R v Wellington & Dessaix

General

1. In compliance with the decision of the High Court in Fleming-v-R (1998) 197 CLR 250 I remind myself of the following principles of law and set out the findings of fact on which I have relied.
2. I direct myself that the onus of proof is "beyond reasonable doubt" and that the Crown bears the burden of proof.
3. The Court has heard the submissions of both the Crown Prosecutor and of both Counsel for the accused. The Court will consider those submissions and give to them such weight as it thinks they deserve. The Court notes that in no sense are those submissions evidence in the case.
4. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
5. I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.
6. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness's evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
7. I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness. I may if I think fit, accept part and reject part of that witness's evidence.
8. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.
9. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts. I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence unless it is the only rational inference in the circumstances.
10. I note that both accused have a right to remain silent when spoken to by police. The accused Mr Dessaix in this case declined to be interviewed by police. I note that all people in this country have a right to silence - that is, to choose not to answer questions put to them by the police. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.
11. In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions (which I infer occurred in this case), and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the silence of the accused Mr Dessaix cannot be used against him in any way at all.
12. Neither of the accused in this matter gave evidence. I remind myself that they have, as we all do, a right to remain silent. I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence.
13. I remind myself that given that we all have a right to remain silent when questioned by police or at trial it would make no sense if having exercised a right given to us by the law an adverse inference could be drawn against us for doing the very thing that the law entitles us to do. In this regard I remind myself that the Crown bears the onus of satisfying me beyond reasonable doubt that the accused committed the offences charged or any one of them.
14. I direct myself, as a matter of law, that the silence of both of the accused in court cannot be used against them. Their silence does not constitute an admission and no such inference can be drawn from that fact. Nor must their silence be used by me to fill gaps in the Crown's case or to make up for what I might regard as deficiencies or defects in the Crown's case. I must not speculate about what might have been said in evidence if the accused had given evidence.
15. This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. It is not for the accused to prove their innocence but for the Crown to prove the guilt of each of them and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
16. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.
17. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
18. I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge/s.

Inferences

1. Sometimes in a criminal trial, the evidence relied upon by the Crown to prove its case beyond reasonable doubt is what is called "direct evidence". Direct evidence is a witness saying that he or she saw the accused do something or heard the accused say something, or it might be an admission by the accused that he did or said something.
2. Sometimes, however, proof of one or more of the elements of a particular offence and thereby proof of the guilt of an accused person relies upon the drawing of inferences from direct evidence of proven facts.
3. I may draw inferences from the direct evidence. There is nothing extraordinary about that. We all do it, consciously or otherwise, in our everyday lives.
4. In the context of a criminal trial I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. In the present case, the Crown relies upon direct evidence from the complainant and the Crown also relies upon drawing inferences. Perhaps the best example in this case concerns the evidence of count 1. In circumstances where nobody saw Ms Waldron slap the complainant I am asked to infer that she did, based on accepting the evidence of the complainant feeling a stinging sensation to his face, and seeing only Ms Waldron in the room immediately upon waking up.
5. In a criminal trial, because of the onus of proof being on the Crown to prove the accused's guilt beyond reasonable doubt, I need to be very careful about drawing inferences from the facts that I find proven. I must carefully examine any inference or conclusion I may draw and see whether it is a valid conclusion to draw from the evidence, whether it is justifiable on the evidence or whether there may be another explanation that is available which would prevent me from reaching that conclusion beyond reasonable doubt. Speculation or suspicion, even grave suspicion can play no part at all in my deliberations.
6. I am obliged to act only upon the evidence that is before me in the trial and nothing else. That means that if, for example, I took the view that evidence was absent on a topic I must not fill in the gaps by speculating about the evidence. I must not engage in speculation as to what that absent evidence might have established, if anything.

Markuleski / multiple counts

1. In this case the complainant in respect of each of the three charges on the indictment is Mr Melbourne.
2. If I was to find the accused not guilty one count, particularly if that was because I had doubts about the reliability of the complainant's evidence, I would have to consider how that conclusion affected my consideration of the remaining counts concerning.
3. If I find that the complainant's evidence in relation to one count lacks cogency or reliability, such that I am not satisfied beyond a reasonable doubt as to that count being made out, then before I could be satisfied as to another of the counts, there would need to be something about the evidence concerning those other counts that makes it different to the earlier count of which I am not satisfied.
4. I must examine carefully the complainant's evidence and determine whether or not he is a reliable witness. That is that he is an honest witness and a witness who is accurate in vital respects. I must examine and evaluate his evidence in light of any criticisms that have been made of it. It is only after such careful scrutiny and evaluation that if I am satisfied, beyond reasonable doubt, that that evidence is reliable, that I could consider verdicts of guilty. This direction follows from the high onus and high standard of proof that is placed upon the Crown. I could not find the accused guilty of the offences unless I am satisfied, beyond reasonable doubt, that the complainant is an honest and reliable witness.
5. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome.
6. If I was to find the accused not guilty on any count, particularly if that was because I had doubts about the reliability of the complainant's evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

Complaint evidence

1. Complaint evidence refers to what the complainant told others of the allegation. In this case, the evidence of this type includes: 41.1. the evidence of the 000 call; 41.2. the complainant's evidence as recorded by the officer who attended the scene, Constable Godfrey. 41.3. the DVEC interview.

