R v Becirovic
[2021] SADC 72
•22 June 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BECIROVIC
Criminal Trial by Judge Alone
[2021] SADC 72
Reasons for the Verdicts of her Honour Judge Fuller
22 June 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATING AND STRANGULATION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - AGGRAVATED THREATENING LIFE
Accused charged with two counts of unlawful choking and one count of aggravated threatening life - the complainant in all counts was the accused's former wife - offending alleged to have occurred in July and September 2019 - no report to police until two days after date of third count - properties of significant value purchased during marriage in complainant's name - whilst accused in prison on unrelated matters complainant sold one property - another property worth $2.3 million also in complainant's name - complainant claimed the accused had agreed this property belonged to her because he had spent his share of matrimonial pool on his mistress and parents - accused fathered 3 children with complainant and 3 children with mistress whilst still married - shortly before date of third count, complainant tried to remove caveat placed by accused on property in order to sell it- complainant consulted family lawyer to obtain sole custody of children - following day accused collected children without complainant's permission and threatened complainant with legal proceedings over property - complainant arranged for police to attend with her so she could take children from accused but did not report the alleged offending to police at that time.
Prosecution case depended entirely on evidence of complainant - proved prior inconsistent statements on material matters - complainant's account of an aspect of the offending in September 2019 contradicted by contemporaneous text messages between accused and complainant - evidence of motive to embellish allegations - evidence that complainant made false allegations to police that accused physically abused their children - imputations of recent invention not rebutted.
Verdict: Not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20A; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13A(12), referred to.
Carter v R (1994) 176 LSJS 112; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; Goldsmith v Sandilands (2002) 190 ALR 370; Nominal Defendant v Clements (1960) 104 CLR 476, considered.
R v BECIROVIC
[2021] SADC 72
Criminal
The accused was arraigned before me on the following Information:-
First Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kenan Becirovic on the 8th day of July 2019 at Clovelly Park, being or having been in a relationship with Thao-Abigail Becirovic, unlawfully choked, suffocated or strangled Thao-Abigail Becirovic, without her consent.
Second Count
Aggravated Threatening Life. (Section 19 (1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Kenan Becirovic on the 8th day of July 2019 at Clovelly Park, without lawful excuse, threatened to kill or endanger the life of Thao-Abigail Becirovic intending to arouse a fear that the threat would be, or was likely to be, carried out, or being recklessly indifferent as to whether such a fear was aroused.
It is further alleged that Kenan Becirovic committed the offence knowing that Thao-Abigail Becirovic was a person with whom he was, or was, formerly in a relationship.
Third Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Kenan Becirovic on the 3rd day of September 2019 at Clovelly Park, being or having been in a relationship with Thao-Abigail Becirovic, unlawfully choked, suffocated or strangled Thao-Abigail Becirovic, without her consent.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence
The elements of an offence against s 20A Criminal Law Consolidation Act 1935 (“CLCA”) are:
1.At the time of the alleged offence the accused was, or had been, in a relationship with the complainant.
2.The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.
3.The complainant did not consent to being choked, suffocated or strangled.
4.The act of choking, suffocating or strangling the complainant was done without lawful justification.
The elements of an aggravated offence against s 19 (1) CLCA in the context of this case are:
1.That the accused threatened to kill or endanger the life of the complainant. A threat is a communication to a person of a hostile intent.[1]
2.That when the accused did so, he intended to arouse a fear that the threat was likely to be carried out or was recklessly indifferent as to whether such fear was aroused.
3.That the threat was uttered without lawful excuse.
4.That the accused knew that the complainant was a person with whom he was, or was formerly, in a relationship.
[1] Carter v R (1994) 176 LSJS 112.
Each element must be proved beyond reasonable doubt.
Prosecution opening
The prosecution case rested on the evidence of the complainant, the accused’s former wife, Thao-Abigail Becirovic. Whilst married, it is alleged that the accused had shoved the complainant and threatened to take their children away. He was abusive and controlling. During his marriage to the complainant, the accused fathered three children with another woman, Laura Hunt. The accused’s relationship with Laura Hunt led to his separation from the complainant in 2010. They reconciled from time to time, and in 2013 during one period of reconciliation, their third son was born.
The charge in count 1 was alleged to have been committed on 8 July 2019, when the accused escorted the complainant to the garage and out of view of their three children. He slapped her across the head, spat on her and, while she was lying on the floor, called her a ‘cunt’, ‘bitch’ and ‘gold-digger’. The accused then grabbed her neck with a grip tight enough to make it difficult for her to breathe and left her unable to speak and feeling dizzy.
The accused released his grip on the complainant but continued to berate her. The complainant attempted to placate the accused, in an effort to defuse the situation. The accused threatened to kill her, declaring that if she took their three children near her new partner or told her children about the assault, he would kill her. The accused said he knew where the complainant lived, where her parents and her partner lived and that he knew people in high places, and he would be happy to go to prison for protecting his children. This conduct is the subject of count 2.
The complainant felt pain to her head from the assault but did not have any visible injuries and did not seek medical treatment.
Following this incident, the complainant no longer entered the accused’s house when she brought the children to him to look after. Despite not entering his home, the accused would nevertheless continue to threaten her and would regularly bring up the topic of selling a property in Kingswood that he and the complainant had jointly purchased whilst married.
On the evening of 3 September 2019, after finishing work, the complainant drove to the accused’s home to collect her children. The accused had picked them up from school that afternoon in accordance with the informal arrangement they had about the custody of the children. The complainant remained seated in her vehicle parked outside the accused’s home, with the doors locked and the front passenger window down.
On the prosecution case, the accused unlocked the front passenger door through the open window, opened the door and put his knee on the front passenger seat. He was holding documents relating to an attempt by the complainant to remove a caveat the accused had placed on the Kingswood property. The accused was angry and threatened the complainant not to remove the caveat. During this argument, the accused grabbed her neck with one hand and pulled back his other hand in a clenched fist. The accused held the complainant’s neck with a tight grip for about a minute. She had difficulty breathing and felt dizzy. One of her children then came out of the house, prompting the accused to let go of her neck. The three children then got into her car, and she left. The complainant had soreness to her neck but did not require medical treatment. This conduct forms the subject of count 3.
On 4 September 2019, the complainant contacted her family lawyer to commence proceedings for sole custody of her children. She also inquired about an intervention order to protect her from the accused. On that day, she received a number of text messages from the accused in relation to the Kingswood property.
On 5 September 2019, the complainant was expecting her father to pick her three children up from school. The accused picked them up without advising her in advance. As a result, the complainant contacted the police to ask for police to attend with her to collect the children. Around 7.30pm on 5 September 2019, two uniformed police officers met the complainant outside the accused’s home at Clovelly Park. The complainant stayed in her car. The accused came out of his house with his partner, Laura Hunt and the three children. While the police officers were speaking with the accused, the children were taken home by the complainant.
Later in the evening of 5 September 2019, the complainant attended Grenfell Police Station to report the incidents the subject of the charges. Police attended the accused’s home at 1.30am on 6 September 2019 and arrested him. He denied the charges when interviewed.
The accused was released from prison on 5 July 2019 to continue serving a sentence of imprisonment on home detention. That sentence had commenced in March 2016. The accused’s release from custody occurred a few days before the offence alleged in count 1. The accused’s imprisonment on unrelated matters was relevant to explain why he and the complainant separated and had limited contact in those years. The fact that the accused had been convicted and sentenced was also relevant to explain the placing of caveats on the Kingswood property as part of confiscation of assets proceedings.
Issues in dispute
The central issue in dispute was whether the accused engaged in the conduct the subject of each charge. There was no dispute that if the conduct particularised in each charge was proved beyond reasonable doubt, the commission of each charged offence would have been proved. The defence case was that the complainant fabricated the allegations, in order to secure sole custody of her three children and to keep secure her ownership of the Kingswood property, enabling her to sell it without interference from the accused.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[2] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[3]
[3] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
I must consider each charge separately and must not reason to a conclusion of guilt on one charge simply by reason of a finding of guilt on another.
The evidence
I turn now to examine the evidence in more detail.
The following exhibits were tendered: -
·Exhibit P1: Screenshots of text messages.
·Exhibit D2: Certificate of title 5778/572.
·Exhibit P3: Statement of agreed facts.
·Exhibit D4: Further statement of agreed facts.
·Exhibit D5: Disc of recorded conversation 12 July 2020 [tendered portion relates only to conversation between 8.28 and 9.04 minutes]
In exhibit P3, the prosecution and defence agreed the following facts: -
1.On 12 May 2016 the accused Kenan Becirovic was sentenced in the District Court of South Australia to imprisonment for 8 years 6 months with a non-parole period of 5 years commencing from 11 March 2016.
2.On 19 January 2018 the sentence was varied in the Supreme Court of South Australia to imprisonment for 2 years with a non-parole period of 1 year 4 months from 11 March 2016. A number of convictions were overturned.
3.On 7 November 2018 the accused Kenan Becirovic was sentenced in the Supreme Court of South Australia to imprisonment for 9 years 6 months 4 weeks and 2 days with a non-parole period of 4 years 9 months from 11 March 2018.
4.On 5 July 2019 the accused Kenan Becirovic was released on home detention to continue serving the sentence of imprisonment imposed on 7 November 2018.
5.On 5 September 2019 at around 3.10pm Thao-Abigail Becirovic’s father, Mr Thanh Tu Le, attended Mitcham Primary School to pick up Ms Becirovic’s three sons. He waited outside a classroom.
6.Mr Le contacted his daughter, Ms Becirovic, after he could not locate the three children at Mitcham Primary School. Mr Le went home after the conversation with his daughter.
7.On 6 September 2019 at around 1.30am police arrested the accused Kenan Becirovic at 76 Celtic Avenue Clovelly Park.
8.On 6 September 2019 at around 1.30pm Constable Tiplady spoke with Abigail Becirovic over the phone and recorded a diary entry that Ms Becirovic disclosed that there have been instances of physical abuse against the children in the past.
In exhibit D4, the following facts were agreed:
1.During a proofing session with the DPP on 27th May 2021 the complainant said that the accused was eerily calm and not yelling in the garage.
2.The complainant has never stated in any previous statement or proofing session that there were two knocks on the door in relation to the garage incident.
3.The complainant has never stated in any previous statement or proofing session that Azari had injured his knee or that she had seen him with ice on it.
It was an agreed fact that the accused had been sentenced to, and was serving, two substantial periods of imprisonment between 2016 and 2019. That evidence was relevant to explain why he and the complainant had limited contact during those years. I have not used that evidence to reason that the accused is the sort of person who would have committed the offences with which he is charged.
The complainant’s evidence in chief.
During the evidence of the complainant, a one-way glass screen was placed between her and the dock to obscure her view of the accused. The court was also closed. I made those orders at the outset of the trial. Pursuant to s 13A (12) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the complainant’s evidence.
The complainant was married to the accused for 12 years and there were three sons of that marriage – AjB, 13 years, AzB, 11 years and ArB, 8 years. She met the accused in November 2000 when she was 16 and he was 19. They married in February 2004, when she was just shy of 20 years of age. They first lived in a unit at Glenelg East and then moved to Hahndorf, where they lived in a cottage at the back of a café/motel owned and operated by the accused’s parents. His parents had asked her to join the family business. She deferred the forensic science degree into which she had been accepted, and accepted the offer made by the accused’s parents. She did so because she and the accused wanted to have children at a young age and believed that working in the family business would help them become sufficiently financially stable to start a family.[4]
[4] T 10-12.
Two years later, the complainant and the accused moved out of the Hahndorf property, following an argument with the accused’s parents regarding their work hours and remuneration.[5] They moved to a friend’s unit at Black Forest for a year.[6]
[5] T 12-13.
[6] T 13, 15-22.
The complainant described her marriage to the accused during this time as follows:
I had a very traditional sense of what marriage was to be, my parents are very traditional Vietnamese people, and so did Kenan, actually, he had quite a traditional sense of what a marriage is but at the same time I got the sense that because Kenan – through the war and through working with his family business for so long, that he kind of was a bit desperate for, I suppose you could say relive his youth. He wanted to go out a lot still. We were probably, in hindsight, rather immature about our relationship, we fought a lot but it was kind of ‘We’re fighting because we love each other and we’re fighting because we’re desperate to be together’, but it wasn’t smooth.[7]
[7] T 13, 25-37.
The complainant said that the fighting was not physical.
The complainant and the accused then purchased a property at Eden Hills which was put in her name. She explained that this was done because the accused’s credit rating ‘wasn’t of any use’, as a result of his parents using his name to borrow money to purchase the Hahndorf property. The complainant said she was working in retail and her pay slips were used to obtain the loan and mortgage over the property. She said that each of them was making mortgage repayments.[8]
[8] T 14, 14-31.
After the birth of their first son in 2007 and their second son in 2009, the complainant and the accused continued to argue, mostly about his absence from the home. The complainant believed his explanations, for example, that he had been at a friend’s house or had fallen asleep. However, in June 2010, just before AzB’s first birthday she made the accused come home and asked him what was going on. The accused confessed to her that he had had a one night stand a couple of years ago with a woman called Laura Hunt and she had his baby. The accused told her that he had no choice, it just happened but he had not spoken to Laura since.
After the complainant found out about Laura, she and the accused separated for a couple of months. This was her decision.[9] However, the accused would come and go from the house and spend time with the boys and told the complainant that he was not in a relationship with Laura. She said the accused ended up ‘slipping back into the bedroom and then after a while after that we just began – we recommenced our relationship again’.[10]
[9] T 25, 35-37.
[10] T 25, 23-33.
The arguments continued but they were predominantly about Laura.[11] The arguments were always verbal until after the Eden Hills property was raided by police between 2010 and 2011.[12]
[11] T 15-16.
[12] T 17, 19-25.
During or after the raid, the complainant was approached by police officers who asked her where Laura was and whether they could have Laura’s number. At this time, the accused’s grandmother was sick in Bosnia and the family rushed to get tickets to fly back to Bosnia to be at her bedside or attend her funeral. When the complainant spoke to the travel agent to book tickets for herself, the agent asked her whether Laura was still intending to travel. The complainant then confronted the accused about Laura and why she was flying to Bosnia, if she was simply a woman whom the accused was financially supporting because she had his son.[13]
[13] T 17-18.
During an argument in the following days, the accused shoved her once into the pantry in front of his mother. The complainant described the incident as follows:
Kenan doesn’t like being emasculated or belittled and I remember saying to him, ‘You keep going on about how you’re a man, you’re a man of your word and that your word is all you have’, and, you know, ‘You’re not scared of anyone, you don’t have to lie, you’ll always tell the truth, you’re not scared of telling the truth’. And I said, ‘What kind of man are you that you can’t answer up to something that you’ve done?’ And I asked him, you know, ‘You’re not a man. If you can’t answer me, what kind of man are you? You’re not a man’ and I think I would’ve sworn at him a little bit too and that’s when I got shoved.[14]
[14] T 19, 3-14.
The complainant said that the accused called her a ‘third world savage’, ‘bitch’ and ‘cunt’, but did not remember him threatening her in any way during this incident. He shoved her with one hand as she had her back to the pantry cupboard, and she fell into the shelves and then onto the floor. She described this as a shove involving medium force. She could not recall with which part of her body the accused made contact; she could only remember falling into the shelves.[15] He stood over her and yelled at her. His mother was saying ‘stop’ and asking, ‘where’s the love? You two used to love each other very much’. This was the first time the accused had been physical with her, and she had light bruising.[16] The accused’s parents were staying with them for three to six months after their return from Bosnia.[17]
[15] T 19, 29-31.
[16] T 19-20.
[17] T 24, 17-24.
On a different day, the accused argued with her in the hallway, and he pushed her head, causing her to jerk backwards and hit the gyprock wall causing a dent. The children had been out with the accused so that the complainant could tidy the house. When they returned one of the boys told her that they had gone to ‘Dad’s friend’s house’ and described that person as a ‘lady with black hair’. The complainant then confronted the accused and asked him if he had taken her children to see the ‘other woman’. The accused became really angry, and they were arguing back and forth, culminating in her being pushed against the wall. The accused had been holding her in place as he was trying to talk to her, and she was trying to pull away from him. He then let go and the momentum caused her to move backwards and hit the wall. After this he pushed her away from him with two open hands. She said she had whiplash for a few days after that. After this the arguments became very nasty every time she brought up Laura.[18]
[18] T 18 – 23.
The complainant gave evidence that she and the accused received some money from the sale of the family business in Hahndorf, and the accused then started a business in importing and selling high performance car accessories. They had joint bank accounts and although she could access those accounts, money was only put in when bills were due to be paid. There was always petty cash in the kitchen to spend on the children.[19]
[19] T 26-27.
After the accused’s parents moved out, the complainant said that the accused and her would argue over finances when money was withheld from her when she needed it. She described this as a ‘form of control or to limit my independence’. She said:
And I think we touched a little bit just before because of Kenan’s credit rating, loans and mortgages and credit cards weren’t able to be in his name so they were all in mine, and so when we’d have arguments and I’d threaten to leave he would then threaten to kind of leave me in that financial situation where, you know, I remember him saying, ‘Good luck being on your own with all that debt to your name’.[20]
[20] T 27, 26-33.
The complainant said that when they were living at Eden Hills, the debt was $400,000, and she had a line of credit of $35,000 and a $32,000 credit card. The accused frequently asked her to take money out in cash to cover bills or whatever it was that was needed. She then explained in answer to questions from me that the account that money was put in for bills to be paid was a savings account.[21]
[21] T 28.
The complainant said that the second time she tried to leave the marriage was when the accused had been ‘charged with something big’ and it involved Laura. She said that the accused agreed that they were fighting too much, and it was not good, but he asked her to stick by him and support him until his trial took place. The accused told her that if he was imprisoned there would be no need to separate, but if he was not imprisoned, they could go forward with the separation.[22]When asked to explain why they stayed together she said:
We always said – and we were still really young and I think we romanticised it but we always said that we would raise the children together and that we would raise them respectfully and we would be respectful towards each other and because I wasn’t working, Kenan has always said, ‘Look you’re the mum, I don’t know how to do nappies, I don’t know how to do lunch boxes’ and at that stage my elder son, he had a speech impediment and didn’t really start talking until he was four, so there was lots of therapy he had to go to. So we always agreed that because I had the children, that I would stay in the house and he could come and go, and so we kind of went forward amicably until we got back into the rhythm of being back together again.[23]
[22] T 29.
[23] T 30, 3-16.
The complainant said that they stayed together until their third son was born. The day after he was born, she realised that she had not packed a dummy in her overnight bag, so she called the accused and asked him to grab a dummy from the nursery on his way into see her. He then suggested she buy another one and she surmised that he could not get the dummy from the nursery because he was in fact not home. When she came home from hospital she told the accused, ‘I’m done’.
They separated for a couple of months, and she thought it would be permanent. She said that she still loved him.[24] The accused continued to stop by and stay over and their relationship then resumed. [25]
[24] T 30-31.
[25] T 31-32.
The accused contributed financially to the care of the children and when asked by me if he was a good father to the children, the complainant said, ‘he adored the children’.[26]
[26] T 32, 10-16.
The complainant gave evidence that the accused encouraged her to buy a house at Oaklands Park that a friend of his was renovating so that they could ‘just flip it and sell it’. They ended up moving into it so that they could extend their home at Eden Hills into a 5-bedroom home, whilst renovating the Oaklands Park property. The property at Eden Hills was refinanced to the maximum amount to enable the purchase of the property at Oaklands Park. They lived in Oaklands Park for just over a year, thereby avoiding capital gains tax upon its sale. Whilst living at the Oaklands Park property, the complainant read a letter from the accused’s lawyer which detailed how the court proceedings were adjourned because Laura Hunt was due to give birth to her second child. When the complainant confronted the accused about the baby, he told her that Laura was a ‘junkie’, and the baby was not his and could have been anybody’s.[27]
[27] T 32-33.
After the sale of the Oaklands Park property, they did not return to Eden Hills. The complainant bought a house across the road from the children’s school at Kingswood and moved into it in early 2015.[28] The money she made from the sale of the Oaklands Park property was used to fund the deposit on the Kingswood property. The Eden Hills property still had a mortgage over it, but they were going to continue renovating it and either move back into it or sell it to pay off part of the mortgage over the Kingswood property.[29]
[28] T 33, 28-38.
[29] T 34.
After moving into the Kingswood property with her children, the accused’s parents came to Australia to visit and stayed with her for about five months. During that time, the accused would come and go. The complainant continued to argue with the accused, occasionally in front of his parents. The arguments revolved around his lifestyle and his ongoing denial of having a relationship with Laura Hunt. When asked if any of the arguments became physical, the complainant said she could recall one. She described being on the driveway and the accused in the garage. She argued back to him and called him a ‘motherfucker’, and he shoved her in the driveway and pulled her by the arm into the house and then the kitchen. She stood still and did not talk and then he let her go.[30]
[30] T 35-36.
Whilst living at Kingswood, the complainant was working in the accused’s car parts business, assisting him to compose letters and pay bills. The accused also went into partnership in an earth-moving business. The complainant’s wages were paid into an account from which mortgage payments were made. At that time, the accused was giving her money to help with the maintenance of the house and the children, and she used this money to ‘pay everything’. She said he would always give her money but if she fell short, she would have to ask for more.[31]
[31] T 37
When asked if she felt controlled financially by the accused, the complainant gave this evidence:
Not outwardly. The way it always came about was the control didn’t feel threatening, it felt like a privilege. So the fact that I had at one point three separate mortgages for Kingswood, Eden Hills and Oaklands Park, it wasn’t in a ‘I’m going to screw you over. I’m going to put you into debt’, it was ‘I love you so much, I trust you so much. You’re the only person that I would trust giving me money to and not be kind of like screwed over’. It was a privilege that I was able to contribute by having – by accumulating debt. So even though it wasn’t an outward threat where I felt scared, one argument with him he said ‘Well, you can leave but good luck paying your debts and good luck paying your bills’.[32]
[32] T 38, 9-22.
The complainant said that she felt that she had to placate the accused constantly because she had this debt to her name.[33]
[33] T 38, lines 23-24.
After the accused’s parents moved out of the Kingswood property in 2015, there was another period of separation until March 2016. During that time, the accused came and went from her house. In March 2016, the accused went on trial and on the evening before the last day of the trial, the accused stayed overnight. He gave the complainant the impression that he would be home that evening, but she received a telephone call from Laura Hunt asking if they could meet at McDonalds on Cross Road. The complainant had never spoken with Laura previously. She met with Laura who was with her son. She introduced herself as ‘Kenan’s second wife’ and told the complainant that she had three children with him and that he had been remanded in custody. They then arranged for her to return the accused’s vehicle to the complainant’s house.[34]
[34] T 38-40.
A few days later, the complainant spoke to the accused on the phone from prison. From that time on, he called her on a daily basis. She visited him at every available visit, usually weekly. On weekends, Laura would visit the accused on one day and she would visit on the other. She said that she felt as if she had no choice but to go, because he made her feel as if she was betraying him by not sticking by him while he was in prison.[35]
[35] T 41-42.
The complainant filed for divorce at the end of 2016 and the divorce was finalised in December 2016. She had no intention of getting back together with him upon his release. She continued to visit him in prison and would take the children with her until he was moved from Yatala to Murray Bridge.[36]
[36] T 46-47.
In July 2018, the complainant moved in with her parents. She had been making the mortgage payments on the Kingswood property by borrowing money from her family and from her earnings from working part-time in an eye lash extensions business.[37]
[37] T 47.
When the accused went to prison, both the Eden Hills and Kingswood properties were the subject of a confiscation order. In early 2019, the complainant applied to the DPP to sell the property at Eden Hills. That application was granted, and she sold the property for land value. She received an amount of $20,000 which she applied to pay out another loan over that property.[38]
[38] T 48.
When she and the accused divorced, he would joke that no one would want to be in a relationship with her because she was a single mother of three boys saddled with debt. She took this as a warning that it would not work out well for her or any future partner if she formed a new relationship. Notwithstanding this, she started a relationship with another man, Andrew, at the end of 2018. Her children met him in Easter 2019. [39]
[39] T 49-50.
The accused would continue to call the complainant on a daily basis, and she started receiving messages via Viber when he was placed in hut style accommodation. Initially she did not respond to his messages, but she could tell that he was getting frustrated, so she then responded with simple messages to placate him. The messages were mainly about financial matters or to speak to the children. She said that he would constantly tell her that he would be coming home next month. She believed this was a scare tactic to ensure that she did not sell Eden Hills.[40]
[40] T 51.
One day when she was particularly stressed about paying bills, she begged him to be allowed to sell the Eden Hills property. The accused agreed and she started the marketing campaign. A few weeks later the accused contacted her and said he wanted to keep the property, but she had already signed a contract.[41]
[41] T 51-52.
The complainant said that she and the accused had agreed that both properties would be hers, and she would finish renovating Eden Hills and use the sale of that to pay off a ‘chunk’ of the mortgage over Kingswood. She then said that when that ‘got too hard’ they spoke about her selling Kingswood, using the equity to finish renovating Eden Hills and living in it or selling it and buying something smaller for her and her children.[42] She said this agreement was reached on the basis that the accused had bought two properties for Laura, had sent lots of money to his parents in Bosnia and therefore had used his share of the matrimonial pool of assets. She explained:
…we had always said that he spent his money on girls, on cars, holidays, three extra children, extra woman, his parents in Bosnia, that this was for me. I did agree, after he was sentenced, that I would – his legal aid lawyer put a caveat on to the Kingswood property, I think it was before the property was – it was before the property was confiscated and I had agreed that I would cover that $55,000 that he owed to Legal Services and that was the only thing that I would give him.[43]
[42] T 52.
[43] T 53, 15-23.
In early July 2019, Laura contacted the complainant to advise her that the accused was being released from Port Augusta prison to serve his sentence on home detention. She then called the accused and arranged to see him the following day at Laura’s house.[44] She said she had no intention of reconciling with the accused, but she wanted her children to continue to see the accused and have a relationship with him.[45]
[44] T 54.
[45] T 55.
On Sunday afternoon she went to see the accused; Laura was there with her three children. He told her that he was a better man and had paid his dues and that things were going to be good and said, ‘just do right by me’. He made a comment that indicated to her that when she was ‘done being mad we’ll be back together’.[46]
[46] T 55.
The complainant said that she and Laura were pleasant to each other but very cautious. She ‘actually quite liked Laura’. Upon leaving the accused’s home on the Sunday afternoon, she arranged to drop the boys off to his house at 5.30pm on Monday 8 July 2019.[47]
[47] T 56.
When the complainant arrived to drop the boys off on 8 July 2019, she was welcomed into the home and after a discussion about the boys having dinner with the accused, she agreed to come back at 8.30pm to collect them. When she returned, Laura let her in, and she went to the living room where she found AjB sitting at the table next to the accused crying. The accused then explained that he had told the boys he had been in gaol, that he was now on home detention and that Laura was his wife and her three children were their half-siblings. She then asked him why he did not wait for her to be present during this conversation and he told her that the boys had told him about Andrew.[48] Laura then left the room and the accused stood up and physically turned her around to walk down the hallway towards the front of the house. The complainant described what happened next:
[48] T 58.
He spun me around with his hands and then to lead me down the hallway he had – he was standing behind me to my right, so his left hand was on my neck and his right hand was holding onto my right hand around my elbow and he guided me down the hallway. And I didn’t know where we were going, I assumed that we were going to another room. We – on the way through, we passed ArB, my youngest who was playing with Laura’s daughters in the toy room. He shot up and looked at me a bit concerned and I didn’t want to worry him so I put on a really cheery voice and said ‘That’s okay, I’m just going to the next room to talk to your dad, I’ll be right back’. At which point he guided me down the hallway to the laundry which also doubled as a garage and took me in there.[49]
…
So after he opened the door, as soon as I took a step in I turned to face Kenan and he slapped me and I toppled over. I think there was a mound of clothes on the floor, I think I fell on top of that. [50]
…
I remember for the rest of the duration of being in there the door was closed but I don’t – I can’t recall when the door was closed. [51]
…
At some point soon after entering the laundry he did pop out – I think someone knocked on the door, I’m not sure who, one of my boys, and he popped his head out and said ‘I’m just going to have a talk to mum, to momma, just go and play’ and that time I do remember seeing him close the door. [52]
…
After he slapped me and I was down on the floor he started name-calling. He started going on about how dare I start a new relationship with someone new, how quickly I had moved on. He called me – because Andrew is a little bit older than I am he called – you know, he thought it was disgusting and dirty that I had gone for an old man, he called me a slut, he called me a gold digger. He spat on me and it was – he was really angry about the fact that not only had I moved on, that the children had met Andrew without his permission.[53]
[49] T 59, 15-28
[50] T 60, 14-17
[51] T 60, 20-23
[52] T 60, 25-30
[53] T61, 2-11
When asked if she could describe in any more detail how she was slapped, she said it was a slap without a follow through. She said his hand met the side of her head on her ear and stayed there in order to shove her down. She then gave the following evidence:
QAre you able to describe how much force was used to guide you to the ground.
AThis is the same ear and the same side of my head that he had slapped the day that I was shoved into the pantry that we spoke about yesterday, so my ear – my left ear is already quite sensitive and so when he slapped me I – the force of it I felt was amplified. I was – I lost my balance really quickly. It absolutely did hurt. It felt like the force was strong and I immediately started having like a ringing in my ear and eventually it got to the point where it felt like the sound was muted and my head started to hurt straightaway.
QI just want to quickly return to the incident where you were pushed into the pantry. You gave evidence yesterday you couldn’t recall what part of your body Mr Becirovic made contact with. Do you remember now.
ANot the pantry. That was that part that we – I couldn’t recall was when we were down the hallway I thought. Because when I was shoved into the pantry, it was being slapped and cupped by my head on the same side (INDICATES).
QSo the mechanism with which you were thrown into the shelves in the pantry was contact with the side of your head.
AYes.
QAnd that’s what you were referring to a moment ago when you said there was another time when you were slapped which caused some damage to your ear.
AYes.
HER HONOUR
QJust to be clear, yesterday when you were talking about the pantry incident, was there another incident where you were slapped to the same side of the face as in the incident you’ve just described a moment ago, or are you saying that occurred in the pantry incident.
AThat was the pantry. But that is Kenan’s go-to manoeuvre. There has been other incidences where I can recall being slapped on the same side of my head but I don’t recall the incidences.[54]
[54] T 62, 10-38; T 63, 1-10.
Whilst she was on the floor, the accused spat on her face about 4 or 5 times. At one point she got up and once upright, the accused came up to her face and started warning and threatening her about her behaviour. She then gave this evidence:
A…And after a few minutes, or maybe seconds, he put his hand to my throat whilst he was talking.
QWhat did he do with his hand around your throat.
AHe had his hand around my throat enough for me to start kind of sputtering and coughing because I struggled to breathe and also he – it was a point where it just did a weird, I don’t know, a tickle or something and then it caused me to cough as well. But every time he said something where he wanted to emphasise his point, he would give it a bit of a squeeze.
QOther than struggling to breathe, do you remember experiencing any other physical sensations.
AI started getting dizzy. To be honest I wasn’t taking on everything he was saying. I was – I remember purposefully keeping eye contact with him, but a lot of what he was saying was a bit muffled. I still had the ringing in my ear at that point, I was dizzy and I was just waiting for it to be over.
HER HONOUR
QWhat, if anything, do you remember of what he was saying.
AHe was reminding me about the people he knew, how dangerous he can be. He was saying that he knew people in high places and I couldn’t hide anything from him. He told me about how I’d already screwed him over by selling the Eden Hills house and that I owed him and that I couldn’t do anything without asking him first.
XN
QWere you able to say anything to him when he had his hand around your throat.
AI actually didn’t try. I’ve repeated a few times that when he is angry I’ve learnt just to not respond.
QDid you black out at any point.
AI didn’t black out, no.
QAre you able to say roughly how long Mr Becirovic had his hand around your throat.
AIt wasn’t seconds but it wasn’t half an hour either. I’d say it was two, three minutes.
HER HONOUR
QDo you remember which hand it was.
AI can only assume it was his dominant hand.
QWhat was he doing with his other hand, are you able to say.
AI wasn’t paying attention.
XN
QWhen Mr Becirovic was saying these things to you, you mentioned he was fired up; was he yelling.
AIt’s the kind of yelling where you’re half trying to whisper, if that makes sense. But it was aggressive and it was enough for one of my sons at some point to knock on the door to kind of, you know, check in to see what was going on.
QWas that knock on the door before, during or after Mr Becirovic having his hand around your throat.
AIt was towards the end of having his hand around my throat.
HER HONOUR
QSo was that a second knock on the door. You described one at one point soon after you entered the garage someone knocked on the door and Mr Becirovic –
AThe second time actually, I don’t know what was happening outside, but AzB ended up hurting himself against the wall of the laundry or something and the only reason why – and it caused a bang which sounded like a knock and the only reason why I know that is after when I came out Laura had put him on the couch with an ice pack on his knee or something because he had hurt himself.
QSo when you said that Mr Becirovic was kind of yelling where he was half trying to whisper but it was enough for your son to knock on the door, was that a different occasion from the one you described occurring at one point soon after you entered the laundry.
AYes. The second time was actually AjB.
XN
QDid AjB enter the garage.
ANo. Kenan poked his head out and said ‘I just need a few more minutes. Just go back out.’
QDid you recognise AjB’s voice.
AYes and I saw his – I saw his face and I remember putting on a smile.
QWas the door shut after that.
AYes.
HER HONOUR
QHad the grip on your throat been released when the door was opened.
AYes. Kenan went to open the door.
XN
QDo you remember Mr Becirovic releasing your throat as a result of the knock on the door.
AI think so. [55]
[55] T 63, 37 – 38, T 66, 1-15.
After the accused shut the door, she tried to calm him down by saying ‘you’re right. I shouldn’t have moved on before you were released.’ Her attempts worked ‘enough for him to kind of wrap up what was happening in there before – especially with the kids, we could tell that they were already crowding outside’.[56] The complainant said that before she was able to leave, the accused turned around and said:
…something along the lines of ‘I’m not even threatening you, I’m warning you. You take my children near Andrew again and I will kill you. I know where he lives. The children have told me where he lives. I know where you’re staying. I know where your parents’ house is. The boys will tell me everything. They’re my boys’. And ‘When we leave fix up your face. When you go back out there I don’t want the kids to worry. If you tell the kids about any of this, I’ll kill you’.[57]
[56] T 67, 1-4.
[57] T 67, 5-14.
The complainant was asked about her understanding of the difference between a threat and a warning. She then gave this evidence:
A…he was serious and he’d go through with it. He told me a few times that going to prison, he’s met a lot of desperate people. He has said to me two, three times in the past it only takes about, you know, all he needs to do is give a junkie 5, $10,000 and he can have me killed without even lifting a finger. And he also warned to keep my children away from Andrew. If I didn’t, he’d kill me and you know what, he wouldn’t even have to call the junkies, he’d do it himself because to protect his children, he wouldn’t care, he’d go to gaol for the rest of his life if he had to.
QDid he make those comments about being prepared to go to gaol and hire junkies when you were in the garage.
AYes.
QDid he say anything about you disclosing to anyone what had happened in the garage.
AHe said not to tell anyone, especially the children. I don’t think – up until recently I don’t think it would have ever occurred to Kenan that I would report him.
QWhen he said to you in the garage, ‘Don’t tell anyone, especially the children’ did he say what would happen if you did.
AHe would go after everyone. He’d go after me, he’d go after Andrew and he’d kill me.[58]
[58] T 67, 17-38; T 68, 1-2.
The complainant agreed not to tell anyone and agreed to keep the children away from Andrew. She and the accused then left the garage and AzB asked if he could have a sleepover. Shortly after that she ‘was shoved out the front door’ by the accused and the door was closed behind her.[59] She did not want to go home straight away so she drove around for a little while. She did not know what to do in this situation and so she ‘googled’ who to call, including using the search term ‘how to report an abuse’. She said she could not find direct answers but found a website called White Ribbon which suggested documenting what had occurred by sending yourself an email. The complainant parked on the side of the road and wrote herself and email and sent it.[60] When asked why she did not go to police to make a report she gave this evidence:
I actually didn’t see a website that said ‘Call 13-‘ I can’t even remember – 31444 or something. And the more I sat there the more I thought ‘Okay, he knows about Andrew now, he’s got it out of his system’, you know ‘He got angry’ you know ‘Now that he knows and the repercussions of him learning about Andrew is out of the way maybe it will be better’ so I actually thought maybe it wasn’t necessary to report him to make things worse.[61]
[59] T 68-69.
[60] T 70.
[61] T 70, 26-33.
The complainant said she had a headache for a couple of days but no obvious injuries that she could photograph. She said her throat was sore for a few days, but she thought it would just get better over time.[62] She saw the accused the next day when she picked up the children and she described him as being ‘kind’, but he warned her again to keep the children away from Andrew and to do the right thing by the accused. As it was school holidays, she saw the accused regularly when she dropped off the children or picked them up. He would often speak with her for about half an hour, warning her to do the right thing and not to go against him.[63] I asked her if the threats and warnings were specific, and she explained that they related to doing the right thing by the accused financially and keeping the children away from Andrew. She said the ‘threats and warnings was don’t go against him with the house, don’t try to go behind his back and organise something that will leave him without anything’.[64]
[62] T 71.
[63] T 72.
[64] T 73-74.
The complainant gave evidence that she had an arrangement with the accused that he would pick up the boys on Tuesdays. On Tuesday 3 September 2019, the accused picked up the boys from school. AzB then called her, asking if they could stay for dinner. As a result, she drove to Clovelly Park to pick them up at 8.30pm, instead of 6.30pm as she had planned. After arriving, she waited in the car which was parked across the driveway. She rang the accused, and he came out of the house and, as he did so, he told the children who were at the door to go back in the house. The passenger window of her car was down but the doors were locked. The complainant described what happened next:
AHe came towards the car with a handful of paperwork. I could see that he was angry. On top of the confiscation order on my home, Kenan had also put a caveat on to the property for an undisclosed amount and, being a caveat and not a mortgage, you can actually apply to the LTO to have it removed, I think the term is warn, you warn the caveat, at which case the other side has 21 business days to respond. Kenan must have gotten in contact with the conveyancer or somehow he had been alerted that the caveat had been warned and Kenan came out quite angry to show me the paperwork to say, you know, ‘You said that you wouldn’t go against me, you said you wouldn’t do the wrong thing but what’s this? You’re trying to get rid of the caveat’ and because I could see that he was angry I lied and said ‘I don’t know what that is, it must be something that the DPP is doing to remove or make sure, you know, the confiscation order – I don’t know what that is’ but –
QCan I just pause you there, when you say that you lied does that mean that you were the person who warned the caveat.
AI warned it but because I could see that Kenan was really angry and I was in a vulnerable situation I said ‘I don’t know what that is’ but it was me that warned the caveat.
QWhy did you do that.
ABecause I knew that the confiscation order was about to be lifted, from what Kenan told me, and I wanted to be able to be – to sell and by the time Kenan was released from prison I was firm that I was going to forge my own path and my decision-making, financial, personal, they weren’t going to be dependent on Kenan and his quick money-making schemes and his investments and things like that, I knew that if money fell into Kenan’s hands it disappeared fairly quickly. So I warned the caveat so that I could then sell the property.[65]
[65] T 78, 27-38; T 79, 1-24.
The complainant said that the accused showed the documents to her through the window, and she could see that he had a copy of her application to remove the caveat. He was holding about 5 or 6 pages.[66] He then reached inside and unlocked the door and leant in with one knee on the seat. She described what happened next:
[66] T 83, 10-11.
A…He reached over, one hand went directly for my throat, it wasn’t forceful, it was – it felt more like he was keeping me in place and to get my awareness and his right hand was clenched in the fist and it was raised.
QWhat happened to the documents at this point.
AI’m not paying attention to the documents.
QWhat did Mr Becirovic do when he had his hand around your throat.
AHe started warning me again, he started repeating things he’s said many, many times before about going against him, about doing the right things. He asked me ‘You wouldn’t go against me, would you? You’re not that stupid’, I remember him asking me – sorry, not asking, reminding me about the fact that unless he signed the paperwork with the DPP to release Kingswood I would never be free of debt – I will never be free of that debt, sorry. He reminded me again about the fact that he knew people in high places. Everything that he said before.
QWhen he was holding your throat were you able to say anything.
ANo. I remember when he asked me questions I would either nod or shake my head but I – like I said, I know when things get silly it’s better to be quiet.
QWere you able to breathe normally.
ANo, it was – it was not easy. He wasn’t holding tight all the time, it was more to emphasise points. So in-between there was, I suppose you can say, reprieve.
QDoes that mean he would squeeze tighter at various points.
AYes.
QWhen he squeezed tighter, how long would he hold his grip tighter for.
AA few seconds, long enough to convey that point. To kind of put it in context, it wouldn’t be two or three seconds, it might be like 10 but it wasn’t minutes at a time.
QCan you remember roughly the entire duration that he had his hand around your throat.
AIt would have been up between three to five minutes. We covered a lot of topics, I suppose, you know, we talked about the confiscation order – or he spoke about the confiscation order. He reminded me, you know, and explained to me quite aggressively to – you know, how he is entitled to all of it, his plans for it. Constantly reminded me that he wasn’t bluffing.
QWas it during the entire three to five minutes that you had difficulty breathing or only some of that duration.
AMost but not the entire time.
QWere there other physical sensations that you experienced.
AApart from my throat and the pressure, there – my head started – I started getting dizzy. I don’t recall coughing but I remember – oddly, I remember tingling in my fingers but I think that was just from adrenaline.[67]
[67] T 81, 3-38; T 82, 1-20.
The accused let go when ArB came out of the house and said ‘Momma’ and then the accused started ‘piling the kids into the car’, making sure they had their jumpers, jackets and school bags. The accused then said to the children, ‘be good to your mum. She works really, really hard for you, be good to her.’ He then said in front of the children, ‘but remember what I said, don’t go against me Abi and if you fuck me up I’ll make sure I fuck you up’.[68] The accused then leant in the car and patted her leg and said she looked tired and she should go home, and rest and they would talk tomorrow.[69]
[68] T 83-84.
[69] T 85, 9-11.
The complainant said she had no injuries that showed or were long-lasting. She said that her throat was sore for longer than after the previous occasion when she had been choked. She did not see anyone for treatment.[70]She did not go to the police because she did not want to rock the boat or make things worse. However, she no longer felt safe, and she did not want to put herself in a dangerous situation during drop-offs and pick-ups.[71]
[70] T 85.
[71] T 86-87.
Later that night, the complainant googled police stations to see which were open and she rang the Christies Beach Police Station to inquire about an intervention order. She spoke with a male police officer who guided her through the steps. She then made an appointment to see her family lawyer to discuss how she could go forward in terms of the children having access to their father without her being involved.[72]
[72] T 89.
I asked the complainant if she sent an email to herself after this incident and she said no, but she had spoken with her family lawyer and criminal lawyer and explained that she felt she was being extorted or blackmailed. She told her family lawyer that she had sent an email to herself and was told that documenting incidents was good but would not help in any proceedings. She said she retained the email of 8 July 2019.[73]Her family lawyer told her the best course was to go to a police station and make an application for an intervention order. She planned to attend the Christies Beach Police station the next day, Thursday 5 September 2019.[74]
[73] T 87.
[74] T 90.
The complainant said she was concerned that the accused was having a negative influence on the children’s behaviour in the context of religion and the normalisation of ‘mafia, like gang stuff’.[75]
[75] T 88-89.
On Thursday 5 September 2019, the complainant’s father was going to collect the children from school. He called her at 3.30pm, advising her that the children had not come out. She then called the accused and Laura, neither of whom answered their phones. She then sent the accused a text message in which she wrote ‘Do you have the children? My dad is with the school and they’re about to call the police’. The accused then sent her a message, ‘Yeah. It’s Thursday. It’s my turn with the children’. After she sent him another message telling him that was not the plan, he called her and told her it was his day with the children. She then called her father to let him know the children were with the accused.[76]
[76] T 90-91.
The complainant contacted the police and requested an escort when she picked up the children. She was told that this was not something that the police generally do, but when she explained that he was on home detention and she did not feel safe, they agreed. She arranged to meet with police at 7.30pm down the road from the accused’s house. When she met with them, they told her they would follow her to the house, but park across the street and they would not come out unless things got out of hand.[77]
[77] T 92.
The complainant called the accused whilst in her car and the front door of the house opened and ArB ‘popped out’. The accused then pushed him back in and told him to wait in the house, and that he was not going home. The accused walked towards the complainant’s car and yelled out ‘why are the police here’. AzB then popped his head out and said, ‘we’re not going to school tomorrow mum, we’re going to the mosque’. The accused told him to go back inside, and he did. The accused then rang his lawyer and started yelling to the police that it was illegal and there was no family court order. The children were loitering at the front door and the complainant started yelling to them to get in the car. The police then got out of their car and pulled the accused to one side and tried to calm him down. Laura then came out of the house and assisted in putting the children in the car.[78]
[78] T 93-94.
The complainant was asked whether she told the police officers about the previous assaults. She said she did not, she just said that she did not feel safe. When asked if there was a reason, she did not tell them, she said:
The didn’t – one, they didn’t ask. I think they just assumed that it was a – just an escort, just to make sure, you know, their presence was there just to make sure things stayed calm. I don’t think they anticipated for it to be aggressive.[79]
[79] T 94, 23-27.
After the complainant returned home with the children, she went to the Grenfell Police Station to apply for a restraining order. She told the police officer what had happened that evening and that she did not feel safe. She was advised that she could apply for an intervention order, but she could not just get one, but she would need to report ‘something’, so she did. When the police told her that the accused had to be arrested, she said she did not want to proceed anymore because she was worried about repercussions.[80]
[80] T 95-96.
The complainant was then taken through the text messages in P1. The messages commenced on 18 July 2019, when the accused obtained his own mobile phone. Although the complainant said that the messages in P1 were a continuous series, when taken to page 13 of P1she agreed that there were messages missing from the series.[81]
[81] T 9899.
Some of the messages referred to the tenants of the Kingswood property and their interest in buying the property if the confiscation order was lifted. The complainant agreed that she intended to sell the property to the tenants.[82] However, she said that the messages also included a request for her to see the accused’s lawyer, which she said was in order for her to sign the property over to him. She did not agree to do this.[83] When she was taken to a message on 3 September 2019 at 8.40pm in which the accused wrote, ‘you going to need to sign the paperwork this week’, she said that it made her think she had picked up the children a little earlier than she had originally thought. She said she did not read that message until she got home.[84]
[82] T 105-106.
[83] T 106.
[84] T 112.
The complainant was taken to a text message from the accused in which he referred to Laura giving her $100,000. She said that was not true. She said that Laura transferred money from time to time, but this money went straight into the accused’s debt account for the car finance. The accused told her to expect money from Laura, but she said she never got it.[85]
[85] T 113.
The complainant confirmed that the text messages on 4 September 2019 at 5.32pm included a copy of the Notice of the Application to Remove a Caveat. The complainant said this was part of the 5-6 pages of documents that the accused had shown her in the vehicle and included her name and address in Broadview.[86] On page 25 of P1, the accused wrote in a message to the complainant:
I asked you last night if you tried to remove the caveat and you said you didn’t. Why have the lawyers contacted me and sent me a copy of the removal of caveat notice?
[86] T 116.
The complainant said this was a reference to the conversation she had with the accused in the car on 3 September 2019.[87]
[87] T 117.
I asked the complainant to detail any financial contribution she made to any of the properties that were in her name. She said her parents gave her $55,000 deposit to purchase the Eden Hills property which cost $350,000. She said she considered the Eden Hills and Oaklands park properties to be ‘ours’ but when they decided to ‘firmly finally separate properly’, she and the accused agreed that she would buy Kingswood and it would be considered her home. The deposit of $360,000 from the sale of the Oaklands Park property was used to purchase Kingswood.[88]
[88] T 115.
The complainant’s evidence in cross-examination
The complainant agreed that the first time she reported the incidents in July and September 2019 was when she went to the police station on 5 September 2019. She said she told her partner about the July 2019 incident but not the incident in September 2019. She agreed that the first person she told about the incident on 3 September 2019 was the police officer to whom she gave a statement on 5 September 2019.[89]
[89] T 126.
The complainant agreed that the reason she attended on her family lawyer on 4 September 2019 was in relation to getting sole custody of the children. When it was put to the complainant that she did not say anything to her family lawyer about the incident on 3 September 2019, she gave this evidence:
ASorry, she slipped my mind because I actually haven’t had any interaction with my family lawyer since drafting up, I think called an emergency hearing for the custody and it didn’t occur to me, actually, but I did share with her when you asked the question the first time.
QSo just before when I asked you if the first person you told was the police officer at the Police Station on 5 September 2019, that was incorrect.
AYes.
QAnd when you said you hadn’t told anyone, not even your partner, that was incorrect.
AYes, because I was thinking mainly of the people that I had immediate interactions with and consistent interactions with. So I actually haven’t had an interaction with my family lawyer since then. Since finishing conversation about that and reporting it to the police.[90]
[90] T 127, 11-27.
The complainant said that she told the police officer who she called on 5 September 2019 that she did not feel safe going to the accused’s house on her own ‘because there had been violence before’.[91]
[91] T 128, 14-18.
The complainant agreed that, at this time, she wanted to sell the property at Kingswood, but the accused wanted to move into that property with Laura.[92]She agreed that she considered both the Eden Hills and Kingswood properties to be hers, and that it was never her intention to give the accused any of the proceeds of the sale of Eden Hills. She said the accused had agreed that, because he had amassed his own money, he was happy for her to have whatever was in her name. She agreed that the accused told her that he would get the Eden Hills property and she could have Kingswood, but she said it ‘wasn’t his to give’.[93] She agreed that she was determined not to let him go after what was already hers.[94] She would have done anything ‘legal’ to stop him.[95]
[92] T 128.
[93] T 129.
[94] T 130, 30-34.
[95] T 131, 1-2.
The complainant was asked if she knew a woman named Renee. She said that Renee was someone she had met through the accused when they were younger, and she understood the dynamics between her and the accused quite well. She said they lost touch for a while as the accused forbade her to speak to her and told her that she was a ‘junkie and delusional’. After the accused went to prison, the complainant sought comfort in Renee because she was someone who knew both of them very well. Renee contacted her just after the accused was put back in prison in 2019. The complainant denied outright meeting Renee at the Mitcham Shopping Centre at the end of 2019 or at any shopping centre. She agreed that she was close enough to Renee to confide in her about very personal matters.[96] She said that she had not seen Renee since the accused was released on home detention. She denied telling Renee that she did what she did because otherwise she was going to lose the house, and she did not want Laura getting her hands on her property. She said, ‘I absolutely disagree because I did not see Renee’.[97]
[96] T 131.
[97] T 166.
The complainant agreed that she knew that the accused had bought a unit in Glenelg East in 2015 but denied that it was for Laura when first bought. She said it was bought in case the accused’s parents moved back to Australia.[98] When she was asked if she signed over the money from the sale of that unit to Laura, she said that she funded the expenses for the renovation and when it was sold, that money was going to be reimbursed to her. She then said that the accused had insisted that she sign over the reimbursement to Laura.[99] She could not say how much money she had spent on the renovations.[100]She said she put it on her credit card which had a limit of $45,000 and then borrowed money from her parents to pay off the credit card. Her parents were on the pension.[101] She denied getting any money from Laura for the money she had spent on renovating the property.[102] It was then suggested to her that in July 2020, she spoke with the accused on the telephone whilst he was in prison and agreed that she had received $70,000 from Laura in relation to the Glenelg East unit. She denied receiving $70,000 from Laura. D5 was then played to her. She agreed that the accused brought up the $70,000 in that phone call but denied agreeing with him.[103]
[98] T 132.
[99] T 133.
[100] T 136.
[101] T 137.
[102] T 136.
[103] T 143.
The complainant agreed that, at the time she was paying the mortgages on the Eden Hills and Kingswood properties, she was paying the mortgage on the unit at Glenelg East. The mortgage repayments on the Kingswood property were $4000 a month when interest only, and then $5600 when interest and principal.[104] The mortgage payments on the Eden Hills property were just under $2000 per month.[105] Before she leased the Kingswood property, she borrowed money from her family to meet the mortgage payments. Her parents put a caveat over the Kingswood property to cover the money she borrowed.[106] She agreed she also made five repayments on the accused’s Porsche, which were either $2000 or $1600 per month. There were two Mercedes Benz cars, one of which was given to a friend to drive, and that person was expected to meet the repayments and she sold the other one after the accused went to prison. She said they were sold to a wholesaler, leaving only around $5000-$6000 balance after paying out the loans. When the accused found out she had sold the Porsche, he was furious and he insisted she buy back the Porsche, which she did, paying more than the price for which she had sold it.[107]She said the Porsche then went to Laura. She denied that she sold the Porsche for $200,000 and kept all the money. She said she had all the receipts.[108]
[104] T 138-139.
[105] T 138.
[106] T 138.
[107] T 140-141.
[108] T 142.
Prior to having her first child, the complainant worked in a store called ‘Man to Man’, earning more than $1000 per week. Once she had children, she started working with the accused in his businesses, doing the books and administration. She agreed that he was associated with a business called Wheelworx but denied that he owned it. She said he was in partnership in a business called Racespec, and later he invested in a clothing business. She was not sure if he was supplying clothing to a man called Joseph Uzumco in Gawler Place or was receiving a handler’s fee. She agreed that Uzumco was a friend of the accused’s and she had met him a few times. Once the accused was in prison, she saw Uzumco because the accused told her that Uzumco owed him money and he had arranged for Uzumco to give it to her. Uzumco gave her $20,000 by way of electronic transfer over a few months in 2016.[109]She agreed that the accused’s father sent her money from overseas, but she did not think it was in the vicinity of $40,000. She said a large part of that was to be paid to the accused’s lawyer. She kept $13,000.[110]
[109] T 150-151.
[110] T 183-184.
The complainant agreed that when the accused went to prison, she received money from the court bail deposit which could have been $20,000. She was then shown D2 and recognised it as the certificate of title in relation to the Kingswood property. She agreed that the document showed a caveat lodged on the property at Kingswood by the accused on 19 December 2019, and a caveat lodged by her parents and another by her sister on 21 October 2019.
On 15 August 2019, she lodged an application to remove the caveat in the name of the accused’s business KV Wholesaling Pty Ltd, placed on the property on 4 September 2015. She agreed that she signed that caveat shortly after receiving a telephone call from her sister in Sydney who informed her that the police were going to try to take the Kingswood property.[111]
[111] T 194, 199.
She agreed that she needed to remove the 2015 caveat in order to sell the property and take all the proceeds, and when she lodged the application, she did not tell the accused about it.[112] She agreed that in one of the text messages on page 16 of P1, the accused referred to this caveat and that it would be in full force from Monday and this was a reference to the fact that he was re-registering KV Wholesaling Pty Ltd.[113] She understood that if the property was sold that mortgage would have to be paid out to the accused and this was why she was trying to have the caveat removed.[114]
[112] T 151-153.
[113] T 200.
[114] T 201.
She said, ‘I did it without telling anyone. Well that’s not true, he wouldn’t have been accessible anyway…’ I asked her what she meant when she said the accused was not ‘available’[115] and she said he was in prison, and she was not taking calls or visiting him at that point. When it was pointed out to her that the accused was not in prison in August of 2019, she said, ‘that was removed – hold on – I think the paperwork probably got lodged and cleared by then but when we went to court Kenan was in prison still’.[116] It was put to her that she did not tell the accused about her application to remove the caveat because he was in prison, but rather because she wanted to remove it without him finding out so she could sell the property.[117] She denied this.
[115] The complainant used the word ‘accessible’ but the transcript records that my question to her was put on the basis that she had used the word ‘available’. In my view nothing turns on this.
[116] T 154.
[117] T 154-155.
The complainant was taken to the text messages in P1 on 4 September 2019 and agreed that the accused found out on 4 September 2019 that she had warned the caveat.[118]
[118] T 213.
In 2020, the complainant commenced court action against the accused in relation to the mortgage he lodged on 19 December 2019. The proceedings settled and she agreed to give the accused an extra $50,000 upon the sale of the property.[119]
[119] T 157.
The Kingswood property sold on 21 May 2021 for $2.3million. The complainant said she borrowed $200,000 from her partner, Andrew, to renovate the property. She borrowed an extra $40,000 from family friends of her parents. They were interest free loans.[120]
[120] T 156.
Upon sale of the Kingswood property and the discharge of the mortgage and loans to her, she received about $900,000. She agreed that she sold the Eden Hills property while the accused was in prison, but said she did so with his permission, even though she did not need his permission.[121]She then agreed that he was not happy about the sale of Eden Hills.[122]
[121] T 157.
[122] T 158.
The complainant agreed she owned a property at Burton but said that it ‘came into my hands as quickly as it sold, so we tend to not mention that one.’[123]
[123] T 160, 23-24.
The complainant agreed that she said to the accused in a phone call in July 2020, that just hearing his voice made her angry and that she wanted to punch him.[124] However, she denied being angry about his relationship with Laura or the money he spent on her. She denied that she attacked him and scratched him in the face when she found out that Laura was travelling to Bosnia with the accused and his parents. It was put to her that the accused tried to push her off him and that is when she stumbled into the pantry cupboard. It was then put to her that the argument continued in the hallway, and the accused grabbed onto her clothes to stop her, and she fell backwards and hit her head on the wall. She denied this and said there was no way that she would ever approach him physically.[125]
[124] T 161-162.
[125] T 162-164.
The complainant said she received $1100 a week rent for the Kingswood property. She was also receiving family tax benefit A and B and a single parenting payment. She worked casually at the Lash Lab on Tuesdays and Thursdays.[126]
[126] T 169.
The complainant was taken through the messages in P1 and agreed that the messages were sent after the accused had attempted to strangle her and that they sounded quite cordial and polite up until page 8 of P1.[127] She later said they were polite and cordial because, ‘after being strangulated, slapped and choked I behaved cordially because I did not want to rock the boat’.[128]
[127] T 173, 1-3.
[128] T 179, 7-8.
One of the series of messages was about an Albanian couple they had come to know as patrons of the Hahndorf motel. The husband was charged with murdering his daughter after stabbing her to death in his car and in one of the accused’s messages on this topic he wrote ‘Fuck I remember holding this girl’. The complainant responded, ‘I just remember the garlic sauce haha’.[129] I asked the complainant what the reference to garlic sauce was about, and she said that they had been over to this couple’s home for dinner and the wife made garlic sauce that had so much garlic in it, it was horrible.[130]
[129] P1, page 4.
[130] T 170-171.
The complainant said that the photo of a sleeping child on page 9 of P1 was ArB and was sent by the accused. It was a photo of him when he was much younger.[131]
[131] T 174.
It was put to the complainant that she had selectively deleted certain messages from P1, and she said she was happy to surrender her phone for someone else to look through to see if anything had been missed.[132]She said that every single message between her and the accused had been saved on her phone.[133]
[132] T 175.
[133] T 186.
When the complainant was referred to the text message from the accused in which he said, ‘Just because you said before my Kingswood home, just remember that it belongs to both of us. We both live there, all thanks to me and the money that supported you during our 20-year marriage’, the complainant said this was what the accused had decided but not what they had agreed.[134]
[134] T 187.
The complainant denied that the accused paid for nearly all of the deposit for the Eden Hills property. She said she had the receipt showing the money transferred into her account for the deposit.[135]She said that her sister had loaned her $140,000 for the purchase of the Eden Hills property.[136]She said that the caveat on the Kingswood property in favour of her sister lodged on 21 October 2019 was ‘transferred from the Eden Hills that wasn’t repaid, that debt was then placed on Kingswood’.[137]She denied arranging for her sister to place that caveat on the property to ‘trump’ the caveat of KV Wholesaling Pty Ltd.[138]She said her sister encouraged her parents to place a caveat on the Kingswood property on the same day because they had covered mortgage repayments for the Kingswood property and the Glenelg East unit.[139]
[135] T 185.
[136] T 222.
[137] T 223.
[138] T 224.
[139] T 224-225.
The case for the prosecution depends entirely upon the evidence of the complainant. Before I can convict the accused of any of the three charges, I must be satisfied beyond reasonable doubt of the credibility and reliability of the account of the complainant. It is not disputed by defence that the complainant’s account, if credible and reliable, would prove each and every element of the two charges of choking and the charge of aggravated threatening life.
The charges are very serious and there is no evidence corroborating the complainant’s account of the alleged offending. I have scrutinised with great care the evidence of the complainant in determining whether I can be satisfied beyond reasonable doubt of the accused’s guilt in respect of any of the charges.
The complainant gave evidence of uncharged acts of assault by the accused. Defence counsel did not object to the admissibility of this evidence, which was plainly evidence of discreditable conduct. That evidence was admissible pursuant to s 34P (2) (a) Evidence Act 1929 as relevant to the nature of the relationship between the accused and the complainant, to put into context the charged offences and also to provide an explanation for the complainant’s reaction when the accused behaved violently towards her.
I direct myself that the evidence admissible under s 34P (2) (a) cannot be used to suggest that the accused is more likely to have committed the offences charged. The permissible use of that evidence is that it bears upon the nature of the relationship between the accused and the complainant and explains why the complainant reacted the way she did when threatened or assaulted by the accused. Ultimately, whether the evidence is used for the permissible purpose depends upon the findings I make regarding the credibility and reliability of the complainant.
Police witnesses
I found Senior Constable Dempsey and Senior Constable Gregor to be credible and reliable witnesses. I accept their evidence without reservation and where it differs from that of the complainant, I prefer their evidence. I find that when they attended the accused’s Clovelly Park address at 7.30pm they did so on the basis that they were there to prevent a possible breach of the peace and not because the complainant had alleged the accused had been violent towards her in the past. I find that both police officers met with the complainant a short distance from the accused’s address and discussed with her the role that police would play.
I find that the police and the complainant returned to their respective vehicles, and the police followed the complainant’s vehicle to the driveway of the accused’s address. I find that both the police and the complainant got out of their vehicles at about the same time and the accused came out of the house shortly thereafter. I accept the evidence of both officers that the children were present at some point during the conversation between the complainant and the accused, and that one of the children appeared upset.
I find that the complainant and the accused were involved in a verbal altercation regarding who should have the children, during which the accused spoke on the telephone to his lawyer. I find that the interaction between the accused and the complainant ended peacefully with the children leaving with the complainant in her vehicle.
I found Constable Koerner to be a credible witness. However, her memory of the contents of the complainant’s statement of 5 September 2019, as it related to whether AjB was present at the beginning of the alleged assault on 8 July 2019, and the fact that none of the children were in the garage during the alleged assault, was deficient. Upon refreshing her memory from the statement, she agreed the complainant’s statement suggested that AjB was present at the beginning of the assault. She then agreed that the complainant gave a different account to her of the beginning of the assault and said that the accused had grabbed her arm and not her neck. She agreed that the account given to her over the telephone was the factor that led her to decide not to proceed with the prescribed interview. I accept Constable Koerner’s evidence regarding what she was told by the complainant, and her characterisation of that as different from what appeared in her statement of 5 September 2019. I also accept her evidence that it was her decision not to proceed with the prescribed interview and the reasons for that.
I found Senior Constable Curwen to be a reliable and credible witness. His evidence was uncontroversial. I accept his evidence that the reason why he arranged for a prescribed interviewer to contact the complainant to interview AjB was because of the answers the accused gave in his record of interview. I have used the evidence of the answers given by the accused in his record of interview for the limited purpose of explaining the actions of Senior Constable Curwen, and not as exculpatory statements of the accused.
Analysis of the complainant’s evidence
The complainant was an intelligent, articulate and well-presented witness. I initially formed a favourable impression of her as a witness. However, as her evidence progressed, I began to entertain doubts regarding the credibility and reliability of her account on material matters. Those doubts accumulated as her evidence progressed.
The allegations of financial control and ownership of property
The complainant’s assertion that she felt that she had to constantly placate the accused because she was accumulating debt, and that he withheld money from her as a form of control to limit her independence, did not sit comfortably with the evidence of her financial position.
On her own evidence, the complainant had access to joint bank accounts, a line of credit on a home loan and a credit card with a $32,000 limit and petty cash in the kitchen. The property at Eden Hills was in her name, as were the residential properties later purchased at Burton, Oaklands Park and Kingswood.
The complainant had an extensive property portfolio and, on her own admission, sold properties to fund the purchase of others. She said she made a profit of around $900,000 on the sale of the Kingswood property and when leased out prior to sale, was receiving $1100 per week rent.
No evidence was led to support the complainant’s disputed assertions that her parents provided the $55,000 deposit to purchase the Eden Hills property. She asserted that she had a receipt showing the money transferred into her account for the deposit, but the prosecution did not seek to adduce evidence of that receipt in evidence in chief or in re-examination.
No evidence was led to support the complainant’s assertion that, in July 2020, she was able to make the mortgage payments on the Kingswood property (which were initially $4000 per month and then increased to $5600 per month) by borrowing money from her family and from her part-time work in an eye-lash extension business, whilst at the same time making the mortgage payments of $2000 per month on the Eden Hills property, and an undisclosed amount for the mortgage payments on the Glenelg East unit. Nor was there any evidence led to support her account that she sold the Eden Hills property for land value and only received an amount of $20,000 from that sale. There was no evidence led to support her assertion that upon the sale of two Mercedes Benz vehicles and a Porsche, she was left with only $6000. She agreed that the accused had given her a power of attorney whilst he was in prison and said she used that to sell the vehicles.
In cross-examination, the complainant said she had funded the renovations to the Glenelg East unit by using savings and her credit card. She also said that there was an agreement whereby Laura would reimburse her for the cost of the renovations. She then said the accused insisted that she ‘sign over’ the reimbursement to Laura, but she did not know how much that amount was. She denied receiving $70,000 from Laura upon the sale of the Glenelg East unit. She said she could not recall agreeing with the accused in a telephone call in July 2020 that Laura had given her $70,000. The call was played to her, and she maintained that she did not agree with the accused when he said in that phone call that Laura had given her $70,000.
I have listened carefully to D5. In the tendered portion of D5, the following exchange occurs:
The complainant: I signed those other money from the unit over to her, I don’t even know how much it is, I said don’t even worry about it whatever it is…
The accused: But she give you $70,000, but she give you $70,000.
The complainant: I signed, because - she give me 70…what? – because I paid for everything.
I find that in this phone call the complainant agreed with the accused when he told her that Laura had given her $70,000 but went on to explain that this was because she had ‘paid for everything’. It is clear that the reference to $70,000 is a separate amount from the money which the complainant said in that phone call she had ‘signed over’ to Laura. In re-examination the complainant said that she was told that she would receive a cheque from Laura in the sum of $70,000 to cover the Glenelg East renovations, but the accused subsequently insisted she sign it over to ‘someone else’. She also said that it was ‘never within my rights to sign over anything from the Glenelg East unit’ and denied having a legal interest in that property. This evidence is also at odds with what the complainant said in the phone call in D5.
The complainant agreed that business partners of the accused had deposited money into her account while the accused was in prison, and that some of this was money owed to the accused but asserted that he had told her to use the money for the family. She also agreed that the accused’s father as well as a friend of his, Joseph Uzumco, had given her money and she had collected the $20,000 court bail deposit. She agreed that the accused had bought her an Audi Q7 worth $140,000 before he went to prison.
I infer and find from this evidence that the accused was trying to financially assist, rather than control, the complainant, despite his incarceration. Although I am not able to make any firm finding regarding the precise sources of money available to the complainant whilst the accused was in prison, I am satisfied that she did not have the means to be able to meet the expenses associated with the properties in her name without the assistance of the accused.
In the absence of supporting evidence and based on the complainant’s account of her employment status, I am unable to accept the complainant’s evidence that she funded the purchase (whether from loans from her family or her own income) of the properties in her name. I find implausible the complainant’s evidence that the accused had agreed that, because he had amassed an amount of money which he had spent money on himself, Laura and his parents, she could have whatever assets were in her name.
I consider it inherently unlikely that the accused would have agreed to divest himself of all entitlement to the properties purchased whilst they were married. The complainant’s evidence of the existence of this agreement also appears to be at direct odds with the content of the messages sent by the accused in P1. The absence of any reference to this ‘agreement’ in the messages in P1 is telling. Had there been such an agreement, I would have expected the complainant to have referred to it in answer to the accused’s barrage of messages in which he asserted his legal rights in relation to the Kingswood property.
The complainant’s evidence about Laura Hunt
The complainant’s relationship with the accused was complicated and compromised by his extra-marital affair. The complainant resumed a relationship with the accused, despite finding out that he had been in a relationship with another woman, Laura, with whom he had fathered a child. The complainant and the accused then had a third child. After the birth of their third child, the complainant again separated from the accused because she believed he was still seeing Laura. However, after a few months their relationship resumed. I asked her whether she still loved him at that time, and it seemed to me that this question caught her by surprise. She said she did still love him.
When the complainant discovered that Laura had given birth to a second child, she nevertheless permitted the accused to live with her in the home at Kingswood and she worked in his car parts business. In 2015, she said there was another period of separation, during which she still permitted the accused to come and go from the house at Kingswood.
I find that the accused’s relationship with Laura produced a significant amount of tension in the marriage. I find it difficult to accept the complainant’s evidence that she ‘quite liked Laura’, and that she was not angry with either Laura or the accused because of his relationship with Laura or the money that he spent on her. I accept and prefer the evidence of Ms Casey-McMichael regarding the conversation at the Mitcham Shopping Centre and find that this conversation took place at some time in 2019. I found Ms Casey-McMichael to be a credible witness. She gave her evidence in a straightforward manner. As a friend of both the complainant and the accused, I detected no bias against the complainant. Ms Casey-McMichael’s evidence was not shaken in cross-examination.
I accept Ms Casey-McMichael’s account of the conversation and find that the complainant expressed her real attitude towards, and feelings for Laura Hunt. I infer and find that the complainant blamed Laura Hunt for the relationship between her and the accused and, as a result of her antipathy towards and resentment of Laura Hunt, did not want any assets she owned to end up in her hands.
I infer from the complainant’s evidence and find that, until the accused was incarcerated in 2016, she still wanted to continue a relationship with him, notwithstanding her belief that he was in a relationship with another woman.
The complainant did not abandon the accused when he was gaoled in March 2016. She visited the accused in prison and brought the children to see him. However, at the end of 2016 she filed for divorce, which was finalised in December 2016. She started a new relationship in 2018 but did not tell the accused.
In 2019, she applied successfully to lift the notices of charge issued by the DPP over the properties at Eden Hills and Kingswood. She sold the Eden Hills property whilst the accused was in prison. I reject her evidence that the accused gave her permission to do so, noting that, even on her evidence, it was not his permission to give. In the messages in P1 the accused roundly and repeatedly criticised the complainant for selling the Eden Hills property without his permission. Had the accused given his permission for her to sell the Eden Hills property, it is curious that she did not refer to this in any of her messages.
I consider it likely that the complainant felt that she was entitled to the Kingswood property because of the anger and resentment she harboured towards Laura Hunt, and because she believed that the accused’s behaviour disentitled him from making any claim over the property. The accused had been sentenced to a substantial period of imprisonment. By 2019, the complainant had formed a new relationship. The accused’s release from prison on home detention in July 2019 took her by surprise. It became clear to her that the accused was not going to relinquish his claim over the Kingswood property without a fight. It became clear to the complainant that the accused wanted to make up for lost time with their children. As much is apparent from the messages he sent the complainant in P1.
Prior inconsistent statements
A number of prior inconsistent statements of the complainant were admitted or proved. There were also internal inconsistences in the complainant’s evidence. The following is a summary of the inconsistencies that I consider to be significant:
·When describing the uncharged act in which the complainant alleged that the accused assaulted her by shoving her into the pantry, she said she could not recall which part of his body made contact with hers. Later in her examination in chief she said that he shoved her into the pantry by slapping her ear and cupping the side of her head.
·The complainant said that the first person she told about the incident on 3 September 2019 was the police officer to whom she gave a statement on 5 September 2019. When reminded that she had seen her family lawyer on 4 September 2019 in relation to applying for sole custody of the children, and that she had not told her about it, she said she had told her and that her earlier evidence that she had not told anyone, not even her partner, before going to police on 5 September 2019, was incorrect.
·The complainant denied that she agreed with the accused in a telephone conversation on 12 July 2020 that Laura Hunt had given her $70,000. D 5 records the complainant as agreeing with the accused when he told her Laura had given her $70,000.
·The complainant said in examination in chief that, during the incident on 3 September 2019, the accused had his hand on her throat for between 3 and 5 minutes. She said her throat was sore for about a week. She admitted that she told police on 5 September 2019 that she did not have a sore throat and that the accused held her neck for less than 30 seconds. In explaining this inconsistency, the complainant said that she was ‘still on adrenaline from what had happened just moments – hours before’ but when it was put to her that she had attended the police station 2 days later, said she was ‘confused about the time-line’.
·The complainant said in examination in chief that the accused had his hand around her throat on 8 July 2019 for 2 or 3 minutes. In cross-examination, when reminded of this evidence, she said that sounded right but could not recall specifics, but it was definitely longer than 60 seconds. The complainant admitted that she told police on 5 September 2019 that the accused held his grip for about 10 seconds.
