Carter v Law - [2018] ACTMC 24

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Carter v Law
Citation:	[2018] ACTMC 24
Hearing Dates:	14-15 November 2017 9 March 2018
DecisionDate:	31 October 2018
Before:	Special Magistrate Hunter OAM
Decision:	See paragraphs [200]-[207]
Catchwords:	CRIMINAL LAW – offences against the person - unlawfully cause grievous bodily harm
Legislation Cited: Cases Cited:	Crimes Act 1900 (ACT) s 26 Liberato v The Queen (1985) 159 CLR 507 R v Burdon [2011] ACTSC 90 R v DM [2010] ACTSC 137 R v Mulcahy [2010] ACTSC 98
Parties:	Constable Robin Carter (Informant) Gregory Law (Defendant)
Representation:	Ms Conliffe (Informant) Ms Musgrove (Defendant)
Solicitors ACT Director of Public Prosecutions ( Informant) Legal Aid ACT ( Defendant)
File Numbers:	CC 16/9929

SPECIAL MAGISTRATE HUNTER

REASONS FOR JUDGMENT

CC2016/9929 - 1 x charge that on 5 May 2016 Gregory Allan Law unlawfully caused grievous bodily harm to Donna Platts.

PROCEEDINGS

I heard evidence on 14 and 15 November 2017 and 9 March 2018.
The prosecution alleges that on 5 May 2016, an incident took place at 28 Holman Street Curtin. The defendant and Latoya Monaghan lived at that address with their child. There had been relationship issues between the parties and Ms Monaghan had decided to move from the house. That was taking place on 5 May 2016 and she had a number of persons helping her move out. Those persons were Stevie Greenaway, Drew Kennedy-Naden, and Donna Platts. Ms Platts is the mother of Mr Kennedy- Naden. Ms Greenaway is the partner of Mr Kennedy- Naden. Christine Hamilton was also at the premises assisting Ms Monaghan. Ms Hamilton is the defendant’s aunty.
At approximately 13:15 hours on 5 May 2016, Ms Greenaway and Mr Kennedy-Naden were outside the front of the residents near a skip bin which had been placed on the front lawn. They were assisting in the move, packing things and discarding things in the skip bin.
The prosecutor alleges that the defendant approached Mr Kennedy-Naden and started to verbally abuse him inviting him to fight. Whilst this was happening Mr Monaghan, Ms Hamilton and Ms Platts were inside the house at that time.
Ms Platts heard the commotion when she was inside and left the house and approached where the defendant and Mr Kennedy-Naden were arguing on the front lawn. Ms Platts told the defendant to leave the premises. The defendant walked up to her, grabbed her by the left shoulder, and pushed her down. At the same time he kicked her in the left knee.
This caused Ms Platts to fall to the ground. Ms Platts identified she heard a grinding sound and felt immense pain in her left knee. A fight then ensued between Mr Kennedy-Naden and the defendant. The defendant was eventually chased away by Mr Kennedy-Naden who, at that point, had picked up a shovel and threatened the defendant with it.
Police were called by several persons including those not involved in the incident and an ambulance arrived shortly thereafter. The defendant had by then decamped the area. The ambulance took Ms Platts to the Canberra Hospital.
Ms Platts suffered a comminuted depressed fracture of the left tibial plateau and a left knee joint haemarthrosis. Ms Platts underwent an open reduction and internal fixation of her left tibial plateau.
A number of months after the incident police conducted a traffic stop on the defendant. They offered him an interview in relation to the allegations of assault against Mr Platt. The defendant declined to be interviewed and told police that he had no knowledge of the incident.

EVIDENCE

I had the benefit of transcript and have reviewed that transcript in preparation for this decision.

Donna Platts

Donna Platts gave evidence before me. Her evidence is contained from pages 8 – 24 of the transcript.
Ms Platts stated that she was helping Latoya move out of her residence. Stevie and Drew (her son) were helping. Ms Platts said Christine was there and Latoya’s son was asleep in the car.
Ms Platts said she had only just arrived and was in the backyard with her granddaughter when she heard frantic screaming “Drew, Drew” then heard Stevie say ‘Greg’. Ms Platts asked someone to take the child. Ms Platts knew Drew was out the front and she knew Greg as Latoya’s ex-partner.
Ms Platts ran out the front of the house towards the skip bin. She ran past the defendant because she could not see Drew and could not see over the skip bin. Ms Platts said the defendant came at her, put his right hand on her shoulder, and smashed her leg. She later described it as him kicking her to the side of her left knee. She felt immediate excruciating pain, felt her knee snap and fell to the ground. Ms Platts said she tried to get up and as she did so saw her son Drew swinging a shovel, chasing the defendant down the road.
Ms Platts said that Drew returned and told her that the defendant was going to get a gun. Ms Platts said that she was very scared.
Ms Platt said when she ran toward the skip bin she ran past Stevie who was between the gate and the skip bin. Ms Platts also said that she did not say anything to the defendant, he just attacked her.
Ms Platts said she saw a blond lady across the road and she asked her to call police. Eventually she was taken to hospital. Ms Platts required immediate surgery, 6 months rehabilitation and was on crutches for 3 months.
In cross examination it was suggested that there was a tree stump between the skip bin and a car parked in the front of the house. Ms Platts said that she did not notice it.
Ms Platts agreed with counsel that:
a.she had heard someone say “are you Drew”;
b.she had seen the defendant;
c.she had her Tegretol (anti-epileptic drug) doubled in hospital;
d.she was on Endone and other strong medications;
e.was taking those medications when she gave her statement;
f.denied she smoked cannabis between the incident and giving her statement;
g.denied suggestions that she spoke to Drew and Stevie prior to giving her statement and said she only spoke to them in regard to injuries and the treatment she was receiving;
h.denied speaking about criminal compensation;
i.denied either comparing or reading Stevie statement;
j.denies knowing whether Stevie read hers or not;
k.denies a suggestion that she fell over a tree stump;
l.denied the suggestion the defendant did not kick her.
Ms Platts then gave a version of events consistent with what she gave in her evidence in chief.

Stephanie Rainbow

Ms Rainbow lives in Holman Street Curtin. On 5 May 2016 she said she heard screaming and ran outside. She saw a lot of people rushing around and there was a big commotion. She said she saw a woman who had obviously been injured lying beside a car. She said the screaming was a female voice. She said the female who was injured had a friend who asked her to call police so she ran inside her home and contacted 000. Ms Rainbow said she saw three women: the injured woman and two others. When she came back outside she said she saw a man running down the street with a shovel in his hand. Ms Rainbow said she saw one of the women helping the injured woman trying to get her into the car.

