The Queen v Barbagallo [2012] NTSC 65

[1] In these proceedings the accused has pleaded guilty to a charge of unlawfully causing serious harm. Specifically, he admits that, on 25 February 2012 at Manton, he unlawfully caused serious harm to Melissa Debarros. I will refer to him as "the offender" and to Ms Debarros as "the victim".

[2] Whilst certain facts related to the commission of the offence were not in dispute, the parties were in conflict as to precisely what led up to the actual causing of the relevant serious harm.

[3] A disputed facts hearing was accordingly held. Both parties adduced oral and documentary evidence concerning the areas of contention.

[4] What follows is a composite summary of the agreed circumstances and my specific findings of fact beyond reasonable doubt in relation to the evidentiary material placed before me.

[5] At the time of the offence the offender and the victim had been in a de facto relationship for approximately two years. They had a child named Ryan together. That child was about six months old as at February 2012.

[6] It is not in dispute that Ryan was born with congenital bilateral talipes. That condition required corrective surgery and the victim wished to have this carried out by a specialist surgeon in Perth.

[7] In what I take to be mid to late 2011, the relationship between the offender and the victim had become strained to the point that Family Court proceedings had been initiated between the two of them.

[8] One issue that arose was that the offender objected to Ryan being taken to Perth. It is obvious that the court proceedings gave rise to considerable ill feeling between the parties.

[9] Ultimately, Ryan was taken to Perth and the requisite surgery carried out. At the time when this occurred the relationship between the offender and the victim had completely broken down. He remained in Darwin when she went to Perth with Ryan.

[10] The evidence indicates that the offender formed a relationship with the witness Jade Hargy whilst the victim was in Perth. This persisted for several months.

[11] However, shortly before the victim returned to Darwin with Ryan on or about 18 February 2012, she and the offender embarked upon an attempted reconciliation. How this came about does not readily emerge from the evidence.

[12] This led to the offender driving the victim and Ryan back from Perth to Darwin.

[13] On Saturday 25 February 2012 the offender and the victim were at a residence occupied by them and situated at Lot 1602 Manton Valley Road, Manton, where they were then cohabiting. During the afternoon both consumed alcohol, although the evidence does not suggest that either became significantly intoxicated.

[14] At about 4 PM the two of them began arguing about various matters. Ultimately, the offender left the residence for approximately 4 hours. The victim did not know where he had gone, other than that she last saw him heading over towards the office area on the property, about 70m distant from the house.

[15] I accept that the offender actually proceeded to one of the office buildings on the premises and slept there for a time, although the victim was not aware of that situation.

[16] I have no reason to reject the evidence of the victim that she went for a walk for about an hour with the baby and the dogs. When she returned, the offender was not in the house or any of the offices to which she had access. Certain of the offices were locked.

[17] At some stage thereafter, the victim went to the neighbouring property which was owned by the offender but tenanted by the witness Patrick Wallace. She did so to enquire whether Mr Wallace knew of the offender's whereabouts. This witness said that she came over with her baby in a stroller.

[18] The evidence indicates that she remained there talking with Mr Wallace for a time and that, ultimately, he invited her to accompany him to the Noonamah pub to have an evening meal. The victim says that this invitation was in the terms that Mr Wallace was going to the pub and "if Troy hadn't come back I was welcome to, to go up there with him".

[19] Her evidence was to the effect that she declined his invitation and returned to the house.

[20] Mr Wallace expressed a memory that she actually agreed to accompany him, but had to go back to the house to get her vehicle.

[21] He says that, when he drove down an unsealed road leading from where he was living, he saw a car with its lights on about 20 m behind him for a time. He took this to be driven by the victim, but he did not physically see her as the driver in it, nor did he see it actually emerge from her driveway

[22] Mr Wallace was aware that the victim had a white car but, on the evidence, I remain unconvinced that, on the night in question, he positively saw the colour of the vehicle behind him with its lights on. I consider that he merely assumed that it was the victim's vehicle.