·The complainant said she had a sore throat after the incident on 8 July 2019 and that she was quite clear about that. She did not admit that in a proofing session with the DPP on 27 May 2021 she told the prosecutor that she did not recall having a sore throat after this incident. It was an agreed fact that she had said this during that proofing session.
·The complainant said in examination in chief that, on 8 July 2019, as the accused was leading her to the garage, he was standing to her right with his left hand on her neck and his right hand holding her right hand as he guided her down the hallway. She admitted that she told police on 5 September 2019 that the accused came up to her and placed his left hand around her neck and the other around her left shoulder. She agreed that what she told police about this did not seem physically possible and that she had recollected it incorrectly. The complainant admitted that in a statement dated 21 May 2020, she told police that the accused definitely grabbed her neck with his right hand and with his left hand grabbed her left elbow.
·The complainant said that that accused was not yelling whilst in the garage during the incident on 8 July 2019. She admitted that in her statement dated 21 May 2020, she said that when she got up the accused began yelling at her again and then grabbed her throat for 1 to 2 minutes whilst still yelling at her. She admitted that in a proofing session with the DPP on 27 May 2021, she had described the accused as eerily calm in the garage but could not recall if she had said that he was not yelling. It was an agreed fact that in that proofing session she had described the accused as ‘eerily calm and not yelling in the garage’.
·The complainant gave evidence that there were two knocks on the door during the time she was in the garage. She did not distinctly admit that she had never said there were two knocks on the door in any of her statements to police or in the proofing session on 27 May 2021. It was an agreed fact that she had never said this.
·The complainant gave evidence that the second ‘knock’ was in fact AzB hurting himself against the wall of the laundry and that she knew this had occurred because she saw him on the couch with an icepack on his knee after she came out of garage. She admitted that she had never mentioned, in any of her statements or during the proofing session that AzB had an icepack on his knee.
·The complainant gave evidence that she was not concerned about the physical safety of the children and that the accused had not been violent towards them. She said she could not recall telling a police officer, Constable Tiplady on the telephone on 6 September 2019 that the accused had been physically violent with the children in the past. It was an agreed fact that on 6 September 2019, Constable Tiplady spoke with the complainant and recorded a diary entry that the complainant had disclosed that there had been instances of physical abuse against the children in the past. Although the agreed fact does not mention the accused as the perpetrator, I infer and find that the disclosure related to instances of physical abuse by the accused.
·The complainant agreed that her position in the legal proceedings over the Kingswood property was that she and the accused had finally separated in 2014. In evidence she agreed that she and the accused had not finally separated in 2014 because she fell pregnant in 2015.
The inconsistencies summarised above are such as to cause me to have significant reservations about the credibility and reliability of the complainant’s account of the charged and uncharged offending.
In particular, the proved prior inconsistent statements regarding the duration of the conduct the subject of counts 1 and 3 are, in my view, only explicable by reason of ex-post facto reconstruction, once the complainant realised that the first account she gave of the duration of the conduct on each occasion was not plausible or possible. I make the same observation in relation to the proved prior inconsistent statements regarding how it was that the accused held the complainant when he guided her down the hallway on 8 July 2019.
I am particularly troubled by the evidence that the complainant disclosed to Constable Tiplady that there had been instances of physical abuse by the accused against the children, a disclosure which the complainant did not recall making and which was at complete odds with her evidence that the accused was a good father, adored the children and had never been violent towards them.
Count 3
An integral part of the complainant’s account of the offending the subject of count 3, was that the accused approached her vehicle and then opened the door whilst holding documents in his hand. The complainant’s account was that the accused showed her paperwork and accused her of trying to remove the caveat. The complainant said that she lied to him and said that she did not know what it was and that it must have been something the DPP was doing.
The complainant confirmed in evidence that the documents that the accused was holding included those that can be seen on page 24 of P1. The documents on page 24 of P1 are a 2-page Notice of Removal of Caveat pursuant to s 191 (a) of the Real Property Act 1886. That notice confirmed that the complainant was the applicant, and that the Kingswood property was the land the subject of the application.
The complainant was unable to account for the whereabouts of the documents once the accused grabbed her throat with one hand and raised his other hand in a clenched fist.
If, as the complainant asserted, the accused had the documents on page 24 of P1 when he confronted the complainant in her vehicle on 3 September 2019, he would have known by then that she had lodged the application to remove the caveat. However, at 8.40pm on 3 September 2019 the accused sent the complainant a message in which he wrote:
…I hope it’s not you who tried to remove this gave you two weeks ago.
When shown this message, the complainant said that she must have arrived at the accused’s house a littler earlier than 8.30pm.
I find that when the accused sent this message, he intended to write ‘I hope it’s not you who tried to remove the caveat two weeks ago’ and he wrote this because he had spoken with the complainant shortly before sending this message and had asked her if she had tried to remove the caveat. I make this finding on the basis that the subsequent messages from the accused refer to the application to remove the caveat and, in a message on 4 September 2019 at 5.32pm[221] the accused wrote: ‘I asked you last night if you tried to remove the caveat and you said you didn’t’.
[221] P1, page 25.
If, as the complainant contends, the accused in fact had the Notice of Removal of Caveat in his hand on 3 September 2019, there would have been no doubt in his mind that the complainant was the applicant. He would not have needed to ask her if she had tried to remove the caveat, as the notice clearly established that.
Further, and significantly, the accused attached the Notice of Removal of Caveat to a text message he sent to the complainant at 5.32pm on 4 September 2019 and wrote:
You tried to remove the caveat shame I see you at the court next week. I asked you last night if you tried to remove the caveat and you didn’t. Why have the lawyers contacted me and sent me a copy of the removal of caveat notice.
It clearly says that you’re the applicant dated two weeks ago. John Tucker is acting on my behalf and has already started working on this for me as it is urgent. I am very surprised you want to take this to court considering how much this will cost you.[222]
[222] P1, page 25.
The inference that arises from the contemporaneous messages in P1 is that on or by 3 September 2019, the accused had been advised that there was an application to remove the caveat, but he had not yet been provided with the documents or any details of the applicant. As a result, he then spoke with the complainant when she came to collect the children in the evening of 3 September 2019 and asked her if she had tried to remove the caveat and she denied this. The inference that arises from the messages sent by the accused on 4 September 2019 is that he was provided by his lawyers with the Notice of Removal of the Caveat for the first time on 4 September 2019. It was only on 4 September 2019, that he discovered that the applicant was in fact the complainant. The further inference that arises is that the accused did not have those documents in his possession on 3 September 2019 when he spoke with the complainant.
On the basis of the messages in P1, which I find to be a contemporaneous record of the information in the accused’s possession and his state of mind, I reject the complainant’s evidence that the accused had the Notice of Removal of Caveat in his possession on 3 September 2019 when she attended to collect the children. This was such an integral part of her account of the offending the subject of count 3, that the rejection of it alone leaves me with a reasonable doubt regarding the complainant’s account that on this same occasion the accused then grabbed her throat and held his other hand in a clenched fist.
This conclusion does not mean that I would otherwise have accepted the complainant’s account of the events of 3 September 2019 as credible and reliable. For the reasons set out below, I would nevertheless have entertained a reasonable doubt regarding the accused’s guilt on count 3.
Counts 1 and 2.
I have taken into account my findings on count 3, and their adverse effect upon the complainant’s credibility and reliability, in my assessment of her evidence on the remaining counts.
In assessing the complainant’s evidence on counts 1 and 2, I have had regard to the proved prior inconsistent statements and internal inconsistencies, together with the complainant’s explanation for her decision not to report the matter to police. The complainant was an intelligent, articulate, savvy woman. I found implausible the complainant’s account of sitting in her vehicle, on Google, but not knowing how to report the alleged offending. This explanation is at odds with the apparent ease with which the complainant secured police attendance to assist her on 3 September 2019 and her attendance at the Grenfell Police Station on 5 September 2019.
Although no medical evidence was led by the prosecution, the complainant’s account of the duration and manner of the two incidents of choking was such that it is difficult to reconcile with her evidence that there was no observable injury on either occasion.
In addition, there is a significant body of evidence from which it is open to infer that the complainant had a motive to embellish an account of the accused’s offending. The complainant well knew that the accused intended to claim an interest in the Kingswood property and had secured his interest by way of a caveat. The complainant intended to defeat the accused’s claim by lodging a notice to remove the caveat. The complainant had consistently claimed to have sole entitlement to the properties in her name, to the exclusion of any claimed interest of the accused. She was prepared to misrepresent the date of their final separation in the legal proceedings over the Kingswood property.
The accused’s release on home detention was a surprise to the complainant, as was his revelation to the children that he was the father of Laura’s children. The accused’s relationship with Laura was ongoing. Shortly before the complainant made a report to police about the alleged offending, the accused had told her that AzB had disclosed to him that her parents had been hitting him. He told her that he was going to take her to court over the Kingswood property, have her parents charged with assault and report her for Centrelink fraud. She said that she did not know if the accused was going to give her children back to her. This is the context in which she decided to report the accused to the police. It is a reasonable possibility that the complainant was prompted to embellish an account of the accused being physically violent towards her, in order to prevent him from taking the children away from her.
This possibility is supported by the fact that the next day the complainant made an allegation to police that the accused had physically abused the children, despite swearing on oath that he was not violent to the children. The day before she had met with her family lawyer to discuss obtaining sole custody of the children.
The complainant denied meeting Ms Casey-McMichael after the accused’s release on home detention in 2019, but I have found that this meeting took place. I accepted the evidence of Ms Casey-McMichael that the complainant was worried about losing her boys, and also said she would do whatever it took to stop Laura getting her money or her property.
The complainant made a number of claims in evidence in respect of which she said she had supporting evidence or material. Defence counsel made a clear imputation of recent invention in respect of those claims. Such an imputation would have permitted the prosecution to lead in re-examination evidence to answer this attack. [223] The material or evidence to which the complainant referred was not adduced in re-examination and the attack was left unanswered. In those circumstances, it is open for me to find that the claims made by the complainant were being made for the first time in the witness box.
[223] Nominal Defendant v Clements (1960) 104 CLR 476.
The prosecution case depends entirely upon the evidence of the complainant. Whilst there is no requirement for her evidence to be corroborated, in order to provide a foundation for a conviction, the cumulative effect of the findings I have made regarding the complainant’s evidence and her credibility and reliability, leave me with a reasonable doubt about the accused’s guilt on all three charges.
It follows that I am not satisfied beyond reasonable doubt that the prosecution has proved that the accused committed the offences alleged and particularised in counts 1, 2 or 3.
Verdicts
I find the accused not guilty of all counts.
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9
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