Andrew Benson

Mr Benson lived in Holman Street also. He recalls the day vividly because his mother was very unwell and in fact died the next day. He said he heard loud swearing, shouting and screaming. He said he heard a male shouting and a woman shouting, then perhaps another male and another woman who was with that male. He heard a woman say “go away leave us alone, leave the kids alone”. Mr Benson said she sounded cross and a bit fearful. He said he heard the male shout “you are a dog”. Mr Benson said it was said very forcefully and the male sounded quite angry.
Mr Benson said he was quite worried because there had been incidents at the house before and so he decided call police via 000.
Mr Benson said when he was on the phone to police he heard the incident escalate and there was shouting and screaming which had gotten louder. He heard a woman who had said “get away from me” then scream really loudly “you’ve broken my leg, you have broken my knee”. Mr Benson said it was a piercing scream and he had heard that before when people had bones broken.
Mr Benson said he heard other voices saying words to the effect “get away from her”, “leave her alone”, “leave us alone” and “go away”.

Stevie Greenaway

Ms Greenaway knows Latoya and Greg because Latoya was one of her clients previously. She said she knew Greg who was Latoya’s partner and she had known Latoya for two years.
On 5 May 2016, she said she was there with Donna Platts and Andrew Kennedy – Naden. Latoya Monaghan and Christine Hamilton was also there. Ms Greenaway said the first time she saw a male person running toward her she had her back to the road next to the skip bin and took no notice. She said Drew was next to her. She said she turned back and then saw the defendant and became hysterical. She said she screamed out “it’s Greg” in order to alert Latoya and Christine that he was there. Ms Greenaway said at that point she was closest to the end of the driveway near the skip bin and backed off toward the gate of the house. She said she heard the defendant say “are you Drew – have you been telling everyone you want to fight me, let’s have it out” and called Drew out to the road. At that point the defendant was in Drew’s face and Drew told him to leave.
Ms Greenaway said that Greg went to throw a punch at Drew and at that point had him pinned between a car and the skip bin. Ms Greenaway said that Drew went through bushes to the next door premises and then back to the skip bin. Ms Greenaway marked on a drawing where she was standing and that was exhibited as exhibit P4.
She said she heard Donna Platts come out from the house and heard her say to the defendant “leave my son alone, why are you doing this to my son?” She said she saw Ms Platts run past her. Ms Greenaway said she saw that the defendant was very violent and aggressive and was trying to start a fight with Drew.
She said the next thing she saw was that Greg grabbed Donna with his right arm and pushed her down and then kicked her in her leg with his right leg. She described him as being the aggressor. Ms Greenaway described the defendant kicking Ms Platts in the back of her kneecap.
Ms Greenaway said after the defendant had kicked Donna Platts, Drew picked up a shovel, Greg saw him do it at and then ran down the road as he did so he said he was going to get a gun and shoot them all.
Ms Greenaway said that she tried to help Donna into the car and yelled to a lady across the road to please call the police.
Ms Greenaway also said that at one point Latoya came out to retrieve her child from the car when Greg and Drew first confronted each other which was before Ms Platts was injured.
In cross-examination it was suggested to Ms Greenaway that she had made a statement to police which was not consistent with her evidence, however she said in relation to the child Amalia that she had told the police about that but it was not in her statement. Ms Greenaway explained that Donna had already taken Amalia from the car because she had been with her prior to Greg arriving.
In cross-examination it was suggested to Ms Greenaway that Greg said “I’m not here to start anything”. This was denied.
It was further suggested that Drew had the shovel in his hand when Greg walked up to him. Ms Greenaway said yes at the first instant, Greg had been using the shovel and when Greg walked up here dropped it into the skip bin.
Ms Greenaway denied that Drew had picked the shovel up when the defendant came up to him. It was suggested to her that when Drew picked up the shovel he had it raised above his shoulder, Greg punched him in the stomach. This was denied. Ms Greenaway said she would love to agree to that but that did not happen.
Ms Greenaway said that she agreed Donna had passed her but she was not at the gate she was between the gate and the skip bin. Ms Greenaway agreed that Donna was running not because she was in a panic but because her son was being abused.
Ms Greenaway denied that she could not see what was happening from her position. She said the skip bin was not blocking her view. When it was suggested that Ms Platts tripped over a tree stump and landed and fell on her knee, Ms Greenaway’s said that is ‘absolutely incorrect’. Ms Greenaway did not agree with the assertion that Greg did not kick Donna or push her to the ground.
Ms Greenaway agreed that she did go after Greg and Andrew for some 10 metres and then she came back. She denied that she was running really fast and said it was more of a pace she wasn’t chasing Greg she was making sure Drew wasn’t hurt.
It was suggested that when she said that Drew had said he was going to “get all of you motherfuckers” and that he had a gun, she had not told police this. She agreed that was the case but she said he did say it and that she did not make it up.
It was suggested to her that her timeframes appear to be inaccurate and she said that was because of the effluxion of time between the incident and hearing and the time frames may have been inaccurate but she was adamant that what she said in her evidence was truthful.
It was suggested that on the morning she gave evidence she sat outside and compared statements with her ex-mother-in-law. She said no, she did not do so but she did look at her own briefly. It was suggested that someone came over and told her that she should not look at the other witnesses’ statement and she said Donna Platts was holding a statement and she was rummaging in her bag. She said Drew who had not provided a statement to the court glanced at hers on the back page and that was it.
Ms Greenaway said that after Donna was in hospital she visited her and indeed cared for her for some months afterwards. It was suggested that she was getting together with Donna to go to court and she said that she actually arrive first.
It was suggested to her that she did visit Donna between when the incident occurred and when she made her statement and that she had spoken to her about the incident Ms Greenaway denied that and said Donna did not like to speak about it because it was quite traumatic for her and for us.
It was suggested that she had spoken to Drew also about the incident and she denied that and said “we actually don’t speak at all and have no contact other than with the child”
It was suggested that she had discussed with Donna the issue of victims of crime compensation. Ms Greenaway denied that adamantly, and said the only time it was discussed was with police at the police station.
It was suggested that they both went to the police station together to give their statements. Ms Greenaway said no that did not happen she arrived first and Donna came so that she could look after her daughter in the waiting room while she gave her statement.
It was suggested to her that when she came out of giving her statement she chatted with Donna about it. Ms Greenaway said she was quite emotional and crying and Donna gave her a rub on the back and supported her but nothing more than that. She said she then left because she had an appointment to go to.
To clarify matters she said that she did hear Greg say he was “going to get a gun and shoot all you motherfuckers”.
In re-examination Ms Greenaway explained that she gave her statement to police some four months after the incident and agreed that there was some details which were different such as where Amalia was. Ms Greenaway again denied that she had spoken to Donna about the incident.

