A Fergusson v Laura Holmes

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	A Fergusson v Laura Holmes
Citation:	[2019] ACTMC 11
Hearing Date(s):	6 April 2018, 25 June 2018, 23 November 2018
DecisionDate:	12 March 2019
ReasonsDate:	3 April 2019
Before:	Special Magistrate Hunter OAM
Decision:	See [169] to [209]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Criminal - common assault – damage property – destroy property – judge alone trial – direction for judge alone trial – witness memory - self-defence – accidental damage to property
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Cases Cited:	Browne v Dunn (1893) 6 R 67 (HL) R v Burdon [2011] ACTSC 90 R v DM [2010] ACTSC 137 R v Mulcahy [2010] ACTSC 98 Zecevic v DPP (1987) 162 CLR 645
Parties:	A Ferguson (Informant) Laura Holmes (Defendant)
Representation:	Counsel Mr P Dixon (and Mr D Swan) (Informant) Ms P Burgoyne-Scutts (and Ms C Duffy) (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT (Defendant)
File Number(s):	CC17/10709, CC17/10710, CC17/10711, CC18/03950, CC18/03951

SPECIAL MAGISTRATE HUNTER OAM:

MATTER OF LAURA HOLMES

The defendant Laura Holmes faced the following charges:

a)CC 2017/10709 – common assault of Lincoln Corcoran – 26 September 2017;
b)CC 2017/10710 – damage property – personal clothing;
c)CC 2017/10711 – damage property being Gyprock wall belonging to Lincoln Corcoran;
d)CC 2018/03950 – destroyed bedroom window belonging to Lincoln Corcoran;
e)CC 2018/03951 – destroyed property being a double bed mattress belonging to Lincoln Corcoran.

The defendant entered pleas of not guilty to all but 2017/10710.
I heard evidence in this matter over three days being 6 April 2018, 25 June 2018, and 23 November 2018.
The offences arise out of a domestic dispute when the defendant had returned to the complainant Mr Corcoran’s home, where he lived with his brother. The purpose of her return was to gather her property. The defendant and Lincoln Corcoran had been in a domestic relationship together. Their relationship ended in September 2017. The pair had made arrangements for the defendant to collect her property from the residence.
On 26 September 2017 it was arranged for the defendant to attend and collect the rest of her belongings, and that the complainant Lincoln Corcoran would not be there at the time. During the course of the gathering of property an issue arose between Mr Corcoran and the defendant. Both the defendant and Mr Corcoran began a yelling match.
At some point the defendant walked into the bedroom which had previously been occupied by the couple with a pair of scissors and cut up at least a T-shirt belonging to Mr Corcoran. It was alleged that the defendant also used the scissors to stab the mattress. There was a further altercation where Mr Corcoran grabbed hold of the defendant to stop her from damaging his property with the scissors. He attempted to lean over her to remove the scissors and she bit him on the arm. There is clear evidence there is a bite mark on his arm.
It is the defendant’s case that Mr Corcoran grabbed her around the throat and in order for her to get out of that hold, she bit him on the arm. There is photographic evidence of where on his arm he was bitten, which is not inconsistent with her version of events or indeed his.
The defendant called 000 in relation to the bite and the damaging of his property. Shortly thereafter the complainant’s brother, Tyrone Corcoran, arrived at the home. Tyrone then removed some Vodka Cruisers from the fridge and drank them. The defendant indicated to him that they were hers, and to stop drinking them. When she advised him that they were not his he continued to consume them.
The defendant then went into his bedroom and Tyrone Corcoran followed. There was an altercation and Tyrone tried to manhandle the defendant out of his bedroom. There was a scuffle, the defendant took hold of the glass Vodka Cruiser bottle, threw it and it landed in the wall of his bedroom. The defendant then threw a shoe which hit the window damaging the glass.

