Heugh v Knight
[2017] WADC 84
•29 JUNE 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HEUGH -v- KNIGHT [2017] WADC 84
CORAM: STONE DCJ
HEARD: 30 MARCH-3 APRIL 2017
DELIVERED : 29 JUNE 2017
FILE NO/S: CIV 1407 of 2016
BETWEEN: TETYANA HEUGH
First Plaintiff
JOHN PHILLIP HEUGH
Second PlaintiffAND
GARRY KNIGHT
Defendant
Catchwords:
Torts - Trespass - Assault - Battery - Self-defence - Damages - Aggravated damages - Exemplary damages - Credibility - Turns on own facts
Legislation:
Criminal Code Act Compilation Act 1913 (WA) s 244, s 248, s 254
Result:
The first plaintiff's claim against the defendant is dismissed
The second plaintiff's claim against the defendant is dismissed
The defendant's counterclaim against the second defendant is dismissed
Representation:
Counsel:
First Plaintiff : Mr P G McGowan
Second Plaintiff : Mr P G McGowan
Defendant: Ms L B Black
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
Defendant: Hammond Legal
Case(s) referred to in judgment(s):
Carter v Walker [2010] VSCA 340
May v Thomas [2014] WASCA 176
Watkins v Victoria [2010] VSCA 138
STONE DCJ:
Introduction
In mid-February 2016 the acrimonious relationship between the Heugh family and their neighbours, the Knight family escalated from complaints about the noise from basketball playing late at night and the damage caused by basketballs bouncing over the fence, to mutual accusations of name calling, swearing and parking cars on each other's verge and into threats and physical confrontation.
The first plaintiff, Mrs Tetyana Heugh alleges that she was assaulted by Mr Knight on two separate occasions in the course of Mr Knight's trespassing onto the Heughs' property. She alleges assault and battery by Mr Knight on a subsequent third occasion in the course of Mr Knight's trespassing onto the Heughs' property, which resulted in a bruise on her upper left arm.
The second plaintiff, Mr John Phillip Heugh alleges assault and battery by Mr Knight on that third occasion in the course of Mr Knight's trespassing onto the Heughs' property which resulted in superficial cuts and bruising of his right wrist, left knee, left elbow and the top of his left shoulder. Alternatively, Mr Heugh claims in response to Mr Knight's counterclaim, that if any of his actions towards Mr Knight constituted an actionable assault or battery as a result of which Mr Knight was assaulted or injured, then he was acting in self-defence against Mr Knight.
The defendant, Mr Garry Knight denies Mrs Heugh's allegations of trespass, assault and battery. He also denies Mr Heugh's allegations of trespass, assault and battery. He alleges battery by Mr Heugh resulting in an undisplaced fracture to his right wrist. He contends in his counterclaim for damages for that injury, that if any of his actions towards Mr Heugh constituted an actionable assault or battery as a result of which Mr Heugh was assaulted or injured, then he was acting in self-defence against Mr Heugh.
Mrs Heugh claims damages (including aggravated and exemplary damages) for assault, trespass and battery arising out of the three incidents. She claims aggravated damages for mental distress, anxiety and fear for her safety. She claims exemplary damages because of Mr Knight's conduct.
Mr Heugh claims damages (including aggravated and exemplary damages) for assault, trespass and battery arising out of the third incident. He claims aggravated damages for mental distress, anxiety, fear for his safety and injury to his feelings. He claims exemplary damages because of Mr Knight's conduct.
Mr Knight claims damages for battery arising out of the third incident.
Legal principles
Torts of trespass, assault and battery
An action for the tort of trespass to land will lie against a defendant who, without the plaintiff's permission or licence, so much as sets foot on the plaintiff's land, unless the defendant's entry is justified in some way. The act complained of must have been done either intentionally or with a want of due care. The onus is on the defendant to prove an absence of intent or carelessness on his or her part: Halsbury's Laws of Australia, vol 26 [415 – 325], [415 – 335].
The tort of assault is an intentional offer of force or violence to the person of another, who reasonably believes that the threat will be carried out forthwith. The menace must be accompanied by an intention to raise in the mind of the person threatened an apprehension that violence is about to be committed: Halsbury's Laws of Australia, vol 26 [415 – 355].
The tort of battery is an act of the defendant which directly and either intentionally or negligently causes some offensive physical contact with the person of the plaintiff: Halsbury's Laws of Australia, vol 26 [415 ‑ 345].
The common law defence
The common law defence of self-defence was outlined by Martin CJ in May v Thomas [2014] WASCA 176 [37] – [38] as follows:
Self-defence at common law was succinctly described by Wilson, Dawson & Toohey JJ in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 661:
[T]he law of self-defence requires no set words or formula. The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.
The defence was explained in the civil context by the Court of Appeal of Victoria in Watkins v Victoria [2010] VSCA 138 [71] – [72]:
There are two elements to this test. In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be.
In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.
The Criminal Code defences
The application of defences provided by the Criminal Code ActCompilation Act1913 (WA) was summarised by Martin CJ in May v Thomas [21] as follows:
It is well established that (section 5) provides a defence against civil proceedings brought in respect of an act which is declared by the Criminal Code to be lawful. It is also established that the section does not otherwise alter the common law, so that defences available at common law are unaffected. To put it another way, if an act is declared lawful by a provision of the Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a statutory defence in addition to any existing common law defences.
In the circumstances of this case The Criminal Code defences that potentially had effect were as follows:
244. Home invasion, use of force to prevent etc.
(1)It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary —
(a)to prevent a home invader from wrongfully entering the dwelling or an associated place; or
(b)to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or
(c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is —
(i)attempting to wrongfully enter the dwelling or an associated place; or
(ii)wrongfully in the dwelling or on or in an associated place;
or
(d)to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.
(1A)…
(2)A person is a home invader for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person —
(a)intends to commit an offence; or
(b)is committing or has committed an offence,
in the dwelling or on or in an associated place.
(3)The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority.
(4)If under subsection (1)(c) it is lawful for the occupant to use a degree of force, it is lawful for another person acting in good faith in aid of the occupant to use the same degree of force to defend the occupant.
(5)This section has effect even if the conduct it authorises would not otherwise be authorised under this Chapter.
(6)In this section —
associated place means —
(a)any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and
(b)if the dwelling is one of 2 or more dwellings in one building or group of buildings, a place that occupants of the dwellings use in common with one another;
offence means an offence in addition to any wrongful entry;
place means any land, building or structure, or a part of any land, building or structure.
…
248. Self‑defence
(1)In this section —
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2)A harmful act done by a person is lawful if the act is done in self‑defence under subsection (4).
(3)…
(4)A person's harmful act is done in self‑defence if —
(a)the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b)the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c)there are reasonable grounds for those beliefs.
(5)A person's harmful act is not done in self‑defence if it is done to defend the person or another person from a harmful act that is lawful.
(6)For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
…
254. Place, use of force to prevent entry to and remove people from
(1)For the purposes of this section and section 255, the term place means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.
(2)It is lawful for a person (the occupant) who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary —
(a)to prevent a person from wrongfully entering the place; or
(b)to remove a person who wrongfully remains on or in the place; or
(c)to remove a person behaving in a disorderly manner on or in the place;
provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
(3)…
Damages
The principles governing the award of aggravated or exemplary damages were explained by Buchanan, Ashley and Weinberg JJA in Carter v Walker [2010] VSCA 340 [283] - [285] as follows:
Aggravated damages may be awarded where the defendant has acted, either in committing a tort or thereafter, with 'contumelious disregard' of the plaintiff's rights, in an insulting or high-handed way, or with malice. It is a key requirement that such conduct increased the plaintiff's suffering. The theory is that aggravated damages are compensatory.
Exemplary damages are damages over and above those necessary to compensate the plaintiff. They are awarded to punish the defendant. They are intended to act as a deterrent to the defendant, and to others minded to behave in a like manner. They are also intended to demonstrate the Court's disapprobation and denunciation of such conduct. Such damages may be awarded in respect of any tort that is committed in circumstances involving a deliberate, intentional, or reckless disregard of the plaintiff's rights. Often, they are sought in cases involving allegations against the police of assault and battery.
The law allows for both aggravated and exemplary damages to be awarded in respect of the same tort. It is necessary, however, in such cases, to be wary of overcompensation. There is a risk in awarding both compensatory and punitive damages, arising out of exactly the same wrongdoing, that the plaintiff will receive an unwarranted windfall. That risk is accentuated by the recognition that, in reality, there can be a punitive element in aggravated damages.
The issues
There was no legal dispute between the parties as to the application of the legal principles outlined.
This case turns on factual findings as to the occurrence of the issues in dispute between the parties applicable to these legal principles.
Non-contentious facts
In 2006 the Heughs and their children moved into 3 Stagg Court, Kardinya next door to the Knights and their children who lived in 5 Stagg Court.
The Knights' property was elevated and higher than the Heughs' property.
The backboard of the basketball hoop on the front lawn beside the driveway at the front of the Knights' residence faced the front and side of the Heughs' property. In the course of playing basketball, if a basketball hit the backboard or hoop then it could bounce over the dividing fence into the Heughs' property.
On the evening of 13 February 2016 the Knight family, the Mant family and the Ryan family were socialising at the Knights' residence. At the relevant times, the children present comprised Elloise Knight aged 19 years, Brodee Knight aged 16 years, Alyssa Mant aged 13 years, Hayden Ryan aged 16 years and Tristen Ryan aged 13 years.
In the early hours of 14 February 2016, following the events of 13 February 2016, the Heughs and Mr Mant separately called the police; the Heughs' photographed their injuries; the police attended upon the Heughs and the Knights; the police took photographs of Mr Heugh and Mr Knight.
On 15 February 2016 the Heughs obtained medical treatment.
On 16 February 2016 Mr Heugh photographed a bruise on Mrs Heugh's left shoulder.
On 17 April 2016 Mr Heugh photographed the injuries to his right wrist and left outer knee.
On 12 June 2016 Mr Heugh photographed Mr Knight erecting a netting basketball hoop using both hands and hammering with his right hand.
The evidence
The plaintiffs' case
Mr Heugh's evidence-in-chief was elicited by the tender of his witness statement. Mrs Heugh remained outside the courtroom during Mr Heugh's evidence. Mrs Heugh's evidence‑in‑chief was elicited by the tender of her witness statement.
On most material issues the statements comprising the evidence‑in‑chief of Mr Heugh and Mrs Heugh were in similar terms.
11 February 2016 incident
During the late morning of 11 February 2016, after speaking with Mrs Heugh, Mr Heugh wrote a note which he left in the Knights' letterbox:
Hi Garry and Colleen, Tatiana is getting very upset with your parking on our verge, your dog pooing on our lawn and alcohol bottles and tops being left on our lawn? Cheers, John.
At about 3.00 pm, whilst Mrs Heugh was gardening out the front, she had an exchange with Elloise about her friends parking their cars on the verge outside the Heughs' property. Elloise then went inside her home.
About five minutes later, whilst Mrs Heugh was closing her garage door, she saw Mr Knight rushing towards her. Mr Knight tried to duck under the closing garage door, which constitutes the first trespass to land claimed by Mrs Heugh against Mr Knight. As he did so he shouted, 'You are always complaining to my kids, you are a stupid cow', which constitutes the first assault claimed by Mrs Heugh against Mr Knight.
At about 5.00 pm Mr Heugh and Mrs Heugh heard very loud bashing/hammering and crashing on the front door, which constitutes the second trespass to land claimed by Mrs Heugh against Mr Knight. When Mr Heugh opened the front door Mr Knight and Mrs Knight were standing there. Mrs Heugh joined Mr Heugh.
Mr Knight shook the note in his hand close to Mr Heugh's face, shouting 'Did you write this?'. Mr Heugh said, 'I don't know, show me'. After reading the note aloud, Mr Heugh said, 'Yes I wrote this and it seems like a reasonable note to me'. Mr Knight said angrily, 'You've got to be kidding'. When Mrs Heugh invited them inside to discuss the issues, Mr Knight responded 'by shaking his fist with his pointing finger pointed at [Mrs Heugh's] face very close and yelling "I don't want to talk to this thing" ', which constitutes the second assault claimed by Mrs Heugh against Mr Knight.
After Mr Heugh intervened by putting his hand between Mr Knight's fist and Mrs Heugh's face, they discussed the Knights' complaints about cars parking on the verge outside the Knights' home, damage caused by Mrs Heugh to Elloise's friend's car and the Heughs' complaints about alcohol bottles and tops in the garden and the dog defecating on the lawn.
12 February 2016 incident
About 5.30 pm on 12 February 2016 Mrs Heugh had an exchange with Brodee about his basketball coming into her property. Mrs Heugh spoke from her bedroom window. Brodee was inside the Knights' property. When she said to Brodee, 'Maybe I should go and swim in your pool then', Mr Knight appeared saying, 'you are welcome'. Suddenly the basketball was thrown towards her. She grabbed the basketball from the garden and refused to return it. She complained that the basketball had smashed her plants, hit her windows and damaged their cars. Mr Knight said, 'Who do you think you are; you are immigration; go back to where you come from'. She said, 'Excuse me your English is not so good like mine and I am an immigrant here, not immigration'. When she went onto say, 'Do you know where I come from?', Mr Knight pointed to the ground and said, 'From some hole'. Mr Knight and Brodee were chanting 'immigration, immigration'. When Brodee started laughing she said:
Why are you laughing? You find something funny? Are you a boy with special needs, to go and cry and hold your mum's skirt for the rest of your life?
13 February 2016 incident
Shortly after 11.00 pm on 13 February 2016, Mr Heugh and Mrs Heugh awoke to the sound of what seemed to be a party at the Knights' home 'with a group of people conversing loudly, laughing and repeatedly making a lot of noise by bouncing what sounded like a basketball on the ground'. Around 11.20 pm or 11.25 pm the noise abruptly ceased. After about 5 – 10 minutes they saw 'a light of some sort shining in through the bedroom window underneath the partially lowered roller shutter blind' and they heard 'scratching and scrabbling noises in the gravel immediately under [the] bedroom window'. They 'thought it could be intruders trying to find a way in'. When Mr Heugh left their bedroom to investigate, Mrs Heugh looked under the partially closed roller shutters (of the bedroom window) and saw hands attempting to lift up the roller shutter on the outside of the window.
Mr Heugh went outside with a torch, via a side gate.
In the meantime, when Mrs Heugh left the house via the front door, she saw 'three young males' shining a light or a mobile phone under the roller shutters on the bedroom window. When she said 'What are you doing?' they ran to the driveway of the Knights' property. She recognised one of them as Brodee. After Brodee told her he was looking for his basketball, she gave him permission to do so.
When Mr Heugh arrived, he saw a young male (Brodee) standing on the front lawn close to Mrs Heugh. He thought Mrs Heugh may have been in danger and he did not know the young male. He was angry and said words to the effect, 'what the hell are you doing on our property at midnight?' . The young male said, 'I want my ball'. He said, 'Come back in the morning and you can get your ball'. The young male said loudly, 'I want my ball'. He was angry and said, 'get the fuck off my property or I will hammer your arse boy'.
At that stage Mr Heugh raised the torch's beam. He saw Mr Knight, Mr Mant and several other young people out the front of the Knights' home on the driveway. He shouted 'that they should shut down their basketball games so late at night'. The young male then walked off his property. At that time, Mr Knight leant across the dividing fence and shouted, 'Come over here and say that'. He replied, 'I am not going anywhere to say anything to anybody'.
Mr Knight and Mr Mant then ran across to the Heughs' verge lawn and were heading to their driveway.
From that point onwards, Mr Heugh is a witness to some material events not seen or heard by Mrs Heugh and she is a witness to some material events not seen or heard by him. For that reason, I set out below their respective evidence‑in‑chief.
Mrs Heugh's evidence-in-chief
By that stage Mrs Heugh had walked through the garden to the verge lawn close to the letterbox beside the driveway on the Heughs' property. As Mr Knight approached her, he 'elbowed [her] heavily and painfully in [her] left shoulder and pushed [her] violently to one side', which constitutes the third assault and the battery claimed by Mrs Heugh against Mr Knight. As Mr Knight continued to walk quickly towards the driveway, Mrs Heugh saw Mr Heugh standing near the letterbox inside the Heughs' property, which constitutes the third trespass to land claimed by Mrs Heugh against Mr Knight. Mr Heugh was facing Mr Knight. Mrs Heugh was distracted by Mr Mant shouting, 'I am in the police and you are going to be charged. I have recorded you'. Mr Mant was holding a mobile phone. Mrs Heugh heard 'a loud thump' behind her, groaning sounds from Mr Heugh and 'continued thumping sounds'. When Mrs Heugh turned, she saw Mr Heugh rolling backwards down the driveway with Mr Knight rushing after him. She then saw Mr Knight with a raised fist standing over Mr Heugh. Mrs Heugh turned to Mr Mant and yelled, 'You are in the police, if you are why don't you do something about this?'. Mrs Heugh then ran down the driveway to Mr Heugh who was lying on his back in front of the garage door. Mrs Heugh saw Mr Knight hit Mr Heugh at least once with a closed fist. Mrs Heugh then saw Mr Knight leaning over and attempting to punch Mr Heugh who put up his left arm to protect himself. Mrs Heugh grabbed Mr Knight's T‑shirt from behind and tried to pull him off Mr Heugh. Mr Knight stood up and turned to her with his fist raised. Mr Mant then grabbed her around the neck, pulled her back and said to Mr Knight, 'Stop it, enough'. Mr Knight dropped his fist.
Mr Heugh's evidence-in-chief
When Mr Heugh went to the letterbox to meet Mr Knight, Mr Knight continued barging forward at him, which constitutes the assault claimed by Mr Heugh against Mr Knight. Mr Heugh had to step back a metre or so inside his property to prevent physical contact. At that time Mr Mant shouted, 'You are gone, finished, it's all over for you, I am in the police, you are going to get charged for this'. After Mr Heugh put his left hand on Mr Knight's chest to stop Mr Knight coming further onto his property, which constitutes the trespass to land claimed by Mr Heugh against Mr Knight, he was 'king hit' in the left side of the head by Mr Knight's right fist, which constitutes the battery claimed by Mr Heugh against Mr Knight. Mr Heugh managed to put up his left arm and hand to protect himself but felt the force of the blow to the area comprised of his left cheekbone, in front of and above his left ear, and temple. The king hit and 'the continued assault' caused Mr Heugh to stagger and fall backwards and roll down the driveway about 7 m or 8 m. As Mr Heugh was falling and rolling down the driveway Mr Knight continued to punch him in the upper chest, which also constitutes the battery claimed by Mr Heugh against Mr Knight. Mr Heugh ended up lying on his back in front of the garage door. He was stunned. He felt he was paralysed and groggy. Mr Heugh had difficulty moving. Mr Heugh was trying to stand up and protect himself with his left arm against Mr Knight's attempts to punch him.
When Mr Knight turned to face Mrs Heugh while raising his right fist, Mr Heugh stood up. At that time Mr Mant shouted, 'No Garry, no. Enough'. Mr Mant took Mr Knight by his upper arm or shoulder and pulled Mr Knight away from his property. Mr Heugh noticed Mr Knight was wobbling and waving his right hand and wrist. He took hold of Mrs Heugh and they went inside their house.
During cross-examination, Mr Heugh said he was frightened that Mr Knight and Mr Mant might do something to him when Mrs Heugh was standing between Mr Knight and Mr Mant. He could not remember if he was frightened for Mrs Heugh (ts 106, 107).
Mrs Heugh's injuries
Mrs Heugh sustained bruising of her [upper] left outer arm as a result of being elbowed and pushed.
Mrs Heugh was 'frightened by [the] ongoing abuse and possibility of more attempted home invasions and personal injury' as a result of the events of 11 February 2016 and 13 February 2016.
Mr Heugh's injuries
Mr Heugh had bleeding cuts, grazes and contusions to the right wrist, left side of the knee, outside left elbow and surrounds and top of the left shoulder from hitting the brickwork driveway and he had some pain in the left thigh and buttock area. He treated the pain with Diclofenac for about a week. When his right wrist injuries turned septic he sought medical treatment.
Mr Heugh was 'for a time … in a state of shock and disbelief at the ferocity and violence of the attack upon [him] by Mr Knight'.
Mr Heugh suffered:
… considerable shock, pain and discomfort both physical and mental from … the attack and (feels) apprehensive whenever [he sees] Mr Knight or his vehicle driving by or parked out the front'. He no longer feels safe on his own property and fears that Mr Knight may assault him or his wife.
The defendant's case
The evidence-in-chief of Mr Knight, Mrs Colleen Knight, Brodee, Elloise and Mr Bradley Mant was elicited by the tender of their witness statements. When Mr Mant was called as the first defence witness, Mr Knight remained outside the courtroom during Mr Mant's evidence.
On most material issues the statements comprising the evidence-in-chief of Mr Knight, Mrs Knight, Brodee, Elloise and Mr Mant were in similar terms.
On the defendant's case the events of 11 February 2016, to which Mr Heugh and Mrs Heugh refer, occurred on 10 February 2016.
10 February 2016 incident
On the morning of 10 February 2016 Elloise observed that 'the rear tow ball of Mrs Heugh's car was pushed right up against the rear bumper of [her friend's] car' which was parked on the road beside the verge outside the Heughs' property. Elloise took photographs of the damage. Later that day when Elloise returned home, she was confronted by Mrs Heugh who complained about her friends' parking outside the Heughs' property, accused her of mocking her and threatened to throw rubbish on the Knights' lawn and hurt the Knights' dog. Elloise went home and told Mr Knight what happened. Elloise then followed Mr Knight to the top of the driveway near the Heughs' letterbox.
Mr Knight loudly told Mrs Heugh:
… not to abuse [his] children and if she had any issue with any of them she should come and see [Mrs Knight] and (himself)'. Mrs Heugh said 'not to speak to her and to speak to [Mr Heugh]' and 'World War 3 was going to erupt'.
Mrs Heugh closed her garage door.
Elloise heard the exchange between Mr Knight and Mrs Heugh which was along the lines of Mr Knight's evidence-in-chief about that incident, save for Mrs Heugh's statement about World War 3 erupting.
At some time on 10 February 2016 Mrs Knight was told by Elloise about Mrs Heugh's car reversing into her friend's car.
At about 4.30 pm when Mrs Knight arrived home from work she found the note in the letterbox. Thereafter her evidence-in-chief was in similar terms to that of Mr Knight's evidence-in-chief about what occurred when they went over to the Heughs' residence save that she did not say '[they] disposed of the [note]' before going there. I set out below Mr Knight's evidence-in-chief.
Mr Knight's evidence-in-chief
At about 4.30 pm Mrs Knight showed Mr Knight the note in the letterbox. The note was signed by Mr Heugh. The note stated:
[Mrs Heugh] was very upset about basketball bouncing, [the Knights'] dog pooing on her front lawn and for [the Knights] to stop visitors parking their vehicles on the road outside her house, before World War 3 erupted.
They disposed of the note. He went with Mrs Knight next door to speak with Mr Heugh.
When Mrs Knight knocked on the front door, Mr Heugh came outside. Mr Heugh invited them inside but they declined. Mrs Heugh also stood outside the door. Mr Knight asked Mr Heugh 'did [Mr Heugh] think that the only crime that had been committed … was [the Knights'] dog pooing on [Mr Heugh's] front verge'. He said 'the crime was that [Mrs Heugh] had earlier that day deliberately reversed her car into the rear of [their] daughter's friend's car that was parked on the road'. Mrs Heugh said 'the girl whose car it was needed to be taught a lesson'. Mr Heugh apologised saying 'the police did not need to be involved and he would pay for the damage if he was provided with the quotes'. When Mrs Heugh again said 'the girl needed to be taught a lesson', Mr Heugh told her to calm down. They concluded the conversation:
… by agreeing that the police would not be involved, [Mr Heugh] would pay for the damage to [the girl's] car and [the Knights] would ask all of [their] guests not to park on the roadside out the front of the [Heughs'] house.
12 February 2016 incident
Mr Knight gave viva voce evidence-in-chief that at the time of the incident on 12 February 2016, he was at work or on his way home. He never had an exchange with Mrs Heugh along the lines of that given in her evidence‑in‑chief.
I set out below Mrs Knight's and Brodee's respective evidence-in-chief about the incident that day.
Mrs Knight's evidence-in-chief
Around 5.00 pm Mrs Knight joined in with Brodee who was playing basketball out the front of their residence. When Mrs Heugh came out to water her garden, she said '[they] had better hope the ball didn't come over the fence because if it did and [they] tried to get it she would squirt [them]'. She called her 'a slow learner' and Brodee 'a special needs child'.
Brodee's evidence-in-chief
After the basketball went into the Heughs' property, Mrs Heugh told Brodee that he was 'disabled', Mrs Knight 'had mental disabilities' and she was 'going to throw stuff over the fence to harm [the Knights'] dog'.
13 February 2016 incident
During the early evening of 13 February 2016 the Knights, the Mants and the Ryans were on the rear balcony of the Knights' residence having pizza and drinking alcohol. Some of the children were out the front playing basketball.
I set out below the respective evidence-in-chief of the defence witnesses as the events unfolded.
Brodee's evidence-in-chief
At about 10.45 pm/11.00 pm Brodee, Hayden, Tristen and Alyssa were playing basketball at the front of the Knights' residence when the basketball went into the Heughs' property. He was standing on his side of the fence, using his mobile phone as a torch to assist Tristen and Alyssa who were in the Heughs' property looking for the basketball, when Mrs Heugh appeared. After Tristen and Alyssa jumped back over to his side of the fence, Mrs Heugh invited him into the Heughs' property to look for the basketball. After he entered the Heughs' property, Mr Heugh suddenly appeared and shone a torch light in his face. Mr Heugh said, 'maybe up to ten times', 'Get off my fucking property. What the fuck do you think you are doing?'. Mr Heugh yelled, 'You are not getting your fucking ball back'. He did not say anything in response. He told Mrs Heugh not to 'touch [him]' when she grabbed his arm and led him off the Heughs' property.
In the meantime Elloise had returned home from babysitting around 11:00 pm and she told the adults what was happening out the front.
Mr Mant's evidence-in-chief
After Elloise told them about an exchange between Mr Heugh and the children, Mr Mant followed Mr Knight to the front of the property where he saw Brodee and Hayden. Brodee said the basketball had gone over the fence into the Heughs' property. Mr Mant heard Mr Heugh say 'I have had enough. I am sick of this fucking bouncing of the ball at night. Youse are all a bunch of fucking cunts'. When Mr Knight walked over to the side fence, Mr Mant followed him. Mr Knight asked Mr Heugh to return the basketball. Mr Heugh screamed, 'You are not getting your fucking ball back'. He saw Mrs Heugh standing behind Mr Heugh who was waving around a long torch in his right hand. Mr Knight asked Mr Heugh 'to settle down', 'stop swearing in front of the kids' and 'meet up at his [the Heughs'] letterbox to talk'. Mr Knight told Mr Heugh 'he just wanted to talk with [Mr Heugh] away from the kids'.
Mr Mant followed a few metres behind Mr Knight as he walked outside the Knights' property and across the verge outside the Heughs' property. As Mr Knight walked along the verge, Mrs Heugh came out through her garden. Mrs Heugh tried to grab Mr Knight's left arm but 'he shrugged her hand away as he walked past her left side'. Mr Knight told Mrs Heugh 'not to touch him'. When Mr Knight stopped at the letterbox, Mr Heugh was about a metre from him. He was a few metres behind Mr Knight. Mr Knight said, 'Can we please have the ball back and we can talk further about it tomorrow'. Mr Heugh said, 'Fuck you. You are not getting the ball back'. As Mr Knight repeated 'they could talk about it further in the morning', Mr Knight turned to his right to walk away. 'At this point [Mr Heugh] suddenly rushed at [Mr Knight] from behind and hit [Mr Knight] with the torch to the back of the head and pushed [Mr Knight] at the same time', which constitutes the battery Mr Knight alleges against Mr Heugh. Immediately Mr Knight fell to the ground and as he did so, he put out his right hand to break his fall. As Mr Knight was getting up, Mr Heugh raised the torch above his shoulder. Mr Knight used his hands to push Mr Heugh in the chest, backwards. Mr Heugh stumbled backwards, lost his balance and fell down 'the heavy sloping driveway'. When Mr Heugh got to his feet, he yelled to Mrs Heugh to 'get inside'. He grabbed Mr Knight for a few seconds and then they walked back to the Knights' property. Before he went inside the residence, he yelled '[he] was going to call the police'.
Mr Knight's evidence-in-chief
Mr Knight confirmed Mr Mant's evidence-in-chief about his exchanges with Mr Heugh over the fence.
Mr Knight, followed by Mr Mant, made their way across the verge in front of the Heughs' property. When he walked along the verge towards the letterbox, Mrs Heugh came out through her garden in front of him. As he went to pass Mrs Heugh on her left side, she grabbed his left forearm with her left hand and he shrugged her hand away. He asked Mrs Heugh not to touch him and he told her she was not allowed to do so. He stopped when he got to the letterbox. Mr Heugh who was about a metre away, screamed, 'Stop. You are not coming onto my property'. He told Mr Heugh 'to calm down',' [he] wasn't going to come onto [Mr Heugh's] property', 'John, I just want to get the ball back then the kids will come inside' and 'to stop swearing at and abusing the kids'. Mr Heugh yelled, 'Get off my fucking property you cunt'. At that stage Mrs Heugh was standing behind Mr Heugh. Mr Mant was standing behind him. Mr Heugh said, 'This is my property. You're not coming on my fucking property'. He or Mr Mant said 'the verge was council property'. He apologised 'about the kids playing basketball' as he had gone out earlier that night and they had stopped but he did not know they started playing again on the driveway. He asked for the return of the basketball and they could talk further the next morning. Mr Heugh said 'fuck off'. As he turned to his right to walk away from Mr Heugh, he said 'Okay John you are not going to be reasonable, we can sort this out in the morning'. He said he:
… only managed to take about half a step away from [Mr Heugh], when [he] was pushed in the [left side of the] back and felt a hard blow (from a metal object [torch] to the left side of the back of [his] head ... The push and the force of the blow caused [him] to drop to the driveway … [he] put out [his] right hand to try and break [his]fall … [His] right hand took the brunt of the fall as it hit the driveway, which constitutes the battery Mr Knight alleges against Mr Heugh.
As he managed to get to his feet, Mr Heugh approached him and he heard Mr Mant say, 'that's assault. You just assaulted him'. Mr Heugh's left fist was clenched and he was holding the torch in his right hand above his shoulder. He immediately reacted by pushing Mr Heugh back away from him with his two open hands to Mr Heugh's left/middle chest/shoulder area because 'it was obvious to [him] that [Mr Heugh] was going to try and hit [him] again'. Mr Heugh fell to the ground, he said, 'you fucking cunt, fuck off my property'. When Mr Heugh got to his feet he yelled to Mrs Heugh to get inside. He was grabbed by Mr Mant and returned to his property.
Mrs Knight's evidence-in-chief
When Mrs Knight went outside and over to the side of the fence, she heard Mr Heugh say 'you are not getting your fucking basketball back, you fucking cunts'. She then heard Mr Mant say, 'that's an assault I'm ringing the police'. She did not see what happened between Mr Knight, Mr Heugh and Mrs Heugh.
The continuation of Brodee's evidence-in-chief
Brodee confirmed Mr Mant's evidence‑in‑chief about Mr Knight's exchanges with Mr Heugh over the fence.
Brodee followed Mr Knight and Mr Mant across the verge towards the Heughs' driveway. He could not remember if Mrs Heugh came out of her garden and approached Mr Knight. When Mr Knight stopped at the letterbox where Mr Heugh was standing holding a torch, Mr Mant was behind Mr Knight and he was a few metres further back standing on the edge of the verge and the road. When Mr Knight asked if the basketball could be returned and the matter sorted out tomorrow, Mr Heugh screamed 'it was all about the basketball'. Mrs Heugh was standing behind Mr Heugh. As Mr Knight said, 'Ok John you are clearly not in the mood for reasoning, we will leave it and can speak about it tomorrow', Mr Knight turned to his right and Mr Heugh 'suddenly took a few steps forward and raised his right hand above his shoulder and struck [Mr Knight] hard to the left side of the back of [Mr Knight's] head, with the torch which he still had in his right hand' and pushed Mr Knight 'in the left side of Mr Knight's back with his left hand'. Mr Knight 'fell straight to the ground' and 'tried to break his fall by reaching out with his right hand onto the driveway'. As Mr Knight got to his feet, Mr Heugh approached with the torch raised above his shoulder and screamed. Mr Knight pushed with both hands open Mr Heugh's chest. Mr Heugh went backwards, lost his balance, fell down and rolled down the driveway. When Mr Mant grabbed Mr Knight, Mr Mant told Mr Heugh, 'You have just assaulted Garry and we are calling the police'.
Elloise's evidence-in-chief
Elloise confirmed Mr Mant's evidence-in-chief about Mr Knight's exchanges with Mr Heugh over the fence.
From the Knights' driveway, Elloise saw Mr Knight walk towards the letterbox. She heard an exchange between Mr Knight and Mr Heugh about the basketball. She then moved to the top of the Knights' driveway near the road, where she saw Mr Knight on the roadside of the Heughs' property outside the Heughs' property line. As Mr Knight turned towards the Knights' property, Mr Heugh went forward, hit Mr Knight in the back of the head from behind with a torch in his right hand and pushed him with his other hand. She ran inside before Mr Knight got up.
Mr Knight's injuries
Mr Knight suffered a sore head, a painful fractured right wrist and a sore right ankle.
Analysis of the evidence
Mrs Heugh
Mrs Heugh had a tendency to exaggerate and she did not present as a convincing witness on material issues for the reasons as follows.
Firstly, Mrs Heugh's evidence during cross-examination about the events of 11 February 2016, that Mr Knight put his hand under the garage door and looked under it was not entirely consistent with her evidence-in-chief that 'he tried to duck under the closing garage door to come inside [her] house'. Her evidence during cross-examination suggested that Mr Knight's actions went much further and were more sinister than her evidence-in-chief which suggested an attempt only to gain entry.
Secondly, Mrs Heugh's evidence-in-chief about her fear of Mr Knight trying to gain entry to her home via the garage door and hearing 'a very loud crashing and hammering on the front door' during the events of 11 February 2016 seemed implausible in light of her invitation to the Knights, shortly thereafter, to enter her home to talk. Her explanation, that she only invited them inside because of the presence of Mr Heugh and Mrs Knight, did not accord with the evidence-in-chief of her earlier invitation that afternoon to Mr Knight to come over. During the garage door incident, Mrs Heugh said to Mr Knight, 'I am not going to talk to you. You can come later and talk to my husband'. Further, having regard to the undisputed history of their openly hostile neighbour relationship, if Mrs Heugh truly feared Mr Knight, he had called her 'a stupid cow' a few hours earlier and he was hammering on her front door, then it seems unlikely she would have extended the invitation for him to enter her home because she now felt safe.
Thirdly, Mrs Heugh's evidence during cross-examination about the events of 12 February 2016, that Brodee came over to her property to pick up the basketball and he told her to 'fuck off' contradicted her evidence-in-chief which made no mention of his presence on her property or his telling her to 'fuck off'. Her evidence during cross-examination suggested that Brodee's actions were more offensive on that occasion.
Fourthly, Mrs Heugh's evidence during cross-examination about the events of 13 February 2016, that before Mr Knight elbowed her, she said, 'what are you doing on my property?' but he ignored her, appeared to be an attempt by her to bolster her claim of trespass to land by Mr Knight on that occasion. This evidence contradicted her evidence-in-chief which made no mention of her saying anything to Mr Knight before he elbowed her. This evidence also contradicted her evidence-in-chief which seemed to suggest that after the elbowing and at a point later in time, Mr Knight was on her property in the vicinity of the garage.
Fifthly, Mrs Heugh's evidence-in-chief that she was 'frightened by [the] ongoing abuse and possibility of more attempted home invasions and personal injury' was contradicted by the evidence of her behaviour and conduct after the events in February 2016. During cross-examination Mrs Heugh agreed she threw dog faeces on the Knights' driveway in April 2016 and she threatened to use a knife to cut a basketball that came into her property in December 2016.
I attach no weight to the submission by Mr Knight's counsel that the evidence of what Dr Rose recorded Mrs Heugh saying as to how the bruising happened was inconsistent with Mrs Heugh's evidence-in-chief. Mrs Heugh's evidence during cross-examination to the effect that she told Dr Rose that she had been elbowed but he had recorded in his notes that she was 'grabbed from behind and bruised over the left shoulder about 50 mm' seemed plausible.
Mr Heugh
Mr Heugh did not present as a reliable witness on material issues for the reasons as follows.
Firstly, Mr Heugh's evidence during cross-examination about the events of 13 February 2016, that he did not recognise Brodee seemed implausible. Mr Heugh accepted he had seen Brodee playing basketball at the front of the Knights' property, he had probably seen Brodee many times before and they had lived alongside each other for 10 years.
Secondly, Mr Heugh's evidence during cross-examination that, at the letterbox, he said to Mr Knight, 'Stop. This is my property; you can't come on my property'. He put his left hand on Mr Knight's chest, pushed Mr Knight back a little, about six inches and repeated, 'No, you can't come any further. This is my property'. This evidence contradicted Mr Heugh's evidence‑in‑chief that at the letterbox he had to step back a metre or so inside his property to prevent physical contact.
