[2018] ACTSC 265

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - trial by judge alone - verdict - common assault - assault occasioning actual bodily harm - unlawful confinement - threat to kill - choke, suffocate or strange - e-mail train - satisfaction beyond reasonable doubt

Crimes Act 1900 (ACT) ss 24, 26, 28(2)(a), 30, 34 and 381(1)

Supreme Court Act 1933 (ACT) s 68B

Legal Aid ACT (Accused)

1. In accordance with s 68B of the Supreme Court Act 1933 (ACT), the accused elected to be tried by a judge alone.

2. At the commencement of the trial the accused pleaded not guilty to six counts in an indictment dated 13 March 2018. In addition, he entered the same plea to four summary offences that had been transferred from the Magistrates Court.

3. The indictable charges faced by the accused are as follows:

(a) Count 1: assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (CC 2017/11417).

(b) Count 2: choke, suffocate or strangle contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (CC 2017/11420).

(c) Count 3: assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (CC 2017/11423).

(d) Count 4: choke, suffocate or strangle contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (CC 2017/11425).

(e) Count 5: unlawful confinement contrary to s 34 of the Crimes Act 1900 (ACT) (CC 2017/11426).

(f) Count 6: threat to kill another person contrary to s 30 of the Crimes Act 1900 (ACT) (CC 2017/11427).

(a) Charge 2017/11418: common assault contrary to s 26 of the Crimes Act 1900 (ACT).

(b) Charge 2017/11421: common assault contrary to s 26 of the Crimes Act 1900 (ACT).

(c) Charge 2017/11424: common assault contrary to s 26 of the Crimes Act 1900 (ACT).

(d) Charge 2018/2781: possession of offensive weapon with intent contrary to s 381(1) of the Crimes Act 1900 (ACT).

5. Before looking at the evidence, it is necessary to state the legal principles that I must apply before arriving at a verdict. These are essentially standard directions.

6. The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part in my decision-making. As long as there is reasonable doubt, the accused must be found not guilty.

7. The prosecution does not have to prove the truth of each fact that is asserted in its case. However, it must prove each legal element of the charge beyond reasonable doubt.

8. The facts that I find, must be based on the evidence; that is, the evidence given by the witnesses and contained in the exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process.

9. I have also reminded myself of the relevant rules relating to recorded evidence, evidence from a remote witness room and evidence given in the presence of a support person. I must draw no adverse inference against the accused arising from the evidence being given in this way nor give the evidence any greater or lesser weight.

10. It became clear from the outset that this was not a case about whether or not actions done by the accused amounted to the offences charged. This is purely and simply a case about whether or not the events as described by the complainant occurred. If they did, and I am satisfied of that beyond reasonable doubt, then the accused will be guilty. If I am not so satisfied, then he must be acquitted.

11. The alleged events took place in the early hours of 16 October 2017. At this time the accused and the complainant lived together in a small flat in Mansfield Place in Phillip in the Australian Capital Territory. They had been in a relationship for about eight months. They had met in a rehabilitation facility where they were both endeavouring to cast aside their respective drug addictions. At the time of the incident the complainant was about one month pregnant.

12. According to the complainant, the following occurred: The accused and the complainant went out to dinner the evening before 16 October 2017. At about midnight the accused, apparently intoxicated, went out on his own. He returned some hours later, not overtly intoxicated, but soon became violent.

13. The accused dragged the complainant, holding her by her hair, along the bedroom carpet causing burns and abrasions to her knees. The photographs in Exhibit E show these injuries. The accused then pushed the complainant to the floor and kicked her in the stomach. He placed his knee on her throat so that she found it difficult to breathe. He continued to assault her. He hit her in the face leaving her with bruising and a split lip.

14. The events then moved to the balcony. The accused obtained two knives from the kitchen, one was a large kitchen knife and the other a serrated bread knife. While on the balcony, the accused grabbed the complainant and pushed her against a wall so that she fell to the ground. He then dragged her, again by her hair, back into the lounge room.