Complaint Direction

1. Ordinarily, and here, it is the Crown who would seek to rely on complaint evidence in seeking to add weight to the Crown case. Also ordinarily, complaint evidence is evidence of the complainant to people other than the law enforcement authorities. This case largely, if not wholly, turns on the credibility and reliability of the complainant, and it is the accused who in submissions have pointed to what they say are significant inconsistencies in the accounts of the complainant, to support their argument that the onus the Crown bears has not been satisfied.
2. Whether this evidence be accurately described as "complaint" evidence or not, the approach of the accused remains valid, and the following directions remain of assistance. This direction can be seen in any event as another manifestation of a reliability directions, which is key in this case.

Going to the truth of the facts asserted

1. It is for me to decide whether the complaints were made and what the contents were. Treating this as a reference to the 000 call, the account to Constable Godfrey, and the DVEC interview, there is no doubt these conversations occurred, though there is some dispute as to what may have been said to Constable Godfrey.
2. In determining that question I am entitled to take into account a number of factors including the circumstances in which the complaint was made, the details of the complaint, any inconsistencies between the complaint evidence and the evidence given in court, and any inconsistencies I may find, generally, in the evidence of the complainant.
3. The law says that a fact finder may use what was said in the complaint as evidence of the truth of what the complainant alleges. Depending upon the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I am entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate. There may be other matters that can also be taken into account, such as if it be the case, the distressed condition of the complainant.
4. On the other hand, as argued here by the accused, it may be the complaint evidence does not support the allegations due to some deficiency about it, such as being too vague, or as argued by the accused here, because it reveals inconsistencies in the complainant's accounts of the events alleged.

Going to credit

1. Evidence of complaint can also have another purpose. It may make the complainant's evidence more believable than had he not raised the allegation/s as he did.
2. Again, it is for me to decide whether the complaints were made, as to which I note my comments above. If I think that the complainant has done what you would expect someone in their position to do, that may support the Crown case because I find that there is a consistency between the complainant's conduct and the allegation/s she makes against the accused.
3. On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as they described, then that may indicate that the allegation is false or otherwise unreliable. But I bear in mind when considering this issue that there may be good reasons why the complainant did not raise the allegation immediately following the alleged assault and that a failure to do so does not mean that the allegation must be false.
4. Here, the accused Ms Waldron notes the initial complaint in the 000 call focused on Mr Dessaix, with no specific reference to Ms Waldron.
5. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasion(s).

Murray direction

1. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness it is important that the jury, and in this case myself, exercise caution.
2. I must exercise caution before I convict the accused because the Crown case largely depends on accepting the reliability of the evidence of a single witness.
3. This being so, unless I am satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness in the account he has given, I cannot find the accused guilty. Before I can convict the accused, I should examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial.
4. That caution is not based upon any personal view that I have of the complainant. In any criminal trial, where the Crown case relies solely or substantially upon the evidence of a single witness, a jury, or a judge sitting alone, must always approach that evidence with particular caution because of the onus and standard of proof placed upon the Crown.
5. I am not suggesting that I am not entitled to convict the accused upon the evidence of the complainant. Clearly I am entitled to do so but only after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt.
6. In considering the complainant's evidence and whether it does satisfy me of the accused's guilt, I should of course look to see if it is supported by other evidence.

Joint trials

1. This is a joint trial of two accused. I have to consider the case against each accused person separately when considering my verdicts. I am required to return a separate verdict in respect of each individual accused. I should not, in my deliberations, try to determine whether both of the accused are guilty without considering them as individuals and giving each separate consideration. Simply because the Crown allegation is that they are each guilty of the count 2, it does not follow that I approach my deliberations in the same way, that is I must give them separate consideration.

Joint Criminal Enterprise

1. This is relevant to count 2.
2. The law is that where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. This is so regardless of the particular role played in that enterprise by any particular participant. The Crown must establish both the existence of a joint criminal enterprise and the participation in it by the accused.
3. A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence.
4. The agreement need not have been reached at any particular point in time before the crime is committed, provided that at the time of the commission of the crime the participants have agreed that the crime should be committed by any one or all of them.
5. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish that at some point in time an agreement has been reached between them that the crime should be committed. For example, if two people are at the very same time punching a third person, a jury could infer or conclude that they had agreed to assault that person.
6. It does not matter whether the agreed crime is committed by only one or some of the participants in the joint criminal enterprise, or whether they all played an active part in committing that crime. All of the participants in the enterprise are equally guilty of committing the crime regardless of the actual part played by each in its commission.
7. The Crown must prove beyond reasonable doubt that the crime which was the subject of the joint agreement was in fact committed. It therefore must prove beyond reasonable doubt that each of the essential facts or ingredients, which make up that crime, was committed, regardless of who actually committed them . Further in respect of a particular accused, the Crown must prove beyond reasonable doubt that he or she was a participant in the commission of that crime as part of a joint criminal enterprise with one or more persons.

Elements

1. Count 1 is a charge of common assault.
2. "Assault": To establish this offence, the Crown must prove beyond reasonable doubt that the accused assaulted the complainant. An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain. The allegation in this case that the Crown must prove is the deliberate and unlawful touching of the complainant by way of the slap to the face whilst he was asleep.
3. The elements of a charge of assault are as follows: 69.1. A striking, touching or application of force by the accused to another person (the complainant). 69.2. That such conduct of the accused was without the consent of the complainant. 69.3. That such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen. 69.4. That such conduct be without lawful excuse.
4. The Crown must satisfy me beyond reasonable doubt of each of the four elements which I have mentioned, before I may convict the accused of assault.
5. Counts 2 and 3 allege assault occasioning actual bodily harm. Count 2 is charged jointly against the two accused, by way of the concept of joint criminal enterprise. Count 3 is the same charge made solely against the accused Mr Dessaix.
6. To establish a charge of assault occasioning actual bodily harm the Crown must establish the elements of assault as set out above, and further that the assault occasioned actual bodily harm.
7. Actual bodily harm is any hurt or injury that interferes with the health or comfort of a person. The injury does not need to be permanent but it must have more than a fleeting or trivial affect upon the victim such as fear or panic at the time of the incident.