Drew Kennedy-Naden

Mr Kennedy-Naden gave evidence that he is a plasterer by trade. He said on 5 May of 2016 he was helping Latoya Monaghan move house at 28 Holman Street Curtin.
He said that the defendant arrived and he was aware that it was Latoya’s ex-partner. Mr Kennedy-Naden said that the first time he became aware he was there was when he heard his ex-partner Stevie yelling “that’s Greg”. Mr Kennedy-Naden said he turned around and saw him. He said that Ms Greenaway appeared scared.
He said that he was standing next to Stevie when she yelled ‘Greg’ he turned around and Greg came up to him and said “are you Drew “and he said yes and Greg then tried to punch him. Drew said he backpedalled and stepped into some bushes and at that point or thereafter Greg got his mother, Ms Platts by the shoulder and kicked her with his right foot.
He said at the time when Greg arrived he was near the skip bin, Stevie was next to him they were at the time talking to each other. He said Stevie yelled that Greg was there he said he turned around and he saw him coming towards him in an angry manner walking across the yard really fast. He had an angry voice and kept asking him are you Drew? Mr Kennedy-Naden said he had actually met Greg a couple of times.
He said Greg was angry and he tried to hit him and indeed did hit him in the face on the right side of his cheek. Mr Kennedy-Naden said he was coming at him quite fast and he stepped back into the bushes which he described as a hedge type bush. Drew said at the point of Greg punching him he was right in front of the skip bin between the bin and Christine’s car.
He said after that he said he saw the defendant hold his mother with his right arm and pulled her to the ground and kicked her.
Mr Kennedy Nagin said that he knew his mother was there because he heard her say ‘leave my son alone’ and that was when Greg was trying to hit him. He described the action as he grabbed her by the left shoulder with his right hand and sort of pulled her down and kicked at the same time using his right leg to kick her, he kicked her in the knee and that’s how it got broken.
Mr Kennedy- Naden said he does not know why the defendant kicked his mother. He said when that happened he grabbed the shovel and chased him out of the yard because he could hear his mum screaming and it was very scary. He said the shovel was sitting up against the skip bin. He said he was scared for everyone’s safety and that’s why he chased him with the shovel.
He said he had been using the shovel before and it was just next to the bin. He said when he chased the defendant away with the shovel the defendant said that he’s got a gun or he’ll get a gun from around the corner and is going to shoot him. Mr Kennedy-Naden said that he did tell the others that the defendant had told he is going to get a gun and shoot them.
He said that he picked his mother up and put her in the car as she was in a lot of pain.
In cross-examination he said to defence counsel that the defendant was half jogging across the lawn coming at him and that he was a bit freaked out because he seemed aggressive and bigger than him. He said that he was in front of the skip bin with Stevie and the shovel was leaning up against the skip bin.
He agreed that Ms Greenaway started backing up towards the house near the gate and it was suggested to him that the defendant came up and said to him I’m not here to start anything, however Mr Kennedy-Naden denied that and said no he was very threatening and aggressive and he looked really angry.
It was suggested to him that Stevie started to scream and the defendant said ‘hey are you Drew’ to which Drew agreed and he said yes at that point he was nearly in front of me. Mr Kennedy-Naden again denied that the defendant had said ‘I’m not here to start anything to start anything’ and said he did not recall him saying that.
He agreed that he was a bit panicked because Stevie was screaming but he said he could see Greg running towards him in an angry manner and when it was suggested that Greg may have said that he was not there to start anything Mr Kennedy-Naden said no that’s not correct because he came toward me and started hitting me. Mr Kennedy-Naden denied that he had lifted the shovel over his head and grinned at him and that’s why the defendant punched him.
It was suggested the shovel was the reason he punched him in the ribs and Mr Kennedy-Naden said that was incorrect and he actually punched him in the face. When it was suggested that the defendant was near the skip bin Mr Kennedy-Naden denied that and said that he was right in front of him and he was backpedalling because the defendant was try to punch him and that when he went into the bush which is not even a metre from the skip bin the defendant kept following him.

Mr Kennedy-Naden agree that there was the bush on the right-hand side of the skip bin which he said was right near the gate and there was a path where Greg’s old car was parked on the other side of the skip bin. He agreed that Ms Platts came from the gate toward the skip bin and Greg’s old car. It was suggested that he was not really looking at his mother but he said he was because Greg was try to hit him and that’s when his mother screamed because she had seen Greg try to hit him. He said that his mother said leave my son alone like any mother would.
It was suggested to him that his mother came down between the skip bin and the old car and that he could not see what she was doing or what was going on. Mr Kennedy-Naden denied that and said the skip bin is only a certain height and he was higher than the skip bin and had a clear view of the front yard.
It was suggested to him that at that point in time when he was in the bushes his mother fell down screaming. He denied that and said she didn’t fall down, Greg pushed her down and kicked her.
It was suggested that he did not see the defendant pushed his mother down and kick her in the leg. Mr Kennedy-Naden denied that and said he did see him push his mother’s shoulder down and kick her in the leg and it was at that point that he grabbed the shovel and chased him out onto the road.
It was suggested that his mother tripped over a tree stump between the skip bin and Mr Law’s old car. Mr Kennedy-Naden said he did not see a stump at all and he had been there all day helping Latoya move out.
Mr Kennedy-Naden was shown a photograph of the front of Latoya’s house and said that that was not what it looked like at the time he was there because there was a lot of rubbish and cars around describing it as ‘a lot of stuff there’.
Mr Kennedy-Naden said that he loved his mother very much and it was very hard on her and very dramatic after the incident and the injuries she sustained. Mr Kennedy-Naden agreed that he and Stevie looked after his mother for some four months after the incident.
It was suggested that it is only natural that he and Stevie and his mother talked about what happened that day and he said ‘actually no we didn’t talk about it except to say how unbelievable it was that we help someone move out of their place because of domestic violence and this is what happened it was a bit disappointing’.
Mr Kennedy-Naden said that he was meant to give a statement to police however he was very busy and didn’t get around to doing so. It was suggested to him that his memory wouldn’t be as good as it was on the day and he said he still remembered things clearly ‘because Mum broke her leg’ so he remembered it because it’s not every day his mother got kicked in the leg.
Mr Kennedy-Naden denied that he heard Stevie and Ms Platts speaking about the case although he said there was some discussion about where the baby was and there was a mix-up because only Clara was in the car not Amalia. Mr Kennedy-Naden denied that he heard them say anything about other issues in the case.
Mr Kennedy-Naden denied speaking to his mother about his evidence or her evidence that she’d given and denied that he and his mother had made up the story about the defendant kicking her and said that was a silly suggestion.
Mr Kennedy-Naden denied that the defendant had a mobile phone in his hand. Mr Naden-Kennedy suggested that he would have known that given the defendant had tried to punch him.
It was suggested that Mr Kennedy-Naden had spoken to his mother in regard to criminal compensation and he said the police spoke about that to her that day when he was standing there, however, they had not discussed it. The only thing they discussed was about the injury to his mother’s leg and how to fix it.
Mr Kennedy-Naden denies that his mother, he and Stevie made up this story so they could get criminal injuries compensation. Answering a question from me Mr Kennedy-Naden said he did not know anything about criminal injuries compensation.