[23] He related how the white vehicle disappeared at one stage, although he did not actually see it turn off the road behind him. He made no attempt to check as to whether the victim had changed her mind and she certainly did not join him for the evening meal.

[24] I was not greatly impressed by Mr Wallace as a witness and it seems to me that, in any event, his evidence falls far short of establishing that the victim did follow him part way along the course that he was pursuing. I am also not satisfied that she did agree to have the evening meal with him, particularly as she had her young child with her.

[25] I accept that, on returning to the house, the victim attended to Ryan and watched TV for a time, as she said she did.

[26] She concedes that, at one point whilst breast feeding Ryan, she noted the presence of some keys on a chest of drawers. She thought that these appeared to be of a type that fitted filing cabinets.

[27] Having fed Ryan, the victim took the keys into the lounge where two filing cabinets were located, as shown in photographs tendered in evidence.

[28] These were locked. They contained a variety of personal documents belonging to the offender, including documents related to earlier Family Court proceedings between him and the victim.

[29] The victim admitted that she used the keys to open the filing cabinets, because she was curious as to their contents.

[30] She found that, amongst other items, the filing cabinets contained documentation relating to custody proceedings that had earlier taken place in the Family Court, at a time when she had desired to take Ryan to Perth.

[31] There was also a letter that she had written to the offender, presumably about the same time. She noted that, in one of the documents, the offender had asserted or proposed to assert that she had suffered postnatal depression following Ryan's birth.

[32] I am satisfied that the content of these documents upset her and, as she herself concedes, she pulled quite a few Family Court related documents from the filing cabinets and put them on the kitchen bar. She denies that other documents later found scattered on the floor (as shown in certain of the photographs) were put there by her.

[33] The victim concedes that she took a letter that had been written by her to the offender out to the veranda, re-read it, and then attempted to burn it with the aid of a cigarette lighter. It was drizzling with rain at the time and she did not entirely succeed in her endeavours. The result was the partly burned document, exhibit D1.

[34] The victim accepted that words scrawled on certain documents appeared to be in her handwriting, but professes no present memory as to how this came about. Other documents have more or less circular scrawl marks around passages in them. She did not concede that she had been responsible for the scrawling.

[35] At the end of the day, I am satisfied that the victim did scatter the various documents around the kitchen bar and also on the floor, as shown in the various photographs; and did disfigure the other documents tendered in evidence in the manner in which they now appear.

[36] Given the past history of dealings between the two parties and the fact that the victim was obviously upset by what she found in the filing cabinets, I consider that she did in fact deal with the documentation as I have described. The fact that she set out to burn one of them speaks volumes as to her obvious (and perhaps unsurprising) emotional state at the time.

[37] It is common ground that the offender came back to the house at about 8 PM. There is, however, a considerable dispute as to what transpired when he did so.

[38] The victim testified that she had been attending to Ryan and was in the hallway with him on her left hip as the offender came through the front door.

[39] She says that the offender paused and obviously noted the presence of the documentation that had been taken from the filing cabinets. He then strode over towards her in an aggressive manner.

[40] She asserts that he took her by the shoulders, "sort of spun me around a little bit", and then kicked at her. His shin connected with her right outer thigh. This caused her to stumble against the passage wall and cause the hole in the gyprock that is depicted in the photographs tendered.

[41] It is said that the offender then went over to look at the various documents.

[42] The victim asserted that, at that stage, she took Ryan outside and went down the driveway near the front of her vehicle, where it was parked.

[43] She testified that the offender called her name from the veranda and then, when she turned away from him, came up to her, seized her around the throat with both his hands and lifted her up on to her toes.

[44] Prior to that time she had been jogging Ryan up and down on her hip to keep him settled.

[45] The victim said that she next heard the offender make a low guttural or growling sound and then both heard and felt his teeth crunch on her right ear.