Lincoln Corcoran

Mr Lincoln Corcoran gave evidence via the remote witness room as he is entitled to do under the Evidence (Miscellaneous Provisions) Act 1991 (ACT). This matter was determined to be a family violence matter.
Mr Lincoln Corcoran gave evidence via an evidence in chief recorded interview and sworn evidence from the witness room.
I have summarised Lincoln Corcoran’s evidence in chief interview after having reviewed the compact disc of that interview. I did so as I was not provided with a transcript. I also note that I was not provided with a transcript of the 000 call which may have been useful.
In his evidence in chief Mr Corcoran stated that his ex-partner arrived at the home and he took his children out of the house to be away from her. When he returned he went to his bedroom and observed her cutting up his clothes. Mr Corcoran said that she was ‘trashing the place’ including his kid’s bedroom and the lounge room.
Mr Corcoran said that he took the scissors the defendant was using out of her hand, she bit him on the arm and he then left the situation. He further indicated that the clothing that the defendant was cutting up was clothing that she had purchased for him. Mr Corcoran described the scissors as having a blue handle with a long sharp shaft and that they were fabric type scissors.
Mr Corcoran stated that he did not give her permission to cut up his clothing. He said when he told her to leave she refused, so ultimately he said “I thought I’d leave” so that she may calm down.
When asked to give a more in-depth description of what happened, he told the police officers that he took the scissors he then left and rang 000. Mr Corcoran said that was after she took a chunk out of his arm and that he heard her having a ‘debacle’ with his brother.
In describing what happened in the bedroom he said the defendant was sitting on the end of the bed, he tried to get her to stand up to remove the scissors. At that time when they were fighting over the scissors she stabbed the bed, he said he then reached across over her back to get at the scissors. When he did so she bit him on the arm and stabbed the bed a few times. Mr Corcoran said that the bed had been damaged through the mattress as well as through the sheet.
Mr Corcoran described the behaviour of the defendant as way out of character. Mr Corcoran said that she arrived in a foul mood. Mr Corcoran did not give her permission to bite him. When asked, he described the relationship with her as ‘on and off’. Mr Corcoran said the reason the relationship was off was because the defendant and his ex-partner had had a fight and he decided that the relationship should be over.
Mr Corcoran said that he found one shirt and one jumper which had been damaged by the defendant. He said he could not find any others at the time he showed police where they were situated. [Which I note was on the bed.]
Mr Corcoran said that the defendant told him that “this is what you deserve if you start a fight, this is what you get”. Mr Corcoran said he did not care what happened, he just wanted her to leave.
In the 000 call, Mr Corcoran said that there was an issue with his ex, she had been cutting up his clothing, he went to stop her and she took a chunk out of his arm. Mr Corcoran said that he tried to push her out of the room, she bit him and blood was almost drawing out, though he said it was fine.[1]
[1] Transcript of 000 emergency call by Lincoln Corcoran, page 2.
Mr Corcoran told the operator that he would like her to be removed from his premises because she was refusing to leave and that is why he sent the children away because of her anger.
Mr Corcoran said that she had stabbed through his bed with a pair of scissors and that she still had those scissors on her. He then said “I should have taken them with me”.
Mr Corcoran also said that he had had a seizure the night before and his body was not strong, he had no muscle strength to move her and that’s why she bit him. Mr Corcoran also advised the operator that she was “breaking shit on the front door”.[2] Mr Corcoran also indicated that because of his seizure the night before his memory was ‘all over the shop’. Mr Corcoran also stated that at the time of the 000 call his brother was in his car.
[2] Transcript of 000 emergency call by Lincoln Corcoran, page 4.
In his evidence before me, Mr Lincoln Corcoran said that when he arrived home the defendant was still there and an incident arose where he called 000, he said he did so because the situation got out of hand.[3] Mr Corcoran said that he tried to get the scissors from her hand and that she was using them to damage his property and it was at that point he got bitten by her.
[3] Transcript of proceedings, 6 April 2018, page 11.
Mr Corcoran said that they had arranged together for her to collect the goods when he was not at the home and that arrangement had been made via telephone conversation. It was apparent from his evidence that he was only over the road from his home and was in the park with his children. When his ex-partner collected them he went back to his home.
Mr Corcoran said that he suffered from seizures and had had one the night before the incident. He suggested that the defendant had made a mess in the house [but it was apparent from the photographs tendered that the house was generally in a bad state as it was, and it was difficult to see what damage, if any, could have been caused by the defendant.]
Mr Corcoran was at pains to explain that he had had a seizure and as a result he was very weak and that he can be for up to 24 hours post seizure. On this occasion he said that he felt weak in trying to get the scissors from the defendant. [I note he did not seem to have any trouble getting them from her, despite saying he was weak.]
Mr Corcoran said that when the police attended he showed them 2 pieces of clothing which had been cut up. Later he advised police that that in fact there were 125 items that she had damaged. Mr Corcoran said that the clothing belonged to him and the children.
Mr Corcoran said that he saw the defendant sitting on his bed and he tried to coax her off the bed. He then went over the top of her and tried to grab the scissors when she was stabbing the bed. He said that she ‘had the shits’ and was cranky at that time. Mr Corcoran said that he was trying to push her out of the room, although obviously not very hard because he could not push. He said that she let go of the scissors when he took hold of the scissors.
Mr Corcoran said when he cleaned up the house later that night he saw that she had indeed cut up 125 items of his clothing. Mr Corcoran said that he noted there were two puncture marks in the bed and when he was trying to get the scissors from her he said he was afraid for his life. He said he went for the scissors because he thought she might stab him.
In cross examination Mr Corcoran agreed that he had been contacting the defendant since 7.00am the morning of the incident. Mr Corcoran had accused the defendant of setting up a fake dating profile for his ex-partner. Mr Corcoran said that the defendant had denied that she had done that, but he said that despite her denials he thought that she had. Mr Corcoran agreed that he was very angry about it. Mr Corcoran denied that the defendant had blocked him from contacting her because of the number of times he had done so already that day.
Mr Corcoran agreed that later in the day the defendant contacted him telling him she was coming to collect some of her things and he had agreed to that. Mr Corcoran also agreed that at that point he had taken his children to the park so they wouldn’t be in the house when she came to collect her goods.
Mr Corcoran agreed that he had continue to argue with the defendant at the home about the dating profile issue and it was at that point that she went into his bedroom. Mr Corcoran also agreed that he told the defendant when she was in the bedroom that the police were coming, although he said in the context of telling her if she doesn’t leave he will call police.
Mr Corcoran agreed that he did try to get her out of his bedroom and he used physical force, although he said it was hardly any force at all because he was not strong enough to push her out. It was suggested to Mr Corcoran that was a lie which he denied.
Mr Corcoran was asked whether he had told police on the 000 call that he had tried to push her from the bedroom but he again said that he wasn’t physically able to do so.
Mr Corcoran agreed that the defendant was sitting on the end of his bed after she had cut up the clothing. Mr Corcoran agreed that he was yelling at her and it was suggested to him that at that point he placed his arm across her neck and grabbed her around the throat. His answer was “Well, it wouldn’t have been on – it wouldn’t have been on purpose”. [4]
[4] Transcript of proceedings, 6 April 2018, page 22 line 21.
It was suggested to Mr Corcoran that at that point in time he then pushed her back onto the bed and he said “Well, I wouldn’t have tried to. I would have just tried to push her. And that she landed back on the bed.[5] “
[5] Transcript of proceedings, 6 April 2018, page 23 line 11.
It was suggested to Mr Corcoran that he had deliberately placed his arm across the defendant’s neck and he said “I doubt that. I would not have tried to grab someone’s throat because I wouldn’t want someone to grab mine. And no, I didn’t, and if I did it wasn’t intentional”.[6]
[6] Transcript of proceedings, 6 April 2018, page 23 line 16.
Mr Corcoran then said that he did not remember the whole incident. He put that down to short-term memory loss after his seizures.
In relation to the holes in the mattress Mr Corcoran said that he did not think it was accidental, he thought it was intentional because there were two holes. He also agreed that the stabbing occurred when he had pushed Ms Holmes onto the bed. Mr Corcoran also agreed that at that point when the scissors went into the bed that he was reaching over the top of her at that point trying to get to the scissors. Although he does maintain that the stabbing into the mattress was not accidental.
It was suggested to Mr Corcoran that the reason Ms Holmes bit him on the arm was because he was applying pressure to her neck and she was trying to make him stop doing that. Mr Corcoran said “Well, how did she bite me in the middle of the arm if I was applying pressure to her neck?”
Mr Corcoran said that the bite occurred on the inside part of the forearm. Mr Corcoran denied that it was only after Ms Holmes had bitten him on the arm that he stopped applying pressure to her neck.
Mr Corcoran said that he remove the scissors and placed them in his car, however it is noted that in the 000 call he recounts that she was using a pair of scissors and she still had them in the bedroom at the time he was on the phone to police. Mr Corcoran said he did not recall that part of the conversation, and couldn’t remember if he took the scissors from the defendant before calling the police or maybe went back and took them later.[7]
[7] Transcript of proceedings, 6 April 2018, page 27 line 26-33.
Mr Corcoran was being rather coy when he was asked questions in relation to what happened to the scissors. It would appear that he did not take them from Ms Holmes and he has no or little memory of what eventually happened to them.
Mr Corcoran agreed that he does not have clear memory of the incident because of his seizure the day before. It was suggested to him that because of his lack of memory he can’t be certain whether he did not put pressure on her neck. He said he would not have done it.
It was suggested to Mr Corcoran that he said to the defendant laughing at her “Ha-ha, the cops are on their way. That’s assault”. Mr Corcoran did not deny that but said after she bit me and I walked in I did laugh and said the cops are on their way to inform her that something was going to happen.
It was suggested to Mr Corcoran that in his recorded interview with the police when asked whether he would agree to tell the truth he said laughing, “Yes” and then “maybe”, Mr Corcoran’s take on that was that he was being a ‘smart arse’ to the officers. It was suggested that was because he was not taking the situation seriously. Mr Corcoran said that was the way he dealt with things.
It was suggested that Mr Corcoran would not usually have custody of his children when he had had a seizure because his ex-partner would not allow it. Mr Corcoran agreed that that was so, however, said he felt a bit better when he had woken up. Mr Corcoran agreed that he had not told his ex-partner that he had had a seizure the day before prior to taking the children that afternoon.
Mr Corcoran denied that he made up the seizure story. Mr Corcoran also said that when asked about whether he was able to physically remove the defendant he said “I don’t bloody know, I don’t.”
In re-examination in relation to the stabs into the mattress he said that he considers them intentional because they were on an angle and there were two holes, not one. He also said he saw her stab the mattress once and she was standing at the time.
[I have very carefully considered the evidence given by Mr Lincoln Corcoran in his evidence in chief Interview, the 000 call and his evidence before me. Mr Corcoran gave a number of versions of events as to what transpired that day. I also note that he said that ‘he would not have done something’ rather than ‘he did not do something’. It did not appear to me to be a characteristic of the way in which he spoke. I found that he was a very unreliable witness and I formed the view that he was either mistaken as to his memory or was obfuscating the truth.]