Thirdly, Mr Heugh's evidence-in-chief, that at the letterbox, he had to step back a metre or so inside his property to prevent physical contact. Mr Heugh agreed his statement, in an affidavit he made in support of an application for an interim violence restraining order, that Mr Knight pushed him backwards a metre or so inside his property was inconsistent with that evidence.
Fourthly, Mr Heugh's evidence, during cross-examination, that at the letterbox, he said to Mr Knight, 'Stop. This is my property; you can't come on my property'. He put his left hand on Mr Knight's chest, pushed Mr Knight back a little, about six inches and repeated, 'No, you can't come any further. This is my property'. Mr Heugh agreed his statement, in an affidavit he made in support of an application for an interim violence restraining order, that Mr Knight pushed him backwards a metre or so inside his property was inconsistent with that evidence.
Fifthly, Mr Heugh's concession, during cross-examination, that he exaggerated his description of 'the king hit' in his evidence before the Magistrates Court in the proceedings for a [final] violence restraining order. In the Magistrates Court Mr Heugh testified that the blow 'felt like a sledgehammer had hit the side of [his] head'. Initially he claimed during cross‑examination that description of the blow was a very slight exaggeration but then agreed it was an exaggeration.
Sixthly, Mr Heugh agreed, during cross-examination, his claim for loss and damage for sustaining 'bruising to left side of head' in his particulars of damage was inconsistent with his evidence that there was no bruising to the left side of his head depicted in the photographs taken of his injuries and he did not suffer a bruise to that area. He saw some slight redness to the left side of his head depicted in the photographs taken of his injuries by the police.
Seventhly, Mr Heugh's evidence-in-chief that Mr Knight continued to punch him in the upper chest as he was rolling down the driveway. Mr Heugh agreed he made no mention of being punched while rolling down the driveway in his police witness statement which was inconsistent with that evidence. I have attached very little weight to that prior inconsistent statement because Mr Heugh could not remember if he told the police about being punched while rolling down the driveway and the police failed to record it.
Eighthly, Mr Heugh's evidence-in-chief and evidence during cross‑examination about the impact of the blow to the left side of his head. Mr Heugh's concession, during cross-examination, that he made no mention of a head injury in his affidavit in support of an application for an interim violence restraining order, was inconsistent with that evidence. Further, that concession made his evidence-in-chief and evidence during cross-examination about the impact of the blow to the left side of his head less believable.
Ninthly, Mr Heugh's evidence-in-chief and evidence during cross‑examination about the impact of the punches to his upper chest. Mr Heugh's concession, during cross-examination, that he made no mention of chest injuries in his affidavit in support of an application for an interim violence restraining order, was inconsistent with that evidence. Further, that concession made his evidence-in-chief and evidence during cross-examination about the impact of the punches to his upper chest less believable.
Tenthly, Mr Heugh's evidence-in-chief that Mr Knight continued to punch him in the upper chest as he was rolling down the driveway. Mr Heugh's concession, during cross-examination, that he made no mention of being punched while rolling down the driveway in his evidence before the Magistrates Court in the proceedings for an interim violence restraining order, was inconsistent with that evidence.
Eleventhly, Mr Heugh's evidence during cross‑examination that Mr Knight punched him to the upper body area making contact, whilst he was lying on his back at the end of the driveway, contradicted his evidence‑in‑chief that Mr Knight only attempted to punch him at that location.
Twelfthly, Mr Heugh's evidence during cross-examination that Mr Knight punched him to the upper body area making contact, whilst he was lying on his back at the end of the driveway. Mr Heugh agreed he made no mention of that evidence in his police witness statement, his affidavit in support of an application for an interim violence restraining order, his evidence before the Magistrates Court in the proceedings for an interim violence restraining order and his evidence before the Magistrates Court in the proceedings for a (final) violence restraining order.
Mr Mant
Mr Mant did not present as a convincing witness on material issues for the reasons as follows.
Firstly, Mr Mant's agreed during cross-examination that whilst sitting on the balcony Mr Knight told him about difficulties or problems with the Heughs during the course of the previous week. When pressed about that he said Mr Knight told him about a car reversing into their daughter's friend's car. He could not explain why he stated in his police witness statement 'there have been issues with the neighbours this week'.
Secondly, Mr Mant agreed during cross-examination that his statement in his police witness statement, that '[Mr Heugh] pushed [Mr Knight] in the chest and punched [Mr Knight] with a closed fist to the back of the head', made no reference to a torch and was entirely inconsistent with his evidence-in-chief that Mr Heugh rushed Mr Knight from behind, hit Mr Knight with a torch to the back of the head and pushed Mr Knight from behind. Mr Mant's attempt in re‑examination to explain what he meant was not convincing 'it was more the fist [that hit the head] because the torch was in the hand'.
Thirdly, Mr Mant's explanation during cross-examination that as Mr Knight was turning on a 45 degree angle, he was pushed in the side of the chest and he was struck on a 45 degree angle in the back side of the head, also contradicted his evidence-in-chief that Mr Knight was pushed from behind and struck to the back of the head.
Fourthly, Mr Mant agreed during cross-examination that the evidence he gave during cross-examination that when he got out the front he saw Alyssa and Brodee contradicted his evidence-in-chief that he saw Brodee and Hayden.
Fifthly, Mr Mant agreed the evidence he gave during cross‑examination that Mr Knight 'apologised [for] the kids bouncing the ball this time of night' contradicted his evidence-in-chief in that he made no mention of Mr Knight apologising.
Sixthly, Mr Mant agreed during cross-examination, that he made no mention in his police statement that Mrs Heugh grabbed Mr Knight's arm which was inconsistent with his evidence-in-chief that Mrs Heugh did so.
Mr Knight
Mr Knight did not present as a reliable witness on material issues for the reasons as follows.
Firstly, Mr Knight's evidence-in-chief that the note was disposed of before he and Mrs Knight went over to the Heughs' residence was contradicted by Mrs Knight's evidence during cross-examination, Mr Heugh's evidence and Mrs Heugh's evidence that Mr Knight had the note at the Heughs' residence. On this issue I preferred the evidence of Mrs Knight for the reasons I will refer to below.
Secondly, Mr Knight agreed, during cross-examination, that in his police statement he made no mention of any physical contact between Mrs Heugh and himself which was inconsistent with his evidence-in-chief that she grabbed his forearm with her hand and he shrugged her hand away.
