R v WS

Catchwords: CRIME — common assault – intimidation
CRIME – accused found guilty at jury trial – where Court is to determine whether the accused is guilty of related offences on s 166 certificate before sentence hearing – consideration of evidence of accused and complainant at trial – complaint evidence – accused’s evidence not accepted – complainant found to be a reliable witness – accused found guilty of related offences on s 166 certificate

Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Domestic and Personal Violence) Act 2007

Cases Cited: -

Texts Cited: -

Category: Procedural rulings

Parties: Rex, WS

Representation: Counsel:
Hart (Defence)
Steedman (Crown)
Solicitors:
Clowry and Associates (Defence)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/00231322

Publication restriction: Nothing is to be published which identifies the complainant or is likely to lead to the identification of the complainant.

JUDGMENT

Introduction

1. On 16 June 2025, the accused was arraigned with respect to 12 counts on an indictment dated 16 June 2025. All counts related to the complainant CP.

2. At the time the offences subject to the trial proceedings were committed the accused and the complainant were in a domestic relationship (May 2021 - March 2022). During this time the complainant and the accused were living at the accused's house located at 37 Reddall Parade, Lake Illawarra. There was one child to the relationship, AS, born February 2022.

3. Following a trial, which proceeded for nine days, and in which the complainant and the accused gave evidence, a jury of 11 returned unanimous verdicts of guilty in relation to counts 2, 3, 4, 5, 6, 9, 10 and 11 on the indictment. The jury returned unanimous verdicts of not guilty in relation to counts 1, 7, 8 and 12.

4. The Crown relied upon a series of uncharged acts in support of a contention that the accused had a tendency to:

5. threaten and intimidate the complainant by verbal means;

6. threaten, intimidate and assault the complainant by using household objects (including a knife, iron and mug) in an aggressive / intimidatory manner;

7. throw household objects (including an iron, mug and laundry items) in an aggressive / intimidatory manner;

8. inflict physical violence on the complainant by using his body in a forceful manner; and

9. use threats, intimidation or physical violence on or toward the complainant during sexual activity, including restraining the complainant to allow either the commencement or continuation of the sexual acts.

10. The complainant gave evidence, in support of the tendency contention, of the circumstances of these acts. There was other evidence in support of the acts, including complaint evidence and medical notes from the period the complainant was in hospital giving birth to her and the accused’s child.

11. These acts were the subject of charges and had been referred to the District Court on a certificate under s 166 of the C**riminal P**rocedure A**ct 1986 (CPA) as follows: –

| Sequence | Charge | Date | Incident | | Sequence 1 | Common Assault (11 May 2021) | 11 May 2021 | “Coffee cup” incident | | Sequence 2 | Intimidation | 7 July 2021 | “Iron” incident | | Sequence 3 & 5 | Common Assault (x2) | 23 July 2021 | “Water bottle” incident | | Sequence 6 | Common Assault | 5 September 2021 | “Father’s Day” incident | | Sequence 7 | Common Assault | 8-9 February 2022 | First night out of hospital after having the baby | | Sequence 10 | Intimidation | 2 March 2022 | Day the complainant left the accused |

7. At the conclusion of the trial, the Crown made an application for the Court to deal with these offences in accordance with s 167 of the CPA in anticipation of the accused entering pleas of not guilty to each of the charges.

8. The accused takes no objection to the Crown's application, although contends that the Court could not be satisfied beyond reasonable doubt of the accused's guilt with respect to these charges.

9. The Crown and the accused provided written submissions supporting their respective contentions.

10. The Crown provided a document setting out the elements for the offences of common assault and intimidation. The accused accepts that the document fairly reflects the elements of the respective offences. A copy of that document is annexed to this judgment.

General directions

11. It is my duty and responsibility to consider whether the accused is “guilty” or “not guilty” of the charges and return my verdict according to the evidence. I have taken into account the submissions on behalf of the Crown and counsel for the accused. However, I note that in no sense are those submissions evidence in the trial.

12. I must direct myself on the onus of proof. This is a very important direction. This is a criminal hearing of the most serious nature and the burden of proof of guilt of the accused is placed on the Crown. The onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I remind myself that suspicion is not a substitute for proof beyond reasonable doubt.

13. 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. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charges beyond reasonable doubt, the accused must be found not guilty of the relevant counts on the indictment.

14. The words “beyond reasonable doubt” are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, after considering the evidence and submissions for the Crown and counsel for the accused, I am not satisfied that the Crown has established any one of the essential ingredients or elements beyond reasonable doubt then it is my duty to return a verdict of “not guilty”, because the Crown will have failed to do what the law requires it to do.