15. The accused held a knife to the complainant's throat. He again put his knee on her throat, causing her breathing difficulties. He would not allow her to leave the flat for a period of about four hours. During this time he made threats to kill her.

16. While intimidating the complainant, the accused demanded information from her about her mobile phone which he used to try and find out about her personal life. He also accused her of having "secret apps" on her phone.

17. After making promises to not report him to the police, the complainant was allowed to leave the flat. She was terrified and went straight to the Belconnen Police Station. She spoke to the police and an interview was recorded. It is Exhibit A. The complainant said the police had called her parents and she met them at the station. She went home with them.

18. The accused was arrested and remanded in custody. Over the next few months there was a good deal of contact between the accused and the complainant either by email, telephone or, on about three occasions, by personal visits to the Alexander Maconochie Centre. According to the complainant the accused encouraged her to go to the police and tell them that she had made up the allegations as an act of spite. To this end some email correspondence was tendered (Exhibit F).

19. The complainant's father, Mr Paul Beaver, gave evidence for the Crown. He said he had known the accused during the course of the relationship with his daughter. He had found him a personable and hard-working young man. Mr Beaver is a roof tiler. The accused had helped him at work from time to time. Mr Beaver said that his wife had received a phone call at about midnight on 15 October 2017 in which the complainant said that the accused had gone out in an intoxicated state.

20. Mr Beaver said that another telephone call was received from the complainant at about 5 am on 16 October 2017 in which the complainant described the events that had just occurred. She was on the way to the police station and asked her parents to meet her there. To the extent that this evidence was relied upon as complaint evidence I remind myself of the limitations that must be placed on receipt of such evidence.

21. Two points must be made about the two phone calls Mr Beaver spoke about in his evidence. The complainant did not mention the midnight call at all. Secondly, her evidence was that her parents had been contacted by the police, not by her.

22. A number of police officers gave evidence about their discussions with the complainant. As a general statement it can be said that, despite some minor inconsistencies, the complaints to the officers were consistent with the complainant's description of the relevant events.

23. There was also evidence from police officers at Woden Police Station who spoke to the accused when he came in to apparently hand in the complainant's mobile phone. Why he did so is uncertain, as is his evidence that when the complainant left the home he dialled '000' apparently to tell the emergency services that she had left. He was then not facing any sort of emergency and was not under any threat.

24. Timing is also something of a mystery. According to the complainant's father, as outlined above, she telephoned him at about 5 am. She was then apparently in her car on her way to the police station. Firstly, I do not understand why she went to Belconnen Police Station, which was 15 minutes away, when Woden Police Station was three minutes away. Secondly, the evidence of the police officers was that she arrived at about 6 am. This meant she took about an hour to drive to a destination that was 15 minutes away.

25. The accused gave evidence. He related a version very different to that of the complainant. Almost none of this version had been put to the complainant, however, I allowed him to continue to give the evidence because no objection was taken by the Crown. To some extent his version was curious. I have already mentioned the '000' call and his going to the police station to hand in the complainant's telephone.

26. According to the accused he and the complainant had been bickering throughout the day, mostly about the complainant's brother coming to stay upon his release from prison. The accused did not want this to occur because he was gainfully employed and the premises, being a small one bedroom unit, would not accommodate the brother who, by inference, was an unseemly character who might have brought friends and drugs to the apartment.

27. An unsatisfactory element in the evidence was the failure of the accused to cross-examine the complainant about a very crucial piece of evidence. This was the email from the complainant to the accused on 20 November 2017, contained in Exhibit 1, which contains this passage:

I still feel like such a jerk off for making that shit up and getting you locked back up. : ( i was just so sad n hurt cos i thought i lost you.

I really need to work on not being so spiteful....

It means alot to me that you don't hate me n that you forgive me. That shows that you truly do love me to.