Facts (including DVEC account)

1. I note the following from the evidence of the complainant in chief, a significant part of which came from a DVEC interview he gave on the day of the alleged offending, and the transcript of which and the DVD of which became MFI 2 and MFI 3 respectively. I have made reference to that transcript. 74.1. He was "awoken to a smack across the face" (Q&A 16). He woke up and was looking at his ex partner, Ms Waldron. He saw nobody else, and the accused case concedes her presence and that no one else was in the lounge. 74.2. Having been slapped he says Ms Waldron demanded the keys to the car. He went to sit up and she went to put her hands in his pockets. He went to get his smoke and his lighter and went to go to where the car was parked. As he was going through "the set of doors" which in other evidence was described as being the doors to the laundry, there was a gentleman in the hallway which he didn't see and which hit him in his nose and then he punched him again in his mouth. He said he lost a few teeth. The photographic evidence is consistent with this description of having been hit in the nose and then in the mouth. He said the gentleman who hit him was Mr Dessaix. 74.3. He says Mr Dessaix said "give me the fucking keys to the fucking car" and that he then heard Ms Waldron shout "I've got the fucking keys" and the 2 accused both went out the door. They locked the door so that he was locked inside. The description given of this suggests that it was a deadlock which could be opened by a key from the outside and also required a key from the inside. 74.4. At page 5 of the transcript of the DVEC is a second recounting to this effect: "that's basically it, that was, it was all over in a flash. Basically, they have come for the keys, um, they've come to take the car. I was, like I said, I was asleep on the lounge, I was woken to a slap across the face. Um I got up and I sha, uh, I shot up and I said "what are you doing here?". She said "I've come for the keys for the fucking car". She went to reach into my pockets, she's actually physically ripped my pocket and that's when I've actually sh, sh, st stood up and gone to get my smokes and my lighter off the counter. As I've gone out into the hallway, I've come around the corner of the hallway, he hit me straight on the nose. Then he's belted me again in the mouth". He said the only words this person said to him were "I want the keys to the fucking car". 74.5. When asked in the interview whether he was expecting Ms Waldron he said "yes. Oh, not at my house no. She sent a message to my boss stating that, um, she wanted the car and, um, she wanted her car back. But it's not her vehicle. I have bank statements to prove that I paid for it from the car insurance, you know?" (The reference to the car insurance was to monies received in respect of an insurance claim relating to an earlier vehicle of the complainant's). 74.6. At question 152 the issue of injury was touched on. The question observed the nose to be quite bloody and noted the complainant said he had lost several teeth and the answer was the complainant counting up to 4 teeth that were missing. He was asked if that was a result of what happened this evening and said yes.
2. A key submission by counsel for each of the accused was that the evidence of the complainant was inconsistent and unreliable. The above version from the DVEC was said to differ in significant respects to the accounts earlier given in a 000 call and to the police officer Constable Godfrey, who attended the scene, as well as differing from the evidence given in court. Additionally it was submitted that no objective material supported the complainant; eg, there is no forensic evidence of any type placing Mr Dessaix in the premises, where the assault occasioning is alleged to have occurred. Before turning to those other sources of the evidence, the layout of the premises should be noted.
3. Exhibit D was a diagram drawn by the complainant in the witness box. It shows a carport with what is referred to as the back door which is not in dispute and in any event I find is the door through which Ms Waldron entered the dwelling. Although not marked on the diagram that door leads into a laundry which is shown in photograph 17 of exhibit C. The diagram and photo evidence shows that if you walk straight through the laundry you come out into a hallway. This can be seen on photograph 13 of exhibit C as being the door on the left of the photo and with the door at the end of the hallway being the door to bedroom 2. By reference to photograph 13 if you walk through the laundry from the carport or back door and enter into the hallway and turn right you will then walk down the hallway and into an open plan living/kitchen/dining area. I find that Ms Waldron entered the premises this way and came upon the complainant asleep on the couch which has an orange spread over it and can be seen in photographs 2 and 3 and partly in 4 and 5 as well as 6. There was confusion about what door is called the front door and what door is called the back door for reasons which are of no significance and there is no doubt in my mind and the evidence shows it not to be in dispute that the entry occurred in the way I just described.