15. I remind myself that it is vitally important that I clearly understand that the accused must be found “not guilty” if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient or element, even though I feel that he may be guilty, the accused is entitled to the benefit of any reasonable doubt, and I must find him not guilty. However, I also 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 charges.

16. 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. I acknowledge that I have very important matters to decide in this case – important not only to the accused but also to the whole community. I must, as the judge of the facts, act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgement. As the sole judge of the facts, 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.

17. I note that in relation to accepting the evidence of any witness I am not obliged to accept the whole of the evidence of any such witness. I may, if I think fit, accept part or reject part of the evidence of a witness. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such an inference is the only reasonable inference that can properly be drawn from the proven facts.

18. The Crown seeks to prove the guilt of the accused with a case based largely or exclusively on the evidence of CP.

19. Accordingly, unless I am satisfied beyond reasonable doubt CP is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. Before I can convict the accused, I must examine the evidence of the complainant very carefully to satisfy myself I can safely act upon that evidence to the high standard required in a criminal trial. 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. Whilst I am entitled to convict the accused on the evidence of the complainant, I may only do so after I have carefully examined the evidence and satisfied myself that it is reliable beyond reasonable doubt.

20. Further, if I was to find the accused not guilty on any of the charges, particularly if that was because I had doubts about the reliability of the complainant's evidence, I will need to consider how the conclusion affects my consideration of the remaining counts.

21. With respect to several of the offences the Crown relies upon complaint evidence, being representations made to others as to the circumstances in which the offending occurred.

22. The first way in which the complaint evidence may be relevant is that it can be regarded as additional evidence that the offence occurred in the manner described by the complainant, including that the offence was carried out by the accused. That is, not only does the Court have the complainant’s evidence, it also has the statements given to various complaint witnesses.

23. The second way the evidence of complaint may be used is that it can be relevant to the truthfulness of the complainants’ evidence in court.

24. The accused relies on his evidence with respect to each of the charges. The accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and he is entitled to the benefit of any reasonable doubt I may have.

25. It follows from this that:

26. First, if I believe the accused’s evidence as it relates to each of the offences, I must acquit.

27. Second, if I find difficulty in accepting the accused’s evidence, but think it might be true, then I must acquit.

28. Third, if I do not believe the accused’s evidence, I should put it to one side.

29. Nevertheless, the question will remain: has the Crown, upon the basis of evidence which I accept, proved the accused’s guilt beyond reasonable doubt.

30. The Crown alleges that the accused committed numerous offences between May 2021 and March 2022 which were not subject of the trial. I must consider each individual count separately with reference to the evidence that is relevant to it. I must not take a global approach and conclude that because the accused is found guilty or not guilty of one of the counts, he must therefore as a matter of course be guilty or not guilty of any other count.

31. Irrespective of the jury’s verdicts on the other counts, and the possible reasons for those verdicts, I must independently consider all the evidence relevant to each of the counts the subject of the remaining charges. As much was conceded by the Crown and counsel for the accused.

Evidence – section 166 charges

29. The evidence of the charges referred to the District Court on a certificate under s 166 of the CPA is summarised below.

Sequence 1 – Common assault – 11 May 2021

30. It was the complainant's evidence that on 11 May 2021 there was an argument with the accused. This was in circumstances where the complainant apparently discovered that the accused was communicating and appeared to be in a relationship with another woman. The complainant and the accused were communicating by text in circumstances where the accused was not home.

31. Having returned home it was the complainant's evidence that the accused was in a bad mood and went to his bedroom. When she sought him out, he told her to leave and that she was only good for sex. As a result, the complainant organised for a friend to pick her up. As she was leaving, her friend having arrived, the accused allegedly walked to the lounge room and asked if she was really leaving. She continued towards the front door, hearing the accused yelling from inside the house. At a time when the complainant was at the bottom of the stairs near the entry to the house, the accused was out of the front door and close to the main window at the front of the house. They were separated by approximately one to two metres when the accused threw a coffee cup which grazed the complainant’s shoulder and smashed beside her. The complainant went directly to the vehicle of Trent de Antonio, the friend who was collecting her. The complainant told Mr de Antonio what had occurred.

32. In cross examination, the complainant denied that at the time she left the house the accused had an arm full of her “Disney" belongings, although she accepted that the coffee cup was a Disney coffee cup. She denied that the accused walked directly to bins located at the side of the house before throwing those belongings into the bin, during which time the Disney coffee cup bounced onto the ground and smashed. When it was suggested to the complainant that it smashed adjacent to the neighbouring sandstone wall, the complainant stated that the sandstone wall had not been constructed at the time the incident occurred, but rather a fence was in situ. The complainant denied that the coffee cup was nowhere close to her when it smashed.