Dr Amanda Van Diemen

Dr Van Diemen provided a report in relation to the injuries sustained by Ms Platts exhibited as P5. I note that Dr Van Diemen had access to Ms Platt’s medical, nursing, allied health and ambulance records from the Canberra hospital pertaining to the injury she sustained as a result of the allegation before the court. The report also contained a CT scan of the fracture which showed the fracture on the medial side of her knee.
In her report she reported that Ms Platts suffered a complex, comminuted and depressed fracture of her tibial plateau involving both medial and lateral aspects of the bone.
Dr Van Diemen’s evidence was this injury is consistent with a kick to the knee, that is; from direct trauma to the knee. It was suggested by Counsel that the defendants version of how the injury was sustained was that of falling over a tree root and Dr Van Diemen stated that “in certain age groups, it can happen, yes , but again, it would have to have direct trauma to the area that’s been fractured and to have an isolated tibial plateau fracture that resulted in such serious comminution, it would be unusual to have that as an isolated injury in the setting of a fall without any other bracing injury, so putting your hands out, but it could certainly happen”. [1]
[1] t/s p 92.3
Dr Van Diemen’s opined that low impact injuries happen in typical groups with osteoporosis and typically in women over 50 years. These type of injuries in younger people are from high impact injuries, falls from height or bumper type fractures from pedestrians hitting motor vehicles. The injury, if sustained by a low impact would necessarily have to be direct trauma to the bony prominence or outer part of the knee.
Dr Van Diemen said there was no documented history of osteoporosis in Ms Platts. Women over 50 are more prone because of the lower estrogen levels but that is a gradual process. Dr Van Diemen also said that it is possible to be over 50 and have normal bone density.
In cross examination it was suggested that the type of injury could be caused by a fall when running. Dr Van Diemen said that the trauma would need to be direct and she would have had to fall on that side, saying it’s possible but unusual that it was an isolated injury. It requires blunt force trauma but that trauma has to be isolated to the tibial plateau.
Dr Van Diemen said there are 6 grades of tibial plateau fracture. Ms Platt’s would be around grade 4-5. They are incredibly painful fractures. They are serious injuries which may result in significant risks to a person. However it appears Ms Platts has recovered without complications.

Christine Hamilton

Ms Hamilton is the defendant’s aunt. Ms Hamilton advised the Court that she is suffering from encephalopathy and liver disease and is awaiting a liver transplant. The encephalopathy affects her memory and she suffers from confusion. Ms Hamilton handed up a letter from her treating doctor confirming this.
Ms Hamilton confirmed that she was at Holman Street Curtin helping Latoya move out but was uncertain of the date.
Ms Hamilton said she was at the house packing up and called police because she heard Stevie screaming out to call police ,“that he has got a gun” she said that she now knows that it was Greg and that he did not have a gun, it was just Stevie being hysterical. Ms Hamilton said that when she made the call she was very unwell and emotions were high. When she heard what Stevie had said she was concerned.
Ms Hamilton said that she had to ask about what had happened that day in relation to Clara to prompt her memory. Ms Hamilton said that she was inside and came outside and saw ambulance people. She recalled that the lady sitting in the car told her what Greg had done to her.
Ms Hamilton said that Stevie was talking about criminal compensation which was something that she remembered negatively. She thought that was after Ms Platts had been taken away in the ambulance and again at Stevie’s place.
Ms Hamilton clarified that she thought Stevie may have spoken to her about it and also again at the hospital at the bedside and mentioned that Drew’s brother drove her car to her shed to drop things off and at Stevie’s garage and they spoke about it there again. Ms Hamilton was unable to say when these conversations took place.
Ms Hamilton recalled that Drew’s brother and his partner, Drew and Stevie were at the hospital, she was they were all around Ms Platt’s bed and they spoke about criminal compensation. Ms Hamilton also gave evidence about taking photos at the hospital, that Drew and Stevie were consuming illicit drugs and were hyped up from them. [The only relevance of this evidence which was unsolicited, in my view, was designed to paint Ms Platts, Drew Kennedy-Naden and Stevie Greenaway in a bad light to bolster the assertion that they had concocted this whole incident for the purposes of obtaining criminal compensation.]
Ms Hamilton was unsure when Stevie told her what had happened but opined that it may have been when she was speaking to police, however she was unable to recall what was said. Ms Hamilton gave further evidence of bad character in relation to Stevie about damaging the defendants’ belongings.
Ms Hamilton said she was told that Greg had hurt an old lady, and thought it was when Stevie was speaking to police. Ms Hamilton said that she does not know what happened only that she saw Ms Platts in the car and taken by ambulance.
Ms Hamilton said that Stevie screamed out ‘Greg’ and ‘call the police’. The 000 call was played and it assisted in jogging Ms Hamilton’s memory and she recalled that she told the operator that the defendant had broken Stevie’s mother’s leg. Ms Hamilton said that she would not have taken that comment very seriously from Stevie if she had felt better.
In cross examination Ms Hamilton said that the tree root she was referred to in a photograph was bigger than shown and that she has actually tripped over it herself, “probably a few times” and it was there on the 5^th of May 2016.
My impression of Ms Hamilton’s evidence was that she tried valiantly to cast Ms Greenaway, Mr Kennedy-Naden and Ms Platts in a very bad light. I am satisfied that her evidence does not shed any light on what happened that day and I reject her evidence as being untruthful and done to assist the defendant’s case.

