R v Burdon
[2011] ACTSC 90
•1 June 2011
THE QUEEN v ROSS ANDREW BURDON
[2011] ACTSC 90 (1 June 2011)
CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – accused not guilty of that offence but guilty of the alternative offence of assault.
CRIMINAL LAW – particular offences – assault occasioning actual bodily harm – what constitutes actual bodily harm.
Supreme Court Act 1933 (ACT), ss 68B, 68C,
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 43, 46
Crimes Act 1900 (ACT), s 24, 26, 49
Fleming v The Queen (1998) 197 CLR 250
R v DM [2010] ACTSC 137
R v Mulcahy [2010] ACTSC 98
R v Miller [1954] 2 QB 282
R v Morrison; Ex parte West [1998] 2 Qd R 79
Scatchard v The Queen (1987) 27 A Crim R 136
The King v Donovan [1934] 2 KB 498
R v Brown [1994] 1 AC 212
The Queen v Prasad (1979) 23 SASR 161
No. SCC 336 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 1 June 2011
IN THE SUPREME COURT OF THE )
) No. SCC 336 of 2009
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
ROSS ANDREW BURDON
ORDER
Judge: Refshauge J
Date: 1 June 2011
Place: Canberra
THE COURT FINDS THAT:
On the sole count on the indictment, the accused is not guilty.
On the statutory alternative count of assault, the accused is guilty.
1. The accused, Ross Andrew Burdon, was married to Rea Burdon in 2007. They have one child, now nearly two years old.
2. On 20 July 2009, an incident occurred at their home in Kambah which resulted in Mr Burdon being charged with an offence. He appeared in the Magistrates Court on 21 July 2009 and on 16 September 2009 was committed to this court for trial.
3. The prosecution presented an indictment, containing one count, namely:
THAT on the 20th day of July 2009 at Canberra in the Australian Capital Territory ROSS ANDREW BURDON assaulted Rea Burdon and thereby occasioned to her actual bodily harm.
4. On 14 April 2010, Mr Burdon made an election under s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) to be tried by a judge alone. On 3 August 2010, he was arraigned and the trial was directed to commence on 5 October 2010.
Trial by judge alone
5. Under s 68C of the Supreme Court Act a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
6. The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) the High court stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
7. Section 68C also requires me, as the trial judge when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.
8. There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137; R v Mulcahy [2010] ACTSC 98.
9. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as to apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and Mr Burdon are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
10. The prosecution bears the onus of proving the guilt of Mr Burdon at all times. Mr Burdon does not have to prove that he did not commit the offences charged.
11. If Mr Burdon does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or to show that it is irrelevant, otherwise the prosecution will not have proved its case.
12. The standard of proof of the prosecution case is proof beyond reasonable doubt and Mr Burdon cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
13. Mr Burdon is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. Mr Burdon then loses the presumption of innocence and I must find him guilty.
14. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then he remains presumed innocent and I must find a verdict of not guilty.
15. If I am satisfied that there may be an explanation consistent with the innocence of Mr Burdon of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Mr Burdon not guilty.
16. I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence or accept or reject it all.
17. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
18. Mr Burdon gave evidence on oath. He was not required to do so; he could have elected not to give evidence. He thereby became a witness in the trial and I must approach his evidence in the same way that I approach the evidence of any other witness. His evidence is no better or worse than the evidence of any other witness in the trial because he is the accused and must be considered in the same way as the evidence of other witnesses. By giving evidence, however, he did not assume any onus to prove anything at the trial.
19. I also note that, as this was an offence of violence, s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), required that the complainant, Mrs Rea Burdon, give evidence by audiovisual link from a place other than the courtroom as she did. Under s 46 of that Act, I am required to warn the jury that it should not be draw any inference adverse to Mr Burdon in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.
Evidence
20. The following witnesses gave evidence before me: Mrs Rea Burdon, Constable Carl Marcic, Dr Catherine Sansum, Paramedic Jennifer O’Connor, Constable Kris Thomson and Mr Burdon.
21. I also received the following exhibits:
A A photograph of a knife
B A photograph of Mrs Burdon wearing a white scarf around her neck
C A bundle of photographs of the room in the Burdon’s house and of a scarf worn by Mrs Burdon
D A tape recording and transcript of an emergency call to the 000 number
E Two photographs of injuries suffered by Mrs Burdon
G Medical Report of Dr Catherine Sansum
H Report of Ambulance attendance
J CD and Transcript of Interview with Mr Burdon
1 A bundle of photographs
2 A DVD of video taken by Mr Burdon
3 A DVD of video taken by Mr Burdon
4 Transcript of a Mobile Phone Message
The law
22. As noted above (at [3]), Mr Burdon has been charged with the offence of assault occasioning actual bodily harm on Mrs Burdon, an offence contrary to s 24 of the Crimes Act 1900 (ACT) (the Crimes Act).
23. The elements of the offence are not controversial. So far as the assault is concerned, it involves:
(a) a striking, touching or application of force by Mr Burdon to Mrs Burdon;
(b) that such conduct of Mr Burdon was without the consent of Mrs Burdon;
(c) that the conduct was voluntary and either intentional or reckless in the sense that Mr Burdon realised that Mrs Burdon might be subject to immediate and unlawful violence, however slight, as a result of what he was about to do, but yet he took the risk that this might happen; and
(d) that such conduct was without lawful excuse.
24. The prosecution is required, of course, to prove each of these elements beyond reasonable doubt.
25. So far as the part of the offence which requires that actual bodily harm be occasioned by the assault, this involves hurt or injury which interferes with the health or comfort of the victim. See R v Miller [1954] 2 QB 282 (at 292). The term “bodily harm” is to be interpreted widely and is not restricted to “harm to the skin, flesh and bones” of a victim, but includes all Mrs Burdon’s organs, her nervous system and her brain: R v Morrison; Ex parte West [1998] 2 Qd R 79 (at 81). It does not, however, include pain alone without an identifiable bodily injury: Scatchard v The Queen (1987) 27 A Crim R 136.
26. Mr T Hickey, for the prosecution, relied on The King v Donovan [1934] 2 KB 498 where Swift J for the Court said (at 509), that the hurt or injury as bodily harm “need not be permanent, but must, no doubt, be more than merely transient or trifling”. I note this was approved by the House of Lords in R v Brown [1994] 1 AC 212 (at 230, 242-4).
27. If I am not satisfied that actual bodily harm was caused in the incident, but that Mr Burdon, nevertheless, assaulted Mrs Burdon I can, under s 49 of the Crimes Act, find him guilty of that offence, an offence under s 26 of the Crimes Act, the statutory alternative to the count charged on the indictment.
The Witnesses and Exhibits
28. I turn, then, to the evidence adduced at the trial. I summarise the evidence of the witnesses and, where appropriate, as disclosed by the exhibits as follows.
The prosecution case
Mrs Rea Burdon(a)
29. Mrs Burdon stated that she had married Mr Burdon about three years before the trial and that they were, at the time of the alleged offence, living in Kambah. At the time, their son was two weeks old. She, at that stage, weighed 47 kilos and was 5'4" tall. Her husband was 5'11" tall.
30. Mrs Burdon said that on 20 July 2009, she had gone out in the afternoon while her husband stayed at home with their son. She returned at about 4.15 pm. Before she went out, the two had an argument about the amount of time Mr Burdon was spending on his computer and how much help he did or did not provide with the baby. The argument resumed when Mrs Burdon returned home.
31. Mrs Burdon said that she then told her husband that she was going to go out for the night and stay with a friend at Lyons and she went into the bedroom to start packing some things. Mr Burdon followed her into the room and became angry with her. They both raised their voices. She managed to finish packing, however, and headed back to the lounge room. She then went to the kitchen where she packed some more things. Mr Burdon followed her, grabbing her hand and trying to stop her packing.