33. Trent de Antonio gave evidence that at a time in early 2021, he was contacted by the complainant and asked to be collected as a matter of urgency. He recalled driving to the address of the accused and parking across the road from the home. Having sent a message to the complainant that he had arrived, he heard yelling and what sounded like a smash shortly after the complainant left the house. She walked briskly and with her head down across the road and into his vehicle. Mr de Antonio observed the complainant to be panicked, scared and shaking. After they left the house, the complainant told Mr de Antonio that she had been physically held against the wall, and a cup had been thrown at her which had just missed.

34. The complainant's mother, Pauline Cunningham, gave evidence that the complainant told her that she had had “verbal problems" with the accused during their relationship. The complainant had told her mother, on the day of this alleged incident, that she had had an argument with the accused and she had called a friend to get her. As she was leaving, the accused threw a cup and “it skimmed and hit her head".

35. The accused in his evidence agreed that on the day in question he had an argument with the complainant. Earlier that day he had purchased several presents for the complainant including a Disney water bottle and coffee cup. At the time the complainant was leaving the house, he had remembered seeing the coffee cup and Disney things on the bench. Twenty seconds or so later the complainant went outside and was walking to her friend's car. The accused recalled saying something to the complainant. He then remembered throwing the plastic water bottle into the bin first and tried to do the same with the Disney coffee cup. He missed the bin. Instead, the coffee cup hit the lid, bounced onto the fence and down onto the concrete and smashed on the concrete beside the bin. At the time the coffee cup hit the ground, the accused stated that the complainant was out in the driveway, some six to seven metres away.

36. The accused conceded in his evidence in chief that the complainant was correct when stating that the neighbouring sandstone structure had not been constructed at the time. He gave further evidence that at the time the coffee cup smashed the complainant would have been off the driveway and was heading towards Trent's car.

37. In cross examination the accused stated that he had in fact told the complainant to leave. He stated that he went outside because of “stupid anger". He could not recall exactly his purpose for going outside, other than he was angry about it. He claimed at the time to have the Disney water bottle and Disney cup. When asked what he planned on doing with those items the accused said the following:

“I-I-I do remember my plan being I was going to go out, and it was - it was almost - looking back it feels pathetic to say, but it was like - it was like you're leaving me, you're hurting me. This was my pathetic attempt at trying to - I don't know - show you how angry or what I was and I’m going to break your things in order to show how much you’ve hurt me, that sort of thing.”

38. He claimed it was his intention to break the two items by throwing them into the bin. When further pressed on his evidence, the accused stated that he had intended on throwing them in the bin and assumed they would break when doing so. He maintained that at the time the items smashed, the complainant was essentially at the passenger side of Trent's car. He denied throwing the coffee cup in the complainant's direction and denied that when he threw the coffee cup the complainant was relatively close to him.

Sequence 2 – Intimidation – 7 July 2021

39. The complainant gave evidence that in July 2021 the accused threatened the complainant with an iron. This incident occurred before she found out she was pregnant (9 July 2021). It was the complainant’s evidence that she was standing in the bedroom doorway while the accused was ironing, and the pair were arguing over the accused speaking to other women. The accused allegedly pointed the iron at the complainant bringing the iron close enough to her face that she could feel the heat coming from it, whilst saying “just fucking leave” or he would hit her with it. The complainant stated that when she walked away, the accused threw the iron down onto the floor leaving a burn mark on the carpet. In cross-examination, the complainant denied that the burn mark on the carpet pre-dated her relationship with the accused.

40. The complainant conceded that, due to the similarity between this incident and the “water bottle incident” (sequence 3), she had confused the chronology between the two incidents. She clarified that the water bottle incident occurred about two weeks after she found out she was pregnant whereas this “iron incident” occurred just before that date.

41. In his evidence the accused conceded that he ironed on a weekly basis in the general location of the burn mark. The accused identified two brown discolorations on the floor as footmarks of where he stood when he ironed. It was his evidence that the mark was burnt onto the carpet six months prior to his meeting the complainant, after a “stupid accident” where the accused’s foot was caught in the cord, causing the iron to fall onto the floor and burn the carpet.

42. In cross-examination, the accused agreed that he and the complainant had had an argument about him speaking with other women while the complainant was pregnant, but denied it occurred whilst he was ironing. The accused denied threatening the complainant with the iron and denied throwing the iron, causing a mark.

43. Within days of this incident occurring the complainant told her friend Teisha Gould that she feared the accused.

Sequence 3 & 5 – Common assault (x2) – 23 July 2021

44. The complainant gave evidence that she and the accused were once again arguing about the accused speaking with other women. The complainant alleged that the accused threw a water bottle at her (sequence 3) and called her a “pretentious bitch”. The complainant stated that she laughed, at which point the accused charged towards her, grabbed her by the throat and pushed her up against a wall in the hallway (sequence 5). She described the accused using his upper body to push against hers and grab her by her throat with his right hand as she cried and asked him to stop. She described the pressure on her throat as causing her to “start getting, like, dots in my vision”. The complainant stated that after the accused let go, she left the house, and her mother picked her up.