[46] Her narrative was to the effect that the offender then let her go, pulled a wad of her hair from his mouth and then spat out a piece of ear tissue onto the ground, saying "I think I just bit your ear off".

[47] She said that she was in shock and that, when he referred to the ear, she just wanted "to get out of there". It was for that reason that she said to the offender "No I'm fine, I'm fine".

[48] She denied striking the offender at any stage. As she put it, she had not, at any stage, been "physical with him".

[49] The victim said that the offender then went into the house, whilst she jumped into her car with Ryan and drove off in the direction of Noonamah.

[50] By way of contrast, the offender testified that, having been asleep in one of the locked office rooms, he awoke at about 8 PM, and returned to the house. It was then very dark.

[51] He testified that, as he approached the front of the house, he saw the victim on the front veranda steps. She had a little fire going and it looked like it was paper or something burning "on the ground".

[52] He stated that, on walking up to and through the front door, he noted that the house had been trashed. The filing cabinets were open and papers had been strewn across the floor near the fridge. When he went into the house he also saw a hole in the gyprock wall that, he said, had not been there before. He conceded in cross-examination that he became angry at that time.

[53] The offender testified that he started to worry about Ryan and went into the master bedroom looking for him. I took the offender to assert that, up to that point, he had not seen Ryan in either the house or on the veranda.

[54] The offender narrated that he then went outside and went over to the victim's X-Trail and observed Ryan in a baby seat in the rear of the vehicle.

[55] He says that he also observed the victim nearby on the grass about 5 to 10 m from the front steps and close to the vehicle. She was having a cigarette.

[56] The offender told me that he then commenced unbuckling Ryan with a view to taking him out of his seat, whereupon the victim became angry and told him to stop.

[57] He says that, at the time, he was leaning into the vehicle.

[58] He contends that she came up behind him. She was screaming and hit him on both sides of the head from behind with her hands.

[59] He conceded that, at that point, he simply turned around, so that the two of them were more or less face-to-face, and then grabbed her and bit her right ear. He denied in cross-examination ever having seized the victim around the throat. He asserted that, when he bit the victim, he was merely seeking to defend himself.

[60] He agreed that he did say something to her to the effect that he had bitten her ear off but, on his narrative, she replied that he hadn't and that she was OK. He asserted that he did not see any blood on the victim at that time because it was dark.

[61] The offender was quite unable to give any explanation as to why he suddenly acted in the manner that he did.

[62] He stated that, having bitten the victim's ear, he first went back into the house and then returned to the office donga and went to sleep. At the time when he did so the victim and Ryan had gone.

[63] I here pause to record that, during the disputed facts hearing, the offender called Ms Hargy to give evidence to the effect that, on the night in question, a series of phone calls were made on his mobile to her between 5:10 PM and 7:38 PM, but that, on each occasion, the caller said nothing.

[64] This witness claimed that, during the period in question, she missed some calls, but rang back on the indicated number. Each time that she did so, the call was answered, but no one spoke.

[65] It was also asserted that, at some unspecified time, the victim had sent either text messages or e-mails to Ms Hargy.

[66] She told the court that she is currently again in a relationship with the offender.

[67] The offender stated that he had left his mobile in the house and could not subsequently find it. The innuendo from his evidence was that the victim had taken possession of his phone and made the phone calls to which I have referred.

[68] The victim denied either having possession of the phone or making any of the calls in question. However, she did readily accept that she had texted Ms Hargy. This was, she said, when she got out of hospital after the biting incident and because she wanted to warn Ms Hargy about the offender.

[69] The victim conceded that she had e-mailed Ms Hargy, but there is no evidence as to when this occurred or the content of it.

[70] I took the evidence led from Ms Hargy to be pitched at attempting to demonstrate the existence of a substantial antipathy and jealousy on the part of the victim that would tend to support the proposition that she had a patent motive for not telling the truth.