32. Mrs Burdon stated that she managed to pack what she wanted, though Mr Burdon was yelling at her; at one point she screamed back at him. She remembered that he grabbed her shoulder and shook her which hurt her. This happened in the lounge room near the kitchen. She tried to get away and finish her preparations and was also a little scared, so she grabbed a knife and this stopped Mr Burdon from touching her. She demonstrated holding the knife with the blade pointing straight upwards, her arm bent at the elbow and her forearm approximately horizontal to the floor with the hand a little above the arm. At the time, Mr Burdon was a few steps away from her. She said words to the effect of “Don’t you dare hold me again or touch me.” A photograph of the knife was tendered. It was a kitchen chopping knife with a blade about 18cm long.
33. Mrs Burdon stated that she went back into the kitchen and returned the knife to its drawer. As she returned to the lounge room, Mr Burdon tried to approach her and as she attempted to avoid him she knocked over a vase with a flower (or flowers) in it. She said that Mr Burdon then approached her quickly and grabbed the scarf that was around her neck. A photograph of the scarf around her neck was also tendered.
34. Mrs Burdon said the scarf was draped around her neck with the two ends hanging down her chest in front of her. Mr Burdon, she then said, used his two hands to grab the ends of the scarf so as to wrap it around her neck and tighten it by pulling it up in the air. She said things went “all blurry”. Her feet had been pulled off the ground. She said Mr Burdon’s face was red and he looked angry. She said she hung there for ten to fifteen seconds and could not breathe and her neck felt sore “like a fire”. She said she was “very, very scared”.
35. Mrs Burdon then gave evidence that Mr Burdon let go and Mrs Burdon found herself on the floor and that he jumped onto her; his knees were on the ground and he was on top of her, leaning over her. She said something to him, as she was still scared but he slapped her on the right side of her face, so hard that it left a mark.
36. Mrs Burdon said that at some stage he stood up and she stood up off the ground, she ran straight to the room where their son was, grabbed him and ran through the back door into the street up to a nearby bus stop.
37. Mrs Burdon identified some photographs of her house. In one she marked where she was standing when she held the knife and where her husband was. She also marked where she was when her husband grabbed her round the neck with the scarf. The photographs were tendered.
38. Mrs Burdon then said that when she arrived at the bus stop, she rang Emergency Services on 000. She felt constrained, however, for Mr Burdon had followed her and was standing close beside her. She felt scared, but also a little better because she was outside the house.
39. The call was recorded and the record played in court. In it, Mrs Burdon says “... I really want to stay away from the house.” She then says “... we’re having an argument with my husband, and I’m holding our baby, and I need, I need someone here”. She then gives the address of the family home but noted that she was outside the school. She gives her name and that of her husband.
40. She then says, “... I need to get out of the house, and my husband don’t let [sic] me get out of the house” and the voice of Mr Burdon can be heard saying “Yes he does, don’t lie to them dear. I don’t [sic] stop you.” There is mention of a fight and Mrs Burdon says in answer to a question that there was violence involved.
41. Also at the end, Mr Burdon is heard to say “Tell her about the knife you pulled on your husband” and police ask whether her husband is there and she is told to stay where she was.
42. Mrs Burdon said in evidence that the police met her at the bus stop a short time later. She told them that Mr Burdon slapped her and when a police officer referred to a red mark on her neck, she told them “he strangled me with my scarf.” An ambulance was called and Mrs Burdon was taken to hospital to be checked. Later she gave a further interview with police and some photos were taken of her at about 7.00 pm that night.
43. Those photos were tendered. They clearly showed red marks on the right and left sides of Mrs Burdon’s neck. They were not pronounced but were clear. She said that when the photographs were being taken, her neck was still sore.
44. That night she was discharged from hospital and returned home where she was visited the next day by Dr Catherine Sansum and photographs of the layout of the house were taken.
45. In cross-examination, it was suggested to Mrs Burdon that Mr Burdon was on paternity leave and that he had gone to school earlier on 20 July 2009. Mrs Burdon did not accept that. She said that at 9.00 am she had asked him to change the baby and she denied that he had done so. She agreed that at about 11.00 am she said she was going to Woden and Mr Burdon offered to drive her there but she declined; she caught the bus. She had fed the baby about half an hour earlier. She stayed away at Woden for about two and a half hours, including the time it took to get there, though later in cross-examination she agreed that this could have been about three hours.
46. She did not remember Mr Burdon ringing her at Woden offering to give her a lift home and denied speaking to him. She did not remember sending him the following text message:
I’m giving up, Ross, it’s time for you to take full responsibility for your son, my heart is now a rock.
47. She said it was possible that she had sent it.
48. She then repeated her account of what happened when she came home, insisting that Mr Burdon followed her into the bedroom when she packed some of her belongings. She said he held both of her hands, shaking them. She denied that it was done gently. She also denied taking the knife into the lounge room, saying she was still in the kitchen while she was holding it and denied lunging at him with the knife.
49. It was suggested that the plant or flowers in a vase near the kitchen was cut by her when she lunged with the knife, but she denied that, confirming that she knocked them when she came back into the lounge room. She said that Mr Burdon was not calm and did not just go and sit on the couch. She also denied that someone then telephoned Mr Burdon.
50. She confirmed, as she had told police, that she was upset and angry with her husband because of his excessive time on the computer and his failure to help in caring for their baby.
51. It was suggested to Mrs Burdon that she had left the house twice after returning from Woden and initially she denied that but she had told the police that she did. It was also suggested that she told police that Mr Burdon followed her in the car with the baby. She said she could remember “the violent part” but that time had affected her memory of the other part. She said that she did not exactly recall the events leading up to her walking to the bus stop.
52. The suggestion was then made to her that she said to Mr Burdon “Don’t you ever touch me or I can kill you”, as she reported to the police, and that she then went to get the kitchen knife. She agreed that she said the words but denied that it was then that she went to get the knife. She did that because of his violence to her. She said that she had yelled at him that she could kill him because she had “just had enough and he was just touching me and then I don’t [sic] give him permission to push me or touch me or shake me”.
53. It was suggested that she had not told police that Mr Burdon was on top of her and that this was because it was not true. She agreed that she had some difficulties with her memory but she was positive that it had happened.
54. Two audio-visual records were then played. The first one showed part of the carpet in the lounge room. It also appears to show Mrs Burdon behind the couch and possibly Mr Burdon sitting on the couch, as she agreed. Mrs Burdon can be heard saying “Don’t touch me”. The audio recorded a fight between the two about the respective contributions each were making to the baby and to the house. A phone is heard to ring. The second showed Mrs Burdon on the floor with what appeared to be the scarf round her neck and the two are heard shouting at each other. At no time did Mr Burdon suggest that Mrs Burdon should feed their son. These were videos taken by Mr Burdon on his mobile phone.
55. As a result of seeing the first audio-visual presentation, Mrs Burdon changed her evidence a little. She said that when she came back from Woden she tidied up some things in the lounge room and then started packing things there before going into the bedroom, not that she first went into the bedroom as she had earlier said. She admitted that the phone rang but could not say whether Mr Burdon answered it; she did not remember him speaking to anyone.
56. Mrs Burdon said that when she picked up the knife she was not angry, but upset. She denied saying “This is never going to end, you’re going to die. You could be poisoned, you’re going to die”. She also denied a number of suggestions about the location and conduct of the two during the altercation. She affirmed that Mr Burdon slapped her and she denied that when he pulled her scarf, they were both falling to the ground.
57. She was shown two photographs. It was put to her that in one photograph it showed that she had a knife in her hand. There was a light patch in front of what was clearly Mrs Burdon in the photograph. It is possible that it is the tip of a knife, but it is by no means certain. In any event, she is certainly in the kitchen at that stage. It is also notable that there is a table at the edge of the kitchen but no flowers or vase on it. Mrs Burdon continued to deny that she knocked the flowers down when she had the knife in her hand.
58. The other photograph showed Mrs Burdon. It was said it showed her to be angry. She did not accept that. I have looked at the photograph carefully and I cannot say that it shows her to be angry. It is quite unclear what emotion she is expressing.
59. Some suggested contradictions in what she told the police and what she told ambulance officers were also denied by her and explained, she said, because her English was not perfect. It was quite clear that English was not her first language.
60. Mrs Burdon was also asked why she had not mentioned the scarf in the 000 emergency call and she explained that it was because Mr Burdon was standing beside her.
61. There was some brief re-examination. Mrs Burdon said that Mr Burdon did not film the whole incident and that she was not aware that he was filming some parts of it.
Constable Carl Marcic(b)
62. Constable Marcic attended the bus shelter with Constable Kris Thomson as a result of the 000 emergency call. He received notification at 4.45 pm on 20 July 2009. When he arrived five minutes later, he saw Mrs and Mr Burdon. They were about two metres apart. He separated them to about four to five metres apart. Mrs Burdon was carrying a baby. Constable Thomson spoke to Mrs Burdon and Constable Marcic spoke with Mr Burdon.
63. Constable Marcic described Mrs Burdon as crying or only just having finished crying; she had red and a bit puffy eyes, swollen and tears were still there.
64. He then went over to Mr Burdon and cautioned him. The ambulance arrived about five minutes later and took Mrs Burdon and the baby away. Mr Burdon was then arrested and taken to Tuggeranong Police Station.
65. At about 5.30 pm, Constable Marcic and Constable Kellie Corcoran went to Canberra Hospital and had a conversation with Mrs Burdon which they taped. In the conversation, she explained how she had sustained injuries to her neck which he could see; he saw swelling and redness to the front of her neck. It was, he said, like a friction burn. He then took photos of the mark.
66. He then returned to Tuggeranong Police Station and assisted in interviewing Mr Burdon.
67. In cross-examination, Constable Marcic explained that they had taken Mr Burdon back to his home to allow him to lock it up.
68. In re-examination, Constable Marcic was asked about the demonstration by Mrs Burdon of how she was pulled by the scarf by Mr Burdon. She did so by reaching across his shoulder and clenching a fist behind him. She extended her arm fully he said, but he was not sure if it was completely straight.
Dr Catherine Sansum(c)
69. Dr Sansum of Clinical Forensics, ACT Health, went to see Mrs Burdon in her home on 21 July 2009 at the request of the Police. She particularly remembered the visit because it is rare for her to make visits to people’s own homes.
70. Dr Sansum took a history consistent with Mrs Burdon’s evidence. She said, however, that Mrs Burdon did not demonstrate how she was lifted by the scarf. Dr Sansum examined her throat and neck. She found tenderness on the right side of the neck but no visible marking and no obvious injuries or bruising.
71. Dr Sansum was shown the photographs of Mrs Burdon taken by police. She described in them a “faint linear red mark on each side of her neck”. She said they were consistent with the description of how the injury occurred. It was, she said, consistent with any other pressure.
72. Dr Sansum was not able to say how much pressure would be needed to make the marks visible after several hours. She looked at the photograph of Mrs Burdon with the scarf around her neck. She said that the scarf in that position would, when tightened, leave linear red marks around Mrs Burdon’s neck.
73. She had prepared a report and it was tendered.
74. In cross-examination she said she understood from the history given to her that pressure was applied through the scarf for twenty seconds including lifting Mrs Burdon off the ground during that time, though her notes referred to being lifted off the ground for twenty seconds. Although there was no demonstration at the time of her examination, Dr Sansum said she had assumed that the scarf was lifted from behind. She affirmed that the photographed marks were consistent with Mrs Burdon being lifted off the ground for twenty seconds.
Jennifer Anne O’Connor(d)
75. Ms O’Connor was an ambulance officer, paramedic, who attended on Mrs Burdon at Kambah. Her report of the attendance was tendered.
76. She remembered seeing Mrs Burdon sitting at the bus stop with her baby in her arms. She confirmed they took her to Canberra Hospital. On the way, they took a history. The report said:
History of presenting problem: Pt had an arguement w/c her partner this afternoon @ approx 1600 Pt stated husband grabbed her scarf & pulled it tight around her throat holding it for approx 20 secs. Pt stated he also slapped pt across the ® side of her face. Infant was in his cot @ time of assault.
...
On examination: Pt alert, oriented, well perfused, pain & red ligature mark to throat/Larynx area. Pain described as a scratching type, nil SOB, nil change on inspiration, airway clear on auscultation. Infant slept soundly enroute. Pt stable enroute.
77. Ms O’Connor noticed “a red mark or red line around her throat, across her larynx area.” She said it was consistent with the description of how it was made but that it was hard to tell what the object was. She confirmed that Mrs Burdon said she was in some pain and feeling “scratchy” inside her throat. There was no suggestion that Mrs Burdon had lost consciousness.
78. She did not remark on the condition of the baby at the time she arrived at the bus stop, from which it might be assumed nothing untoward was occurring. This is partly confirmed by her evidence that she did later check on the baby and said that he slept all the way in the ambulance and seemed comfortable.
79. In cross-examination, Ms O’Connor agreed she did not see any swelling. In re-examination, she agreed swelling can show up later in time.
Constable Kris Travis Thomson(e)
80. Constable Thomson attended at Kambah with Constable Marcic. His evidence about the arrival corroborated that of Constable Marcic. He did say that on arrival, Mrs Burdon was “visibly distressed”. He saw she was holding her baby son but did not remark on any noticeable condition of him.
81. Constable Thomson had a conversation with Mrs Burdon. It is convenient to quote what he said, as follows:
Ms Burdon told me that she and the defendant had a disagreement due to feeding and caring for [their child] and that she had left. She had come back to the location and at the location she told the defendant that she wanted to leave and that he needed to care for the child. She told me that the defendant didn’t wish for her to leave. She told me that he tried to stop or physically stopped her leaving and that she was – he was in the way of her – of her leaving and she did mention that she picked up a knife because she didn’t feel she could get out in any other way and she told me she put that down when the defendant retreated from her. Then she stated she then left. Tried to leave again and somewhere around the middle of the living room area she was met by the defendant she tells me where a physical altercation ensued and she stated she was lifted by a scarf around her neck and stated she fell to the ground. Stated that she was then slapped or she felt a slap to her face. Her left side I believe. She stated she then left out the back door and walked down – she collected [their child], walked down toward the bus stop. That was what she told me.
82. He observed red marks visible on Mrs Burdon’s neck, about half-way up, spanning most of the front of the throat and about two centimetres in thickness.
83. Constable Thomson also spoke with Mr Burdon and subsequently interviewed him formally and recorded it.
84. In the recorded interview, Mr Burdon was asked a number of questions about what happened. He told police that he had had two and a half stubbies of full-strength beer earlier in the day.
85. Mr Burdon said that the allegation of assault on his wife was “unfounded, spurious”. He said that she “frequently gets anxious. She frequently seeks to run away”. He also claimed that she had attacked him. He said that when she gets angry, he remains calm. He referred to the “video” which he had on his phone.
86. He then said that “there was no argument”. He said that Mrs Burdon became upset and started yelling at him and this “escalated her into her pulling a knife on [him]”. He said that she had left earlier in the day “without feeding the baby”. He thought she was going for a walk to let off steam. He said she asked him to change the baby’s nappy, which he did.