45. The complainant initially gave evidence that this incident occurred on 7 July 2021. However, when giving further evidence the complainant stated that this incident occurred the day she went to hospital for a burst cyst, and that it was about two weeks after she found out that she was pregnant. Noting her hospital visit is now known to have been 24 July 2021, and she learned she was pregnant on 9 July 2021, the complainant’s ultimate account accords with this timeline.

46. In his evidence the accused denied this event occurred. The accused stated he recalled an argument taking place either in the loungeroom or kitchen area, but that was a previous argument, and he does not recall an argument taking place in the manner described by the complainant. The accused conceded that in a previous argument he had called the complainant a “pretentious bitch”.

47. Coincidentally, on 24 July the complainant exchanged messages with Teisha Gould saying that when the accused was in a bad mood he was “impossible to talk to” and that the accused “had been weird” for a few days.

Sequence 6 – Common assault – 5 September 2021

48. The complainant gave evidence that, on 5 September 2021, being Father’s Day, the accused pushed the complainant causing her to fall and graze her knees.

49. The complainant stated this incident occurred after she had given the accused a gift which the accused “kind of threw […] onto the table” before continuing to throw things around the house. The complainant stated that when the accused returned from the shopping centre later that day, he threw bags at her and “huffed”, at which point the complainant stood up and said she “wasn’t going to deal with it.” The complainant stated that as she turned her back to him to walk up the hallway, he pushed her with his hand causing her to fall onto the floor, where she sat and cried. The complainant was at least four months pregnant at the time.

50. In his evidence, the accused conceded that Father’s Day was a difficult day for him as he was not seeing his two older children from a previous relationship, and that when the complainant gave him a gift, “instead of reacting like an adult” he became “angry and disappointed”, leading to an argument. The accused denied pushing the complainant over and denied throwing objects around and throwing shopping bags at her.

Sequence 7 – Common assault – 8-9 February 2022

51. Prior to this alleged incident the complainant had told her friend Tesiha Gould that the accused had been physically abusive towards her. She was presenting as “terrified” and to be “broken down, really upset”.

52. The complainant gave evidence that on the night after she was discharged from hospital, following the birth of her and the accused’s son AS, the accused “shoved” AS into the complainant’s arms, causing her to stumble a bit.

53. The complainant stated that AS was not settling down while the accused was handling him, and the accused was saying to him “stop being stupid”. The complainant stated she told the accused to go back to bed, at which point the accused shoved the baby into her arms causing her to stumble. The complainant states she said that she did not ask for his help, which sent him into a “rage”.

54. The accused denies the events occurred in the manner described by the complainant, and stated that he could have said “stop being silly, stop crying […] come on, mate” to the baby, but would not have called him stupid. The accused agreed that he “placed” the baby in the complainant’s arms but denied that he “shoved” the baby in her arms.

55. The accused’s affect at the time was noted in hospital records from 6 February 2022, the day before the complainant was discharged from hospital. These records included the following note:

“Partner in attendance and at times overtakes and get sense of tension between the two. Pathology staff also informed of some odd behaviour from partner.”

56. The accused gave evidence that he remembered interacting with pathology staff outside the complainant’s hospital room, and that at the time he was upset that he and the complainant were facing eviction, and he had not told the complainant to not cause her stress. The accused stated that is the only thing he can attribute the pathology staff’s observations to.

Sequence 10 – Intimidation – 2 March 2022

57. The complainant gave evidence of the accused’s behaviour on the day that she told the accused she was leaving him, being 2 March 2022.

58. The complainant stated that the accused had told the complainant to eat her breakfast while he took AS down the hallway, and that she could hear him “telling [AS] he was stupid and that he was acting stupid*”.* The complainant stated she ate her breakfast quickly and went to AS, when the accused said, “I told you to eat your breakfast.” The complainant stated there was some back and forth, before he “pushed” the baby into her arms.

59. The complainant stated that, after she then told him “I’m leaving”, the accused began headbutting the wall. The complainant identified which wall the accused was headbutting on a floorplan of the house. The complainant stated the accused started “banging a lot of things around*”* and using a knife to slash photos that he had of his other children before leaving the house for a while. The complainant stated that she arranged for her mother to arrive, either by text or call, and that she then left with her mother.

60. The accused denied that this is how the relationship ended. He denied headbutting the wall, banging things around, packing things, walking around the house with a knife, and slashing photographs of his older children. The accused stated that it was pre-arranged that the complainant would be moving in with her mother on that date due to their impending eviction.