[71] Whilst there is no doubt that the relevant telephone calls were in fact made, the evidence falls far short of establishing that the victim made them. Indeed, I accept her denials in that regard. As to any e-mails referred to in the cross-examination of the victim, not only is it not clear as to when they were sent, but also there is no definitive evidence of their content.

[72] I view this evidence as being no more than a deliberate and unsuccessful attempt to discredit the victim.

[73] I return to the conflicting narratives of the victim and the offender concerning the events leading up to the ear biting.

[74] In doing so, it is important to make reference to certain observations of the police witnesses who gave evidence - all of whom presented as objective and credible witnesses.

[75] Although there were some differences in their detailed descriptions, two of them gave similar evidence as to what they noted about the front steps of the Manton house.

[76] Senior Constable Taylor told me that he observed a small quantity of fine grey ash on what he described as "the ground of the steps". He said that the ash was consistent with paper having been burnt there. There was no real degree of scorching on the deck - "maybe just a tiny little black mark".

[77] Constable Aiken testified that he saw an area of ashes, smaller than a dinner plate, on a wooden porch area.

[78] DSC Wilson did not attend the premises until about 1 AM the following morning. He did not speak of having seen any ash on the front porch or steps area.

[79] It is unnecessary, for present purposes, to traverse in detail the evidence as to what occurred subsequent to the victim and Ryan driving off to Noonamah. It will suffice merely to record that when the police officers met the victim at that location she appeared to be in shock and there was blood apparent on her face and shoulder area. It was noted that she was of slim build and appeared to be sober.

[80] When the police went to the premises at Manton they ultimately found the offender in a locked donga office and he initially resisted their entry. He was threatened with a Taser and eventually surrendered, was handcuffed and taken into custody.

[81] I note that the offender presented in court as a stocky, solidly built person.

[82] I carefully observed the offender whilst he gave evidence in the witness box and also the victim whilst giving evidence by video link.

[83] It is my assessment that the evidence of neither of these persons is fully accurate.

[84] Nevertheless, I prefer the victim as a generally accurate historian, albeit that I am of the view that, at relevant times she had been far more angry and upset than she professes and that, as I have earlier indicated, she did disperse the offender's documents around the kitchen area (as shown in the relevant photographs) and did write or scribble on or otherwise mutilate some of them.

[85] Indeed, such anger is readily understandable in the light of the obviously bitter court proceedings in which the parties had been embroiled. I consider that some aspects of her evidence may well be the product of a degree of rationalisation after the event on her part.

[86] That said, I was less than impressed by the offender's narrative of events which, in important respects, did not exhibit the ring of truth.

[87] I am in no doubt that, on returning to the house and seeing that his privacy had been breached, the offender simply lost control of himself.

[88] His description of finding Ryan strapped in the rear car seat and the victim merely standing smoking, after he had first seen her burning paper on or near the steps and the state of the house as a result of her anger, was not convincing.

[89] Moreover, the hole in the passage wall is highly suggestive of the accuracy of the victim's description of the relevant chain of events. I do not consider that she did deliberately kick a hole in the gyprock as a part expression of her anger towards the offender.

[90] I am satisfied beyond reasonable doubt that the substance of the victim's narrative of what transpired near the front of her vehicle is accurate. I do not accept that she was the initial aggressor at that time o that, in any sense, the offender had any reasonable basis for seeking to defend himself against assaults by her.

[91] Bearing in mind their respective physical characteristics it is near ludicrous to suggest that the offender could have been or could have thought that he was in any danger at her hands.

[92] No doubt the offender was justified in being annoyed at the invasion of his privacy and to that extent provoked. However, at the time of the incident near the front of the victim's vehicle, it is clear that he had completely lost control of himself and, in effect, deliberately set out to punish her.

[93] Why he determined to bite her in the bizarre manner that he did, given the circumstances as I have found them, is simply inexplicable other than as being a consequence of such a loss of control.