Tyrone Corcoran

Mr Tyrone Corcoran is the twin brother of Lincoln Corcoran. Tyrone said he knows the defendant Laura Holmes because she is the ex-partner of his brother Lincoln. Shortly before this incident took place he was living with both his brother Lincoln and the defendant at 31 Pennington Crescent. Tyrone Corcoran said that his brother and the defendant had broken up and she was moving out and had already started to move out by 26 September.
Tyrone Corcoran said he received a phone call from his brother when he was on his way home from work. His brother Lincoln said that something had happened at home and he went to see what was going on. Mr Corcoran thought that that was around 5.30pm to 5.40pm. His brother warned him not to come in the house and to stay outside.
When Mr Corcoran arrived he spoke with Lincoln briefly who told him things weren’t right and he was not happy. Mr Tyrone Corcoran went inside and grabbed 4 vodka cruises from the fridge. He said he went back outside because he didn’t want to become involved and was told to do so.
The defendant came out not long after and accused him of taking her drinks. The defendant told him that he must replace the drinks he had now consumed. Mr Corcoran said he told her couldn’t afford it and he would when he could afford it. He said the defendant became argumentative and the two of them argued. Mr Corcoran said the defendant told him that if he did not replace her drinks that she would smash his things and she ran inside telling him she was going to smash his stuff.
Mr Tyrone Corcoran said he followed her in to the house and when he arrived in the house she slammed the hallway door in his face. Mr Corcoran said that he thought that she may be damaging property in his room and went to his room to find her there.
Mr Tyrone Corcoran said that she slammed the door and put her feet up against the door to stop him from coming in. Mr Corcoran assumed that she was using her legs with her back against the bed and that’s what he saw when he opened the door.
Mr Tyrone Corcoran said that he asked her to get out of his room and to get out because it was not her property. Mr Corcoran said that the defendant continue to argue with him so he tried to pull her out of his room and they ended up wrestling for a bit and she threw him into the wall. Mr Corcoran said he pushed her back and tried to pull her off the bed and out and when he could not do so he said he’d had enough and he walked off and that was when the police showed up as he was walking out of his bedroom.

Mr Tyrone Corcoran said that he used both hands to try and get her out and at the time he still had the Vodka Cruiser bottle in his hand. He described he had like a bear hug around her shoulders but that didn’t work. At that point he was standing face-to-face with her still with the Vodka Cruiser bottle in his hand. Mr Corcoran described having the bottle of vodka in the area between her abdomen in the back and her side. Ms Corcoran indicated that the bottle was half full and that they will wrestling and the contents got spilled over the bed.
Tyrone Corcoran said that he was using all of his strength to try to pull her out of the room and there was a big struggle and she somehow got hold of the bottle and threw it into the wall. Mr Corcoran said that after she threatened to throw his boot at the TV he ignored her and she threw it anyway and it hit the side window breaking the window.
Mr Corcoran said that the bottle was thrown at the wall when he was ready to walk out and kept asking her to leave, telling her not to smash his stuff. Mr Corcoran said that at that point he heard police arrive. Mr Corcoran said that the bottle was still in the wall when police officers got there. Mr Corcoran said he thought he might have taken it out afterwards saying that just as the police were there. “I just took it out of the wall and put it on the table near where my TV was sitting”.[8]
[8] Transcript of proceedings, 6 April 2018, page 50 line 14.
Mr Corcoran said that he remove the bottle from the wall and put it on the table near the TV. It was suggested to him that the bottle was still in the wall when police arrived and he said “That’s what I thought I did. So that’s usually what I do.”[9]
[9] Transcript of proceedings, 6 April 2018, page 50 line 41.
Mr Corcoran described that he observed Lincoln was not feeling the best, and told him so. Tyrone then said he knew that he must’ve had a seizure. He said his brother was very down and had no energy.
Mr Corcoran also observed that Lincoln had shown him some clothes which had been cut up by the defendant. He indicated that there were a lot of clothes and it took two of them to load the clothes out of the house.
In cross examination Mr Corcoran was asked whether he had spoken to police on 26 September and whether he had made a statement to them. Mr Corcoran said he had. It was suggested to him that in fact he had told police in that statement that he saw Ms Holmes throw the boot through the window and then threw the Vodka Cruiser bottle. He replied “I was very – adrenaline was going and I didn’t really – couldn’t really communicate very well, like I am right now, as you can tell. So yes.”[10] It was suggested to him that his story had changed in relation to the order of things and he said “It might have, yes, because I had to clear my head so I could get things straight. So go over the whole situation in my head so I knew exactly what was going on.”[11]
[10] Transcript of proceedings, 6 April 2018, page 53.
[11] Transcript of proceedings, 6 April 2018, page 53 line 38.
Mr Corcoran also said he had clarified what was going on with Lincoln as well. Mr Corcoran agreed that he had told the court in his evidence that he had lost the grip on the bottle and that somehow Ms Holmes took the vodka bottle. It was suggested to him that was not what he told police at the time. Mr Corcoran agreed and said he didn’t really know most likely but it’s been so long since this frigging incident. Mr Corcoran agreed that he had changed his evidence somewhat because he has had a lot of time to think about it and try and work out the whole situation.
Mr Corcoran agreed that he did not really care whose vodka cruises they were he just wanted to have a drink. He also said that it was his view that she had said she was going to smash something not take it. He then said that she was going for his TV in his room and that is what he heard her say.
It was suggested to Mr Corcoran that he told police that when his bedroom door was shut he pushed it hard and when he opened it the defendant was sitting on the bed, to which he agreed. It was then suggested that in fact, his evidence today was that the defendant was sitting on the floor and that once again his evidence had changed from what he had said earlier. Ultimately he agreed that his evidence had changed from the statements he made to police.
Mr Corcoran also agreed that he had given police a second statement in November 2017. In that statement he had told police that when he opened the door Ms Holmes was sitting on the bed. It was suggested to him that in his evidence before me he had told the court that when he opened the door the defendant was sitting on the floor with her back up against one of the beds and legs out. Mr Corcoran then replied “well, I don’t really recall that much information. I was in too much of a rush, to be honest.” It was suggested that he was being dishonest but he denied that.
It was suggested to Mr Corcoran that he told police in his November statement that when he was in the bedroom he put the drink down on the table in front of the bed next to the television and he then got on the bed and tried to push the defendant off, continually asking her to leave. He replied:
I actually – I don’t really remember much because, you know, it’s been so frigging long, but I’m trying to the best to remember Everything correctly. All I can remember as I thought I still had the bottle in my hand and that’s why I said that in the second statement. On the first statement I didn’t really remember much from the night because I had everything going through my head and was worried about everything else rather than trying to sort out that at the time. [12]
[12] Transcript of proceedings, 6 April 2018, page 57 line 35.
It was suggested to Mr Corcoran that in the 26 September statement he told police that the defendant had taken the Vodka Cruiser bottle from him and thrown it at the wall and that’s he said what he thought had happened.
However in the 28 November statement Mr Corcoran told police that he had put the bottle down on the table in front of the bed next to the television and he got on the bed and tried to push the defendant off. Mr Corcoran was shown his statement where he had said that he told police that he put the drink bottle on the table in front of the bed next to the TV got on the bed and tried to push her off. Mr Corcoran did not agree with that. Mr Corcoran said he did not even remember saying that to the police officer in his second statement and the first one was a proper one.
Mr Corcoran said he would agree because it is written on the pages but he does not recall saying that to the police officer. He was then referred again his statement where it said that he told police that the defendant had picked up the Vodka Cruiser bottle that he had placed on the table and she then threw it through the bedroom wall. Mr Corcoran gave a long explanation of not remembering the order of what happened. It was clear that he was confused. Mr Corcoran did accept that he had now changed his evidence about the bottle at least three times. Mr Corcoran said:
Well I don’t – like I said, I don’t really remember it because, you know, that wasn’t the main priority at the time. I don’t see that as a priority and I don’t see that is a problem because that’s nothing – I just don’t really care about a vodka bottle to be honest. That was the least of my problems.[13]
[13] Transcript of proceedings, 6 April 2018, page 59 line 36.
It was suggested to Mr Corcoran that when he took the bottle out of the fridge knowing that they were the defendant’s bottles and that he smiled at her. He agreed but said it was not to provoke her.
It was suggested to Mr Corcoran that he pushed the defendant back onto the bed and he said “Yes I tried to grab her to start with and then I let go and she fell backwards”. He agreed that he ended up behind her while she was lying on the bed as he was trying to push her around and one of his arms was around her throat. He said this “I don’t remember putting it around her throat because I realised it and stopped it from happening that way.”[14]
[14] Transcript of proceedings, 6 April 2018, page 60 line 25.
It was suggested to Mr Corcoran that he placed his arm around the defendant’s throat and the other arm had the Vodka Cruiser bottle at her head shouting at her, she took the Vodka Cruiser bottle from him and threw it away. Mr Corcoran said “I don’t remember that part, but yes, we were wrestling and carrying on. I didn’t really pay attention to what she was doing. I was trying to get her out of my bloody room.” [I asked a question of him “so that could have happened but you just don’t recall and he said “I didn’t really pay attention to that side of things”[15]]
[15] Transcript of proceedings, 6 April 2018, page 62 line 1.
It was suggested to Mr Corcoran that at that point they then had a wrestle on the floor of the bedroom. He said there was not much floor space to wrestle on, and it was more the beds than anything. Mr Corcoran agreed that he tried to drag the defendant by the shoulders but he did not remember that she then picked up his boot and threw it. Mr Corcoran said that the boot was near the TV and it just wasn’t possible to reach the boot. It was suggested to Mr Corcoran that given the state of the bedroom it was entirely possible that she was able to reach the boot and he suggested it wasn’t, because the boot was near the TV.
Mr Corcoran agreed that it was fair to say that he did not have a very clear recollection of what happened on the day.
In re-examination Mr Corcoran said that he did remember most of what happened but not in full and not in full detail but what he does remembers is what he said today. He said he would never have put his arm around the throat of a female or any person in general.
[I formed the view that Tyrone Corcoran had spoken to his brother in relation to the events of that evening. This may explain why he also gave several versions of what he recalled happened. I note he also suggested that something did not happen because he would not do that sort of thing, being similar to what his brother Lincoln had said about matters such as placing his hand around the neck or throat of Ms Holmes.]

Constable Tim Hannan

Constable Hanna said that he spoke with Tyrone Corcoran and Tyrone told him the following: He said he got home, he heard a commotion, and the commotion was Lincoln and the defendant fighting. He said he went to the kitchen to take a Vodka Cruiser from the fridge. The defendant said to him ‘if you don’t replace the Vodka Cruiser I’m going to smash stuff’. Tyrone then saw the defendant go to his bedroom he said that the defendant attempted to lock herself in his bedroom. Tyrone asked the defendant to leave his bedroom. He said he told the defendant this three times. Tyrone tried to pull Laura out of his bedroom. Laura pushed Tyrone onto the bed. The defendant pushed Tyrone onto – up against the wall. Tyrone tried to leave the room and the defendant pulled him to the ground. Tyrone saw the defendant throw a boot through his window and the defendant has then taken a Vodka Cruiser that he must have been holding from him. At this point he turned away and he heard a thud and he looked back and he saw the same bottle in the wall of his bedroom. Tyrone said that that part of the wall was undamaged previously. He said that the defendant Laura Holmes is Lincoln’s ex-partner and Tyrone didn’t give her permission to damage his property.
In cross examination Constable Hannan said that he had no further involvement with Lincoln Corcoran after speaking with him that night.

Constable Angus Ferguson

Constable Ferguson said that Mr Lincoln Corcoran was waiting at the footpath for them when they arrived. Constable Ferguson had a conversation with Lincoln where he said that his ex-partner was down in the house, that she had been damaging his property and had bitten him on the arm. Lincoln showed him where the bite on his arm was. Constable Ferguson said it appeared to be a bite mark on Lincoln’s arm.
Constable Ferguson described Lincoln as calm but a little agitated. He said he heard some yelling and screaming going on in the house and went into the house to make the scene safe. Constable Ferguson saw another male standing at the doorway and he was yelling at somebody. There was also a female voice yelling loudly. Constable Ferguson yelled ‘police come out,’ and both the male and the female came out of the room and walked towards him. He identified the male as Tyrone Corcoran and the female as the defendant Laura Holmes.
Constable Ferguson described the demeanour of the defendant as very red in the face. She appeared agitated but once she came out she was quite compliant with the police. The defendant was calming down but was still very agitated about what happened in the bedroom. She was polite with police and was not aggressive to them. Constable Ferguson said that from memory he believed that she was a bit short of breath, red in the face and agitated.
Constable Ferguson had a conversation with her and she said that she was being manhandled and she bit Lincoln to get away from him. With regards to the bottle embedded in the wall she said she did that because she was concerned that Tyrone was manhandling her as well and she was concerned that she was going to be assaulted by him. The defendant indicated that she did that to try and distract him by throwing the bottle.
Constable Ferguson said that the entire house was messy and it was difficult to determine what exactly, was actual damage that had occurred in the lounge room and what was mess. There was property all over the floor in the room as well.
Constable Ferguson said he was shown a t-shirt and a bed which had holes in it. Lincoln Corcoran said that the defendant had gone in to his room and cut up clothes with scissors and he tried to restrain her from doing that. The defendant was randomly trying to cut things when he was trying to get her out. Constable Ferguson said that there were clothes all around the place and he did not locate the scissors.
Constable Ferguson said that he conducted a recorded interview with the defendant, an evidence in chief interview with Lincoln Corcoran and was aware that another officer took photographs of the scene. The officer described the damage to the window as being broken in the middle, like a rock had been thrown through it. The rest of the window was intact.
Constable Ferguson said that he asked about the window and asked if it had happened that day. The person he spoke to said that it happened previously. However he wasn’t sure whether that was in reference to another window. He said that he spoke with Lincoln and the prosecutor prior to the court hearing and it was Tyrone who told him the defendant threw a boot through the window.
Constable Ferguson said that Lincoln did contact him later to tell him there were a number of items that had been damaged.
Constable Ferguson was recalled on 23 November 2018 to give further evidence in this matter. He was cross-examined and agreed that the defendant willingly participated in a recorded interview. Constable Ferguson stated that he did not ask her any questions about the bite Mark. He did agree that he had spoken to her about it when he arrived at the location and he gave evidence before me in relation to that.
Constable Ferguson agreed that he had not taken any notes in relation to the conversation he had with the defendant in relation to the bite, despite having taken notes in relation to the incident in general.
Constable Ferguson stated that after the defendant had spoken to him about why she bit Lincoln Corcoran he made no inquiries of that matter and did not speak to Mr Corcoran about that matter.
Constable Ferguson also agreed that there was no photograph of the window that had been damaged. The reason given was that Tyrone Corcoran had told him that the window had been broken earlier not in this incident.
Constable Ferguson indicated that the only item that he had seen which appeared to have damage was the t-shirt, the other items that were held up by Lincoln Corcoran were what he would describe as being ‘well worn’. He was unable to see any particular damage caused to those items of clothing that he was shown.
Constable Ferguson indicated that he did not now recall whether the defendant had spoken to him about Lincoln having hold of her around her neck or throat. He said that he just did not recall it, he agreed that the defendant may have spoken to him but he had no memory of it.[16]
[16] Transcript of proceedings, 23 November 2-10, pages 14-15.
In re-examination Constable Ferguson said in relation to the clothing that Lincoln Corcoran held up, it was a pile of clothing which may have had six or seven items of clothing in the pile, but he did not look at any of them individually

Recorded interview with the defendant

The defendant gave a recorded interview with police on 26 September 2017.
In that interview the defendant indicated that she had been in a relationship with Lincoln Corcoran for almost 18 months. She said that on the date of the incident she had moved out three weeks prior, but had been staying there on weekends and on the odd night.
The defendant said that the relationship had been complicated and had ended the night of the incident. The defendant said that the reason she was there that evening was to collect the rest of her property because she did not want it destroyed. The defendant said that Lincoln had told her if she did not remove her property he would destroy it.
The defendant said she arrived there at approximately 6.00pm and that Lincoln’s children were there. The defendant said that Lincoln took the children she thought to the park because his ex-partner had said she did not want the children to be in the company of the defendant.
The defendant said that Lincoln arrived back and he had mates there helping her take things outside. The defendant indicated that she did not want her stuff outside yet so they then left. Lincoln then became angry at her yelling at her accusing her of setting up a dating site naming his ex-partner which she denied. The defendant said that Lincoln had been abusing her over this and she requested an apology because she had nothing to do with. The defendant said this escalated and indeed she had to block his number because he would not stop ringing her about it.
Police asked what happened particularly in relation to the scissors and the Vodka Cruiser bottle. The defendant said she was trying to protect herself and didn’t want to get hit by Tyrone with the bottle. The defendant said Lincoln Corcoran was trying to get his hands on her and pushed her onto the bed and was yelling at her. The defendant said she threw the bottle away to try to get his attention away from her and it landed in the wall.
In relation to the cutting of the clothes she admitted that she had cut up the clothes that she bought him. She accepted that they were essentially his property but she felt aggrieved by his attitude. The defendant said that he had nothing when she met him and she had bought him a lot of new clothes.
The defendant said she really just ‘lost it, kind of blacked out a bit’. She said she got scissors from the backyard and went into his bedroom and was cutting up his clothing. The defendant said Lincoln then came in, tried to grab her and threw her, and that she ended up sitting on the end of the bed. He tried to throw her off the bed and grabbed her around the throat. The defendant explained that the scissors were in her hand and when he threw her she pointed the scissors to go into the mattress rather than into him. The defendant said Lincoln then took the scissors from her.
The defendant said that she then continued to sort through her stuff and Lincoln then asked her to leave. The defendant said that’s not unusual because over the last 18 months when he had become angry he does that, and then five minutes later he would be making up with her.

While she was continuing to sort through her property Tyrone Corcoran walked into the house, went to the fridge and helped himself to her drinks. The defendant said Tyrone looked up at her and smirked. She asked him to return the drinks to the fridge because they were hers. Tyrone replied “well it could be anyone’s because it’s in the fridge”. Tyrone then walked out of the house with the bottle of alcohol and put it in his car, then started telling her off and said that they should not have been in the fridge if they were hers.
The defendant said that because of his attitude she decided to go into his room and take something of his in retaliation. Tyrone then came into the bedroom yelling at her. He tried to drag her out of his room she was at one point sitting on the floor at the end of the bed. Tyrone dragged her and she ended up on the bed, he was laying on top of her and she couldn’t get up. At that point he still had the bottle in his hand and she said that the only thing she could think to do because of his rage was to try and grab the bottle from him to protect herself, which she said is how the bottle ended up in the wall.
The defendant said she threw the bottle because she thought otherwise she would ‘cop it’. The defendant said that Lincoln had rung Tyrone telling him that she had been destroying the house so Tyrone came home in a rage.
The defendant also mentioned (without being questioned about it) that she threw a shoe and it went through the window in Tyrone’s room. The defendant said that that was part of trying to get him away from her. That happened, she said as the police walked in.
[I note that it was never put to the defendant that she had bitten Lincoln Corcoran. Neither was she asked to explain the bite mark to his arm].

Submissions

I note that at the time of the submissions on 23 November 2018 I had a new prosecutor who did not prosecute the matter and a new defence counsel who did not act as defence counsel in the matter substantively.