Latoya Monaghan

Ms Monaghan is the ex-partner of the defendant and lived at Holman St Curtin on 5 May 2016. They have 3 children together. On the 5^th of May she was moving out of her house after ending her relationship with the defendant.
Ms Monaghan gave evidence that she and the defendant remain friends and see each other regularly because of dropping off the children.
Ms Monaghan said that she had hired a skip and that Stevie, Drew, Donna and Christine had come to help. Ms Monaghan said that she was inside the house packing and did not see anything take place. She heard Stevie say ring the police so she went outside and grabbed her daughter out of the car and at that time she saw a glimpse of the defendant coming towards the house and she grabbed her baby from the car and walked back inside.
Ms Monaghan said that she then heard Stevie screaming and she went back outside, she said that she saw Drew and Greg on the road, Drew had a shovel in his hand and looked like he was going to hit Greg with it and Greg left.
Stevie was on the front lawn crying, very upset, she said she saw Donna standing and then limping saying her leg was sore. Ms Monaghan said that Donna got on the ground and said her leg was broken. She said that she did not want to ask what happened but asked if she was ok and she said my leg is sore it’s broken. Ms Platts told her that Greg had kicked her in the knee. According to Ms Monaghan, Donna was really calm about it but she was upset. Ms Monaghan said that Stevie had told her that Greg had kicked Donna.
Afterwards Ms Monaghan went back inside to check on Clara and Christine.
In cross examination Ms Monaghan was asked to identify various vehicles and where they were parked on the 5th of May, as well as roots said to have been there in the front yard for some time. Ms Monaghan has had trouble with them and had sprained her ankle before from them she said. Ms Monaghan agreed that they were parallel to where the skip bin was.
Ms Monaghan said that she observed that the defendant had a mobile phone in one hand and a charger in the other. When she attended at the hospital she said she heard Donna say “she’ll get money out of this.”[2] Ms Monaghan also said that Stevie told her and Christine that at her house the day of the incident.
[2] Transcript p 123.36
In re-examination, Ms Monaghan said that in relation to the compensation discussion, Ms Platts told her “I’ll be alright. I‘ll get some money out of this.”[3] Ms Monaghan denied that she made up the conversation about compensation to protect her ex-partner because she knows Ms Platts has no reason to lie about this incident. That an allegation about the Criminal Compensation would provide her a motive to lie, which she denied.
[3] Transcript p128.37
Ms Monaghan denied that she discussed with Ms Hamilton about concocting this story. Ms Monaghan agreed that she was frightened of the defendant at the time of the incident. Ms Monaghan agreed that she was worried about Ms Platts which is why she attended the hospital and that was in a setting of having been told that Greg had kicked Ms Platts in the leg and injured her.
Ms Monaghan agreed that she had been sitting with Ms Hamilton for a day and a half waiting to give evidence but said she did not speak about the evidence they would give.
It was suggested that Ms Monaghan bailed up Defence Counsel to tell her about the criminal compensation issue the morning she was to give evidence. Ms Monaghan said that it was Christine who approached her about that and she was present at the time.
Ms Monaghan agreed when it was suggested that when she was asked in her evidence about a conversation with Ms Platts immediately after the incident she immediately jumped to the topic of compensation, although she denied it was because she was eager to give a motive for Ms Platts to lie about what happened that day.
Ms Monaghan went on to say Ms Platts not only discussed the compensation issue but she laughed about it and was happy on the night she was first admitted to hospital.[Which I find difficult to believe, given the significant and painful injury sustained by Ms Platts]
Ms Monaghan agreed that no root can be seen in the picture, although she insisted that they were there and she and the children had been bothered by them and she had asked Housing to fix them.

Constable Robin Carter

Constable Robin Carter gave evidence that he attended Holman Street on 5 May 2016 at approximately 1.30pm. Constable Carter said that a number of police were in attendance. Constable Carter observed Ms Platts who was complaining that her leg hurt.
Constable Carter spoke with Stevie Greenaway who advised that she had attended the residence to help Latoya move out of the house. That she attended with her boyfriend Drew and his mother Donna Platts. Inside the residence was Christine Hamilton and Latoya Monaghan. As they were packing the defendant showed up, an argument ensued Donna came out of the house to tell the defendant to leave, the defendant pushed her and kicked her in the knee causing her to fall to the ground. Drew then chased the defendant down the street.
When he attended, he observed that Stevie Greenaway was quiet heightened and scared. Constable Carter did not speak to Drew but considered his demeanour was nothing out of the ordinary.
Constable Carter conducted a traffic stop upon the defendant sometime later in relation to this matter and offered him an interview opportunity. Constable Carter said that he told him of the incident he wanted to interview him about and the defendant denied all knowledge of the incident.
Constable Carter said that whilst he was at the premises he did not observe any tree roots near the skip bin, nor any over a number of metres in length near the driveway. Constable Carter also said that he was advised of Latoya and Christine’s presence in the house but was told they did not observe the incident. They declined to provide statements to police when asked.
In cross examination Constable Carter agreed that he did not walk down the driveway towards the house. In a question from me Constable Carter said they took no photographs because there was nothing to photograph at the scene.

Constable Peter Thompson

Constable Thompson gave evidence that he was the first to arrive and described the scene as there was a car parked on the front lawn, a skip bin which was fairly full, and 3 females and a male. One of the females was partially kneeling down clutching her knee and screaming and appeared to be in quiet a lot of pain, she appeared to be in an awkward position, screaming ‘my leg, my leg’. Constable Thompson identified one female to be Stevie Greenaway who was crouching next to Ms Platts trying to calm her down and Latoya standing around the general area. He identified the male as Drew. They got Ms Platts in the car to try and take her from the awkward position she was in and to isolate the leg.
Drew spoke to him away from the commotion surrounding Ms Platts because it was distracting. Drew told him that he was loading things into the skip bin when the defendant arrived. The defendant approached him there was a brief physical altercation where punches had been thrown, some impacting on Drew who then took a shovel and chased the defendant off. Drew did not tell him about what happened to Ms Platts. Constable Thompson did not speak to Stevie Greenaway, Latoya Monaghan or Ms Platts.
Later, whilst still at the premises Latoya told him the defendant was trying to ring her and he eventually spoke to him. Constable Thompson said that there had been an allegation of assault and that he requested he come to the house so they could speak to him, he replied that he was leaving for interstate the next day and was calling Latoya to say good bye. The defendant indicated that he would be happy to speak to police, that he was presently in Narrabundah then terminated the call. The defendant was unable to be located that day.
Constable Thompson denied ever having a conversation with anyone in relation to criminal compensation.
In cross examination Constable Thompson said he was standing close to the skip bin, the long edge of it and on the driveway and did not particularly look for roots.