28. This passage is consistent with the accused's version of events. The complainant should have been cross-examined about it. The Crown should probably have tendered it (noting it had tendered other emails favourable to its case) and the Crown should have asked the complainant about it in re-examination.

29. I note that despite my criticism during the hearing, neither party made an application to recall the complainant.

30. The Crown also did not ask the accused about the emails in Exhibit 1. The accused was asked about the emails in Exhibit F, the suggestion being that they were consistent with him asking the complainant to go to the police and also consistent with him making admissions about his conduct. As to the latter, the passages referred to are at best equivocal. The whole of the email chain, to the extent that it was tendered through Exhibits F and 1, is important.

31. The Crown's submission is that the emails indicate that the accused was seeking to influence the complainant. If, however, one looks at the emails from their chronological start it can be seen that the first email in time is from the complainant to the accused and is dated 14 November 2017. It states:

You are sweet

> You are kind

> You are loving

> You are mine

> You melt my heart

> And you did so right from the start

> You are my king

> And i your queen

> No one can ever come between

> Even though we are apart

> You still own my heart

> Today life might seen rough

> But i know you are tough

> We will make it through

> Because all we need is me and you...

> I love you dean love chloe. Xoxoxox

32. The language of the above email is far from the impression sought to be relied upon by the Crown as indicating improper influence from the accused. Another important email was written on 28 November 2017. The complainant wrote:

Of course i still love u and it will sort out il tell the truth when it goes to court like i said.

Ive done everything i can to make it right so just have faith....

33. The email most relied upon by the Crown was written at 3:30 pm on 20 November 2017. It must however be seen in the light of the email described above in [27]. The Crown submitted that the apparent admissions made by the complainant about making up the allegations and being spiteful should be read against the background that both parties knew the emails were being recorded. The Crown suggested, in effect, that this was part of the 'plan' to have the charges dropped. I saw both the complainant and the accused give evidence, including being cross-examined. They were both unsophisticated. I do not accept that they have the necessary guile to have executed such a strategy.

34. Under cross-examination it was put to the accused that his making of the '000' call and bringing the telephone to the police station simply did not make sense. To a large degree I agree but must acknowledge that, if only in the accused's mind, these actions might have been consistent with him protecting his position having regard to him being on parole.

35. Another point made by the Crown was that the complainant was not cross-examined about many of the details put forward by the accused in his version. It was said that this indicated he had not given instructions to his lawyers which would have enabled them to cross-examine the complainant appropriately. I do not necessarily accept that the accused did not instruct his lawyers in accordance with his version. I note he said that his original lawyer, to whom he had given instructions, had been replaced and his encounters with his current lawyers had been very brief. He also said, in a further illustration of his lack of sophistication, that he kept some matters "to tell the judge".

36. I have no reason to doubt, and do not doubt, the evidence of any of the police officers. The same applies to Dr Sansum. Overall their evidence is consistent with the complainant's version. Her injuries are also consistent with her version.

37. As I have pointed out there are some difficulties with the complainant's version including her choice of police station for making the complaint and the time taken to get to the police station. The accused's version is in some ways unusual, but nevertheless does have some support. For example, the complainant's father said that he was a good worker, which is consistent with the accused's evidence that he was doing well and endeavouring to maintain a new and responsible life. I note, although its value is perhaps limited, that the photographs of the unit indicate a tidy and well-presented residence.

38. Overall I think the complainant was probably telling the truth. However, I have to be satisfied beyond reasonable doubt. Despite my serious suspicions I do not think that I can accept the complainant's evidence to the necessary standard. The emails, in particular, so seriously contradict her version that they must have a significant effect on the evidence being accepted beyond reasonable doubt. In addition, I must take into account that the accused's version is capable of creating a doubt.

39. Accordingly, the prosecution must fail in respect of each charge.

(a) A verdict of not guilty is entered to each of the six counts in the indictment.

(b) A verdict of not guilty is entered to each of the summary offences transferred from the Magistrates Court.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim