McCabe v Riechelmann

[2023] NSWDC 44

District Court

New South Wales

Medium Neutral Citation:

MCCABE v RIECHELMANN [2023] NSWDC 44

Hearing dates:

14 – 18 February 2022; 21 – 24 February 2022;
20 – 24 June 2022; 30 June 2022 (directions); 1 August 2022 – 2 August 2022; 12 September 2022 (written submissions - plaintiff); 26 October 2022 (written submissions - defendant); 8 November 2022 (written submissions – plaintiff in reply); 8 December 2022 (oral submissions)

Date of orders:

21 February 2023

Decision date:

21 February 2023

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

(1) Judgment for the plaintiff against the defendant in the Statement of Claim proceedings.

(2) Judgment for the plaintiff/cross-defendant against the defendant/cross-claimant in the Cross-Claim proceedings.

(3) The Cross-claim proceedings are dismissed against the plaintiff.

(4) The parties are to bring in agreed short minutes of orders reflecting these reasons within 14 days.

(5) The question of costs of the Statement of Claim proceedings and the Cross-claim proceedings are reserved.

Catchwords:

TORTS – battery – allegations of intentional battery by both plaintiff and defendant – whether throwing a glass of wine over a person constitutes a battery – whether intentional or negligent battery – self-defence – assault

EVIDENCE – standard of proof – need for persuasive evidence in relation to allegations of intentional battery with intent to cause injury – whether Court persuaded of either case of plaintiff or defendant on the evidence

Legislation Cited:

Civil Liability Act 2002 (NSW)

Evidence Act 1995 (NSW)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Cases Cited:

A v B [2021] NSWDC 491

Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176

Barton v Armstrong [1969] 2 NSWR 451

Briginshaw v Briginshaw (1938) 60 CLR 336

Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117

Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc [2020] NSWCA 294; (2020) 103 NSWLR 658

Fontin v Katapodis (1962) 108 CLR 177

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Goode v Angland [2017] NSWCA 311

Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187

Mason v Demasi [2009] NSWCA 227

Musa v Alzreaiawi [2021] NSWCA 12

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66

Nguyen v Tran [2018] NSWCA 215

Payne v Parker (1976) 1 NSWLR 191

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204

Raad v State of New South Wales [2017] NSWDC 63

Ramsey v Denton [2020] NSWDC 426

Ramsey v Denton [2021] NSWCA 310

Ray v Southon [2022] NSWCA 267

Saravinovska v Saravinovski(No 6) [2016] NSWSC 964

Slaveski v State of Victoria [2010] VSC 441

Southon v Ray [2022] NSWDC 32

State of New South Wales v Abed [2014] NSWCA 419

State of New South Wales v Ibbett (2005) 65 NSWLR 168; [2005] NSWCA 445.

State of New South Wales v McMaster [2015] NSWCA 228; (2015) 91 NSWLR 666

State of New South Wales v Ouhammi [2019] NSWCA 225

Watkins v State of Victoria (2010) 27 VR 543

William Leitch & Co Ltd v Leydon (1931) AC 90

Texts Cited:

D Villa, Annotated Civil Liability Act 2002 (NSW), Third Edition, 2018

Category:

Principal judgment

Parties:

David Terance McCabe (Plaintiff)
Julie Riechelmann (Defendant)

Representation:

Counsel:
J Dodd (Plaintiff)
J Morris SC and M Bridger (Defendant)

Solicitors:
McCabe Partners Lawyers (Plaintiff)
De Luca-Leonard, Solicitor (Defendant)

File Number(s):

2018/00365976

Publication restriction:

No

Table of contents

The pleadings

Amended Statement of Claim - paragraph 8

Further Amended Defence - paragraph 10

Further Amended Cross-Claim - paragraph 13

Amended Defence to Cross-Claim - paragraph 16

Background facts - paragraph 18

The oral evidence in the proceedings

The evidence of Mr Lavers - paragraph 47

The evidence of Mr Pusell - paragraph 81

The evidence of Mrs Pusell - paragraph 117

The evidence of the plaintiff, Mr McCabe - paragraph 144

The evidence of the defendant, Ms Riechelmann - paragraph 286

The evidence of Ms Melanie Wells - paragraph 396

The evidence of Ms Hart-Waters - paragraph 449

The documentary evidence

Plaintiff’s documents tendered

Videos and photographs - paragraph 465

Exhibit B - the plaintiff’s bundle of documents - paragraph 472

Medical reports and medical records - paragraph 483

The Plaintiff Mr McCabe - paragraph 484

The Defendant Ms Riechelmann - paragraph 485

Other documents - paragraph 512

Legal Principles Applicable

Principles relating to the torts of assault and battery and trespass to goods

The statutory scheme applicable - paragraph 514

The standard to be applied - paragraph 542

Submissions - paragraph 549

Consideration

Credit and reliability – principles applicable - paragraph 553

Credit and reliability of the witnesses - paragraph 562

Mr McCabe - paragraph 563

Ms Riechelmann - paragraph 568

Ms Wells - paragraph 580

Medical findings

Mr McCabe - paragraph 588

Ms Riechelmann - paragraph 592

Determination of and findings in relation to the central factual issues

The 3 June 2017 incident - paragraph 627

The 15 June 2018 incident - paragraph 633

The 31 March 2018 incident

Intoxication of relevant parties/witnesses on 31 March 2018 - paragraph 641

Phone Hand Injury Allegation - paragraph 647

How did Ms Riechelmann’s telephone get into the McCabe unit? - paragraph 655

The alleged deletion of videos from Ms Riechelmann’s phone - paragraph 658

The alleged torts of battery said to have been committed by Mr McCabe and Ms Riechelmann near the McCabe unit doorway on 31 March 2018 - paragraph 663

Assault - paragraph 682

Damages

Mr McCabe

2017 incident - paragraph 684

Second 2018 incident involving an assault - paragraph 686

31 March 2018 incident - paragraph 688

Ms Riechelmann - paragraph 696

General damages - paragraph 699

Aggravated and exemplary damages - paragraph 705

Interest on general and aggravated damages - paragraph 708

Past treatment expenses - paragraph 709

Future treatment expenses - paragraph 710

Future economic loss/loss of future earning capacity - paragraph 711

Assault - paragraph 712

Determination - paragraph 713

Judgment

1. These proceedings relate to the interaction between the plaintiff and the defendant on various dates in 2014-2018, but particularly in 2017 and 2018. Throughout this period, the plaintiff, Mr David McCabe, had as a friend a Mr Jon Lavers. From 2010 to 2018 (the precise date in 2018 is disputed), Mr Lavers was in an intimate personal relationship with the defendant, Ms Julie Riechelmann. It appears clear that for several years in this eight year period, the plaintiff, Mr McCabe, and the defendant, Ms Riechelmann, were not on good terms and had a very poor personal relationship. Mr McCabe thought that Ms Riechelmann was not a good partner for his friend Mr Lavers. Ms Riechelmann thought that Mr McCabe had too much influence over Mr Lavers, particularly in his dealings with her, and had insulted and belittled her and intimidated her on a number of occasions.

2. From the evidence, it appears that there were two physical incidents between Mr McCabe and Ms Riechelmann in 2014. Mr McCabe sought an apprehended violence order from Police against Ms Riechelmann which was applied for, and in due course granted, by Sutherland Local Court in December 2014. Ms Riechelmann did not defend the application.

3. In 2018, Mr McCabe commenced proceedings for damages against Ms Riechelmann in the Local Court by way of Statement of Claim based on four incidents said to give rise to alleged causes of action against her:

1. Ms Riechelmann allegedly assaulting the plaintiff by throwing a glass of wine on the plaintiff’s head and back on 3 June 2017. It is alleged that this constituted the tort of battery;

2. The plaintiff alleging that the defendant Ms Riechelmann assaulted and beat him at his home address at Ozone Street, Cronulla on 31 March 2018. It is pleaded that the defendant struck the plaintiff approximately three times to the face resulting in the plaintiff suffering redness around the upper face and scratches to the right arm. A battery is alleged. Mr McCabe later claimed in his oral evidence that Ms Riechelmann in fact hit him five times on this occasion;

3. The plaintiff alleged that the defendant damaged his motor vehicle on 31 March 2018, damaging the bumper bar to the car and leaving hand prints and damage on the boot, back window and on the bonnet. An action in trespass for the damage to the vehicle was brought by the plaintiff. The defendant alleges that the vehicle was repaired for other damage for whom a third party was responsible and therefore the plaintiff has suffered no loss. In due course, this claim was not pressed by the plaintiff, but the event remains relevant; and

4. The plaintiff alleges that the defendant assaulted him on 15 June 2018 by indicating that she was going to throw a glass of wine over the plaintiff. However, no wine was actually thrown over the plaintiff. Assault and battery are alleged.

4. An Amended Statement of Claim was filed with leave on 15 February 2022. In it, it was alleged that the acts of battery were intentional and done with intent to cause injury to the plaintiff.

5. The defendant, Ms Riechelmann, has filed a Further Amended Cross-Claim on 5 August 2022, seeking damages for the torts of battery and assault with consequential losses arising out of the incident on 31 March 2018. She has pleaded a completely inconsistent and contrary account of what occurred on that occasion to that given by the plaintiff.

6. A number of witnesses were called in the proceedings for each of the parties. The proceedings were hard fought and lasted for 18 hearing days. The original estimate of the parties when the matter was set down for hearing was five days. Fundamentally different accounts were given by the witnesses of what occurred on 31 March 2018. The Court, accordingly, is required to assess the credit and reliability of each of the witnesses in determining its factual findings.

7. It should be noted that at all relevant times, the plaintiff lived at xx Ozone Street in Cronulla in Unit 3 which was on the ground floor of a block of units (during the trial this was often referred to as the first floor). The defendant owned an investment unit on the floor immediately above the plaintiff (referred to in the trial as the second floor) but did not, herself, reside in the unit. It was rented out at the time. Mr Lavers resided in a unit on the floor above the defendant’s investment unit (described during the trial as the third floor).

The pleadings

Amended Statement of Claim

8. The plaintiff filed a Statement of Claim in the Local Court on 23 November 2018. In paragraphs 1 to 4, the various causes of action arising from the events described above are pleaded. As stated above, an Amended Statement of Claim was later filed alleging intentional batteries with the intent of causing injury to the plaintiff. An assault was also alleged. It was made clear in his opening by counsel for the plaintiff, that it was submitted that the case fell within s 3B of the Civil Liability Act 2002 (NSW) (CLA) and was thus to be determined under the common law. This was confirmed in the final written submissions.

9. The plaintiff alleges that as a result of the defendant’s conduct in the intentional acts of battery and assault, he has suffered loss and damage including trauma and abrasions to his face and psychological symptomatology.

Further Amended Defence

10. A Further Amended Defence was filed by the defendant in this Court on 15 February 2022. In relation to the allegation of a battery in paragraph 1 of the Amended Statement of Claim, the defendant says that this was an act of self-defence arising out of the conduct and behaviour of the plaintiff towards the defendant and was in any case negligent and not intended to cause injury.

11. In relation to the events of 31 March 2018, the defendant pleads that it was the plaintiff who hit her, not the other way around. It is pleaded that the plaintiff placed himself in front of her and struck her on the right hand thereby knocking her mobile phone out of her hand. It is then pleaded that the plaintiff subsequently hit her, and she involuntarily reacted in seeking to protect herself: see paragraphs 5-8. Self-defence is also pleaded.

12. In relation to the allegation of attempting to throw a glass of wine, this is denied by the plaintiff. It is pleaded that it was not an assault or a battery, was not intended to injure and was not intended to cause any apprehension of harm.

Further Amended Cross-Claim

13. On the application of the defendant, Ms Riechelmann, the proceedings were transferred to the District Court. This was consented to by the plaintiff.