Mattareddy Tatikynda

Mr Tatikynda gave evidence that he purchased 28 Holman St Curtin in November 2016, taking vacant possession. Mr Tatikynda said that he had not noticed any significant root system in the ground of his front yard, nor any root system that was approximately 20cm high.
Mr Tatikynda said that he had a Gardner to do general gardening work but did not see any ground torn up which would indicate root removal. Mr Tatikynda said he walked in both the front and back yard and when he parked his car on the driveway he did not observe any tree roots.
In a question from me Mr Tatikynda said he had not seen any roots which caused him inconvenience.
In cross examination Mr Tatikynda was shown a photograph of his driveway (D1) and also said that both he or his wife drove the car and they used both entrances. He agreed with counsel that the document he was shown showed tree roots on the left hand side of the driveway but he could not recall whether he had seen them or not.

Constable Robin Carter (recalled)

Robin Carter was recalled to give further evidence in relation to investigations he had made subsequent to his evidence in the hearing about tree roots at 28 Holman St.
Constable Carter made inquiries from Mr Tatikynda re the root system at 28 Holman Street Curtin. Constable Carter said Mr Tatikynda told him that he did not recall seeing roots near the driveway and had not had any work done to remove roots.
Constable Carter did not observe any roots on the front lawn or any major holes which he would expect from root removal. To him it looked like flat lawn.

Constable Carter also inquired with ACT Housing to establish that no other person lived in the house prior to sale of the house. Constable Carter also inquired as to what works were done by ACT housing during and after Ms Monaghan occupied the premises. There was no reference to either complaints of or removal of roots at the front of premises.
In cross examination Constable Carter agreed that he was not privy to all conversations between Ms Monaghan and the ACT Housing Department. Defence counsel took him to pages 1-33 of the document he identified as being from ACT Housing and accepted that in January 2009 and August there was some issue with tree roots in the front yard as well as some root and tree clearance in the back yard because of sewer choke
Constable Carter confirmed that he had looked at all of the front yard including the driveway and there were no tree roots he could see. Constable Carter was shown a photo which appear to depict tree roots on the left hand side of the driveway and he said he did not see them when he went to the address. Constable Carter did concede that the length of the grass whilst not being long may have obscured the roots.

Daniel Neate

Constable Daniel Neate arrived at 28 Holman Street on 5 May 2016 at 12.28. Saw Ms Platts sitting in the car holding her leg and appeared to be in pain. There was a male and a female in attendance. Ms Platts told him that she was in pain and could not stand up.
Ms Platts told Constable Neate that she was helping Latoya move, heard a commotion saw a male she knows as Greg, told him to go away and he kicked her in the leg then left. Constable Neate denied that criminal compensation was raised by either Ms Platts or the female with her.
Constable Neate said that none of the parties or police accompanied Ms Platts to hospital. It was established that he and Constable Carter attended the hospital at 2.51pm, Ms Platts declined to give a statement and appeared to be groggy from medication, and in pain. At this time she was in the emergency department in a treatment room, not in the waiting room.
During the time he was at the Homan street address he did not observe roots, nor did he recall any destabilising structures.
In cross examination he conceded that it was possible roots were there and he did not see them.

Donna Platts (recalled)

Donna Platts was recalled in relation to the conversation about criminal compensation. Ms Platts said that Christine had sent her flowers but did not attend hospital that day (of the incident). She was unsure whether Latoya had attended.
When it was suggested that both Ms Hamilton and Ms Monaghan had given evidence that Ms Platts had said she would get money out of this, she denied that assertion and replied that she was only concerned for her leg as she was in considerable pain and because her mother was a double amputee she was worried she could lose her leg.
In cross examination Ms Platts was shown a photo which depicted roots on the driveway. Ms Platts did not agree that the grass was long on the day, nor did she agree that there were any roots or a stump sticking out there on the day, or that she tripped on roots.
Ms Platts marked on D1 where the incident occurred and marked it with an X.

Stevie Greenaway (recalled)

Stevie Greenaway was recalled and denied that on that day she had smoked Marijuana, denied that she had any conversation in the presence of Christine Hamilton in relation to criminal compensation.
Ms Greenaway agreed that Ms Hamilton and Ms Monaghan attended her address that morning to pick her up, but denied they went there after the incident and said she went to the hospital and they did attend the hospital later that day. Ms Greenaway said that she never heard Ms Platts mention that she would get money out of this.
In cross examination Ms Greenaway denied that she and Drew smoked a bong that day, denied that the grass was quite long, denied that the tree roots depicted in the photo caused Ms Platt‘s injuries.

Gregory Law

The defendant, Mr Gregory Law, gave evidence. Mr Law said he had been in a relationship with Latoya Monaghan for 8 years. Latoya lived at Homan Street for 5 years. Mr Law said he stayed at that residence off and on for that time.
Mr Law said that when he visited the address in May of 2016, he was not in a relationship with Latoya. He remembers a skip bin being at the address. He said the bin was placed hard up against the back fence.
Mr Law over objection said that he suffers anxiety and it effects amongst other things his memory, concentration and how he explains “things” which impacts his speech. Mr Law said he felt that at the time of giving his evidence.
Mr Law gave evidence that his cousin placed the skip bin hard against the back fence so no one could steal anything. The bin was on the driveway. The defendant recognised the photo D1 as being the premises, however, the grass was longer and the Pergola was not there. Mr Law said that over the time Ms Monaghan lived there the grass was always long probably a foot. Mr Law indicated that he would mow the grass roughly every 3 months.
Mr Law drew in red an area where he said the skip bin was, with an arrow in the centre adjacent to the back gate. Mr Law also marked with an M where his white Mercedes was located. Mr Law said he took photos of a root in the driveway after the first day of this hearing exhibited as D3, which Mr Law suggests ran more on the driveway than on the footpath which leads to the front door. This was exhibited as D4.
Mr Law said that he walked along the front of the residence on the day in question, he was carrying a phone and phone charger in his hands. Mr Law attended the premises to “be an adult and do stuff properly” to “sort out stuff and who is taking what”. Mr Law indicated that he still had property in the place.
Mr Law said when he walked up he saw Stevie and she started to scream and then disappeared, he walked up to Drew and said “how you are going mate I not here to start anything”. Drew at the time was leaning against the skip. Drew gave him an evil smile and swung the shovel at him. Mr Law said that in order to protect himself he swung a punch at Drew and punched him in the stomach. After the punch Drew moved back to the bushes/ hedge running along the property. Mr Law denies that Drew was pushed back and through the hedge.
Mr Law said that he heard screaming, he saw Donna on the ground and took off, and Drew chased him down the road with the shovel. Mr Law denied touching Donna in any way including kicking her in the knee. Mr Law may have sworn at Drew as he was being chased.
Mr Law then said that he charged his phone using some girls extension, called Ms Monaghan and spoke to a police officer who asked him to return to the address and also for a statement or something of that nature.
Mr Law said the roots gave him a lot of trouble when he mowed the lawn and noted a couple of people tripped over them. That they had to go.
In cross examination Mr Law indicated that it was his cousin Adrian Law who told him people were throwing things into a bin at Holman Street Mr Law indicated that he knew Latoya was moving out and received a message about a week prior. Mr Law denied that he was worried that his stuff was being thrown out “he said he wanted to make sure everything was sorted out properly” [4]
[4] Transcript p48 16/9/18
It was suggested that he was concerned because he went over the day his cousin told him about the skip. Mr Law said he was dropped off by his cousin near the address. Mr Law said that his cousin offered to take him there to collect his stuff. It was suggested that he would not have been able to collect his things because he had no car.
Mr Law agreed that he had gone there for a verbal confrontation with Latoya “to sort it out fairly” Mr Law agreed that this did concern him. Mr Law said that he tried to contact Latoya at least 10 times that day to sort out the stuff but she did not answer her phone.
Mr Law was asked some questions about the phone call from his cousin and the fact he went to Holman Street straight away and it appeared that he used his phone for that call but it was dead when he arrived.
Mr Law said that his purpose of going to the address was to have an adult conversation with Latoya, however when asked why it was that the first thing he did was go toward Drew, he said to calm him down or Stevie down.
Mr Law agreed that he did not know Drew before, but may have seen him at a party. The reason he spoke to him was he had heard that he wanted to bash him, but denied that he started the fight.
Mr Law did not accept that he was on edge knowing this information about Drew. Denied confronting him wanting a fight. Mr Law demonstrated that he punched him in the rib area and at the time Drew had the shovel over his shoulder but had not swung it at him. Mr Law denied he had a clenched fist when he punched Mr Law because he had his phone in his hand. Mr Law said that he did not punch him hard.
It was suggested that here was a man with a shovel poised ready to strike and he leaned in and punched him in the ribs and that person with the shovel then moved towards the bushes away from the defendant and then the defendant ran away. [This I find extraordinary, if he was so worried about the shovel he would have run away]
Mr Law denied that he was the aggressor or that Drew did not have a shovel in his hand, that he started to lay into Drew and punched him in the face, that Ms Platts tried to intervene and he pushed her down and kicked her in the leg.
Mr Law gave an account of why the bin was up against the fence to protect his car and a motor bike which could it was pointed out have been taken through the gate.
It was suggested that the reason he said the skip bin was up against the fence was so he could rely on the roots he photographed to bolster his story that Ms Platts tripped over tree roots rather than him kicking her in the knee.
Mr Law denied that he took no other photo or looked for roots anywhere else because he wanted to bolster his version. Mr Law did not agree that the root he did photograph was pretty level with the ground.
Mr Law denied that he ever referred to the trip hazard as a stump, despite it being put to Ms Platts when she gave her evidence.
Mr Law appeared very coy when asked about his current relationship with Ms Hamilton describing the relationship with Ms Hamilton as not having one with her just his kids. He agreed that he was friends with Latoya and see her regularly.
Mr Law denied that he got together with Ms Hamilton and Ms Monaghan to concoct a story about criminal compensation.

SUBMISSIONS

Prosecution Submissions

I received written submissions by both the prosecution and defence counsel.
The prosecutor in her submissions identified the critical disputed issue in the matter which is whether the defendant assaulted Ms Platt’s by pushing her down and kicking her in the knee causing her serious injuries, rather than as the defendant claims that Ms Platts had sustained injuries from falling over a tree root.
The Prosecutor submitted that Andrew Benson was a key witness because he was independent, unknown to the parties and without any personal interest in the outcome of the proceedings. The prosecutor described him as simply a concerned neighbour who called police to report what he heard. His evidence was credible and was not challenged.
His evidence was that he heard shouting and screaming coming from 28 Holman Street, he heard a female voice yell ‘go away’ ‘leave us alone; leave the kids alone‘, he described the female voice as sounding cross and a bit fearful. – He described a male voice shouting angrily ‘you’re a dog’. He said whilst he was calling police he heard a piercing scream and heard the female making that noise say ‘you broke my leg’ you broke my knee. He also said he heard the female shout ‘get away from me’. Mr Benson gave evidence that he’d heard screams like that before when people had broken a bone.
The Prosecutor submitted that this version is entirely consistent with the versions of Ms Platts, Ms Greenaway and Mr Kennedy-Naden and cannot be reconciled with the version provided by the defendant.
The prosecutor submitted, that evidence alone undercuts the theory that Ms Greenaway, Ms Platts and Mr Kennedy- Naden put their heads together to stitch up the defendant for the purposes of criminal compensation.
The prosecutor then sets out the evidence of Ms Greenaway, Mr Kennedy-Naden and Ms Platts which I have referred to above. The prosecutor submitted, that evidence together with the medical evidence supports the prosecution version which is, that it was the defendant who pushed Ms Platts to the ground and kicked her in the knee.
The prosecutor set out the evidence given by the defendant. It was submitted that his evidence was unconvincing and unsatisfactory in relation to the tripping hazard. The prosecutor submitted that he was evasive and reluctant to admit that he attended the property for a verbal confrontation with Ms Monaghan about the division of property. Also that his version differed significantly from the versions of events as outlined by Ms Platts, Ms Greenaway and Mr Kennedy-Naden and changed his evidence in relation to how we punched Mr Kennedy-Naden.
That he took photos of what he claimed to be tree roots in order to bolster his defence. The prosecutor submitted that both Ms Hamilton and Ms Monaghan supported his version in relation to the tree roots yet no one else saw them including Mr Tatikynda who advised that no tree removal had occurred when he purchased the property.
The prosecutor submitted that I should reject the defendant’s version of events and place it to one side. That I should rely on the evidence adduced in the prosecutor’s case which establishes beyond a reasonable doubt that the defendant unlawfully assaulted Ms Platts on 5 May 2016 and caused her grievous bodily harm.