Prosecution Submissions

The prosecutor submitted that I have had the benefit of hearing the complainant Mr Corcoran and also seeing the evidence in chief interview. The prosecutor suggested I would be satisfied that the complainant in the matter was a frank and honest witness trying to make a genuine effort to explain the events of that particular day. I note I made a comment at that point in the submissions suggesting that Mr Corcoran was trying my patience when he was giving evidence because of his lack of frankness and failure to answer the questions put. I made the comment also that I thought he was not being as helpful as he might otherwise have been.
The prosecutor submitted that Mr Corcoran downplayed the extent of his injuries or damage property and that his demeanour was someone who was relatively resigned to the fact of what had occurred and was doing his best to explain himself.
The prosecutor submitted that I should consider his demeanour and the way he presented himself in that interview. I should note particularly that he had a seizure the night before and that he felt like a freight train had run over him that day. I should note that he was not at physical peak capacity on the day.
The prosecutor submitted that it was never suggested to Mr Corcoran that he did not have the seizure on the previous day and that I should consider that when I examine his evidence. I again replied that in my view he appeared to be exaggerating to some extent and that was my impression of him.
The prosecutor submitted that it was never put to Mr Corcoran that he did not suffer the seizure and I accepted that. The prosecutor submitted that it was never put to him that he was exaggerating his symptoms although I suggested that I perhaps did ask that question.
The prosecutor submitted that Lincoln Corcoran conceded some matters and suggested that it was the evidence in relation to the fake dating profile relevant to his ex-partner that he conceded he may have been mistaken that it was the defendant who set that up.
The prosecutor submitted that Lincoln Corcoran conceded that the house was messy and I made the comment that there was no doubt about that given the evidence of the photographs.
The prosecutor made further submissions in relation to concessions made by Lincoln Corcoran such as the argument with the defendant the yelling at certain points and the like.
The prosecutor rightly considered that I would be in the best position to make a finding as to Lincoln Corcoran’s presentation when he gave evidence. It was suggested that in cross examination he did take issue with matters and that was because he did not understand the process particularly that of the rule in Browne v Dunn (1893) 6 R 67 (HL). I indicated that I had tried to explain the process to Mr Corcoran several times.
The prosecutor submitted that Mr Corcoran had given evidence about 125 items of clothing being damaged and when cross-examined about the fact that he never told police said that he had and that was corroborated by Constable Ferguson.
The prosecutor submitted that the 000 call was a contemporaneous account of the incident at the time it occurred.
In terms of the scissors incident, the prosecutor submitted that Mr Corcoran described the defendant as having a clenched fist around the scissors and that she was damaging the property with a downward motion.
The defendant has pleaded guilty to damaging the clothing and the prosecutor submitted that there is clear evidence that the defendant bit Lincoln Corcoran and there is photographic evidence as well as evidence from all witnesses of that bite. I posited the question to the prosecutor that the question really comes down to whether it was in self-defence.
The prosecutor then submitted in relation to the evidence given by Tyrone Corcoran. The prosecutor submitted that I would accept that he came across as a person making a genuine attempt to remember things and he gave clear and honest evidence. Tyrone Corcoran made multiple concessions during the course of his evidence about his gaps in his memory which included of course the bottle being thrown at the wall and the boot being thrown through the window, but he was unsure because his memory had failed him and that I should consider that concession to be a person giving truthful evidence.
The prosecutor submitted that in terms of the physical build of both Tyrone and Lincoln Corcoran that they are not large men and there is a disparity in relation to the physical build of the brothers and the defendant.
I noted that both men were around 5’8’’ in height with an average build. The prosecutor submitted that that would go to the reasonableness of any self-defence argument. The prosecutor accepted of course that in this particular matter there is no great size disparity between either of the Corcoran brothers and the defendant.
The prosecutor further submitted that the demeanour of the defendant was that she was extremely agitated according to Tyrone Corcoran and that there was yelling which police officers gave evidence about. Police also indicated that the defendant had a red face and was yelling at the time while she was in Tyrone’s bedroom. I noted that was probably because Tyrone had taken her vodka cruises and wouldn’t give them back. The prosecutor submitted that was the precursor for the argument in the first place.
The prosecutor submitted that Tyrone reflected on Lincoln’s appearance that day and noted that he appeared very down with no energy and not himself. And I was asked to consider that particularly in light of what Lincoln had said about how he felt the night before and later that day. That would be relevant to any question of self-defence because if he was not at his physical peak the defence may not be made out.
The prosecutor submitted that I should place reliance on the evidence of Constable Ferguson as to his recollection of the conversation with the defendant about the bite. I made the comment that it would have been better for the officer to have made a note of that conversation rather than try to remember it some years down the track.
The prosecutor submitted that I had the benefit of an untested version of the recollection of the defendant, however I pointed out that she does not have to give any evidence, nor does she have to participate in a recorded interview with police but she did so, it is in evidence and it is something that I will take into account.
The prosecutor submitted that the evidence from the defendant is fairly consistent with what the complainant’s evidence about what happened that day was as well as the nature of their relationship. The prosecutor further submitted that in the recorded interview the defendant said when she gets angry she sometimes blacks out and doesn’t know what she is doing and loses her recollection.
The prosecutor submitted that in the interview the defendant did not make any comment in relation to a bite mark, although I pointed out to the prosecutor that she had indicated in her recorded interview that Lincoln Corcoran had grabbed her around the throat which in my view is consistent with the allegation that someone was bitten on the forearm if they were in that position.
The prosecutor submitted that the hand would have to be across the mouth in order for the bite to have occurred. I did not agree with him in that regard and suggested because the situation is fluid the arm could have come up so that she bit him to get him away as she indicated to Constable Ferguson. The prosecutor further submitted that the complainant adamantly denied grabbing the defendant by the throat and said that he would never grab a woman by the throat.
The prosecutor further submitted that I should consider logically where the bite mark had been placed on the forearm in the circumstances. I noted to counsel that it’s my experience that those matters where I’ve noted bite marks to have occurred, it always has been the complainant biting the person who has a forearm in a similar position to that described by this defendant.
The prosecutor submitted that there is no evidence about exactly how that mechanism occurred. The prosecutor submitted there was no positive evidence about the defendant’s version of the complainant grabbing her around the throat, however, I note that she did give that information while she was being questioned by police. The defendant told them that he grabbed her around the throat but no further questions were asked about that. That is unfortunate in my view. The prosecutor submitted that was why the officer gave further evidence on 23 November 2018. I note it is unfortunate that he could not recall the conversation given the effluxion of time, so his evidence was of no or little value in that regard.
The prosecutor submitted that the defendant had said that the perforation of the mattress was accidental. It was submitted that I should consider the photographs and the evidence which is not entirely consistent with the defendant’s version as to whether it was accidental or not. I was also referred to the evidence by Lincoln Corcoran about the downward motion which is not consistent with accident.
In terms of the bottle in the wall, it was suggested that there was no evidence given by Tyrone Corcoran that the defendant was scared she was going to ‘cop’ the bottle, which is what she said. I note that Tyrone Corcoran had the bottle in his hand close to her head and that was the evidence. I also noted that it may not have been put to Tyrone about what her fear was but certainly given that he had the bottle in his hand and they were arguing it was a logical conclusion that could be drawn that she may ‘cop it’ as she described. Clearly that was an inference she could logically have drawn or perceived.
The prosecutor submitted that the evidence of where the bottle and the shoe had been thrown and the force required to cause the damage to have occurred could not be anything other than intentional. That the evidence shows her behaviour and demeanour as someone who was upset and angry, acting out of spite and malice, not someone who was acting to defend themselves.
The prosecutor further submitted that given the defendant’s extreme heightened sense of emotion, her agitation when the police arrive, their observations of her when she came out of Tyrone’s bedroom are all consistent with intentional use of force in relation to the bottle and the shoe.
The prosecutor submitted in terms of whether the defence of self-defence has been raised and referred to the seminal case of Zecevic v DPP (1987) 162 CLR 645. The prosecutor submitted I would first need to be satisfied that the defendant believed reasonably that it was necessary to act the way she did in self-defence.
The prosecutor then referred to question-and-answer 113 and 114 as well as 117 of the recorded conversation with police and referred to whether it was reasonable, given her behaviour that she was acting in self-defence. The prosecutor submitted that given that the defendant was in Tyrone’s bedroom fighting with him about the alcohol and that he is at pains to get her to move out of his bedroom asking her multiple times and his use of physical force to push or pull her out was reasonable. Therefore she could not rely on the defence of self-defence.
I commented that perhaps he was not entitled to touch her at all even in those circumstances. The prosecutor further submitted that there is no evidence that the bottle in the hand of Tyrone was anywhere near her face although I note that she said it was when she said he was on top of her and the bottle was close to her head at question and answer 117.
The prosecutor submitted that that was never put to Tyrone Corcoran and it ought to have been if it is to be relied upon. Defence counsel submitted at that time Tyrone Corcoran was cross-examined about that issue and referred to page 62 of the transcript of proceedings on 6 April 2018.
The prosecutor submitted that was it unnecessary to embed the bottle in the wall in self-defence. It was my view that the evidence from the defendant in her recorded interview was that she was concerned that she might ‘cop the bottle’ and therefore she grabbed and threw it, she did not intend to for it to damage a wall or anything else it just ended up there. The prosecutor submitted that given the amount of force required there would be no basis to accept that the accused believed it was necessary to do what she did.
The prosecutor then referred to the second limb of the test and that is, that the defendant had reasonable grounds for believing it was necessary to act in self-defence. It was his submission that it was clearly not available on the evidence before me. Taking the evidence as a whole there is no basis upon which I could be satisfied that self-defence was a reasonable defence to this charge.
The prosecutor submitted that I should consider the evidence in combination, being the complaint evidence, the evidence of Tyrone Corcoran, the 000 call and the photographs. Having taken into account and critically examined the recorded interview with the defendant I would be satisfied there was a significant lack of evidence in relation to self-defence and the test in the Zecevic v DPP would not be made out.
The prosecutor further submitted that because the defendant was not asked any questions in relation to the bite that it was a matter of weight and that there was a paucity of evidence about how it was occasioned. The prosecutor submitted it would not be a sufficient basis for me to conclude that the defendant had the necessary belief to act in self-defence or that it was reasonable in the circumstances.

Defence submissions

Defence counsel submitted that there was a weakness in the prosecution case and summarised it as; firstly, the allegation of common assault was never put to the defendant in the interview with police. That fact was compounded by the fact that evidence given by Constable Ferguson indicates that whilst he recalls a conversation with the defendant about the bite, he did not make any notes of it, nor did he record it in any other form. He also failed to ask questions about it at interview despite her having told him about it and despite her being charged with an assault which was the bite.
Defence counsel submitted in relation to Lincoln Corcoran that even though the prosecutor has asked me to consider the concessions made by Lincoln Corcoran about not understanding the process when I noted that he was quite difficult and that’s why I had to say something to him, I should be cautious in that regard. [I note it was my view that he was becoming combative as he gave his evidence rather than misunderstanding.]
In relation to the submission by the prosecutor that it was never put to Mr Corcoran that he had had a seizure the day before, that was incorrect because at paragraph 30 on page 34 of the transcript, it was suggested by defence counsel that he did not have a seizure the night before and that he was using his seizure as an excuse as to why he could not have assaulted Ms Holmes. It was submitted that was put squarely to him.
Defence counsel submitted that another weakness in the prosecution case was the evidence given by both Lincoln and Tyrone Corcoran about the concessions in relation to the poor memories when they gave their evidence.
I was then referred to page 23 line 35 where Lincoln Corcoran talks about his memory. Further I was referred to page 22 “When you did that, you put your arm across her neck and you grabbed her around the throat? – Well it wouldn’t have been on purpose.”
Defence counsel further submitted and referred me to line 35 on page 23 of the transcript of proceedings on 6 April 2018, where the complainant said:
After I took the – I don’t remember much after that because I’m all over the shop after that” and further “Sir, I’m not asking you what you would have done. I am asking you what you did do. – No, I didn’t and if I did, it wasn’t intentional.
And further in relation to his memory I was referred to page 29 line 5 of the transcript: “So do you agree you don’t remember this incident very well? – Yes”
In relation to his physicality I was referred to paragraph 15 on page 35 of the transcript:
You are physically able to try and get the scissors from her? – Yes, but not physically able to remove them. I don’t bloody know, I don’t” and further at line 10 page 39, “yes, also was there a reason your ex asked you if you could look after the children that day? – I don’t know.
Defence counsel submitted that given the evidence of the very poor recollection that the Corcoran brothers had of the events which occurred on that day, it would be unsafe to rely upon their evidence.
Defence counsel submitted that there was a significant inconsistency between the evidence given in court and the evidence given to the 000 operator in relation to Lincoln Corcoran. Lincoln Corcoran said on the 000 call that the defendant had used the scissors, she still had them, and at that point in time she was still in the bedroom. That is different from the evidence he gave in court when he said that he took the scissors from the defendant and he believed he put them in his car. The scissors were never found. Defence counsel submitted that was a major inconsistency with his evidence.
It was submitted that this was important because Lincoln Corcoran says that when he was reaching across her to get the scissors, the defendant bit him. The other inconsistency raised was the number of items that he indicated had been damaged and this evidence goes to his credit in that regard. The evidence was that there was only a t-shirt and perhaps a jumper. Constable Ferguson indicated he thought there was between 15 and 20 items on the bed but he could not see anything totalling 125 items.
That is significant because on the 000 call he says the defendant had the scissors but on his evidence he took the scissors and placed them in his car. On the evidence before me it would appear that the defendant had only been in the house some five minutes and it was submitted that would not have been sufficient time to damage so many items of clothing.

Defence counsel submitted that I should make no adverse inference about the defendant not giving evidence in court. [I noted that is not permissible anyway as the defendant does not have to prove anything. It is up to the prosecution to prove each element of the offence beyond reasonable doubt the defendant need not do anything.]
Defence counsel submitted that given the evidence in the interview as well as the evidence given by Constable Ferguson, the issue of self-defence has been raised. It is now for the prosecution to negate that defence.
Defence counsel submitted that self-defence has been raised given the acrimonious situation between the parties, particularly because of the disagreement in relation to the dating app, the relationship breakdown, the manhandling of the defendant by both Lincoln and Tyrone as well as the failings in the prosecution case or shortcomings in relation to the police investigation.
That included the failure of the police officers to put to the defendant her version of events in relation to the charge of common assault. Defence counsel submitted the defendant was never given an opportunity to explain what happened other than the comment she made to the police officer.
Defence counsel further submitted that the fact the scissors were never found, the differences of the version of events given by Lincoln Corcoran and the disparity in the number of items of clothes which the complainant alleges were damaged go to Mr Corcoran’s credit, together with his own admissions for the lack of memory or memory problems. Defence counsel submitted there were so many problems with the prosecution case it would be unsafe to convict the defendant because of those significant failings.

Decision

Unlike both counsel making submissions before me, I had the opportunity to listen to and consider the evidence from the prosecution witnesses.