14. In a Further Amended Cross-Claim filed on 21 February 2022, the defendant puts forward her alternate version of the events of 31 March 2018 and claims damages for an intentional battery by the plaintiff and for an assault. It is alleged that she suffered bruising as a result of the battery, and also has suffered a consequential depressive order and post-traumatic stress disorder (“PTSD”) which has diminished her capacity to work. Economic loss damages are sought.

15. Leave was granted on 1 August 2022 to file an amended version of the Cross-Claim which added, as an alternative, a different battery consistently with the oral evidence of Ms Melanie Wells which will be discussed further below: see paragraph 1(v). This was subsequently filed on 5 August 2022. Aggravated damages are sought.

Amended Defence to Cross-Claim

16. The plaintiff filed an Amended Defence to the Further Amended Cross-Claim on 15 February 2022. In essence, he denies the allegations made by the defendant and also denies that she has suffered any injuries including any requirements for medical treatment, counselling and future medical assistance. In the alternative, the plaintiff says that any actions on his part were in self-defence to the assault and battery committed by the defendant on him. In the further alternative, it is pleaded that his actions were not done with the intent to cause injury to the defendant.

17. It may therefore be seen that there are substantially different factual accounts by the plaintiff and the defendant as to what occurred, including in the principal incident on 31 March 2018.

Background facts

18. Although a number of matters are heavily in dispute between the parties, a number of factual issues were not disputed. In addition, a number of matters became clear from the evidence during the hearing. In due course, I will make factual findings to the extent possible on some of the central issues. What follows are my factual findings on other matters or a recitation of matters not in dispute between the parties.

19. Both the plaintiff and the defendant were born in 1963. They were both nearly 59 years of age at the commencement of the final hearing. The plaintiff is a solicitor who practices partly in the southern area of Sydney and partly in the country. The defendant was a former Qantas flight steward. The defendant took redundancy from Qantas in early 2021 and left that company. There is no evidence she is currently in employment.

20. In July 2010, the defendant, Ms Riechelmann, commenced an intimate personal relationship with Mr Jon Lavers, a friend of the plaintiff, Mr McCabe. Prior to this, the defendant had been in a lengthy marriage. It is alleged by the defendant in her evidence that the defendant’s former husband excessively consumed alcohol which caused substantial difficulties in the relationship. I accept that evidence.

21. The evidence discloses that the defendant had been consulting with a psychologist, Ms Brennan, since January 2014 and was diagnosed as suffering from depression. In due course, from at least January 2015, the plaintiff was prescribed antidepressants, Zoloft, by her general practitioner. The dosage was increased in early 2018. By early 2015 the defendant was seeing a psychologist and a hypnotherapist to assist her with her depression and anxiety problems, including her reaction to the plaintiff, Mr McCabe.

22. On 22 March 2019, a Notice to Admit Facts and Authenticity of Documents was served by the solicitor for the plaintiff on the defendant. A number of matters arise as admissions through the failure by the defendant to respond to that Notice.

23. In September 2014, the defendant intentionally hit the plaintiff’s face at a restaurant/bar although the degree of force used is disputed. The defendant claims it was a friendly gesture. On 12 October 2014, the defendant intentionally slapped the face of the plaintiff in anger. It seems the slap was with at least moderate force. As indicated above, the New South Wales Police sought an apprehended violence order against the defendant which was made by the Local Court on 12 December 2014 in relation to the defendant for a period of 12 months. Shortly prior to that, the defendant purchased an investment unit at the address where the plaintiff and Mr Lavers lived at xx Ozone Street in Cronulla.

24. The apprehended violence order made by the Local Court caused some difficulties for the defendant because of the fact that the plaintiff and Mr Lavers lived in the same block of flats. The defendant alleges that the plaintiff, Mr  McCabe, criticised her to Mr Lavers and frequently denigrated, belittled and insulted her. She consulted her general practitioner and was prescribed antidepressants as referred to above. In early 2015, the defendant’s general practitioner, Dr Zobair, referred the defendant again to Ms Brennan, psychologist. The opinion was expressed by Ms Brennan in her report dated 3 March 2015 that the defendant was suffering from depression which had “recently been exacerbated by conflict in her personal relationship”. It was agreed with the defendant that she would benefit from receiving regular counselling with Ms Brennan.

25. It appears that in 2015-2016 there were incidents of interpersonal conflict between the plaintiff and the defendant including allegations by the defendant that the plaintiff was staring at her during social occasions. In late 2016, there was a series of highly critical emails exchanged between the plaintiff and the defendant.

26. On 3 June 2017, the defendant, Ms Riechelmann, threw a glass of wine over the plaintiff’s head and back. The defendant admitted throwing the wine but asserted that the glass of wine was thrown at the plaintiff in self-defence and negligently. The plaintiff made a complaint to New South Wales Police in relation to this matter. The defendant refused to be interviewed and the Police decided to take no action because of an alleged insufficiency in evidence.

27. There is a dispute between the parties whether in or about March 2018, Mr Lavers terminated his relationship with the defendant. The defendant says that he had not taken this step at that time. The plaintiff said that he had. It is not necessary to determine the accuracy of either account. I accept that there were at least real problems in the relationship between the defendant and Mr Lavers as at 31 March 2018.

28. As at 31 March 2018, the plaintiff, who was a divorced man, was in an intimate personal relationship with a Ms Melanie Wells. Ms Wells and her two children lived with the plaintiff at his unit in Ozone Street in Cronulla. Earlier in the evening on that day, the plaintiff, Ms Wells and her children attended a 60th birthday function for a third party. The defendant, Ms Riechelmann, did not attend the function. Mr Lavers did.

29. Apparently, one of Ms Wells’ children left a bag at the function and she returned with her daughter and another child to collect the bag. Mr McCabe returned to the units with Ms Wells’ male child.

30. It seems clear, and I find, that on the evening in question, Mr McCabe, the plaintiff, Ms Wells, and the defendant had all consumed alcoholic drinks during the course of the evening. The precise number of alcoholic drinks consumed by each was in dispute and cannot be accurately determined on the evidence. I will consider this issue further below.

18. When Mr McCabe returned with the male child of Ms Wells to his unit, he was informed by a Mr Pusell, who lived in the unit next door with his wife and child on the ground floor, that the defendant, Ms Riechelmann, was in the building and had been knocking for some time on the door of Mr Lavers’ unit on the third floor. It appears from the evidence that Mr Lavers was actually at the unit in bed at the time but did not wish to answer the door and see Ms Riechelmann. I am satisfied from the evidence and find that Mr Pusell went up to Ms Riechelmann on the third floor and said that it did not appear that Mr Lavers was at home and she should cease knocking on his door. I prefer his evidence on this issue to that of Ms Riechelmann. Mr Pusell was an independent witness. Despite this, Ms Riechelmann continued to intermittently knock or bash loudly on the door of Mr Lavers’ unit, including with a brass door knocker.

19. There are a number of videos and audio recordings in evidence of events which occurred on 31 March 2018: see Exhibit A. Unfortunately, these recordings do not record all of the details of the interactions between the parties on that evening. However, what seems clear is that Mr McCabe took it upon himself to call out to the defendant Ms Riechelmann to “go home” as she was disturbing the residents in the block of units, particularly the children. There then eventuated an extensive verbal altercation between the plaintiff and the defendant. On a number of occasions, the plaintiff told the defendant to “go home”. The defendant, Ms Riechelmann, responded in robust terms using colourful and obscene language and suggested to the plaintiff that he should go away and let her be.

20. After some considerable further knocking on Mr Lavers’ door (the exact period of time being disputed and unable to be ascertained with any accuracy), the defendant came down the stairs filming with her telephone camera and there was a verbal and, ultimately, a physical confrontation between the plaintiff and the defendant. Some of this is recorded. The Court will set out the alternative versions further in these reasons.

21. Mr McCabe had rung the Police at Cronulla and complained about the defendant’s conduct. Following a further altercation between the plaintiff and the defendant, Mrs Pusell apparently used the defendant’s mobile telephone, which had fallen to the floor (how was factually disputed), to call the Police again to request their attendance. Ms Wells, at a later stage, actually attended the Cronulla Police Station to request Police attendance on an urgent basis. The circumstances in which she did so are disputed.

22. In due course, the Police attended at the premises. Before their attendance, it is alleged that the defendant damaged the plaintiff’s motorcar which was parked near to the units.

23. There is an extensive dispute about Ms Wells’ account of what occurred. The defendant says that she (Ms Wells) initially told the Police that the plaintiff was choking Ms Riechelmann and that he had overreacted and was “out of line”. However, a written and signed statement was provided to Police in due course by the plaintiff, signed by Ms Wells, partly retracting that suggestion, and stating that upon her observation the plaintiff had acted reasonably.

24. In due course, signed statements were provided to Police by the plaintiff and Mr and Mrs Pusell (all prepared in draft by the plaintiff) suggesting that it was the defendant who was the aggressor and that the plaintiff had acted reasonably.

25. On 5 April 2018, the defendant consulted her general practitioner, Dr Begum.

26. Dr Begum records in his consultation notes certain bruises which he found on the defendant’s body including on her knee, chest, back and arm. He is not recorded as finding any bruises on the defendant’s neck or throat. Ms Riechelmann gave evidence that she did not have any bruises on her neck despite claiming that she was choked and strangled by Mr McCabe. See also Exhibit G. She also did not dispute the contents of Dr Begum’s notes.

27. Eventually, faced with different accounts of what had occurred on 31 March 2018, the Police decided to take no further action in relation to the matter: Exhibit 3, page 160.

28. In 2018, the plaintiff consulted his general practitioner and a psychologist in relation to alleged psychological sequelae from the confrontation with the defendant. Later, in 2019-2021, the defendant consulted her general practitioner and a psychiatrist in relation to alleged psychological injuries arising from the incident.

29. On 15 June 2018, the defendant and the plaintiff were present with various other people at the Cronulla RSL Club. I am satisfied and find for reasons which I set out below that the defendant had a glass of wine in her hand and made a movement clearly indicating that she was going to throw the glass contents over the plaintiff. However, no wine (or other liquid) was actually thrown on the plaintiff. I am satisfied from the evidence that there was a physical altercation between the defendant and Mr Lavers and the defendant was asked by security personnel to leave the Cronulla RSL Club and was escorted from that club.

30. The relationship between the plaintiff and Ms Wells had its own significant problems. It is not in dispute that at some stage in late 2018 Ms Wells “keyed” the plaintiff’s car causing some significant damage to its outside panels: see Exhibit 3 page 113. Initially, the plaintiff thought it was Ms Riechelmann who caused the damage and reported it to Police. However, Mr Lavers had filmed Ms Wells damaging the plaintiff’s car with a key. Eventually, Ms Wells was charged with an offence of malicious damage. The plaintiff retained a legal practitioner on behalf of Ms Wells to appear for her at the court hearing. Whilst the offence was found to have occurred (it was not denied by Ms Wells), the court did not proceed to record a conviction. In due course, the relationship between Ms Wells and the plaintiff collapsed. Ms Wells now asserts, in a second statement signed in 2020, a contrary account of the night of 31 March 2018 to that given by her in her initial written statement dated 20 May 2018. She says, in substance, that she agreed to change her initial oral statement to Police because of pressure from the plaintiff. In her second statement, she very seriously alleges that the plaintiff “strangled” the defendant.

31. Ms Wells paid a sum of money to the plaintiff to repair his car. It thus seems to be the case that any damage to the car caused by Ms Riechelmann, was repaired and paid for by Ms Wells. The plaintiff ultimately did not press this aspect of his claim (T506.48).

32. In October 2018, the defendant sold her unit at xx Ozone Street, Cronulla. In September 2020, the proceedings were transferred from the Local Court to the District Court with the order made by consent.

33. The evidence establishes that the plaintiff had restrictions and pain to her back and to her wrist which caused difficulties at various stages with her work at Qantas as a steward. As indicated, in early 2021 the plaintiff accepted voluntary redundancy from her employer, Qantas, and was paid a substantial amount in redundancy benefits. The defendant indicated in cross-examination that if she was not made redundant, she would have continued with her work at Qantas despite her psychological/psychiatric issues, but said she was performing at a basic level.

The oral evidence in the proceedings

The evidence of Mr Lavers

47. Oral evidence was given in the proceedings by Mr Jonathan Lavers, also known as Jon Lavers. Mr Lavers at all relevant times lived in Unit 12 at the block of units at xx Ozone Street, Cronulla. At the time of the final hearing, he was 67 years old, retired and a former lifeguard with Sutherland Shire Council.

48. Mr Lavers gave evidence that he started a personal relationship with the defendant, Ms Riechelmann, in July 2010 having met her at a local nightclub. Throughout their relationship, Mr Lavers indicated that he and the defendant lived in different houses while meeting up during the week. At the time, the defendant lived in South Cronulla. Mr Lavers said that he understood the defendant worked as a Customer Service Manager for Qantas Domestic.

49. Mr Lavers gave evidence that the plaintiff Mr McCabe was a friend of his who he had known for some considerable time. He said Mr McCabe often worked in Young, while spending most weekends following his divorce, in Cronulla. He said Mr McCabe owned a unit in his same block of flats where he lived but Mr McCabe’s unit was on the ground or first level while his unit was on the third level. Mr Lavers said that he came into contact with Mr McCabe at the block of units as well as attending the gym and swimming training with him and socialising together including at restaurants and bars.

50. Mr Lavers said that the plaintiff and the defendant had met socially as part of his relationship with both of them, with there being no problem until 2014. However, he indicated that the defendant Ms Riechelmann had complained to him in relation to the amount of time he spent with others rather than her, including male friends which included Mr McCabe.

51. Mr Lavers gave evidence of a number of incidents between Mr McCabe and Ms Riechelmann. The first was reported to him as being Ms Riechelmann “tapping” Mr McCabe on the chin. He said he did not witness this. Ms Riechelmann reported to him that this was just a friendly tap whereas Mr McCabe said it was an assertive and aggressive tap. The second incident reported was when Ms Riechelmann threw champagne over Mr McCabe. He could not recall the date of that event.

52. The third incident occurred at a bar called 2230 Bar. He said it was reported to him later, that Ms Riechelmann had slapped Mr McCabe across the face. He said he did not witness this occurring but heard the slap: T58.6. He said that following this, Ms Riechelmann left the premises. Mr McCabe stated to Mr Lavers that he understood Ms Riechelmann did not approve of something he had said and she slapped him and left the venue. Mr Lavers said Ms Riechelmann’s version was that she approached him (Mr McCabe) to be friends and Mr McCabe replied that she was a drunk and he did not have to be friends with her. She then slapped Mr McCabe.

53. Mr Lavers was then asked a number of questions about the layout of the block of flats at Ozone Street in Cronulla. He said the block was on three levels with three garages fronting the street. Access to the block of units was by way of a pathway on the right hand side of the block, with Mr McCabe’s unit being to the left of the pathway on the ground floor. Mr Lavers said that there was a lockable door at the entrance to the block of flats and it was mostly locked at night but that the keypad entry had not been operable for about 10 years.

54. Mr Lavers gave evidence that as you entered the block of units, Mr McCabe’s unit was the first unit to the left with the unit next to it being owned by Mr and Mrs Pusell. He said that his unit was on the third floor of the block and there was a flight of stairs but no lift in the block.

55. Mr Lavers stated that Ms Riechelmann purchased a unit on the second level of the block in 2014. He understood that she paid $470,000 for the unit and that it was an investment unit (he later corrected the price to $690,000).

56. In relation to his unit on the third floor, Mr Lavers said that it had a wire security door and a timber lockable door.

57. In relation to the incident at the 2230 Bar, Mr Lavers stated that Mr McCabe said to him words to the effect that Ms Riechelmann had just slapped him across the face. This followed him saying to her that he did not have to be her friend following her seeking to “bury the hatchet” in relation to the personal dispute between them.

58. Mr Lavers gave evidence that after this incident, he maintained his relationship with Ms Riechelmann until 2018. He stated that he was aware that Mr McCabe applied for an apprehended violence order against Ms Riechelmann in 2014 as Mr McCabe told him about it. He agreed he discussed it with Ms Riechelmann and she confirmed that she did not like Mr McCabe.

59. Mr Lavers gave evidence about an incident in 2017 when Ms Riechelmann threw a glass of beverage over Mr McCabe. Mr Lavers said that he had gone to JD’s Bar with Ms Riechelmann in June 2017 and there were a lot of people present. He said the bar area was at the top of the stairs accessing the bar/restaurant. After purchasing some drinks, he saw Mr McCabe and some other people and said hello to them. He then went to the toilet and became aware that something had occurred whilst he was in the toilet. The first thing he saw was a lady “dusting” her hair at the top of the stairs with Mr McCabe walking down the stairs. He said he noticed that liquid was across the whole of the back of the shirt Mr McCabe was wearing. He said Mr McCabe came back up the stairs and said, “look what Julie just did”. The other lady complained to Mr Lavers that Ms Riechelmann, who she pointed to, just threw wine all over them. When Mr Lavers questioned Ms Riechelmann she effectively said that “they only assume that [I] did it”. Mr Lavers said that he apologised to the woman and Mr McCabe left. He said he noticed that Mr McCabe’s shirt was saturated across the shoulders: T71.16. Mr Lavers said that he walked home by himself and discussed the matter with Mr McCabe the next day who expressed the view that Ms Riechelmann was “mad” and that he could not keep going out and feeling like he was going to be threatened.

60. Mr Lavers gave evidence that in February or March 2018 he went on a cruise with other male friends. He said he discussed the matter with Ms Riechelmann beforehand who indicated to him that if he went on the cruise they were “finished”. He said to Ms Riechelmann that if that was the way she viewed it, that was the way it was, and he went on the cruise. It appeared that after he returned, Ms Riechelmann was still trying to continue with the relationship and sought counselling. Mr Lavers said that he did not go out with Ms Riechelmann or stay over at each other’s house after the cruise.

61. Mr Lavers said that the incident on 31 March 2018 was after he had returned from the cruise and after he attended a function. He said he left the function at about 9pm and walked to his unit which was about five minutes away. He said he went to bed and, some time later, he heard Ms Riechelmann knocking on the door of his unit, including using the brass knocker on the unit door. He said he could not hear Ms Riechelmann calling out and he had previously been asleep. He said he received phone calls and text messages from Ms Riechelmann but he did not answer them. Mr Lavers said that he did not want to answer the door and put a pillow over his head so he could not hear the knocking.

62. Mr Lavers gave evidence that he did not answer the door because of an earlier incident at least a couple of years previously where he had allowed Ms Riechelmann into his unit. He said that she pushed him back into the unit from the doorway when he opened the door and was trying to hit him and was throwing items including chairs around his unit and verbally yelling at him. Her acts included throwing a light at him which caused a hole in the floor and in his lounge. Mr Lavers said he tried to restrain her. Mr Lavers stated that Ms Riechelmann cut her hand and was bleeding and he bandaged it and she stayed the night. He said that Police attended but he told them that everything was alright and he had sorted out the problem.

63. Mr Lavers was then asked about an incident which occurred at Cronulla RSL Club a few months after 31 March 2018. He said he was sitting on the main level of the RSL with Mr McCabe and two other male friends with two female friends joining them later. He said that Ms Riechelmann approached them at about 9:30pm and had a conversation with him in relation to how his “crotch” was working for him: T82.17. Mr Lavers said that Mr McCabe was sitting on his left hand side and Ms Riechelmann approached from the right. He noticed a hand movement from Ms Riechelmann with a half-filled glass of wine as if she was going to throw it towards Mr McCabe: T83.9-.20. He said that Ms Riechelmann also was physically grabbing at his crotch area on three or four occasions: T84.50.

64. Mr Lavers said that Mr McCabe went and spoke to a security person at the club who came over and motioned for Ms Riechelmann to move away and he believed she was taken from the premises of the club. In relation to the motion from Ms Riechelmann, Mr Lavers said that as she was holding her glass of wine she made an arm movement as if to throw wine towards Mr McCabe’s direction but did not go through with the motion: T85.25.

65. In relation to the earlier incident where Ms Riechelmann had thrown items damaging aspects of his unit, Mr Lavers confirmed that he told Mr McCabe of this incident a few days later. He said that Mr McCabe had enquired in relation to the noise and the commotion outside and in Mr Lavers’ unit. Mr Lavers said that he did not inform the Police what had happened in the unit but did tell Mr McCabe that Ms Riechelmann had attacked him and caused damage to his property: T87.5.

66. In cross-examination, Mr Lavers confirmed that he had known Mr McCabe for nearly 40 years. He said Mr McCabe had acted as his solicitor in recent times including in a conveyancing transaction before 2018. Mr Lavers said that he had spoken to Mr McCabe in relation to his evidence as he “had to put a statement together”: T88.27.

67. Mr Lavers agreed that he previously had a long-standing romantic relationship with Ms Riechelmann for over eight years. He said they went on holidays together including overseas. He agreed that they had discussions with each other about the good aspects of their relationship and things which bothered them. Mr Lavers also agreed that one thing that he discussed with Ms Riechelmann both face-to-face and in text messages was the fact that Ms Riechelmann felt “intimidated” by Mr McCabe. He said that this was a frequent topic of discussion, and she was not happy about his relationship with Mr McCabe. He agreed that she became quite emotional about the matter and described his friends as having a “boys’ club” while stating that she felt awkward in relation to his male friends. He agreed that she had a perception of being intimidated by Mr McCabe. He also agreed that Ms Riechelmann complained that Mr McCabe regularly insulted her, and she avoided places where he might be. Mr Lavers was of the view that she became “a bit obsessed” by Mr McCabe’s behaviour. Mr Lavers said that while there were several years where there were no complaints from her and there was a harmonious relationship between the three of them, it deteriorated probably after his 60th birthday. Ms Riechelmann said to him that this had an affect on the relationship. He agreed that in late 2016 and early 2017 Ms Riechelmann said that when she saw Mr McCabe her heart raced and her stomach churned.

68. In relation to the incident in August 2014, Mr Lavers agreed that Ms Riechelmann complained to him that Mr McCabe had insulted her and her family in relation to their participation in a musical, The Sound of Music. He agreed that she told him that Mr McCabe had called her a “drunk” and that no one liked her. He also agreed that Ms Riechelmann complained to him that Mr McCabe was seeking to interfere with their relationship.

69. Mr Lavers was asked a number of questions about the block of units. He corrected evidence given in chief at T61 and said that he understood that Ms Riechelmann bought the unit on the block for $690,000.

70. Mr Lavers confirmed that he owned two units in the building, on levels three and two, Mr McCabe owned a unit on level one and Ms Riechelmann owned a unit at the relevant times on level two. He accepted that at various times there had been discussions with Ms Riechelmann about the benefit of redeveloping the site where the block of units was situated but nothing had occurred.

47. Mr Lavers agreed that Mr McCabe found out about the development plan and gave evidence that Mr McCabe was not in agreement with it. However, Mr Lavers expressed the opinion that he (Mr McCabe) would have agreed if a proposal had come through “at the right price”. Mr Lavers rejected the proposition that Mr McCabe was against a development if Ms Riechelmann had any involvement with it. He said he was not aware of Mr McCabe insulting Ms Riechelmann in relation to the plans for the possible development.

48. Mr Lavers accepted that Ms Riechelmann had complained to him about Mr McCabe calling her a “trolley dolly” concerning her job as a Qantas steward and that she found the comment demeaning. He also agreed that the tension between Ms Riechelmann and Mr McCabe increased after December 2016. Ms Riechelmann had said that Mr McCabe was rude and disrespectful to her and that she had been verbally abused by him.