61. Approximately two weeks after the complainant left, she began to tell her mother that there had been domestic violence in the relationship.

The complainant's credibility and reliability

62. The accused contends that when considering the effect of a full Murray direction, Markuleski and Liberato, the Court could not accept the complainant's evidence beyond reasonable doubt. It is contended that inconsistency displayed in the text messages between the complainant and the accused, and the conduct complained of after the child's birth, “must raise in the tribunal of fact a doubt about whether she has been truthful in all of her evidence, and whether that inconsistency and relevant jury acquittals diminishes her evidence to the point that she cannot be accepted as a reliable and credible witness beyond reasonable doubt". In response to a request from the Court, the accused identified with more precision those aspects of the complainant's evidence in support of this submission.

63. The effect of the complainant's evidence was that over a period, following the commencement of their intimate relationship, the accused became increasingly abusive and violent towards her, noting the guilty verdicts on counts 2, 3, 4, 5 and 6 being events which occurred between May 2021 and December 2021.

64. The complainant left the accused and returned to live with her mother on 3 March 2022. There is no issue that on 11 March 2022, the accused attended hospital in circumstances where he wanted to self-harm (T 273.45). The accused sent the complainant a series of messages on the afternoon of 11 March 2022 conveying his poor mental health including the following: –

“You have no idea how fucked up I am today."

“A voice inside me was screaming at me to tell you to forget about me. To quit and give up because she is just like everyone else and you can't trust her"

"I am about to have a shower and shave, pack my bag and go to hospital to stay in the psych ward and I feel like a complete failure in life"

(Exhibit D)

65. Late that evening and in the early hours of the following morning (12 March 2022), the complainant sent the accused a series of messages imploring the accused to provide an update as to his welfare, clearly reflecting the complainant's concern for him. The following responses from the accused would not have allayed the complainant's concerns: –

"As per usual the world doesn't care about me and there is no help available”

“Nothing”

“No help"

"Forget about me please"

"I just don't care anymore. I officially give up"

66. The accused's expressions of hopelessness and despair continued in his messaging with the complainant on the morning of 12 March. This included:

“I am numb so I'm not feeling anything except dispare (sic)"

“Don't try to. It is not going to help”

“I am so so sad"

67. The “highly sexualised messages" upon which the accused relies were sent throughout the course of that day and evening.

68. The complainant was asked about these messages in evidence in chief. She gave evidence that she was “so scared" that the accused was going to kill himself and would have said anything to avoid that occurring. She referred to “walking on eggshells" throughout this message exchange and to prevent his suicide she said the sort of things that he wanted and needed to hear. She had learned, throughout the relationship, that references to anything sexual “was the easiest and quickest way" to calm the accused.

69. The complainant reiterated her evidence in this respect when further pressed in cross-examination as to the content of these messages. When pressed, the complainant further stated that if the accused believed they had a future then she genuinely believed he would not kill himself. The complainant adamantly denied that the “sexting” occurred in the context of desiring to continue to be in a sexual relationship with the accused.

70. I accept the complainant's evidence that the highly sexualised messages with the accused were with the sole intention of minimising the risk of the accused committing suicide. It is readily apparent that following the separation of the accused and the complainant, coinciding with his eviction, the accused's mental health had deteriorated to the extent that he was seeking admission to hospital.

71. The complainant was well aware of the accused’s condition and was understandably concerned about him. It is also clear from the messages sent by the complainant that despite their difficult and violent relationship, the complainant still cared for the accused in the context of him being the father of their child.

72. The proposition that these messages reflected an ongoing desire by the complainant to engage in a sexual relationship with the accused is entirely inconsistent with the violence to which the complainant was subjected to leading to her leaving the relationship nine days earlier (3 March 2022).

73. I do not accept the accused's submission that these messages are inconsistent with the accused having perpetrated the various acts alleged by the complainant. Accordingly, I accept the complainant's evidence that the messages sent by her to the accused on 11 and 12 March 2022 were an attempt to prevent the accused from self-harming and did not reflect any desire by the complainant to engage in ongoing sexual relations with the accused.

74. It was put to the complainant that her telling the accused on 12 March 2022 that she was “nervous" about having further sex with the accused, in circumstances where it had been some time since the two had engaged in sexual intercourse, was inconsistent with the complainant's evidence that she was violently sexually assaulted on the bed in close proximity to her newborn child in late February 2022.

75. When cross-examined on the apparent inconsistency the complainant said the following: –

“I hadn't had sex after having my baby. I was raped. There is a difference."