000 call and account at the scene

1. I note the following from the 000 call: 77.1. The complainant said "some bloke just come in and just smashed my face in and took my car"; 77.2. The complainant identified the person who hit him as being Mr Dessaix. There is no reference by name to Ms Waldron but there is reference to "they" doing certain things suggesting the allegation is there was more than one person. 77.3. The complainant said that he was bleeding all over the place but said he did not require an ambulance.
2. The officer who attended was Constable Godfrey. There was no notebook of this officer in evidence but rather a COPS entry. This was made at approximately 7:50 PM (see T95) on the night of the event, 17 December 2018. This version of events was put to the complainant in cross examination by counsel for Mr Dessaix at about T63. The essence of this account and the response to it by the complainant at trial I note to be as follows: 78.1. The complainant told the officer he owned the car and transferred it into Ms Waldron's name when he lost his licence so he would not be detected. In cross examination he readily conceded as was already his evidence that the car was registered in Ms Waldron's name from the time they bought it which was some 6 or 7 months after he had lost his license.This is alleged to be an inconsistency which on its own may be of no significance ("minor inconsistency no. 1"). 78.2. The complainant told the officer he had three 3 beers after work. In his evidence in court he said he had 2. This too is alleged to be an inconsistency which on its own may be of no significance ("minor inconsistency no. 2"). 78.3. The complainant told the police officer that he was woken around 6:30 PM by Ms Waldron "reaching into his pants pocket while yelling at the victim to give her the keys". As noted above the evidence in court was that he had been woken by a slap in the face. This is alleged to be an inconsistency of greater significance than the earlier inconsistencies as it goes to the very heart of count 1 ("significant inconsistency no. 1"). 78.4. It had been put to the complainant that he had said he had been woken by a slap and the complainant said "yes and then she comes towards me and tried to go in my pocket. That's what I said"; T 64. This is not what the 000 call records; significant inconsistency no. 2. 78.5. Next it was put to him that he told the officer that he said something before Ms Waldron punched the victim with a closed fist to his mouth. In cross examination he answered that "no Mandy didn't hit me" (Mandy being Ms Waldron). He could not explain why it may be recorded this way; significant inconsistency no. 3. 78.6. The version to the constable (as recorded in the COPS entry, which became defence exhibit D1) continued stating "the victim got up and started to walk to the back door, and as he walked through the door was punched to the face by [Mr Dessaix]". The complainant said this was correct. It was then put in accordance with the recorded version (defendant's exhibit D 1) that "the victim fell backwards with [Mr Dessaix] following the victim inside the house pushing him to the ground". The complainant answered that Mr Dessaix was already in the premises and said he did not recall saying that to the police. The account at the scene continued that "victim fell backwards with Mr Dessaix following victim inside the house pushing him to the ground. Once on the ground Mr Dessaix punched the victim a number of times to the face". The complainant said no it was only twice. He then agreed that he says that the punches all occurred when he was standing up. This is itself evidently inconsistent with the description just given. The inconsistencies here are: 78.6.1. That the first punch occurs as the complainant is walking through the back door. There is room for some confusion here. It is fairly straightforward to interpret the complainant's evidence as being that he was punched when he turned from the hallway into the laundry through the door I described above. Yet this does not sit with the narrative referring immediately prior to that to the back door and to the narrative of Mr Dessaix coming into the premises giving another connection to the back door. I consider this an inconsistency; significant inconsistency no. 4. 78.6.2. The complainant has told the officer that he was on the ground and was punched on the ground. He says in evidence quite firmly that he was never on the ground; significant inconsistency no. 5.
3. These are inconsistencies of significance amounting to 2 markedly different descriptions of the events relied upon to constitute counts 2 and 3.

ERISP account of Ms Waldron

1. It is convenient here to set out the version contended for by Ms Waldron in her ERISP as put to the complainant in cross examination. That version was that he was woken by Ms Waldron with which he agreed. That there was an argument about the keys with which he also agreed. That she went to leave which he denied and that he pulled her onto the floor which he denied and she kicked him in the face which he denied. The kick in the face came because he was threatening her with his fist which he denied. Ms Waldron then left and he followed her and only then saw Mr Dessaix who stepped between them and told him to get back and demanded the keys all of which the complainant denied. Ms Waldron said she had the keys which the complainant disputed and that they then left. The whole of this account is disputed. Save of course the fact that it is common ground that Ms Waldron and Mr Dessaix left and that the car was taken, and that Ms Waldron (or Mr Dessaix) must have got the keys from somewhere.
2. It was put to the complainant that the story as to what he alleges was concocted by him to save the embarrassment of having been kicked in the face by his girlfriend which caused his nose to break. This was also disputed.
3. Other matters that I note from the ERISP are as follows: 82.1. The ERISP occurred on 20 December. The day before Ms Waldron had agreed to the police taking the car and her phone and said she wanted to get advice before deciding whether or not to give an interview. Subsequent to that advice she attended to voluntarily give an interview which she was quite entitled not to give. 82.2. She gave some history of the relationship which could be described as a volatile one and on her view of it, an unequal one in terms of financial commitment. She accurately stated that the car was purchased with money of the complainant, but on her version this was because he owed her money she estimated as being just over $10,000. She paid for everything else to do with the car such as registration and insurance. At question 149 it was suggested to her that it was put in the name of the complainant because of his disqualification period from driving and she said no. Although it is not recorded at question 150 I heard on the tape her answer to include the words "its yours", so that the answer was "no cause I said you can put it in your name. He goes no no it's yours" (actually recorded at Q151). 82.3. She described the circumstances of the separation occurring on about 24 November 2018. The evidence of the complainant in cross examination showed that his license disqualification expired on 12 December 2018. On about 24 November 2018 following an argument between the complainant and Ms Waldron he would not give her the keys so that she caught a train back to Port Macquarie and he then drove the car to Port Macquarie, getting there before her. No submission was made about it but obviously that driving occurred whilst the complainant was not permitted to drive. This is perhaps of some peripheral significance as it shows that he was acting from the point of view of Ms Waldron in an even more unreasonable fashion given that he would not be able to drive the car for another almost 3 weeks. This possibly adds to the heat of the situation and of the likelihood of disagreement emerging from the later planned recovery mission. 82.4. The accused Ms Waldron made 4 communications with police to raise her concerns about her car as she saw it. They told her it was a civil matter. She did not pursue it civilly because she didn't have the money for that. She told the co accused and the co-accused's wife Michelle of her intention to go and get her car back. They were both of the view that she should not do that on her own which resulted in them both going with her. 82.5. Ms Waldron also communicated with the lessee of the premises Mr Kingston who she said gave him permission to retrieve her possessions and that she had a right to enter the premises; see answer 413. This was all verified by reference to phone records. 82.6. In the ERISP from about question 448 Ms Waldron tells how she entered the premises by opening the door which was not locked and could hear snoring. She looked at the complainant on the lounge and looked for the keys thinking she could just get them and go. She saw the phone she was paying for and took it but could not find the keys so left the premises. She gave the phone to Michelle Dessaix and Mr Dessaix through the car window and said she was going back in. Both Mr Dessaix and his wife said they would come with her and she said she did not want them involved. Mr Dessaix insisted and she said that he should stand outside. She then walked back over to the premises and did not see Mr Dessaix get out of the car. She checked the car she wanted to repossess and saw her stuff in the back of it. She could not see anything of hers when she looked around the premises. She saw the complainant on the lounge and felt his pocket which I take to be his left pocket as he was on his right side and she felt what she thought might be the keys but it was his Ventolin puffer. The complainant grabbed her wrist and jumped and started and said "what are you doing here baby" and she reefed her arm away and said she's just come to get the car that's all. She said "I just want the car and I'll leave" (Q&A 474). He then got up and she saw a bulge in his right pocket which she figured was the keys. He then abused her (Q&A 480) and said she was not getting the keys and said if she came anywhere near him or his families he would cut her head off and he then walked to the bench to get a smoke whereupon she put her hand in the pocket (which she described as a bit baggy) and grabbed the keys out. After this when she was into the hallway he grabbed her hair and reefed her to the ground. He then turned around and came over her with his hand closed "going to punch me and I kicked him in the head". This was with her right foot and it was "right in the face". She said she kicked him hard. She said it was with the whole of her foot. She said her boots she was wearing were like the one she had on which were demonstrated on the video and showed a significant heel but she allowed the heel was smaller than that. She said they were fairly hard soled. When asked if she felt pain she said yes and said on her butt and also her shoulder. Asked if there were injuries you could see in the video her look at her shoulder and pull her sleeve up and there was to be seen a bruise. 82.7. She then referred to Mr Dessaix and said he "sort of opened the door because he could hear something going on". She heard him say "give her the fucking keys" and she said she's got them and let's go. She heard Mr Dessaix say"don't move fucking cunt just fucking stay there you cunt". I would interpolate here that this sounds to me very much like Mr Dessaix is in the premises. I consider it extremely unlikely that hearing the commotion inside the premises he would remain dutifully at his post outside the laundry in the carport. She was asked whether Mr Dessaix entered the premises and said she did not think so and said "I mean he was at the door. But he was never in the house". I consider this to be somewhat doubtful but would allow for it to be possible, particularly given other evidence referred to below and that the tussle and kick would have occurred quickly. 82.8. As noted elsewhere in these reasons at questions 574 and following the description of the event included the complainant being bent over towards the accused Ms Waldron of his right fist raised and coming down towards her. 82.9. Ms Waldron was asked about the teeth of the complainant and she said that he pulls them out and she then showed some photos supporting this from her phone.

Injuries

1. The evidence of the injuries consisted of photographs which became exhibit B. They show a very bloodied face, a swollen nose with a small cut on the bridge of it and missing teeth. A close-up of the teeth suggests teeth having being totally dislodged and snapped off but other evidence does not make this out to that extent. Exhibit G is a photograph of the complainant when most of the blood has been cleaned off and makes the injury appear far less severe but there is some redness to his lip as well as the cut to the nose not only on the bridge but also on the right-hand side. There is really no dispute that subject to a query as to the teeth these injuries occurred as a result of the events of that night. There was also an expert certificate of a doctor which became exhibit I. That doctor examined the complainant at about 8 PM on the evening in question and noted dried blood to his face, nose and neck. A deformity to the nose consistent with a fracture of the nose. A laceration to the right side of the nose and abrasion to the bridge of the nose and no injuries to the rest of the body which was particularised as "head/neck/torso/limbs et cetera". It records no intranasal haematoma. The diagnosis was of a fractured nose. The photographic evidence in exhibit C at photo number 16 was agreed to show a tooth on the floor next to the blood. This was circled in the conduct of the hearing. Further consideration of that document suggests there may have been a second tooth just below and to the left of the one that was circled. Other evidence as to the health of the complainant based on text messages and photographs texted between the complainant and Ms Waldron showed a history of poor dental health of the complainant to the point that he was able to remove his own teeth with his fingers. I accept that the complainant's teeth were likely to be able to be more easily dislodged from his mouth than if they had been healthier teeth. Whatever occurred in the residence caused these unhealthy teeth (either one or two of them) to be dislodged. They did not however cause the dislodging of the two bottom front teeth of the accused the absence of which is rather graphically depicted in the photographs. The significance of this for the case overall is that it makes more possible the alternative scenario being put forward by Ms Waldrone.