49. Mr Lavers was then taken to a number of text messages between him and Ms Riechelmann in 2017 and 2018 in which she complained about Mr McCabe and that she was anxious and fearful of him. Whilst accepting that she was intimidated by him, Mr Lavers said that Ms Riechelmann’s behaviour to him was “obsessive”. Mr Lavers accepted that the various texts he was shown were typical of communications he had with Ms Riechelmann, with her complaining about Mr McCabe and avoiding encounters with him because of the effect it had on her. Mr Lavers further accepted that he bought a “commitment ring” for Ms Riechelmann but did not recall that Mr McCabe referred to the ring in a derogatory manner, although he could have made a comment on it whilst laughing: T107.13. Mr Lavers agreed that he was receiving criticisms from both Mr McCabe and Ms Riechelmann about each other. He accepted that before 31 March 2018, Ms Riechelmann had suffered a severe emotional reaction to Mr McCabe.

50. Mr Lavers was then asked a number of questions about the incident on 31 March 2018. He confirmed that he heard Ms Riechelmann’s knocking but said he could not hear what she was saying. He agreed that she was ringing him and sending him texts and that her knocking was insistent and constant. Mr Lavers said that he could not recall whether Mr McCabe was also sending texts to him on that night and whether he read them on that night or later. In relation to Ms Riechelmann’s texts where she states that Mr McCabe called her “mad” and “insane”, he would not have let her into his unit even if he saw her texts including her requests to let her in. He said he had the intention not to talk to her or let her in on that night.

51. Mr Lavers was then asked questions about a relationship he formed with another woman in 2018. He said he had not entered that relationship as at 31 March 2018.

52. However, Mr Lavers confirmed that although he had not started his new relationship by 31 March 2018, in his mind the relationship with Ms Riechelmann had ended.

53. After being taken to some text messages, Mr Lavers agreed that he spoke to Ms Riechelmann soon after 31 March 2018 and she complained that Mr McCabe had deleted videos from her phone. He agreed that she also said that Mr McCabe had knocked her phone out of her hand and had kicked it into his apartment and that she later asked for her phone back. He said he believed that she had told him that the Police had returned the telephone to her. In relation to her suggestion that Mr McCabe had deleted videos from the phone, he said that if they were deleted they could be retrieved and he assisted her by spending time on her phone attempting to retrieve deleted footage. When taken to a text message for 1 April 2018, Mr Lavers agreed that she thanked him for finding some of the deleted video footage from the night before which he had assisted her in retrieving. There is a question to be determined how and by whom the video footage was deleted.

54. Mr Lavers confirmed that Ms Riechelmann said to him that she was intending to lay charges against Mr McCabe and he sought to persuade her out of that. He rejected the possibility that as at 2 April 2018 a relationship with Ms Riechelmann could have been resumed by him.

55. Mr Lavers was asked about a relationship which had evolved between a person called “Mick” and Ms Melanie Wells who was Mr McCabe’s former partner. He said he was told by someone that Ms Wells was seeing someone else in Cronulla while she was still with Mr McCabe but accepted that he was relying on gossip and what he was told. He also accepted that Mr McCabe did not return to Cronulla sometimes on the weekends for various reasons.

56. Overall, Mr Lavers impressed the court as an honest witness who was doing his best to give his evidence in a straightforward and direct fashion. He stated on a number of occasions that he was not good with the timeline of events and his evidence reflected that. He was clearly placed in a difficult position in hearing complaints by Mr McCabe concerning Ms Riechelmann and in hearing alternative complaints and reviewing extensive text messages from Ms Riechelmann about Mr McCabe, particularly that he intimidated her, insulted her and treated her in a demeaning fashion. I formed the impression that Mr Lavers, whilst not always being good with times, had a reasonably good recollection of the various incidents where Ms Riechelmann was said to have slapped Mr McCabe and thrown wine or attempted to throw wine over him. I also accept that he had a reasonable recollection in relation to the events of 31 March 2018 although he had not seen any of the alleged altercation between Mr McCabe and Ms Riechelmann.

The evidence of Mr Pusell

81. Oral evidence was given to the court by Mr Rodney Pusell. Mr Pusell lives in Unit 4 of the block of units at xx Ozone Street, Cronulla, being the unit immediately next to Mr McCabe’s unit on the first or ground floor of the block of units. He said he lived in the unit with his wife, Chantelle Pusell, and their daughter who was now 12 years old.

82. Mr Pusell confirmed that he knew Mr McCabe and saw him about once a fortnight when their paths met: T127.17.

83. Mr Pusell was then asked a number of questions about the evening of 31 March 2018. He said he first began hearing a noise at about 10 o’clock which was loud banging: T127.31. He said he proceeded out of his unit and walked up two flights of stairs to the third floor and saw Ms Riechelmann who was bashing the screen security door on Mr Lavers’ unit: T128.5. Mr Pusell said that he knew they had been in a relationship but at that point he knew that they were no longer in a relationship: T128.12. After telling Ms Riechelmann that she was making a lot of noise and she had woken him and his daughter up, she said that she would not be too much longer, and Mr Pusell returned back to his unit: T128.14. He said he sent Mr Lavers a text asking him to answer the door.

84. Mr Pusell said that Ms Riechelmann appeared to be “very much intoxicated”: T128.38. She could not stand still, and she was a bit “slurry” in her speech: T128.43. He also noted that she was bashing on the door: T128.43. Mr Pusell said that Ms Riechelmann was loud and aggressive (T129.5) in what she was shouting. After 20 minutes, he said the noise changed with her appearing to commence knocking on the door of Mr Lavers’ unit (as opposed to the security door).

85. Mr Pusell said that he proceeded downstairs and went into his unit where he consoled his young daughter who was “quite hysterical”: T129.26.

86. Mr Pusell said that in due course, he heard Mr McCabe and Ms Wells return to the unit. He had a discussion with Mr McCabe about Ms Riechelmann bashing on Mr Lavers’ door upstairs. Mr Pusell stated that he had not been drinking alcoholic beverages that night as he did not drink at all: T129.49.

87. Mr Pusell gave evidence that he heard Mr McCabe call out to Ms Riechelmann asking her to leave as she was trespassing, and that Mr Lavers was not at home. Mr Pusell had left his door ajar on a latch at this time. He described Mr McCabe and Ms Riechelmann yelling at each other and Ms Riechelmann “yelling obscenities” to Mr McCabe: T130.6.

88. Mr Pusell stated that there was a peephole in the middle of his unit door which was fitted with a fisheye lens which allowed the vision to be expanded to “probably 120 to 140 degrees”: T131.40. This gave him a wide view outside his unit: T132.3.

89. Mr Pusell stated that although he did not see Ms Riechelmann come down to the foyer on the ground floor, he assumed she was there because he could hear a “ruckus”. At this time, Mr Pusell looked out the peephole of his door and stated that he hoped the situation did not get out of control. He said at this time there was a lot of swearing between Mr McCabe and Ms Riechelmann, with Ms Riechelmann calling Mr McCabe “a fuckwit” and Mr McCabe calling her “crazy” and that she needed to leave. He did not hear any discussion between Ms Riechelmann and Ms Wells. He then heard them refer to “insults” outside the door: T132.43.

90. Mr Pusell then gave the following evidence (by audio visual link) about what he saw:

“Q.  What happened after there was a reference to insult that you saw through your lens?

A.  That’s when it got pretty heated.  That’s when I - I’m going back a step here, that’s when I went to the peephole and saw Julie strike David.  I don’t know - I was shocked.  I don’t know if it collected or not.  I was like, wow.

HIS HONOUR

Q.  When you say you saw “Julie strike David.  I don’t know if it collected.”  What do you mean by that?

A.  All I saw - because all I could only see - can you see me?

Q.  Yes.

A.  So I’m just going to turn around.  I could only see this part of Dave from the peephole.

DODD

Q.  Just stopping you there, sir.  Just stop there for a minute.

HIS HONOUR

Q.  So you’re indicating that you could only see from the peephole the upper back torso of Mr McCabe including the back of his head?

A.  Yes, the right-hand side of him, because of the angle faced in.

DODD

Q.  Thank you.  Then what next could you see?

A.  Then I saw a fist and an outstretched arm going in his direction but I don’t know if it - when I say collected, I don’t know if it hit him in the face from my angle.  I couldn’t tell.

HIS HONOUR

Q.  Can you answer this question?  Did you see the - when you say an outstretched arm, whose arm?

A.  Julie.

Q.  When you say outstretched, what do you mean?  Do you mean it was just out in front or was there any movement of it?

A.  No, there was a movement.  Are you able to visually see me.

Q.  Yes.

A.  So it was, like, I wouldn’t say a hook but--

Q.  You’re indicating, was it the hand open or closed?

A.  Closed.

Q.  So you’re indicating a closed hand with a movement to the front, arm slightly bent and towards Mr McCabe.  Is that a fair summary?

A.  Yes.

Q.  But you didn’t see whether the arm struck Mr McCabe.

A.  Correct.

DODD

Q.  Sir, did you see that movement once or more than once?

A.  Only the once.  As I stated, I was shocked.  I stepped back and I was like, wow, can’t believe that just happened.  Things got a lot louder and heated then, and I wasn’t going out there.” (T132.45-T134.6).

91. Later, the following evidence was given by Mr Pusell (also by audio visual link):

“HIS HONOUR

Q.  Mr Pusell, the arm movement from Ms Riechelmann you’ve described, was that the only arm movement towards Mr McCabe that you saw on that evening whilst you were looking the peep hole?

A.  That is correct.

Q.  Whilst you were looking out the peep hole, did you see any arm movement of Mr McCabe towards Ms Riechelmann?

A.  Can I answer this in two?

Q.  Yes, you answer the way you think gives you the best, most accurate answer.

A.  Okay, so, during the - when Julie first came down, Dave had his hand out.  I don’t know if you can see it - had his hand out.  Can you see that?

Q.  Yes.

A.  Defensive, protecting himself with his hand out, but his hand was open like that.

Q.  When he had his hand out, did you see it contact any part of Ms Riechelmann’s body?

A.  No.  He always kept a bit of a distance, and that’s when he was saying, “Please leave.  You’re trespassing.  Leave.  Leave.”

Q.  Did you ever see him knock her hand?

A.  No.

DODD

Q.  I think you said, Mr Pursell [sic], there was two parts to that answer.  Have you given his Honour the whole of what your recollection is regarding Mr McCabe’s actions, or was there more to it?

A.  No, that was it.” (T134.19-T135.2).

92. Mr Pusell said that he then retreated to his lounge. He said he could not identify anything occurring from inside Mr McCabe’s unit next door. After about 20 to 30 minutes, he then heard a loud bang on the glass with children in Mr McCabe’s unit screaming out “help”. He said they were very scared: T135.17. He went outside and saw Mr McCabe near his car, with Mr McCabe pointing to marks on his car, including hand-prints and a print on the boot of the car and scratches on the car: T135.26.

93. Mr Pusell then went back inside his unit as Mr McCabe had called the Police and his wife had also called the Police.

94. Later, Mr Pusell said that he could not see whether Ms Riechelmann’s arm had come into contact with Mr McCabe because it was obscured by the angle and he had pulled himself back. He said he was shocked “to see a fist come out” from Ms Riechelmann: T135.45-.20.

95. Mr Pusell also gave evidence in relation to the 2015 incident at the block of units at Ozone Street when Ms Riechelmann attended the block. He said he was in his unit at the time and heard loud bashing to the front door to the block of units. Mr Pusell said that he could see the landing of the entrance to the block from the foyer and saw Ms Riechelmann kicking and hitting the front glass door. He initially had thought that someone had forgotten their key. He said that when he went out Ms Riechelmann had kicked her way through the door and was in the unit complex. At this time, he was at his front door. Mr Pusell said that he then went back into his unit. Mr McCabe came out and asked what was going on and he said that Ms Riechelmann had kicked her way through the front door. Mr McCabe began to ring the Police. The discussion occurred in the area between the two units in the foyer.

