:
A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.
In relation to the meaning of these elements, see above in relation to the elements of assault occasioning actual bodily harm.
I accept the complainant's evidence about the critical events, including her evidence that, when the accused was in her apartment on the first occasion, he deliberately pushed her hard, forcing her onto her bed (Count 5) and, when he was in her apartment on the second occasion, he deliberately pushed her shoulders or upper arms, forcing her back onto her bed (Count 6) and deliberately grabbed the complainant's shirt on the front left side and ripped it (Count 8). These events occurred without the complainant's consent and without lawful excuse. I accept that, in the context in which the events occurred, they made the complainant fearful.
In relation to Counts 5, 6 and 8, I am satisfied beyond reasonable doubt in relation to each of the relevant elements, and I return a verdict of "guilty" in relation to each count.
As I accept the complainant's version of events beyond reasonable doubt, no issue of self defence arises.
84. Section 407(1) Criminal Code 2002 (ACT)) provides:
(a) intentionally makes to someone else a threat to damage property belonging to that person or another person; and
(b) intends that person to fear that the threat will be carried out.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2) In a prosecution for an offence against this section it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
In relation to the allegation concerning the complainant's cat, I accept the complainant's version of events. By his conduct, the accused intentionally threatened to seriously injure the complainant's cat. He knew that the cat belonged to the complainant and he made the threat intentionally, for the purpose of frightening the complainant. He may have sought to frighten her as revenge for the complainant's perceived disloyalty, he may have intended to force the complainant to reveal the information that he was seeking, or he may have intended to cause the complainant to surrender her telephone (as she did).
I return a verdict of "guilty" in relation to this offence.
I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
R
Mazaydeh
(1979) 23 SASR 161