The Crown

1. For the Crown it was submitted that the evidence of the complainant should be accepted. The complainant did give his evidence in a reasonable way, and was, overall, a witness who at least in the manner of giving his evidence, came across as straightforward. He did have an unnerving way of seeking to answer the question before it had been completed, but he also readily agreed to some of the matters that were against his interests, as demonstrated by the inconsistencies noted above.
2. The Crown submitted that the only question in respect of count 2 was whether I am satisfied that it was Mr Dessaix who punched the complainant. I would add that if I was satisfied of that, I would then need to consider issues of joint criminal enterprise.
3. It was the Crown's submission that the evidence of Ms Waldron was internally inconsistent. One example was said to be that her version of events was she went to Davey Street to collect her belongings, but the complainant had not lived there for months, so what belongings was she collecting? The answer to that, is to collect the car which she considered to be hers, and some belongings that were in the car.
4. Another example was in respect of the car. The Crown pointed out that the car was bought from insurance proceeds of the complainant's earlier car, so that once his license disqualification period was over, he would, on the Ms Waldron view of the world, have no car to drive. To add to the unlikelihood of this, it was suggested there was another car, if not two, available to Ms Waldron. Added to this is the view of Ms Waldron that all of the complainant's money is spent on alcohol and gambling, so he has no prospect of buying another car. For these reasons it is said Ms Waldron is disingenuous to say the car was bought for her. To add to her dubious reliability, the Crown referred to her willingness to bad mouth the complainant for a range of issues; not contributing to the rent, not getting on with her daughter, with the suggestion being that Ms Waldron has an axe to grind. Reference was also made to the matters of domestic violence put to the complainant, which were almost entirely not substantiated, and that one incident was reported by a neighbour when both the complainant and Ms Waldron would appear to have been lacking in self discipline.
5. To a large extent none of the above is markedly significant, a matter the Crown would acknowledge. What it shows is a degree of friction between the complainant and Ms Waldron. The whole car dispute needs to be viewed against the backdrop of a domestic relationship, and when the car was purchased it is likely to have been viewed as a car, at least to some extent, for their mutual benefit. On separation, the dispute emerges as to who should have it.
6. As to the actual events of 17 December 2018 at Davey Street giving rise to the charges, the Crown said the threat alleged by Ms Waldron to have been made by the complainant if she went near his family was odd as they were living with her, and that if the complainant was so angry, why would he casually go for his cigarettes. As to the threat, that could well be something simply said in anger. The observation as to the cigarettes is a valid one, but equally applicable to someone who had just been slapped, which is the Crown allegation. It suggests really a strong attraction to nicotine.
7. Lastly, concerning Ms Waldron, the Crown challenges the likelihood of Ms Waldron being able to kick the complainant in the face as she alleges from her alleged position of being on her back on the floor. This submission does not allow for the complainant to be in a bent over position as Ms Waldron alleges, necessarily bringing him closer to Ms Waldron, and on her version, within kicking distance.
8. As to Ms Waldron's evidence concerning Mr Dessaix, the Crown says she is covering for Mr Dessaix. With respect, I consider there is force in that submission. The evidence of Michelle Dessaix that she at all times had her husband under observation was not markedly damaged in cross examination, but as noted elsewhere in these reasons, albeit with some reservation, I consider it unlikely that throughout the interaction of the complainant and Ms Waldron, which included yelling that Michelle Dessaix said she could hear from her car across the street, Mr Dessaix would remain staunchly at his post outside the house in the carport.
9. The Crown submitted that the inevitable inference is that Ms Waldron slapped the complainant. This is based on an assertion that Ms Waldron is angry with the complainant. The Crown relies on the complaint direction for reasoning to assist this version, because of the immediate complaint by the complainant of being slapped by Ms Waldron. The problem with this is twofold. Firstly, as noted above/below, why would she wake him when she has acted to avoid that? Secondly, the first complaint did not refer to being slapped in the face.
10. In my view there is no inevitable inference favouring the Crown case for count 1 based on these facts.
11. The case becomes more difficult for the Crown when the second complaint is considered, being what Constable Godfrey recorded in the COPS report as to what he was told. The Crown submitted Constable Godfrey made 2 mistakes. The first, which is relevant to count 1, was to record that Ms Waldron had punched the complainant, as opposed to slapping him. On the Crown version this mistake is greater than that; the COPS entry is that Ms Waldron punched the complainant "with a closed fist to the mouth", which is a far remove from a slap whilst sleeping. It is not just a mistake of recording "punch" instead of "slap". The additional words "with a closed fist to the mouth" make more unlikely some error of recording by Constable Godfrey.
12. The second mistake, which goes to count 2, was the reference to the complainant being punched to the face by Mr Dessaix and in these circumstances "[the complainant] got up and started to walk to the back door and as he walked through the door was punched to the face". I have described above how this could be interpreted to be the laundry door to the hallway, consistent with the submission of the Crown. Yet the Crown bears the highest onus, and the inference being asked to be drawn here is inconsistent with the plain meaning of the words. It is an argument which, with respect, shows there is room for doubt, not an absence of reasonable doubt.
13. The other difficulty for count 2 and 3 is that if I consider the evidence allows for another possible inference, namely that the injuries to the complainant were caused by a kick by Ms Waldron, then the Crown will not have satisfied the heavy onus of beyond reasonable doubt.
14. As to count 2 the aspect of joint enterprise requires the Crown to prove that Ms Waldron and Mr Dessaix went to Davey Street with the common criminal intent to assault the complainant. With respect, the evidence simply does not make this out. The evidence of the ERISP, and of Michelle Dessaix, supports the view which largely remains intact, of Ms Waldron not wanting Mr Dessaix to come with her at all, of him insisting to provide her with some safety, and of her intent being to enter the premises, she considers with permission, to remove keys to regather a car she says she considers to be hers. None of that was meaningfully eroded by the Crown case. More to the point, the evidence of the Crown, when the evidence is considered overall, does not satisfy me that the necessary elements to establish a joint criminal enterprise have been made out.