87. When she had not returned after two hours, he called her and said he spoke to her; she did not want a lift home but would return shortly. He went for a drive with the baby, did some shopping and parked the car and “watched the clouds go by.” He noticed the baby was starting to cry more frequently. He called some support people, maternity community nurses, and, as he was talking to them, his wife arrived home.
88. Mr Burdon told police that when his wife came in, she said “I hate you. I’m not staying. I’m leaving. You can keep the baby. He’s yours anyway. You can see what it’s like to look after him one hundred per cent of the time”. He said he was “flabbergasted”. She went to the bedroom and emerged with a full bag, including some red shoes sticking out. She said that she would not stay that night. He stood up, approached her and tried to calm her. He made various pleas for her to stay, but she refused. She then stepped backwards into the kitchen and produced a knife, lunging it at him. In doing so, she chopped off some bits of a pot plant and knocked it to the floor. He stepped backwards to get to the phone or to videotape what was happening. He was fearful. The phone then rang and he answered. It was apparently the nurse to whom he had earlier spoken and he just told her that his wife was back and he hoped she would feed the child.
89. Mr Burdon then told police that he tried some humour and tried to put his arm around his wife. She pulled away. The baby was in the bedroom at this time, mostly crying. He said Mrs Burdon was yelling at him very fiercely. She then grabbed him and the next thing he knew they were on the floor. No punches had been thrown. He grabbed his phone and started videoing what was happening.
90. He said that Mrs Burdon then went into the bedroom and he did not follow her. He then heard her leave the house and he grabbed his phone and went out the front door, locked the doors and climbed into his car. He then said he walked down the road to the bus stop where she was. She was already on the phone. He waited patiently and did not touch her.
91. Mr Burdon also explained how he had had problems with Mrs Burdon. When he goes to bed late, she has poured water and cream over his side of the bed.
92. He referred to an early family violence incident where they had both agreed not to harm, harass or damage the property of each other. He also complained that this incident amounted to a breach of that agreement but it was not being investigated. The police assured him it would be investigated.
93. He confirmed to police that Mrs Burdon came home five or ten minutes after four o’clock.
94. Mr Burdon refused to accept that there had been a disagreement because he said he had not verbally disagreed with her. It was a curious statement for what I heard was clearly a disagreement recorded on the videos. He said that when she was going to the bedroom to pack, he protested with her but denied touching her. He said he “kind of ducked and weaved, just to stay in her face”. He did “caress her arm gently”, though apparently at the bus stop he had admitted grabbing her arms to try and stop her leaving.
95. He said that a little later she came from the kitchen with the knife. He said:
She held it high in the air and lunged towards me, um, and then swung it side to side. Um, with the first lunge I stepped backwards. With the side to side, it was more like I had to look for which way to escape.
96. He said he went around the back of the couch and she “retreated” to the kitchen and put the knife back. He told her he wanted to “get that on video”. He then sat on the couch and she came towards him and started yelling at him.
97. He then said:
I know that we got from standing when she attacked me and pulled my hair, to the floor and clearly she was pulling on my hair and I was balancing and counter balancing. I definitely was holding on to something – scarf or clothes. I have no idea.
98. When it was put to him that he had told police at the bus stop that he had grabbed Mrs Burdon to try and stop her from leaving, he said that he did give her a hug earlier before the kitchen experience and that “[m]aybe I confused those”. It was also suggested that he had not then restrained her pulling his hair and falling down. He said that he had “got her on the floor on the video.” He said he did not like to tell that to police.
99. He was prompted by the police that Mrs Burdon had said to them that she had left the house twice, he then said that he had driven up to the bus stop at some stage and spoken to her from the car but she walked away and he returned home.