Defence Submissions

Defence counsel in her submission set out the elements of the offence which I accept is a correct reflection of the legislation. Defence counsel also set out what the primary issue for determination was in relation to whether it was the defendant who had kicked Ms Platts in the knee or whether she tripped and fell over a tree root.
Defence counsel submitted there was objective evidence to support the defendant’s explanation of how Ms Platts was injured.
Defence counsel set out Ms Greenaway’s evidence and submitted it was inherently unreliable exaggerated and should not be accepted. I reject that submission I found no reason to find that her evidence was inherently unreliable or indeed that she was prone to exaggeration. I found that her evidence was supported by other independent evidence. I also found her to be an impressive witness who did not exaggerate or obfuscate her evidence.
Defence counsel pointed to some differences in the evidence between Ms Platts, Mr Kennedy-Naden and Ms Greenaway. I must say that is not unusual and I would be suspicious if indeed there evidence was word for word exactly the same.
Defence counsel submitted that because Mr Kennedy-Naden was the son of Ms Platts his evidence should not be believed particularly because he had not given a statement to police and it was 18 months after the alleged assault when he was asked to give evidence about it. It was suggested that the evidence he gave had been discussed with Ms Greenaway as “pillow talk’. I note he denied that.
Defence counsel submitted that in relation to Ms Platts evidence there was no motive for the defendant to grab her by the shoulder and kick her in the knee. I note the evidence was that she told him to leave her son alone and was running toward him he turned around pushed into the ground and kicked her in the knee I accept that evidence. There does not need to a motive and if I accept the evidence of Ms Platts, Mr Kennedy-Naden and Ms Greenway that he was angry and spoiling for a fight, that he found a victim and lashed out at Ms Platts because he was angry.
Defence counsel referred to Dr Van Dieman’s evidence settling upon her evidence about the possibility the injury sustained by Ms Platts could have resulted from someone running and tripping. Defence counsel failed to consider her evidence that it would require significant direct force to sustain that injury, it was an unusual injury which required direct trauma to the actual area.
Defence counsel also set out some of what Mr Benson said including hearing a woman scream and then saying you broke my leg broken my knee. Defence counsel submitted that Ms Platts never gave evidence about saying ‘get away from me or you broke my leg’, broke my knee suggesting she said ‘my leg my leg’ and she tried to get up which she described as being different from someone being accused of breaking or hurting her knee. Defence counsel submitted that Mr Benson’s evidence cannot be used to bolster Ms Platt’s evidence.
Defence counsel also referred to Ms Stephanie Rainbow and said her evidence was not particularly clear or helpful.
Defence counsel referred to the evidence from Mr Tatikynda and suggested that in cross examination he said he may have seen roots but he can’t recall and it might’ve been there. Defence counsel characterised his evidence as its entirely possible there was a tree root located at the left-hand side of the driveway.
Defence counsel also set out the evidence of both Christine Hamilton and Latoya Monaghan. I have considered the submissions, however I have indicated already that I reject both witnesses evidence as being contrived and untruthful.
Defence counsel also submitted that despite his right to silence the defendant gave evidence. Defence counsel indicated that he did so while suffering the effects of anxiety which impacted upon his ability to concentrate and more importantly explain things.
Defence counsel described his evidence as effective and credible and that I should accept it. Defence counsel set out some parts of his evidence particularly that he was not engaging in a fight or wanted to fight he was only protecting himself when he punched Mr Kennedy-Naden and denied touching saying he heard a scream turned around and saw Ms Platts on the ground.
Defence counsel submitted that it is for the prosecution to establish the elements of the offence beyond a reasonable doubt and in her submission they have failed to do so.
Defence Counsel submitted it is not Mr Law’s job to establish a reasonable doubt and it is not a matter of the court deciding whose evidence they prefer. Defence Counsel set out a passage from Liberato v The Queen[5], the essence of which is that if the evidence of the defendant is believed then a jury must acquit. Even if the trier of fact finds difficulty in accepting the evidence of the accused, but thinks it might be true then they must acquit. If the trier of fact does not believe the accused then they put his testimony to one side. The question remains has the Crown upon the basis of evidence that the trier of fact accepts, proven the guilt of the defendant beyond reasonable doubt.
[5] Liberato v The Queen (1985) 159 CLR 507
I accept that is the test I must apply to this matter.

DECISION

There are certain general directions that I must take into account. I have extracted these from R v Burdon [2011] ACTSC 90 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.
18. The Defendant gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.

I have given myself the warnings which I have set out above.
I find the following matters of fact:
a.Ms Platts sustained a very serious injury to her knee being a comminuted depressed left tibial plateau fracture and a left knee joint haemarthrosis;
b.The injuries sustained was caused by a kick to the knee;
c.It was a significant and serious injury;
d.I am satisfied Ms Platts has no history or diagnosis of osteoporosis;
e.The fracture cause required a significant force to be applied directly to the tibial plateau;
f.The evidence of Donna Platts, Stevie Greenaway and Drew Kennedy-Naden is consistent with the injury sustained by Ms Platts;
g.Their evidence Is consistent with the observation and utterances heard by the 2 independent witnesses immediately prior to and after the incident occurred;
h.The assertion that the story was made up for the purposes of compensation is ludicrous;
i.The evidence of Ms Hamilton and Ms Monaghan was very unimpressive and I took the view designed to bolster a motive for Ms Platts to lie about how she received the injury;
j.I formed the view both of them lied about the compensation issue;
k.The tree root story was made up to bolster the defendant’s version of events;
l.Photo D1 showing the position of the skip bin is consistent with other evidence.
The suggestion that as Ms Platts is injured in that very moment conjured up in her mind a plan to blame the defendant for the injury rather than the fact that she fell or tripped over a tree stump/route is completely ludicrous. Particularly knowing that the injury would have caused excruciating pain,
The evidence of the independent witnesses state that they heard someone say get away from me, the screaming and then my legs injured or broken supports the evidence that Ms Platts was injured by the defendant who pushed her to the ground and kicked her in the knee directly over the tibial plateau where the injury was sustained.
In relation to the evidence of the defendant, I reject his evidence completely. I also reject the evidence of both Ms Monaghan and Ms Hamilton. In my view they crafted their evidence to support the version of events given by the defendant. Their evidence is not supported by any other evidence. More importantly it is not supported by the independent evidence of the two witnesses who were the neighbours, the medical evidence and the evidence of Ms Platts, Ms Greenaway and Mr Naden-Kennedy.
I am satisfied beyond reasonable doubt that it was the defendant who pushed Ms Platts to the ground after she had come out when she heard Ms Greenway scream ‘Greg’ and saw Greg attacking her son. I am satisfied beyond reasonable doubt that Ms Platts said to him words the effect of ‘get away from my son’ and it was at this point in time that he pushed to the ground and kicked her in the knee which is consistent with the injury she sustained.
I find the offence proved.

I certify that the preceding two hundred and seven [207] numbered paragraphs are a true copy of the Reasons for Decision of Her Honour Special Magistrate Hunter

Associate: Cecilia Pascoe

Date: 31 October 2018