Ms Waldron

1. In short, Ms Waldron relied on her ERISP as being forthright and honest and cooperative. But for my reservations as to her evidence of Mr Dessaix always remaining outside the premises, I accept that submission.
2. Ms Waldron relied on numerous matters said to be inconsistencies in the evidence of the complainant, including: 99.1. Not mentioning Ms Waldron by name, or the slap, in the 000 call; 99.2. That Constable Godfrey records being told by the complainant that he was woken by Ms Waldron reaching into his pants, which is what Ms Waldron says and not what the complainant said in his evidence in chief; (referred to above as significant inconsistency no. 1); 99.3. Added to this inconsistency is the unlikelihood of Ms Waldron to have already been in the premises once to get the phone, and to then be creeping around a second time looking for the keys, to then launch a pre emptive slap at the complainant. I agree with this; the scenario given by Ms Waldron, of some interaction occurring after the complainant was otherwise woken up, which I find was due to her hand in his pocket, is far more likely; 99.4. The complainant told Constable Godfrey that he fell to the ground and whilst on the ground was punched a number of times to the face by Mr Dessaix; the complainant's evidence in court was that he was never on the ground; referred to above as significant inconsistency no. 5). 99.5. Ms Waldron also submitted that the complainant was unreliable concerning the reason for the break up, asserting it was due to Ms Waldron learning of another female. Yet it was at Tyndale on 24 November that Ms Waldron demanded the key to the car and the relationship seemingly ended. I am not so convinced this is an inconsistency. The evidence does not make clear how long it was that the complainant had returned to Davey Street before 17 December, though it would appear likely to be after 24 November, and Ms Waldron did arrive at Tyndale in the car, further suggesting he was still living at Tyndale, closer to his work. Just whether another female was involved remains a possibility for the disagreement on that evening, as well as other matters of discontent.
3. Ms Waldron also submitted that count 2 could not be made out, largely for the reasons canvassed above as to the facts of the alleged assault. I accept this to be so. I note also [97] above as to the issue of joint criminal enterprise.

Mr Dessaix

1. The short point made by Mr Fraser for Mr Dessaix was that there were too many inconsistencies to allow for the rejection of the evidence of Ms Waldron and the acceptance, beyond reasonable doubt, of the evidence of the complainant.
2. Those inconsistencies have largely been canvassed above, and so can be shortly stated, with all due respect to the submissions: 102.1. The lack of reference to Ms Waldron in the 000 call. It was suggested this was deliberate as to mention that it was the registered owner decamping in the car would not get the response the complainant sought. This argument was put to strengthen the argument as to the complainant as inconsistent, as it was said to show him tailoring the evidence; 102.2. The inconsistencies shown up in the account to Constable Godfrey, referred to above, and being what were earlier referred to as significant inconsistencies 3, 4 and 5; 102.3. In the DVEC, the complainant says he was attacked in the hall; in the COPS entry it is (on one interpretation) as he walked through the back door; in evidence in court, it was in the laundry; this arguably is repetition of significant inconsistency no. 4; 102.4. The COPS entry records more actual punches being thrown than are alleged elsewhere;
3. It was also said on behalf of Mr Dessaix that the independent or objective evidence also aided the accused. The location of the blood (and tooth, or teeth) is consistent with the version of Ms Waldron. There is no forensic evidence placing Mr Dessaix inside the premises, or of touching the complainant by grabbing his shirt as was alleged by the complainant, which is a good point against my scepticism in this regard; the injuries suffered are consistent with the version of Ms Waldron; the bruise on Ms Waldron's arm is consistent with her allegations of rough treatment by the complainant, and was not something overplayed by her, which was an indicator of her demeanour being quite consistent with being frank. The point was also made that there was no investigation of her boots, which may have corroborated her version. Nor had police checked into her earlier attempts to regain the car via police assistance.

Conclusions

1. In no particular order of importance, I make the following findings: 104.1. There is no significance in the different assertions of whether the complainant had lost his license for 6 months or 8 months. The court order was to suspend his license for six months and that order was made approximately 2 months after the license had been taken from him on the evening of the PCA offence. 104.2. Little if anything turns on this license issue. The car was bought two months before separation and about 3 months before the loss of license period would end. I do not find that it was purchased by the complainant with the intention that it become the sole property of Ms Waldron. 104.3. There is clear evidence of the complainant and of the photographs entirely consistent with his injuries having occurred due to being struck in the face. I find that those injuries were suffered that evening as a result of what occurred with the issue being whether it was a result of the kick of Ms Waldron or the punching of Mr Dessaix. 104.4. I was impressed by the evidence of Ms Waldron given by way of the ERISP. That evidence is of course not on oath and it could be observed that it was one of the more accused friendly interviews one is likely to see. Ms Waldron presented well in that interview, she repeatedly offered assistance and referred to objective matters to support her case concerning the ownership of the car and the other property aspects such as phones. She also offered the information concerning the unhealthy teeth of the complainant. The evidence of her bruising consistent with her version of events came out almost incidentally, which in my view is indicative of Ms Waldron not seeking to overstate matters, and somewhat tempers the view otherwise available that she had "an axe to grind". Apart from the issue I have touched on above of whether Mr Dessaix ever entered the premises, the one aspect of Ms Waldron's account which raises questions is the likelihood of her managing to successfully kick the complainant in the face from her position on the ground when he is on his feet. I frankly do consider that somewhat unlikely, at least at first blush. Against that view however is that at questions and answers 574, 575 and 579 of the ERISP is evidence to the effect that the complainant was standing and was bent over towards Ms Waldron and that he had his hand raised and he was coming down towards her. This makes it more likely than one might initially think that he was in a position that his face was within kicking distance of Ms Waldron. 104.5. Michelle Dessaix gave evidence consistent with the account of Ms Waldron. It was also to the effect of Mr Dessaix remaining outside the residence at all times. Michelle Dessaix was not shaken in cross examination and made no concessions. I largely accept her evidence, save for my reservations as to Mr Dessaix remaining outside at all times.
2. I pause here to remind myself that there is of course no onus on the accused. The onus remains always on the Crown. I must not approach the matter on the basis of whether or not the complainant's version is more likely. It is not an either / or situation. The correct approach is to consider the arguments of the accused. If I do not consider the accused case to be credible, then I must put it to one side and then consider the Crown's case, and determine if I am satisfied beyond reasonable doubt as to that evidence satisfying each of the elements of the offences charged.
3. Having heard all of the evidence concerning the complainant, I largely accept the submissions of counsel for the accused that it has significant inconsistencies, specifically those outlined in the submissions of the accused and the significant inconsistencies referred to elsewhere in these reasons ("the complainant's inconsistencies"). I am not satisfied generally, let alone beyond reasonable doubt, that Ms Waldron slapped the complainant in the face in the manner alleged to constitute count 1. My reasoning here is twofold. At first blush, the idea that a man wakes feeling his face stinging as if slapped, and sees only one person in the room, allows the inference that he has been slapped by that one person. However that inference requires the acceptance of the evidence of the alleged victim of the slap, and in this case, the complainant's inconsistencies are such as to bring the complainant's reliability into doubt generally. Coupled with that difficulty is the suggestion that the slap occurred before he woke up. To my mind that is at odds with the rather stealth like operation that was occurring of seeking to take the keys from the accused and then take the car, and this, on evidence I accept, after Ms Waldron had already made a first reconnaissance of the residence and the sleeping complainant. What seems more likely in this regard at least is the version put in cross examination (and as said in the ERISP) of Ms Waldron having her hand in the pocket of the complainant who then wakes up and grabs her hand.
4. I have noted the various inconsistencies of the complainant upon which the accused rely when recounting their submissions above, and which as just noted I accept, for the reason, if not made clear enough already, that they are clearly inconsistent versions going to the very facts relied on to make out the three charges. Perhaps the most problematic of them all for the Crown case is the marked differences in what the complainant told Constable Godfrey compared to what the complainant said in court. The Crown says these are mistakes, and that they should be overlooked. Yet as set out above, the account appearing in the COPS record, recorded whilst still on patrol in his car at about 7.50pm, so not long after Constable Godfrey spoke to the complainant (and remember the incident itself occurred at approximately 6.30pm), was said by Constable Godfrey to be what the complainant told him. It might be understandable that a COPS entry confuses what has been said, eg as to whether it was the laundry door exiting to the carport where a punch was thrown as opposed to the laundry door leading to the hallway. It stretches credulity to extend that to a version which says there were two blows whilst standing up, compared to: a. one punch to the face by Ms Waldron; b. then a punch to the face by Mr Dessaix; c. then falling and being pushed to the ground and; d. a non specified further number of punches to the face. These are two different descriptions, and so different as to be not capable of being explained away by error on the part of Constable Godfrey. In my view they differ because the complainant has given markedly different accounts.
5. I therefore conclude the evidence of the complainant in the crucial matters going directly to the facts alleged to support all three counts is unreliable. That is enough to dispose of the matter. I am comforted in coming to that result by the more favourable view I have of the evidence of Ms Waldron. In that regard my main doubt is as to whether Mr Dessaix came into the premises, and to be fair to Ms Waldron, her version is supported by both Michelle Dessaix and the lack of any forensic evidence to the contrary position.
6. The scenario given by Ms Waldron cannot be ruled out. The scuffle she describes could well see her come to rest in the hallway in the vicinity of where the blood can be seen; that hallway is not very long, and it would not take much for her to go from the kitchen area to where she says she was lying on her back being threatened by the complainant, and the evidence of him bending over her allows for the reasonable possibility of her having kicked him in the head as she described. The loose teeth do not require great force to be dislodged, and the slight injury to the lip shows some small amount of force was exerted there, with the greater force of the kick landing on the nose, causing it to break.
7. The Crown evidence here relies entirely on the complainant, and he has given different versions of this one event. The position is therefore of a possible version from the accused, and an inconsistent unreliable version of the complainant. The same conclusion is reached as was reached at [108] above, so that the Crown has failed to satisfy the onus it bears that it was Mr Dessaix who struck the complainant to the nose and mouth as alleged. The result therefore on counts 2 and 3 must also be not guilty. Further, even absent the largely credible version of Ms Waldron, albeit untested, the inadequacies identified in the complainant's evidence dictate that same outcome.

Verdicts Count 1: Not Guilty Count 2: Not Guilty Count 3: Not Guilty

Amendments 24 November 2020 - 24 November 2020 - Further editing to paragraph numbers. No content correction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2020