Direction for Judge Alone Trial

There are certain general directions that I must take into account. I have extracted these from R v Burdon commencing at paragraph 9. I have referred to the defendant as a generic descriptor. These directions represent the matters to be taken into account in judge alone trials. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law (see R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98):
“9. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and The Defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
10. The prosecution bears the onus of proving the guilt of The Defendant at all times. The Defendant does not have to prove that he did not commit the offences charged.
11. If The Defendant does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
12. The standard of proof of the prosecution case is proof beyond reasonable doubt and The Defendant cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
13. The Defendant is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The Defendant then loses the presumption of innocence and I must find him guilty.
14. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
15. If I am satisfied that there may be an explanation consistent with the innocence of The Defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find The Defendant not guilty.
16. I must determine whether each of the witnesses is a reliable witness that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
17. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
I have given myself the warnings which I have set out above.
In this matter I heard from the two prosecution witnesses who were eyewitnesses. They were Lincoln Corcoran, the complainant in the matter and his brother Tyrone Corcoran.
I note both of them live in the household where this incident occurred and did so at the time of the offending.
The prosecutor submitted that I would accept their evidence as reliable and truthful. As I have noted throughout my reasons and the setting out of the evidence, at times both witnesses were combative, argumentative and clearly had a poor recollection of detail about what happened.
That is clearly evident because they admitted such memory lapse. Clearly that could be as a result of the effluxion of time. It seemed to me that they just had very poor memory and were very poor historians.
There are also the inconsistencies with their versions of events. One of those inconsistencies was about the scissors. On one version of events Lincoln Corcoran, after grabbing hold of the scissors from the defendant, took them to his car. I note in his evidence he described the defendant as holding the scissors in a downward motion as he was grabbing hold of them whilst he was over the top of her. Yet on another version he did not know where the scissors were or how or whether the defendant still had them at the time of the offending.
The other issue is in relation to his epilepsy and that he was incapable of wrestling her because he was weak physically. That is consistent with his version in relation to grabbing hold of the scissors and taking them off her.
I also have no medical or scientific evidence about the effect a seizure may have on a person the night before and whether or not Lincoln Corcoran is or was incapable of wrestling the defendant in the way she described. I accept that post ictal there may be some weakness, but I do not know how much or for how long that would have an effect. There was no evidence before me in that regard.
I note the complainant gave this evidence;
You are physically able to try and get the scissors from her? – Yes, but not physically able to remove them. I don’t bloody know I don’t.[17]” And “yes, also was there a reason your ex asked you if you could look after the children that day? – I don’t know.[18]
[17] Transcript of proceedings, 6 April 2018, page 35 line 15.
[18] Transcript of proceedings, 6 April 2018, page 39 line 10.
The only evidence I do have in that regard is from Tyrone and Lincoln Corcoran. Both of them say that he was weak, yet the evidence belies that, particularly given that he told the court that he took the scissors from the defendant and put them in his car. I also note that he told the 000 operator that he did not take them from her and that she still had them with her in the house.
The next inconsistency is in relation to the number of items said to have been damaged by the defendant. Lincoln Corcoran told Constable Ferguson that there was two items which had been damaged. Constable Ferguson said he saw between 10 and 15 items on the bed but could not tell whether they were damaged or not.
I note that Lincoln Corcoran did contact Constable Ferguson in relation to the 125 items that he says were damaged. There was no follow-up in that regard no photographs, in fact no evidence whatsoever other than the say-so of Lincoln and Tyrone Corcoran.
The next issue that has been raised is that of the memory of both Tyrone and Lincoln Corcoran. Both witnesses indicated that their memory was poor and when asked questions about particular matters indicated in some instances that they would not do something but if they did do it, it was accidental. For example, paragraph 35 on page 23 of the transcript of proceedings on 6 April 2018, where the complainant said: “After I took the – I don’t remember much after that because I’m all over the shop after that” and further “Sir, I’m not asking you what you would have done. I am asking you what you did do. – No, I didn’t and if I did, it wasn’t intentional”. And at page 29 paragraph 5 of the transcript “So do you agree you don’t remember this incident very well? – Yes”
I am satisfied that the defendant has raised the issue of self-defence in relation to both the assault on the damage property of the chip rock wall and window.
I don’t think there is any doubt that the conversation with Constable Ferguson about having to bite Lincoln Corcoran because he had his arm around her neck was sufficient to establish and raise the defence.
The defendant did not give evidence as she is clearly entitled to do and I make no adverse finding in that regard. Clearly it is upon the prosecution at all times to prove the elements of the offence beyond a reasonable doubt.
I’m satisfied that the defence of self-defence has been raised and it is for the prosecution to now rebut that defence.
The defendant provided a recorded interview with police. That interview has been exhibited before me and I have had the opportunity to view it both in court and in chambers.
The interview clearly demonstrates from the defendant’s point of view why she did what she did. It also demonstrates that she clearly understood that by cutting up his shirts she had committed an offence of damaging property. The defendant accepted that and pleaded guilty to it.
The defendant pleads not guilty to the assault in relation to the bite to Lincoln Corcoran’s arm. The evidence for that is from the conversation that she had with Constable Ferguson. Unfortunately the defendant was never asked any questions in relation to the charge of an assault being the bite on the arm of Lincoln Corcoran.
That is a grave failing in my view because it denied the defendant the opportunity to explain what happened. The only evidence I have in that regard is what was told to Constable Ferguson by Ms Holmes.
Unfortunately Constable Ferguson did not record that conversation as he should have. I am now left with the few words that he recalls of that conversation which was written in his statement. Constable Ferguson was recalled to give further evidence and was unable to give any evidence in relation to that conversation.
In relation to the stabbing of the mattress, the defendant described that when she was being manhandled and wrestled by Lincoln Corcoran she directed the points of the scissors down so that neither of them would be injured and that is how the mattress got stabbed.
Lincoln Corcoran could give no real evidence about whether or not it was accidental or deliberate. In his view the pressure that she used was sufficient that it was intentional. That is the only evidence I have in that regard. This was clearly a situation which was fluid and moving and it is not inconsistent with innocence that she pointed the scissors downward so that neither she nor Lincoln Corcoran would be injured.
In relation to the incident which took place in Tyrone Corcoran’s bedroom, there were clearly differences in accounts as to what happened in that bedroom. On the one hand Tyrone Corcoran says certain things occurred, on the other the defendant explained in a different way. Some of that evidence was not inconsistent with each other and in my view was consistent with the version given by the defendant.
The defendant states that Tyrone Corcoran was manhandling her at the time he had a bottle of Vodka Cruiser in his hand. The defendant says that at the time that bottle was close to her head and she thought that she was going to in her words ‘cop it’ to the head and that was the reason she grabbed hold of the bottle and threw it.
That is not inconsistent with the version given by Tyrone Corcoran. It was Tyrone’s assertion that because of the force required to lodge the bottle on the wall she must have intended for that to happen, that was his evidence.
In relation to the throwing of the shoe, again the defendant’s version was that she was trying to distract Tyrone from manhandling her and in her self-defence she picked up a shoe and threw it. When she threw the shoe it went through the window. Tyrone Corcoran said that she could not possibly have grabbed the shoe in self-defence because it would have been impossible for her to get at the shoe as it was near his TV. I did not understand this evidence to go to any rebuttal of self-defence as it was unclear as to what he actually meant.
As I understood the evidence, Tyrone’s room was very small and the defendant said that she was able to grab the shoe whilst wrestling with him and she threw it to grab his attention away from manhandling her.
Both incidents are consistent in my view, with a defence of self-defence. The first where the defendant says she was being grabbed around the neck by Lincoln Corcoran and in an effort to remove him from doing so she bit him. The second was when again she was being manhandled by Tyrone Corcoran and he also had his arm around her neck area but as well had a bottle in his hand which was close to her head.
The reason why both Lincoln and Tyrone were manhandling her is not important in her perception of what was happening. It is not inconceivable that given she said Tyrone had her around the neck area, she was trying to distract him so that she could get away from him.
It is also not inconceivable or unreasonable that she felt she had to bite Lincoln Corcoran to distract him and stop him from having his arm across her neck.
If I were to accept her evidence I would be satisfied it was an act of self-defence in both cases.
As I’ve indicated I am satisfied that the defence of self-defence has been raised and it is therefore up to the prosecution to prove that both offences were not a case of self-defence.
I have very carefully considered the evidence presented by the prosecution. My impression of both Lincoln and Tyrone Corcoran was that their evidence was unreliable. Both had poor memories of the incident, there were considerable inconsistencies with their evidence as I have indicated above, and given that unreliability I formed the view that their evidence was so unreliable it would be unsafe to convict the defendant on that evidence.
There was other evidence presented to court, being the 000 call and the evidence of the police officers. As I have indicated the investigation of this matter was poorly conducted. That is because there was no follow-up in relation to the damage to the window, the damage to the items of clothing said to have been damaged and the fact that the police failed to question the defendant in relation to the offence of common assault.
I am satisfied that the prosecution has not negated the defence of self-defence beyond reasonable doubt.

Findings of fact

I am satisfied of the following

a)That on 26 September 2017 the defendant and Lincoln Corcoran were in and had been in a relationship for 18 months.
b)On 26 September 2017 the defendant attended 31 Pennington Crescent in Caldwell.
c)At approximately 5:30 pm, the arrangement was that Mr Lincoln Corcoran would leave so that the defendant could remove her belongings from the property.
d)Lincoln Corcoran returned home whilst the defendant was still in the property an argument arose in relation to a dating website and Lincoln Corcoran’s ex-partner.
e)As a result of that argument the defendant went into Lincoln Corcoran bedroom and began to cut up items of his clothing. The defendant cut up 2 items of clothing being a T-shirt and a jumper.
f)Lincoln Corcoran tried to grab hold of the scissors used to cut the clothing.
g)The defendant and Lincoln Corcoran commenced a physical altercation with Lincoln trying to retrieve the scissors from the defendant.
h)As a result of this, the defendant accidentally stabbed the scissors into the bed in order to prevent anyone from being injured by them.

Lincoln Corcoran grabbed the defendant around the chest and neck area in this melee and the defendant then bit Lincoln Corcoran on the arm because of its close proximity to her neck as she was trying to get out of the situation.

j)Tyrone Corcoran arrived at the residence after being contacted by his brother Lincoln.
k)Tyrone entered the house and took from the fridge bottles of Vodka Cruisers.
l)These bottles of Vodka Cruisers belonged to the defendant. There was an argument in relation to him taking them. The defendant then went into the bedroom of Tyrone Corcoran.
m)Tyrone Corcoran went to the bedroom to try and remove the defendant, a melee occurred where Tyrone was manhandling the defendant in an effort to remove her from his room.
n)Tyrone had one bottle of Vodka Cruiser half empty in his hand. The defendant grabbed the bottle because it was very close to her head and she perceived that she may be hit with the bottle.
o)The defendant then threw the bottle and it landed opening first into the Gyprock wall. It was an accidental damaging of the wall.
p)The defendant then grabbed hold of Tyrone’s shoe during the course of this melee and threw it. The shoe went through the window of the bedroom.
q)The defendant threw the shoe in order to divert the attention of Mr Corcoran from manhandling her. This was an accidental damaging of the window.

Having been satisfied that the defence of self-defence was raised, I am not satisfied that the prosecution has proven the elements of the offence beyond a reasonable doubt. I am satisfied that the prosecution has not rebutted the defence of self-defence in relation to the bite and also in relation to the damaging of the property. I am also satisfied that the throwing of the items which damaged the wall and the window were accidental in nature rather than intentional. They were done as a measure of self-preservation during the course of the argument with Tyrone Corcoran.

I find charge 10709 of 2017 not proved;

I find charge 10711 of 2017 not proved;

I find charge 3950 of 2018 not proved;

I find charge 3951 of 2018 not proved;

I find charge 10710/ 2017 proved upon her plea of guilt.

I certify that the preceding 209 numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Special Magistrate Hunter OAM.

Associate: E Knaggs

Date: 3 April 2019

[2019] ACTMC 11

12 March 2019