76. Further, the complainant accepted that there had been consensual sex before her child was born. She stated her message of being nervous about having sex again was “a figure of speech". When it was again suggested that the messaging was inconsistent with having not engaged in any form of sexual intercourse since their child was born, the complainant again distinguished between consensual and nonconsensual intercourse. The complainant explained the message about her being nervous with the accused seeing her naked as follows: –

“I just had a baby. My body was gross. He hadn't seen me naked when he raped me, I still had clothes on.

77. I accept the plaintiff's explanation for the apparent inconsistency between being subjected to nonconsensual intercourse following the birth of their child and her subsequent messages to the accused that it had been months since they had engaged in sexual intercourse. The messages, again, must be considered in the context that the complainant's underlying purpose in sending the sexualised messages was an attempt to placate the accused and prevent him engaging in self-harm. Further, I accept the complainant's evidence that the references to not having engaged in sexual intercourse as a distinct reference to consensual intercourse, to be contrasted with the nonconsensual intercourse to which the complainant was subjected after the birth of their child.

78. Whilst acknowledging the jury’s not guilty verdict with respect to count 12, the complainant’s evidence as to this episode was powerful and compelling. The complainant described in graphic detail the circumstances in which she was subjected to nonconsensual sexual intercourse perpetrated by the accused on the bed whilst staring at her newborn child. For the reasons enunciated, I do not accept that her messaging with the accused in the following month was inconsistent with the circumstances of the offending constituting count 12.

79. The complainant gave evidence over four days. She was thoroughly and extensively cross-examined by counsel for the accused on matters which were clearly sensitive to the complainant. She was questioned over difficult issues and factual scenarios including the circumstances in which each of the alleged offences were committed, her relationship with the accused and her underlying mental health conditions including depression, borderline personality disorder and dissociative identity disorder. The last of these conditions was the subject of extensive (although not inappropriate) cross-examination, including questioning on the existence of several personalities which were present from time to time.

80. The complainant was carefully observed during the entirety of her evidence. She presented as articulate, considered, genuine and honest in her evidence. The complainant was prepared to make concessions when appropriate, although remained steadfast in her evidence as to the circumstances in which each of the offences, including the circumstances in which the uncharged acts, were committed. I accept her evidence as credible generally, and more specifically, as to the circumstances of each of the offences on the indictment and the uncharged acts the subject of this determination.

The accused’s evidence

81. The accused gave evidence over two days, denying the circumstances in which each of the offences were committed and generally denying that his relationship with the complainant was abusive and/or violent, apart from engaging in sexual activity which may been considered as unorthodox but entirely consensual. I carefully considered the accused as he gave evidence over several days.

82. With respect to several of the counts on the indictment for which the accused was found guilty, his primary contention was that during the period of the complainant's pregnancy, they refrained from engaging in sexual intercourse. The accused was asked questions by the Court as to his evidence in this regard, given otherwise the highly sexualised relationship in which the accused and the complainant engaged. The accused accepted that, in circumstances where he regularly engaged in various fetishes within his sex life, sexual activity was an important part of his life. He agreed, in accordance with the complainant's evidence, that he had a particularly strong sex drive, indeed one that was stronger than the complainants.

83. It is difficult to reconcile this position with the accused's claim that upon becoming aware of the complainant's pregnancy, he immediately and voluntarily ceased any further sexual activity with the complainant until after the birth of their child.

84. There were other aspects of the accused's evidence which reflected poorly on his credit. The accused at times gave evidence which was non-responsive to the question asked, or alternatively the accused sought to justify his position in circumstances where this was not asked by the cross examiner.

85. When the accused was cross-examined on his evidence that he engaged in a sexual relationship with the complainant which included a “kink" of “couples CNC" (consent/no consent), the accused gave evidence that the complainant never said no during their sexual activity or activities related to their sexual engagement. It was suggested to the accused that his evidence that the complainant never said no was in fact inconsistent with a “CNC" relationship. When the inconsistency was highlighted, the accused recanted on his earlier evidence that the complainant never said no, conceding that there were times when she did say no and this was simply “my mistake". I do not accept this explanation for the inconsistency as credible in circumstances where a central issue in the trial was the issue of consent.

86. The accused was cross-examined on the complainant's evidence that on occasions the accused choked the complainant during the sexual acts, to the extent that in effect she was close to the point of unconsciousness. The accused denied this occurred, claiming that the complainant's safety was his paramount concern in circumstances where the complainant was the mother of “my future child". However, as the accused ultimately conceded, during the early stages of their relationship, the complainant was not pregnant and accordingly this could not have been a paramount concern when engaged in such activity.

87. The accused was further cross-examined on his conduct in grabbing the complainant by the throat during sex. The accused denied that he engaged in such acts because he found it arousing. Rather, he claimed that he engaged in such activity because it was something the complainant wanted and found sexually arousing. The accused specifically denied that he found such acts arousing.

88. The accused’s evidence in this respect was inconsistent with an entry made by the accused on a website in which the accused participated called “True Desires". That entry was clearly inconsistent with the accused's assertions that choking the complainant was not for his own sexual gratification, but rather simply done at the request of the complainant. The accused denied that his statement on the website was directly applicable to the complainant in circumstances where he initially claimed that he did not use the website whilst he and the complainant were together. He then sought to immediately clarify that position by suggesting he used it “absolutely minimally", thereby seeking to qualify his earlier evidence. The accused very reluctantly accepted that the entry was consistent with him gaining sexual gratification from choking another individual during acts (“it would read that way, yes"). The accused further denied that the reference in the entry to the person coming to whilst “lying in my arms” referred to the person losing some consciousness. However, when pressed that indeed the entry was consistent with the person who the accused was choking losing some consciousness he again reluctantly agreed (“that would imply that, yes").

89. Overall, I found the accused's evidence was unconvincing, and in particular, his denials that any of the acts subject of the counts on the indictment, or for that matter, the matters the subject of the s 166 application, had ever occurred.

90. I was generally unimpressed with his evidence. Whilst demeanour of itself is not determinative, in my view I found the accused whilst giving evidence was defensive and at times seeking to justify the answers given when not called upon to do so. The evidence referred to above are just some of the examples of where the accused’s evidence was unconvincing or internally inconsistent.

91. A further basis for not accepting the accused’s evidence in which he denies every one of the offences on the indictment and in this application is that it is overwhelmingly inconsistent with the complainant’s evidence, which I accept.

92. In all the circumstances, I do not accept the accused's denials that he engaged in the behaviour the subject of the s 166 determinations. In those circumstances, the accused’s evidence is to be put to one side, and it is necessary for the court to determine, in any event, on the remaining evidence, whether the Crown has discharged its onus of proof beyond reasonable doubt.

Consideration and findings

Sequence 1 – Common assault – 11 May 2020

93. The Defendant denied committing this offence. He gave evidence, summarised above, as to the circumstances in which the cup smashed. I do not accept the accused's version of events. It is clear, even on the accused's initial account, that he was angry and intended to break the complainant's possessions. I do not accept his evidence that by simply throwing the items in the bin he assumed they would break. I do not accept his evidence that whilst the plastic water bottle landed in the bin, the cup broke in circumstances where it hit the lid before bouncing onto the fence and smashing on the concrete beside the bin. In the circumstances, I put the accused’s evidence to one side and determine whether, on the basis of the evidence I accept, the accused’s guilt has been proven beyond reasonable doubt.

94. For the reasons given earlier, I accept the complainant's evidence as to what occurred on the day in question. I accept that whilst the complainant was attempting to leave the home, and at a time when the accused was only a matter of metres from her, the accused threw the cup at the complainant, grazing her shoulder.

95. The complainant's evidence is supported by the complaint evidence of Trent de Antonio, whose evidence I accept. This included his observations of the complainant being panicked, scared and shaking and the fact that the complainant immediately reported to him that the accused had thrown a cup at her which had missed. His evidence supports the complainant's credibility and is otherwise generally consistent with the complainant's evidence such that it supports her truthfulness.

96. The complainant's evidence is further supported by the complaint made to her mother that on the day of the alleged incident there was an argument and whilst leaving the accused had thrown a cup at her. To the extent that there is any inconsistency between precisely where the cup touched her, I do not consider that any such inconsistency undermines the complainant's evidence as to what occurred.

97. In the circumstances, I am satisfied that each of the elements have been proven beyond reasonable doubt, in that the accused did an act, being the throwing of the cup at the complainant, and it was done so with the intention to cause the complainant to apprehend immediate and personal violence. I am satisfied that this element has been proven beyond reasonable doubt in circumstances where, on the accused's own admission, he was angry with the complainant. I am satisfied that the throwing of the cup was in anger and was clearly done with the intention of causing the complainant to apprehend immediate and unlawful violence.

Sequence 2 – Intimidation – 7 July 2021

98. The accused in his evidence, whilst conceding that he ironed on a weekly basis in the general location of the burn mark, denied the circumstances of this incident as alleged by the complainant. Whilst the accused conceded there had been an argument about speaking with other women during the complainant’s pregnancy, he denied that it occurred whilst ironing.

99. For the reasons given, generally I do not accept the accused’s evidence as credible, and it is put to one side. I accept the complainant's evidence as to the circumstances in which this incident occurred. The burn mark is consistent with the complainant's evidence that the accused demanded the complainant leave and was clearly angry. The burn mark is consistent with the complainant's evidence that as she walked away the accused threw the iron onto the floor leaving the burn mark.