Thirdly, Mr Knight agreed, during cross-examination, that in his affidavit in support of his application for a violence restraining order against Mrs Heugh, he attributed to her under the heading 'description of incident', 'extreme verbal abuse of my 16 y.o. son and physical abuse towards me by pushing me on public property', and he stated under the heading 'As a result of this incident I suffered the following injuries', 'sprained wrist' which was inconsistent with his evidence-in-chief that that Mrs Heugh grabbed his forearm and Mr Heugh caused his wrist injury. I attached little weight to this prior inconsistent statement, as I accept Mr Knight's explanation, that in his application for a violence restraining order against Mr Heugh, which was brought at the same time as that against Mrs Heugh, and in the proceedings before the Magistrates Court, he gave evidence of the actions of Mr Heugh which caused his wrist injury.
Fourthly, Mr Knight agreed, during cross-examination, that in the proceedings before the magistrate for a violence restraining order against Mrs Heugh, he gave evidence that Mrs Heugh 'grabbed him, wrestled him, pushed him away', which was somewhat inconsistent with his evidence‑in-chief that Mrs Heugh grabbed his forearm.
Fifthly, Mr Knight could not explain, during cross-examination, his statement in his police statement that after he was struck to the back of the head by Mr Heugh he was 'pushed with two hands in the back' which was inconsistent with his evidence-in-chief that as he turned, he was struck with the torch to the head and pushed to the left side of the back.
Sixthly, Mr Knight agreed, during cross-examination, that in his police statement he did not mention his sore head which was inconsistent with his evidence-in-chief that he suffered a sore head.
Seventhly, Mr Knight's evidence during cross-examination that he was not aware of complaints that had been made about his children bouncing the basketball and it having bounced into the Heughs' property before the night of 13 February 2016. Further, if there was a complaint made to another member of his family about basketball bouncing or it going into the Heughs' property, he was never told about the complaint. This evidence contradicted his evidence‑in‑chief that on that night 'it was not unusual for the kids to play basketball on the driveway but we kept an eye on them doing it because of the previous complaints by [Mrs Heugh] and [Mr Heugh]'. This evidence that he was unaware of basketball complaints and his initial denial that Mrs Heugh showed him the note was contradicted by his evidence-in-chief that '[Mrs Knight] showed him (the note)' which mentioned, inter alia, that '[Mrs Heugh] was very upset about basketball bouncing'. His explanation that he drew a distinction between a formal complaint and something causing upset was artificial and implausible as the note/letter had been placed in an envelope in his letterbox.
Mrs Knight
Mrs Knight presented as a fairly reliable witness.
Mrs Knight's evidence about Mr Knight handling the note at the front door of the Heughs' residence was supported by the evidence of Mr Heugh and Mrs Heugh. As to what happened at the front door of the Heughs' residence, I preferred the evidence of Mrs Knight (to the extent that it was in similar terms to Mr Knight's evidence at [59] – [61]) to that of Mr Heugh and Mrs Heugh at [32] – [34] for the reasons outlined at [83] and because Mrs Heugh had a tendency to exaggerate and Mr Heugh was not reliable on material issues.
During cross-examination Mrs Knight readily agreed that prior to the events of 13 February 2016 she was aware of complaints concerning Brodee about the basketball going into the Heughs' property. She and Mr Knight had told Brodee to be careful with the basketball bouncing into the Heughs' property which also contradicted Mr Knight's evidence about that matter. On the evening of 13 February 2016 she told Brodee 'to be careful bouncing the ball and why he was not to play too late'.
Brodee
Brodee's evidence was flawed on some material issues for the reasons as follows.
Firstly, Brodee's evidence-in-chief made no mention of the presence of Mrs Knight during the exchange with Mrs Heugh on 12 February 2016.
Secondly, Brodee agreed during cross-examination that on 12 February 2016 Mrs Heugh complained about the basketball hitting her window twice, smashing the Heughs' plants and hitting the Heughs' cars. Further, Mrs Heugh also said 'Maybe I should go and swim in your pool then'. The entirety of this evidence was omitted from his evidence-in-chief.
Thirdly, Brodee's evidence during cross-examination that only Tristen Ryan and Alyssa Mant were playing basketball when it went over the fence contradicted his evidence-in-chief that 'the four of us were again playing basketball on the driveway of my house' when 'the basketball accidentally rebounded over the fence'.
Fourthly, Brodee's evidence during cross-examination whereby he initially claimed he saw the basketball go over the fence but then denied he did so, contradicted his evidence-in-chief that '[he] saw the ball rebound from the back board of the basketball hoop across the driveway and down into [the Heughs'] front yard'.
Fifthly, Brodee's evidence during cross-examination, whereby he initially stated that when Mr Heugh confronted him in the Heughs' property, he said 'I was just getting my ball back' contradicted his evidence-in-chief that he did not speak to Mr Heugh. I accept Brodee subsequently stated during cross‑examination he did not get a chance to speak with Mr Heugh because Mr Heugh 'continually screamed at [him]'.
Sixthly, Brodee's evidence during cross-examination, that before the police arrived he told Mr Knight about how he assisted Tristen and Alyssa to look for the basketball in the Heughs' property contradicted his evidence‑in‑chief because he made no mention of it.
Elloise
It was difficult to place much reliance on Elloise's evidence of her observations of what occurred in the vicinity of the letterbox.
During cross-examination Elloise said that whilst standing on the Knights' driveway close to the road the vegetation in front of the Heughs' property did not obstruct her view of the Heughs' letterbox. However, she then agreed that when she was standing on the Knights' driveway she was 'quite far away' from the bottom of the Heughs' driveway which 'slopes quite a lot' from the street down to the front of the Heughs' garage door.
Findings
Having made the findings referred to in [81] - [86] and [117], I am not persuaded that Mrs Heugh has established her claim against Mr Knight, on the balance of probabilities.
Having made the findings referred to in [81] - [86] and [88] - [100], I am not persuaded that Mr Heugh has established his claim against Mr Knight, on the balance of probabilities.
Having made the findings referred to in [101] - [115] and [118] ‑ [127], I am not persuaded that Mr Knight has established his counterclaim against Mr Heugh, on the balance of probabilities.
Conclusion
I dismiss Mrs Heugh's claim against Mr Knight. I dismiss Mr Heugh's claim against Mr Knight. I dismiss Mr Knight's counterclaim against Mr Heugh.
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