96. Mr Pusell said that about five to ten minutes later he heard noise from upstairs coming from within a unit. He said he could hear the noise through two floors and that there was a commotion going on. He said he heard banging and the sound of something breaking through being either dropped or thrown. In due course, the Police came but he did not speak to them.

97. Mr Pusell said that about two days later, he discussed the event with Mr Lavers and Mr McCabe outside the unit block. Mr Lavers said to them words to the effect that he had let Ms Riechelmann in and a fight occurred with Ms Riechelmann throwing a statue at him which broke. He said she had cut her hand and he attended to first aid for her: T218.2.

98. Mr Pusell was then subject to a detailed cross-examination, particularly focusing on his evidence in chief as to what he saw of the altercation between Mr McCabe and Ms Riechelmann immediately outside the door to his unit through the peephole to the door. Mr Pusell gave evidence that he suffered memory problems, particularly in the last few years, and that he also suffered depression and stress conditions which were related to a workers compensation claim where Mr McCabe was acting for him: T218.41; T220.19; T255.13. In the course of his evidence, on occasions Mr Pusell was distressed and sought a break. However, I formed the clear view that Mr Pusell was making every effort to concentrate on the questions asked and to provide a careful and detailed answer to them. Although he gave evidence that he was angry and irritated in relation to Ms Riechelmann, particularly concerning the events of 31 March 2018, he rejected the proposition that his anger and irritation towards Ms Riechelmann had coloured his impression of what had occurred on the night of 31 March 2018. He said her conduct in 2015 and on 31 March 2018 made him form a dislike of her and a view that she was not a nice person: T252.41.

99. Mr Pusell confirmed that he did not speak to Police on the night of 31 March 2018 or after that evening. He said he did not consider going to Police to give a statement as to the events of the evening.

100. Mr Pusell stated that as at 31 March 2018 he had been a neighbour of Mr McCabe for several years. He said that Mr McCabe began acting in the workers compensation claim for him from about mid-2018 but he did not appear to be able to recollect whether Mr McCabe was acting for him in relation to that claim as at 31 March 2018.

101. Mr Pusell agreed that Mr McCabe raised with him the issue of providing a statement to Police. He said that Mr McCabe came to him and he verbally gave his account, following which Mr McCabe drafted the statement, gave him a copy and asked him to go through it and adjust it as required. He agreed that following the events of 31 March 2018 he had discussed with Mr McCabe what had happened and told him what he had seen. He said that, to a degree, Mr McCabe also gave his version.

102. Mr Pusell was asked questions about when he heard the children screaming and crying. He denied the proposition that this commenced only when Mr McCabe started shouting at Ms Riechelmann. He said his daughter started screaming and becoming “hysterical” when he returned from talking to Ms Riechelmann upstairs after his daughter had woken up.

103. Mr Pusell was asked about the period during which Ms Riechelmann was bashing on the door upstairs at Mr Lavers’ unit on the night of 31 March 2018. He denied the proposition that Ms Riechelmann had been knocking on the door for only three to five minutes before Mr McCabe returned and said that it seemed to him to be much longer than that. He said his view was that the bashing had occurred over a period of 20 minutes but that it did not occur during the whole of that period but on a number of instances. He agreed that the banging on the door by Ms Riechelmann lasted for about three to five minutes before he went up to talk to her. Initially, Mr Pusell said that he was woken up and at the time his wife and daughter were asleep in bed, but later conceded that he could have been watching television at the time. He also conceded that he could not recall whether, before the incident, his wife was next door in Mr McCabe’s unit and prior to that had seen Ms Riechelmann arrive at the block of units. He denied the proposition that the period before Mr McCabe started arguing with Ms Riechelmann was only about five minutes after the banging on Mr Lavers’ door started. He said his recollection was that it continued over the course of 20 minutes: T222.2; T224.23.

104. Mr Pusell agreed that he heard Mr McCabe’s voice outside his unit shouting at Ms Riechelmann. He did not hear him saying that he had called the Police. Mr Pusell said that he was aware that his wife was in Mr McCabe’s unit when the arguing started as he was awake with his daughter.

105. Mr Pusell was then asked questions about when he last saw the video footage and spoke to Mr McCabe. He said he last saw a second video taken by his wife about two to three days previously. It was shown to him by his wife whilst Ms Farrugia was present. He said he last saw Mr McCabe on the Monday before giving evidence when he came into his unit and explained the court process. At this time, he said that his wife, Mr McCabe and himself were present with his daughter coming in and out of the room. He said Ms Farrugia was not present during the conference. Mr Pusell denied discussing his evidence about what he saw looking through the peephole with Mr McCabe on the Monday before giving his evidence and said that he only discussed it with his wife and Ms Farrugia. He also denied discussing the length of time that Ms Riechelmann was upstairs knocking at the door with Mr McCabe or any other aspect of his evidence. He further denied asking questions of Mr McCabe as to what he saw on 31 March 2018. When he was taken to his wife’s evidence at T178.27, Mr Pusell remained adamant that there had been no discussion about the events of 31 March 2018 with Mr McCabe on that occasion: T229.34.

92. Mr Pusell gave evidence of seeing his wife and Ms Leah Farrugia looking at his wife’s video footage before the Monday conference with Mr McCabe. He said it was suggested to him by his wife that some photographs had been deleted from the telephone of Ms Riechelmann. He said he told them that if they had deleted anything they needed to tell Mr McCabe. At the Monday conference, he heard his wife informing Mr McCabe that some photos had been deleted from Ms Riechelmann’s phone. Mr McCabe said that he was not aware of that. Mr Pusell said that he only heard a limited part of the discussion between his wife and Mr McCabe about the deletion. Mr Pusell said that at the time he prepared his statement dated 20 May 2018 he was not aware that the second video taken by his wife existed. He agreed that when this statement was prepared, Mr McCabe had said to him that Police may potentially charge him (Mr McCabe) and he needed a statement.

93. Mr Pusell was taken to paragraphs 47 to 48 of his 20 May 2018 statement. He said he believed that statements were made using the word “assault” which is what it sounded like to him at the time. Having listened to the video, he was of the definite view that the word “insult” rather than “assault” was used. He said he put what he heard at the time in the statement: T233.12.

94. Mr Pusell was then subject to a detailed cross-examination in relation to what he saw when he was looking through the peephole out into the foyer from the door of his unit. Mr Pusell stated that he did not see Ms Wells whilst he was peering through the peephole: T233.41. When he saw Ms Riechelmann’s arm move towards Mr McCabe, he said Mr McCabe was standing between the two units directly in front of the mid-wall between the units, about 40cm away: T233.48-T234.19. He denied that Mr McCabe’s body was substantially taking up the whole view from the peephole and later stated that he was taking up about a third of the view with him being able to see aspects of the foyer: T234.23. Mr McCabe was facing between the entrance door of the units and the door of his (Mr McCabe’s) unit. He said that there were two occasions on which he was looking through the peephole and this was the second occasion. On the first occasion, he heard Mr McCabe calling up to Ms Riechelmann saying she was “mad” and “crazy” and asking her to leave: T236.42.

95. Mr Pusell later gave evidence that he went back to the peephole when the argument between Ms Riechelmann and Mr McCabe became louder and he realised they were standing immediately outside his unit. He said that it took him between 20 and 30 seconds to go to the peephole and look out after the arguing increased in intensity. It was then that he looked out the peephole and saw Ms Riechelmann strike at Mr McCabe: T236.8; T238.16-.28; T240.18; T241.15. Mr Pusell described the arm movement of Ms Riechelmann as neither involving an open hand or a fist but a hand substantially curled and apparently towards forming a fist: T247.12-.50. Mr Pusell gave evidence that he did not see when looking through the peephole:

1. Ms Riechelmann standing next to the balustrade about 50cm from the steps arguing and holding up a mobile phone in Mr McCabe’s direction;

2. Mr McCabe striking Ms Riechelmann’s hand while she was holding her phone;

3. Ms Riechelmann moving towards Mr McCabe in an attempt to get her phone back;

4. Ms Riechelmann trying to pick up the phone;

5. Mr McCabe’s arm around the neck of Ms Riechelmann and pulling backwards.

110. Mr Pusell said he only saw Mr McCabe defending himself using an outstretched arm trying to get Ms Riechelmann to stay back. He also said he did not hear a crash at this time or the sound of a body hitting up against a wall. Mr Pusell said that when he saw Ms Riechelmann’s arm thrown out in the direction of Mr McCabe, he was shocked to see it and sat down in his unit. Mr Pusell said he heard the word “assault” used and agreed that this was heard by him after, but it could have been before, he saw Ms Riechelmann striking out at Mr McCabe with an outstretched arm: T241.15. Mr Pusell also gave evidence that he did not hear Ms Wells say words to the effect “Stop, David”.

111. Mr Pusell said that once he had sat down in his unit he could hear noises but not exactly what was said. Mr Pusell agreed that the second video taken by his wife was different to his recollection, as what he saw out the peephole was not in the video. He said what he saw was “not something I’m going to forget”: T242.49. Mr Pusell said what he had seen had “affected” him: T242.48. Mr Pusell denied the proposition that what he saw involving Ms Riechelmann moving her arm forward was ten or so seconds after he heard the word “assault” used by her and said that there was no truth to that proposition and that it was not plausible: T244.32-.49. He similarly rejected the proposition of seeing Mr McCabe with his arm up towards Ms Riechelmann’s neck looking to push her out of the units. He said he only saw Mr McCabe raise his arm and hold his hand out with his arm outstretched with his fingers extended. He denied that it was possible that the incident he saw was 80cm along the stair railing towards the entrance door to the block of units or that Ms Riechelmann was reaching out to the railing: T245.4; T246.39-T246.7. Whilst agreeing that he only saw the action in a split second, he said he did not recall Mr McCabe having a mobile phone in his hand. Mr Pusell gave the following answer:

“If you want to be precise – you keep mentioning fraction of a second – however long it takes to strike. All I saw was the arm come out and go towards Dave’s face. If you took two seconds, one second, three, I couldn’t tell you exactly. I saw what I saw”: T248.33.

112. Mr Pusell said he did not see a mobile phone in Ms Riechelmann’s hand coming forward: T248.47.

113. Mr Pusell was then taken to the conversation with Mr McCabe standing near his motor vehicle which he gave evidence about in chief. While he agreed that he did not set out this conversation in his statement of May 2018 he recalled having it and saying to Mr McCabe words the effect “I can’t believe she did this to your car”: T250.25. Prior to that, Mr Pusell said that he heard a bang outside which he thought was to the window of Mr McCabe’s bedroom which was the reason for him going outside: T250.33-.45. He said that following the bang, the children started screaming for what he described as the third time: T250.48. He said he did not see Ms Riechelmann when he arrived there. Mr Pusell gave evidence that he returned to his unit while Mr McCabe waited outside for the Police.

114. Mr Pusell said that soon after, Ms Riechelmann profusely apologised to him when she saw him at the beach. He told her that she had traumatised his daughter and that he wanted nothing to do with her: T251.45.

115. In re-examination, Mr Pusell confirmed that in more recent times he has had problems with his memory and that he suffered from chronic depression and stress: T255.13-.19.

116. I have referred above to my impression of Mr Pusell. Despite his stated dislike of Ms Riechelmann and his admitted memory problems, I confirm that I formed the clear impression that he was making every effort to give clear, precise and truthful answers. He made concessions where appropriate and was willing to reconsider, and at times alter, his evidence upon further reflection. However, he was clear in his recollection as to what he saw when he looked out the peephole on his door on the second occasion. I have no hesitation in accepting his evidence that this was his recollection and that he recalled seeing Ms Riechelmann striking out with her arm outstretched and her hand curled towards Mr McCabe’s face. The precise circumstances of this must be considered in the light of all the evidence in the case. I do not accept his evidence that Ms Riechelmann was banging or bashing on Mr Lavers’ door for 20 minutes before Mr McCabe’s arrival. It may have seemed to be for a long time but it is inconsistent with the evidence of Mrs Pusell which I prefer on this issue.

The evidence of Mrs Pusell

117. Oral evidence was given in the proceedings by Mrs Chantelle Pusell. Mrs Pusell is the wife of Mr Rodney Pusell.

118. Mrs Pusell gave her version of the events of the evening of 31 March 2018 in her evidence in chief. She stated that she left the block of units at Ozone Street with a friend, Ms Leah Farrugia, to collect Ms Farrugia’s daughter who was with Mr McCabe and Ms Wells. However, a telephone call to Ms Farrugia on the way indicated that Ms Wells was coming home with Ms Farrugia’s child. Mrs Pusell gave evidence that they ran into Ms Riechelmann and had a short conversation with her before Ms Riechelmann walked into the apartment building and went out of sight. Mrs Pusell later gave evidence that Ms Riechelmann appeared to be in a hurry: T160.35.

119. Mrs Pusell stated that in due course, Mr McCabe and Ms Wells arrived at Mr McCabe’s unit. She said that her husband Mr Pusell told her to be quiet as Ms Riechelmann was “screaming upstairs”. Mrs Pusell said that she heard a woman screaming out upstairs to “open the door” and banging on a door. Mrs Pusell stated that she then started to film and record on her mobile phone the incident which included the banging noise. She told her husband to shut the door as her daughter may wake up. She said she was in the foyer for about five to ten minutes,

120. Mrs Pusell stated that the yelling and banging continued on and off and then she heard Mr McCabe yell to stop banging as “you have frightened the children” and saying words to the effect to “leave the building and go home”. Mrs Pusell stated that Ms Riechelmann responded that maybe “she was concerned for the well-being of [her] partner”. She said there was a lot of swearing with obscenities forwarded by Ms Riechelmann to Mr McCabe. At this time, she heard Mr McCabe saying to Ms Riechelmann that he would call Police if she did not leave. Mrs Pusell said that Mr McCabe was in the foyer, with Ms Wells coming in and out of Mr McCabe’s unit. The three children in Ms Wells’ company were inside Mr McCabe’s unit, with Ms Farrugia. At this time, she saw the children trying to come out of the unit, with Mr McCabe telling them to go back inside. Mrs Pusell said she followed Ms Farrugia and the children into the unit and took her telephone with her.

121. Mrs Pusell said that she heard Ms Riechelmann come downstairs and there was a loud conversation with Mr McCabe. At this time, she said Ms Farrugia had her telephone and was starting to film using it from inside Mr McCabe’s unit. Mrs Pusell said that she was standing next to Ms Farrugia. Mrs Pusell said that the door to Mr McCabe’s unit was ajar and there was a gap. Mrs Pusell said that she saw Mr McCabe and Ms Riechelmann close together arguing with Mr McCabe saying that Ms Riechelmann needed “to leave”.

122. Mrs Pusell noticed a telephone come through the door on the floor. She later said that she believed the phone “bounced” on the floor. She said she did not know whose phone it was and did not see how the phone got on the floor. She later gave evidence that she did not see Mr McCabe push the phone into his unit using his foot. She noticed the phone on the timber floor inside the unit near the entrance to Mr McCabe’s unit. Mrs Pusell said she picked the telephone up: T149.46. During her evidence, she said that it sounded like the phone had been knocked by the door and fell on the floor, but it seemed clear from her evidence that she did not see this: T149.40. Mrs Pusell said that when she picked up the telephone she was filming on her telephone. She said Ms Farrugia had passed her telephone to her just before the other telephone had fallen on the floor. Mrs Pusell then continued filming.

123. Mrs Pusell stated that as the screaming and yelling between Mr McCabe and Ms Riechelmann became more intense, she called the triple zero emergency line using the telephone which she had picked up. She was put through to Cronulla Police Station and reported the disturbance.

124. At this time, the door opened. Mrs Pusell said that she saw Mr McCabe leaning forward with his arm outstretched trying to keep Ms Riechelmann away from him. She said that she saw Ms Riechelmann lunging forward trying to hit Mr McCabe: T151.48-T152.16. Although initially Mrs Pusell said that she believed Ms Riechelmann had her hand closed in a fist, she later said that she was not sure of this: T152.16 cf T164.47. Mrs Pusell then said that she heard Mr McCabe asking Ms Riechelmann to leave and Ms Riechelmann calling out Mr Lavers’ name. She then gave evidence that she saw Mr McCabe lunging forward to keep Ms Riechelmann from him with her trying to “swing” at him: T152.30. She stated she did not see Ms Riechelmann strike Mr McCabe. She said that Mr McCabe’s arm was outstretched. In relation to Mr McCabe’s arm, Mrs Pusell gave evidence that she could not see whether his arm was connecting with anyone but believed it came into connection with Ms Riechelmann: T153.35.

125. Mrs Pusell then gave evidence that she went back inside the McCabe unit as the children were screaming in fright and she saw them as a priority. She said she went to the front room in the unit with Ms Farrugia. This was a bedroom, the windows of which faced the side walkway to the entrance to the units. At that time, the three children, Ms Farrugia and Mrs Pusell were in the bedroom, the lights were initially on and then they were turned off. She stated that she and Ms Farrugia stayed with the children comforting them. She then stated that she gave the telephone that she believed to be Ms Riechelmann’s which she had used to call the Police to Ms Farrugia.

126. Mrs Pusell gave evidence that the window in the bedroom was slightly open. She then saw Ms Riechelmann’s arm reach through the window and make the blind move. This caused the children to scream. She later gave evidence that Ms Riechelmann asked for her phone to be returned. She then gave evidence that Ms Riechelmann continued to bang on the glass windows as she walked down the side of the unit. She heard a large noise in the course of the banging and later saw the air-conditioner pushed inside the kitchen window where it had fallen on the floor. Mrs Pusell said that she stayed with Ms Farrugia in the dark bedroom with the children. Although Ms Farrugia had the telephone of Ms Riechelmann, it ended up being placed back on the kitchen bench by either Ms Farrugia or Mrs Pusell.

127. In due course, the Police arrived, and a Policeman entered Mr McCabe’s unit seeking a phone. Mrs Pusell indicated that there was a phone on the bench and the policeman took it. Mrs Pusell gave evidence that she did not see Mr McCabe with Ms Riechelmann’s phone and that although she was not sure, she believed that the phone was on the bench for about 10 to 15 minutes before the policeman took it. Mrs Pusell denied in her evidence in chief that Mr McCabe came back into the unit before the policeman came in to take the telephone: T158.14.

128. Mrs Pusell was then subject to a detailed cross-examination in relation to the events of 31 March 2018 and, in particular, to the access to Ms Riechelmann’s phone and what she saw in relation to the altercation between Mr McCabe and Ms Riechelmann. In cross-examination, Mrs Pusell gave evidence that there were two videos of the evening on her telephone. The first had been taken by her when Ms Riechelmann was upstairs. The second had partially been taken by Ms Farrugia and the remainder by her. Mrs Pusell said that she gave the two videos to Mr McCabe not long after the incident: T159.20. Mrs Pusell said that she had reviewed the second video taken by her recently before giving her evidence.

129. Mrs Pusell gave evidence that she saw Mr McCabe outside the unit with his phone and having an argument with Ms Riechelmann. She said she could not be sure that the lens of the telephone camera of Mr McCabe was directed towards Ms Riechelmann: T162.15. She agreed that Mr McCabe was describing Ms Riechelmann as an “idiot” and that she was “mad”. She also agreed that he was telling her to leave and go home. Mrs Pusell agreed that she did not see Ms Riechelmann come down the stairs. She agreed that she heard Ms Riechelmann say the words “you assaulted me” while she was in the unit of Mr McCabe with the door largely closed: T162.42.

130. Mrs Pusell was asked about the telephone which came into the unit. She confirmed that she did not see how the phone went from Ms Riechelmann’s hand to the floor and also did not see how the phone came into the unit. At this stage, she confirmed that she believed the phone “bounced” on the floor as it fell. When the phone fell, the three people in the foyer were Mr McCabe, Ms Riechelmann and Ms Wells. At this time, Mrs Pusell agreed that she could not see what was happening outside Mr McCabe’s unit in the foyer: T163.43.

131. Mrs Pusell agreed that her ability to see outside was improved when the door was opened slightly: T164.9. She said Ms Farrugia opened the door for her as she was filming on her own phone and telephoning the Police on the phone which had come into the unit. In relation to the suggestion that she saw Mr McCabe with his arm up pushing Ms Riechelmann, Mrs Pusell said that she did not see Mr McCabe push Ms Riechelmann. She said she only saw Mr McCabe’s arm stretched out: T164.23. In relation to the suggestion that Mr McCabe appeared to be moving towards Ms Riechelmann, Mrs Pusell said that she saw him holding his arm up, stretched out and that Ms Riechelmann was coming towards him with him saying to her that she should leave. Mrs Pusell said that she did not see Mr McCabe’s hand at the neck of Ms Riechelmann: T164.37. In relation to the suggestion that, contrary to her evidence in chief, she saw Ms Riechelmann’s hand come up with an open palm and not a fist, Mrs Pusell said that she was not sure: T164.47. She agreed that any incident relating to a clenched fist was not shown on the video. Soon after, Mrs Pusell gave evidence that although she was not sure about a fist it looked to her like Ms Riechelmann was trying to reach out to him or hit Mr McCabe in some way: T165.20. Mrs Pusell agreed that her sight may have been at a different angle to what was being filmed on her phone.

132. Mrs Pusell said that at that stage she had formed a view that Mr McCabe was intoxicated: T166.13. She agreed that in some ways Mr McCabe was being aggressive and he was shouting at Ms Riechelmann to leave the premises and described her as a “mad woman”: T166.34.

133. Mrs Pusell said that soon after this she moved back to the bedroom and Mr McCabe and Ms Wells returned to the unit and shut the door. Then, Ms Wells appeared to be upset with Mr McCabe and stated to him that she thought he was “out of line” which Mr McCabe disputed. Mrs Pusell agreed that Ms Wells appeared upset and annoyed, but she was not crying. She agreed with the proposition that Ms Wells was of the view that Mr McCabe had overreacted: T167. Mrs Pusell gave evidence that Mr McCabe then went back outside the unit.

134. There was then extensive cross-examination in relation to the deletion of photographs and videos. Mrs Pusell agreed that she had not deleted any video footage from her phone. Numerous questions were asked of Mrs Pusell in relation to whether anyone had deleted photographs or video footage from Ms Riechelmann’s telephone. Although Mrs Pusell’s evidence was inconsistent to some degree in relation to this issue, her evidence appeared to be that she gave the phone to Ms Farrugia and Ms Farrugia deleted one or more photographs from Ms Riechelmann’s phone and at least one video before they had a discussion that they should not delete any further material from the phone. It appeared to be the case that they were of the view that close-ups of Ms Well’s face at the least should be deleted from the phone. In some places in her evidence, Mrs Pusell said that she saw Ms Farrugia delete video footage from the phone of Ms Riechelmann. Later, while expressing her belief that one video and a couple of photos were deleted by Ms Farrugia, Mrs Pusell said that she was not sure of it. Mrs Pusell was consistent in her denials that she had deleted anything and said that Ms Farrugia was holding the telephone of Ms Riechelmann. Mrs Pusell gave evidence that when the telephone was placed on the bench by either her or Ms Farrugia, Mr McCabe and Ms Wells were not in the unit. She stated that she did not see Mr McCabe return to the unit but believed she would have known as it was a small unit. She then stated that he did not come back into the unit before the Police arrived: T201.42.

676. These matters raise very considerable doubts in my mind as to the accuracy of Ms Wells’ account of the actions of Mr McCabe and Ms Riechelmann outside Mr McCabe’s unit and in the foyer area. However, Ms Wells was there and her account is very different to Ms Riechelmann’s account and Mr McCabe’s account. Overall, in my view Ms Wells’s evidence should be treated with real caution on the central issues.

677. There are also a large number of matters relevant to considering Ms Riechelmann’s account of what occurred. See:

1. The matters referred to in the penultimate paragraph relating to Ms Wells in (i) and (j). In relation to the visit to Dr Begum (see (l)), this occurred only 5 days after the alleged incident and the doctor’s notes are generally consistent with Ms Riechelmann’s account. However, importantly there is no reference in the notes to bruising or marks on the defendant’s neck or throat. See also Exhibit G (marked by Ms Riechelmann herself) and Professor Brew’s comment on this matter. There is always the possibility that Dr Begum’s notes are not fully detailed but he was aware Ms Riechelmann was present so he could “document” her injuries and thus must have been aware of the importance of his notes being accurate as to the bruising/injuries: see his consultation notes in Exhibit B;

2. Ms Riechelmann’s longstanding psychological issues at the time of the incident. Some of these related to Mr McCabe and her strong feelings relating to him;

3. There was a substantial and consistent degree of dislike and animosity between Ms Riechelmann and Mr McCabe over several years. This is clearly established on the evidence including emails between them. There was no evidence of any prior violence by Mr McCabe on Ms Riechelmann. Mr McCabe’s complaints about Ms Riechelmann had led to an apprehended violence order being sought and obtained by Police in 2014. Ms Riechelmann thought Mr McCabe was offensive, insulting and belittling and attempting to control her relationship with Mr Lavers. She expressed significant anger to Mr Lavers in relation to Mr McCabe: see the texts in Exhibit 5. She gave evidence that by 2017 she “hated” Mr McCabe;

4. Even on her evidence, Ms Riechelmann had previously slapped Mr McCabe’s face in 2014. She had thrown wine over him in 2017. There was thus a strong history of dislike between them. She informed Mr Lavers that she had “anger issues”;

5. Ms Riechelmann appeared to be intoxicated to some degree on the night of the incident – see my analysis above;

6. Ms Riechelmann’s conduct on the night prior to the alleged assaults was in my view unreasonable and aggressive. She knocked loudly and regularly on Mr Lavers’ door and made many obscene comments to Mr McCabe in the context of his loud insults to her. Her knocking fairly late at night seemed to be unjustified;

7. In the video footage, Mr McCabe is heard saying: “You hit me in the face”. Significantly, this is not denied by Ms Riechelmann at the time. Ms Riechelmann responds: “You slapped my phone out of my hand”;

8. There is no video footage directly and clearly supporting Ms Riechelmann’s account of Mr McCabe’s alleged actions. At one point, Mr McCabe very briefly has his back inside the doorway to his unit which appears to be inconsistent with the suggestion that he had moved behind Ms Riechelmann to choke/strangle her when she went to pick up her telephone: see the plaintiff’s written submissions in chief, paragraph 43 and the Exhibit A video. The defendant is shown soon after attempting to get back into the unit block and calling out to Mr Lavers which is arguably inconsistent with having just been choked/strangled where she was unable to speak or breathe (see T709.29);

9. Ms Wells version is inconsistent in many significant ways with Ms Riechelmann’s version. On Ms Riechelmann’s evidence, Ms Wells was in the foyer when the battery involving strangling/choking from behind allegedly occurred;

10. Mr Pusell’s evidence of Ms Riechelmann’s hand being directed towards Mr McCabe when Mr Pusell looked in the peep hole in the door of his unit. This evidence supports Mr McCabe’s account that Ms Riechelmann punched him (at least one time);

11. Ms Riechelmann appeared from the footage to be agitated by Ms Wells’ comment a short time before the alleged battery that Mr Lavers has “got another girlfriend.” Both Mr McCabe and Ms Wells appeared to be goading Ms Riechelmann. I agree with the defendant’s submissions on this matter;

12. The bruising evidence from Ms Riechelmann: Exhibit G. The defendant’s submissions about the bruising on the defendant’s back allegedly connected with Mr McCabe’s sunglasses appeared to me to be somewhat speculative and requiring a tenuous inference to be drawn;

13. Ms Riechelmann’s largely contemporaneous complaints to the police, Mr Lavers and her friend soon after the incident are relevant: see the defendant’s written submissions paragraph 41 (25 October 2022);

14. The video footage shows Mr McCabe and Ms Riechelmann in conversation after Ms Riechelmann was allegedly choked or strangled in the first alleged incident and after she attempted to pass by him apparently to reclimb the stairs. It would seem very surprising indeed that Ms Riechelmann would do this and engage in a conversation with Mr McCabe about his sister if she had been strangled or choked only a short time before by him. It would seem much more likely that she would leave the units and seek to report the matter immediately to Police. Further, I could not detect any limitation or restriction in her voice or her confidence at the time;

15. Her stated lack of recollection after she was allegedly assaulted by Mr McCabe near his unit doorway: T711-T712.

678. Many of these various matters raise doubts in my mind about the reliability of Ms Riechelmann’s allegations in her evidence that Mr McCabe grabbed her, put his arm around her from behind, choked or strangled her and at some time threw her against a wall and to the ground. Ms Wells did not see the actions alleged by Ms Riechelmann despite being in the foyer and gave an inconsistent version but said they could possibly have occurred. Ms Riechelmann tried to come back into the units and pass by Mr McCabe referring to his sister after the alleged strangling/choking which appears inconsistent with such a significant physical event. In the end, taking into account all of the evidence and the factors I have referred to, I am not satisfied that Ms Riechelmann’s account has been established to the requisite standard.

679. In relation to Mr McCabe, the following matters are relevant:

1. He was clearly well intoxicated on the night – see my analysis above;

2. He clearly disliked Ms Riechelmann prior to the incident for a number of years and regarded her as violent and aggressive;

3. He thought Ms Riechelmann was not a good partner for Mr Lavers, his long standing friend;

4. He had, at the least, been rude to Ms Riechelmann both directly to her face and in emails prior to 31 March 2018;

5. Ms Riechelmann’s obscenities and loud knocking, and her close filming of him, are likely to have annoyed him or at least irritated him. He denied anger in his oral evidence;

6. The video footage does not directly and clearly support Mr McCabe’s account other than Ms Riechelmann’s failure to deny his assertion made to her that she had “hit [him] in the face”. This is relevant and must be taken into account as it was made soon after the events in question;

7. Mr McCabe was clearly a person of interest with Police from 31 March 2018. In my view, this was clear to him. As a solicitor, he clearly had an interest in blaming aggression on Ms Riechelmann rather than himself;

8. Ms Wells’ second account in her later statement in some ways supports Ms Riechelmann’s account of a strangling but a factually different and later strangling;

9. However, Mr Pusell’s account provides some support for Mr McCabe’s account of being punched by Ms Riechelmann due to him claiming that he saw Mr Riechelmann’s partly closed hand being directed towards Mr McCabe;

10. The alleged striking by Ms Riechelmann occurred soon after Ms Wells claimed that Mr Lavers had another girlfriend and Mr McCabe said this was a good development. This is likely to have affected and possibly provoked Ms Riechelmann although she denied this in her oral evidence;

11. Ms Riechelmann’s complaints soon after the incident to Mr Lavers and Ms Hart-Waters are inconsistent with Mr McCabe’s account;

12. The photographic evidence supports an injury to Mr McCabe’s face. This was seen by Mrs Pusell;

13. The various factors referred to by me above in these reasons in assessing Mr McCabe’s credibility.

680. The above matters impact, in my view, on the reliability of Mr McCabe’s account. I do not accept all of his account. Similarly, I cannot find that he is a reliable witness as to all aspects of the battery allegations.

681. Taking the above matters into account, and having considered the detailed submissions made on behalf of the parties, I find as follows:

1. All the relevant witnesses apart from Mr and Mrs Pusell were intoxicated to some degree (although Ms Riechelmann to a lesser degree) on the night of 31 March 2018;

2. All the relevant witnesses apart from Mr and Mrs Pusell and Mr Lavers have significant personal reasons in putting forward their respective versions of events. There has been considerable animosity between Mr McCabe on the one hand and Ms Wells and Ms Riechelmann on the other hand;

3. I am not comfortably satisfied on the balance of probabilities that Mr McCabe punched or struck Ms Riechelmann’s hand and particularly, that he did so with an intent to cause injury to her hand. See my analysis above;

4. I am not comfortably satisfied on the balance of probabilities that Mr McCabe choked or strangled Ms Riechelmann or threw Ms Riechelmann to the floor or grabbed her as alleged by Ms Riechelmann. It is likely Ms Riechelmann would have alleged this against Mr McCabe very soon after it occurred if it had occurred. It is not heard as an assertion by Ms Riechelmann on the video footage. It is unlikely Ms Riechelmann would have stayed near the block of units and attempted to pass Mr McCabe after the incident alleged by Ms Riechelmann if it had occurred. She would have been wishing to avoid him as he would have seemed to her to be very violent. Her voice and confidence did not appear to be affected when she attempted to pass him towards the end of video 8 in Exhibit A. There were no reported or recorded bruises or marks on her neck or throat when she visited Dr Begum. Ms Riechelmann confirmed this in her oral evidence and in Exhibit G. Ms Riechelmann did not mention the redness on the neck reported by Ms Hart-Waters. Mr and Mrs Pusell saw no conduct from Mr McCabe consistent with Ms Riechelmann’s allegations. Whilst Ms Riechelmann had bruises and marks, these could potentially have occurred in knocking loudly on Mr Lavers’ door (she complained of sore knuckles), in striking Mr McCabe or in her attempts to come back into the units and pass by Mr McCabe. I did not find Ms Wells to be a persuasive or reliable witness having regard to the factors I have referred to in relation to her. Her account was very different to Ms Riechelmann’s account. I also did not find Ms Riechelmann to be a persuasive witness for the reasons outlined despite her making relevant complaints at the time. These complaints obviously emanated from her. Her account is also inconsistent with the apparent injury to Mr McCabe’s face confirmed by Mrs Pusell;

5. I am not comfortably satisfied on the balance of probabilities that Ms Riechelmann struck Mr McCabe five or more times as claimed by him. Only Mr McCabe’s evidence supports this, and he is not in my view an independent or reliable witness on this issue. There was no other independent evidence supporting this version of at least five punches. I did not regard the video evidence as providing any real significant support for this allegation;

6. I am comfortably satisfied on the balance of probabilities that it has been established by the plaintiff that Ms Riechelmann intentionally struck Mr McCabe once on the face with her hand with the intention of injuring him whilst they were standing outside Mr McCabe’s unit doorway. This finding is supported by Mr McCabe’s near contemporaneous oral assertion on the video footage of being struck on the face which was not denied at the time by Ms Riechelmann. It is also supported by the photograph of Mr McCabe’s face taken a few days after the incident which shows redness/swelling. This was confirmed by Mr McCabe in his oral evidence. I acknowledge the limitations of photographic evidence and the caution that must be exercised in its use: see Goode v Angland [2017] NSWCA 311 at [89]-[96], [105], [224]. It was supported by Mrs Pusell’s evidence as to her observations of Mr McCabe’s upper cheek and his assertions to her soon after of being struck: see at T192.25-.46;

7. The first punch by Ms Riechelmann to Mr McCabe’s face is also supported by the independent evidence of Mr Pusell. I take into account that Mr Pusell only viewed the incident through the peep hole on his door, that he did not see the strike connect on Mr McCabe’s face, that he suffered some recent memory and anxiety problems and he had a negative view of Ms Riechelmann. I found Mr Pusell overall to be a careful, reliable and persuasive witness. I accept the accuracy of what he saw having regard to his asserted reaction having viewed Ms Riechelmann’s act. He said he was shocked by it. My finding is also supported by Ms Riechelmann’s long standing hatred of Mr McCabe, her belief that he had interfered in her relationship with Mr Lavers and his goading of Ms Riechelmann shortly before the incident which likely aggravated Ms Riechelmann into action;

8. I also make this finding despite Ms Wells’ evidence and Ms Riechelmann’s denials and assertions that she was assaulted (including her texts to Mr Lavers and her conversations with Ms Hart-Waters which I reject as being self-serving and inaccurate on this issue); and

9. The nature of the striking action and blow of Ms Riechelmann in the circumstances clearly allows the inference to be comfortably drawn that it was made with an intent to injure and was not accidental. In any case, I expressly make the finding that having regard to the nature of the blow, made directly to Mr McCabe’s face in the course of a direct verbal confrontation, it was made with the intent to injure. I acknowledge the seriousness of this finding and expressly take into account the matters in section 140 of the Evidence Act 2005 (NSW) in making the finding.

Assault

682. In her Cross-Claim, Ms Riechelmann also seeks damages for the tort of assault. A battery is not required to establish this tort.

683. In my view, this tort is not established to my satisfaction. The video evidence shows interaction between Mr McCabe and Ms Riechelmann which does not establish or suggest any reasonable apprehension by Ms Riechelmann of force being used against her by Mr McCabe. The video evidence shows Ms Riechelmann descending the stairs, approaching Mr McCabe closely, and filming him and Ms Wells in close proximity to them. She talks to him apparently confidently. Later, the video evidence shows Ms Riechelmann trying to advance towards the stairs and continuing to attempt to do so despite Mr McCabe preventing her by placing his right arm in front of him. She does not appear to be initially dissuaded despite his actions. The film does not, in my view, show any apprehension on her part of the immediate use of force. Instead, she appears to be assertive and confident in her actions. She uses swear words readily in Mr McCabe’s presence. I reject her evidence of an apprehension of force being used by Mr McCabe against her. At all times there was nothing to prevent Ms Riechelmann quietly leaving the premises and contacting Mr Lavers through other means or the next morning.

Damages

Mr McCabe

2017 incident

684. In relation to the wine throwing incident in 2017 which I have found established, it seems that damages must reflect the nature of the battery, the injury and damage suffered including the wine being thrown on Mr McCabe’s clothes, back, shoulders and head and the degree of force involved and the distress, anxiety and agitation caused to him on the evidence.

685. Taking these matters into account, I would assess damages at $500.

Second 2018 incident involving an assault

686. In relation to the second incident in 2018 involving a gestured throwing of the contents of a half glass of liquid, in my view this is relatively minor although I accept that it was concerning to Mr McCabe and caused some anxiety, distress and agitation at the time having regard to the 2017 incident.

687. I would assess damages as being nominal at $100.

31 March 2018 incident

688. In relation to the 31 March 2018 incident, I have rejected above Mr McCabe having any psychiatric condition as a result of the incident.

689. However, in my view attending a psychologist was reasonable in the circumstances having regard to his symptoms which I accept.

690. I would allow the cost of the two psychological consultations in the sum of $170. See Exhibit F page 1.

691. I would allow for the general practitioner consultation before the referral. I allow $70.

692. In relation to the battery, I have only accepted that Mr McCabe was struck once by Ms Riechelmann on the side of the face albeit that it caused redness and was done without permission and not in self-defence. The full circumstances of the night to that stage are taken into account. Striking someone in the face is a serious act and is to be deplored.

693. I would assess damages at $1,750 for this incident. The injuries did not appear to be long lasting or particularly serious. The amount sought by the plaintiff of $60,000 is in my view excessive. However, I find a degree of distress, agitation and anxiety to Mr McCabe resulting from the battery was established – he also obtained a referral to a psychologist from his general practitioner.

694. An amount of $50,000 was sought by the plaintiff for exemplary damages. The relevant principles are set out below. In my view, no amount should be allowed for exemplary damages. First, I do not see the battery found to be of a nature necessary to allow damages as a form of punishment. Secondly, I do not see such an award as required to deter similar conduct in the future. Both parties seem to have moved on and Ms Riechelmann is no longer in a relationship with Mr Lavers, Mr McCabe’s long-term friend. Further, in my view the conduct was not such as requiring an award to reflect any “detestation” by the Court.

695. The claim relating to damage to the car was not pressed.

Ms Riechelmann

696. I have rejected Ms Riechelmann’s claims.

697. I assess damages for the alleged battery and the alleged assault in the event I am in error in rejecting her claims.

698. Damages must be assessed at common law having regard to the alleged conduct.

General damages

699. I have determined that if Ms Riechelmann’s account is accepted, Mr McCabe’s battery caused an aggravation of her depression and PTSD.

700. However, it did not cause her to lose her job at Qantas. She was able to keep working in her usual job until she was made redundant. The aggravation of her depression and the PTSD thus appear to be reasonably moderate.

701. The matters referred to in the defendant’s submissions are taken into account.

702. I take into account these matters and the following matters if Ms Riechelmann’s account is accepted:

1. On Ms Riechelmann’s account it was unprovoked but must be seen in the context of mutually exchanged insults;

2. Ms Riechelmann is of slight build;

3. On Ms Riechelmann’s account, she was bruised and choked from behind. This would have been frightening;

4. On Ms Wells’ account if that is preferred, Ms Riechelmann was strangled in a face to face incident;

5. Her face went red and she had difficulty breathing;

6. She was thrown to the ground and her back and knee were bruised;

1. It was highly upsetting to her;

2. Her demeanour had changed significantly according to Ms Hart-Waters;

3. She continues to seek professional medical help on a regular basis and has ongoing symptoms although these seem to have improved.

703. On the other hand, the ending of her 8 year relationship with Mr Lavers appears to have caused her some real distress as would be expected.

704. In my view, the appropriate figure to allow is $100,000 for general damages. The amount claimed by the defendant of $250,000 seems excessive and does not take into account that the defendant was able to continue working albeit at a reduced level of performance. Ms Riechelmann’s existing mental health issues must also be taken into account as must her natural distress in her long term relationship with Mr Lavers ending through his choice. The figure of $100,000 is arrived at particularly taking into account the medical evidence and Ms Riechelmann’s evidence as to the effect of the incident on her.

Aggravated and exemplary damages

705. In State of New South Wales v Abed [2014] NSWCA 419, Gleeson JA (with whom Bathurst CJ and Macfarlan JA agreed) stated the following at paragraphs [230]-[234]:

[230] The principles upon which aggravated and exemplary damages are awarded are well established and were not in issue on the appeal. The principles were summarised by Sackville AJA (Macfarlan and Whealy JJA agreeing) in New South Wales v Zreika [2012] NSWCA 37 at [60]–[64]. It is necessary to keep in mind the conceptual distinction between the compensatory nature of aggravated damages and the punitive and deterrent nature of exemplary damages. The assessment of aggravated damages is made from the point of view of the plaintiff, whereas in the case of exemplary damages the focus is on the conduct of the defendant.

[231] Aggravated damages are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like: Lambv Cotogno [1987] HCA 47 ; 164 CLR 1 at 8. Aggravated damages are given to compensate the plaintiff when the harm done to him or her by a wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax [1966] HCA 40 ; 117 CLR 118 at [ ] (Windeyer J).

[232] Exemplary damages go beyond compensation and are awarded as a punishment to the guilty, to deter similar conduct in the future, and to reflect “detestation” for the action: Lamb v Cotogno at 8. Generally speaking, what is required for an award is “conscious wrongdoing in contumelious disregard of another’s rights”: Gray v Motor Accidents Commission [1998] HC 70 ; 196 CLR 1 at [14] (Gray v MAC).

[233] In New South v Riley [2003] NSWCA 208 ; 57 NSWLR 496 Hodgson JA (Sheller JA and Nicholas J agreeing) expressed the view (at [138]) that the description in Gray v MAC does not fully cover the field. His Honour said that “Conduct may be high handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrongdoing”. However, Hodgson JA also observed that, ordinarily, conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the Court’s disapproval or, in cases where the defendant stood to gain more than the plaintiff lost, demonstrate that the wrongful conduct should not be to the advantage of the wrongdoer.

[234] In New South Wales v Radford [2010] NSWCA 276 ; 79 NSWLR 327, Sackville AJA (Beazley and Macfarlan JJA agreeing) summarised the effect of the authorities as follows:

[97] These authorities demonstrate that the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages or injury to the plaintiff’s feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.”

706. I note that the batteries alleged occurred (if found) in an open area in front of Ms Wells. Ms Riechelmann was, on her case, treated in a fashion which was humiliating, forceful and undignified. The Riechelmann battery was a significant battery if her evidence is accepted. It was committed by an apparently strong and well-built male person. It involved choking or strangling. It must have been traumatic if it occurred as she stated. The Wells’ battery was also violent and forceful if accepted. I would allow $20,000 in aggravated damages for both batteries and $10,000 if only one battery is accepted. The amount claimed by the defendant of $70,000-$100,000 is in my view excessive.

707. I do not consider an award of exemplary damages to be warranted. I do not see there being any similar conduct likely in the future. All parties appear to have moved on in their lives. The conduct occurred in a heated and emotionally charged situation. An award is not necessary in my view to reflect detestation in the actions of Mr McCabe if accepted. He was not in a position of authority in relation to Ms Riechelmann.

Interest on general and aggravated damages

708. Interest should be awarded on general damages, aggravated damages and exemplary damages. It should be assessed assuming 50% of the damages are in the past and 50% are in the future. A 3% discount rate should be used.

Past treatment expenses

709. An amount of $4,000 should be allowed for past treatment expenses.

Future treatment expenses

710. An amount should be awarded taking into account the defendant’s regular visits to a psychiatrist and psychologist following the incident. I accept the opinion of Dr Keller in his 28 February 2020 report. I allow $6,000 in total for psychiatric review and medication. In relation to a psychologist, I would allow $1,000: see Dr Keller’s 6 May 2020 report.

Future economic loss/loss of future earning capacity

711. The defendant seeks a buffer of $200,000. Ms Riechelmann was able to perform her job at Qantas after the 31 March 2018 incident and was retrenched in the middle of the Covid-19 pandemic. She had been a career Qantas steward. There was no evidence of her seeking work or planning to work in the future. Her PTSD affects her capacity to undertake work: see Dr Keller’s second report page 4. Having regard to her age and career, any work is likely to be part-time. I would allow only $15,000 as a buffer for reduction of future earning capacity having regard to the treatment contemplated, her appearance in the witness box, her work from 2018-2020, her concentrated career and her existing depressive symptoms: see also Dr McClure report, page 8, under the heading “prognosis.”

Assault

712. If I am in error as to the alleged assault, I would allow $500 in damages. This is calculated on the basis that the battery did not occur and Ms Riechelmann had a reasonable apprehension of the use of force on her by Mr McCabe.

Determination

713. The Court acknowledges the assistance provided to the Court in submissions by counsel.

714. For the above reasons, the Court makes the following orders:

1. Judgment for the plaintiff against the defendant in the Statement of Claim proceedings.

2. Judgment for the plaintiff/cross-defendant against the defendant/cross-claimant in the Cross-Claim proceedings.

3. The Cross-claim proceedings are dismissed against the plaintiff.

4. The parties are to bring in agreed short minutes of orders reflecting these reasons within 14 days.

5. The question of costs of the Statement of Claim proceedings and the Cross-claim proceedings are reserved.

715. As requested by the parties, the fifth order reserving costs is made pending further submissions as to costs.

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Decision last updated: 03 March 2023