100. The complainant gave evidence that the iron was brought close enough to her that she could feel the heat coming from it. I accept that the accused's action was sufficient for the complainant to fear for her safety and was conduct which would have caused a reasonable apprehension of injury to the complainant. Accordingly, I am satisfied beyond reasonable doubt as to the first element of this offence. I am satisfied, given the accused's conduct in bringing the iron close to the complainant's face whilst issuing the threat, that the accused intended to cause the complainant physical harm in that the accused knew that such conduct was clearly likely to cause fear in the complainant. Accordingly, I am satisfied beyond reasonable doubt of the two elements constituting this offence.

Sequence 3 & 5 – Common assault – 23 July 2021

101. For the reasons already given, I do not accept the accused's denials that this event ever occurred. I accept the complainant's evidence as truthful that in the course of an argument with the accused, he threw a water bottle at her whilst calling her a “pretentious bitch." I accept the complainant's evidence that in response to her laughing, the accused charged towards her, grabbing her by the throat and pushing her against a wall in the hallway. Further, the evidence of the complainant messaging her friend Teisha Gould that when the accused was in a bad mood he was impossible to talk to and that he had been weird for several days, was consistent with the accused's behaviour constituting the alleged common assault.

102. In the circumstances, I am satisfied that the accused acted in the manner the complainant alleged and in those circumstances the accused had the intention to cause in the complainant an apprehension of immediate and unlawful violence given the deliberate act of throwing the water bottle at her and subsequently grabbing at her throat. Accordingly, I am satisfied that the Crown has proven each of the elements of this offence beyond reasonable doubt.

Sequence 6 - Common assault - 5 September 2021

103. The accused accepted that on the day this offence occurred, being Father's Day, he was angry at the complainant having given him a gift leading to an argument. For the reasons given, I do not accept generally the accused's denials as to this event, and in particular denying that he pushed the complainant over or threw objects around or threw shopping bags at her.

104. I accept the complainant's evidence that indeed he did throw bags at the complainant and that when she attempted to walk away the accused pushed her with his hand causing her to fall to the floor. In the circumstances, I am satisfied beyond reasonable doubt that the accused did an act with the clear intention of causing the complainant to apprehend immediate and unlawful violence.

Sequence 7 - Common assault - 8 to 9 February 2022

105. Whilst the accused accepted that he could have been frustrated with his infant son and that he “placed" AS in the complainant's arms, he denied that he shoved the child into her arms. I accept the complainant's evidence that the accused, being frustrated with their infant son, shoved him into the complainant's arms causing her to stumble. Accordingly, I am satisfied that the accused did an act with the intention of causing the complainant to apprehend immediate and unlawful violence and accordingly I am satisfied the Crown has established each of the elements beyond reasonable doubt.

Sequence 10 – Intimidation – 3 March 2022

106. This offence allegedly occurred when the complainant told the accused that she intended to leave him. It was the complainant's evidence that there was tension on the day this occurred and that the accused began head-butting the wall. Further, the accused started “banging a lot of things around" and used a knife to slash photos that he had of his other children before leaving the house.

107. The accused denied that this occurred and indeed suggested that it was prearranged that the complainant would move in with her mother due to their impending eviction. I do not accept the accused’s evidence in this respect. I accept the complainant's evidence that due to the accused's increasingly violent and unpredictable behaviour, that the complainant felt compelled to leave. The accused's behaviour leading to this period, I find, is inconsistent with the accused’s evidence that there was, in effect, a calm and agreeable arrangement whereby the complainant would leave the home which she had been occupying with the accused and their infant child.

108. I accept that the accused’s behaviour was such that the complainant would have had a reasonable apprehension of injury or potential violence to her. I accept that the accused's behaviour was such that it was done with the intention to cause fear of physical harm to the complainant by reason of his behaviour. In the circumstances, I am satisfied that the Crown has established each of the elements of the offence beyond reasonable doubt.

Orders

109. In the circumstances, in relation to the charges referred to the District Court on a certificate under s 166 of the CPA:

110. I find the accused guilty of sequence 1, being common assault contrary to s 61 of the Crimes Act 1900.

111. I find the accused guilty of sequence 2, being intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.

112. I find the accused guilty of sequence 3, being common assault contrary to s 61 of the Crimes Act 1900.

113. I find the accused guilty of sequence 5, being common assault contrary to s 61 of the Crimes Act 1900.

114. I find the accused guilty of sequence 6, being common assault contrary to s 61 of the Crimes Act 1900.

115. I find the accused guilty of sequence 7, being common assault contrary to s 61 of the Crimes Act 1900.

116. I find the accused guilty of sequence 10, being intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.