100. He was also asked about how the two fell to the ground and said it was “quite a blur”. He was able to get up first. He denied grabbing her scarf and pulling her upwards with it. He also denied slapping her. He also said that it was only when he arrived at the bus stop that he saw she had their baby with her.
101. Mr Burdon also said that they almost never argue, but that Mrs Burdon “get’s angry, really angry” about every fortnight.
102. He also explained in some detail why he thought Mrs Burdon behaved as he described that she behaved. The interview concluded shortly after that.
103. There was some brief cross-examination of Constable Thomson, particularly about what he had noted. He was asked about Mr Burdon’s allegations of assault with the knife and said that he had not seen any offences that required further investigation.
104. He also stated that Mr Burdon had no convictions for violence offences.
105. He was also asked about the marks on Mrs Burdon’s neck and said in answer to a question about swelling “there could have been puffiness ... I’m no medical [sic]”.
Constable Marcic(f)
106. Ms T Warwick, who appeared for Mr Burdon, asked to be permitted to ask additional questions of Constable Marcic. That had to be done by telephone as he had by then left the Territory.
107. Constable Marcic agreed that Mrs Burdon did not tell police that her husband had yelled nor that, when she was on the ground, Mr Burdon’s knees were on either side of her body. He also agreed that she did not say that Mr Burdon had followed her into the bedroom, or that he had harassed or shaken her in the bedroom.
108. The prosecution then closed its case.
The defence case
109. Ms Warwick initially sought that I give myself a Prasad direction (The Queen v Prasad (1979) 23 SASR 161) but, after argument, she effectively withdrew the application. She then called Mr Burdon.
Ross Andrew Burdon(g)
110. Mr Burdon gave evidence that, on 20 July 2009, he arose early to get materials to the school where he was a teacher because he had been given two weeks paternity leave and was expected to provide two weeks of lesson preparation for that period. When he returned home, he sat at the computer, put his head in his hands and had “a bit of a nap”.
111. While he was there, his wife, Rea Burdon, emerged at about 9.30 am, sat on the couch behind him and said to him “Change the baby”. He said without turning round, “Is that a question, Rea?” and she simply said “Change the baby.” He did not say, and was not asked, whether he did change the baby’s nappy.
112. He said that at about 11.00 am, Mrs Burdon indicated that she was going to go out to Woden by bus for a while and he said he would look after the baby. He had, however, told police that he thought she was just going out for a walk. He offered her a lift, but she did not accept. She was away for about two hours. He took the baby out for a while. While he was out, he called Mrs Burdon who said she was at Woden waiting for a bus. He offered her a lift but she declined. He stayed for a little while and then returned home, but his wife had not returned.
113. He recalled that he had found the number of Tuggeranong Family Services and called them, described that he did not have formula, his baby was breastfed and that he “it was looking like I needed to get him fed as a priority”. While he was speaking, Mrs Burdon arrived home and he asked the person to whom he was talking to call back and hung up.
114. Mr Burdon said that he then spoke to his wife who said she was leaving, that the baby was “100% [his] to care for, declined [sic] to feed him”. He was shown a document which he said transcribed a message which he had received about the same time. It read:
SENDER: Rea Burdon
I’m giving up Ross, its time for you to take full responsibility for your son, my heart is now a rock ...
115. He then stated that Mrs Burdon walked out the door. He then went to the bedroom to get his son, put him in the baby seat in the car and drove down the road following her. He wound down the window and said “Come on darling, calm down, feed the baby”. She continued walking to the bus stop.
116. He said that he then drove home and called Family Services again about feeding his son.
117. He gave evidence that Mrs Burdon returned about fifteen minutes later and he terminated the call. Mrs Burdon said again she was leaving and walked into the bedroom. He neither stopped her from going into the bedroom nor followed her. She re-emerged apparently with some clothes in a bag and walked to the couch. She then walked to the kitchen.
118. Mr Burdon’s evidence was that they “had a conversation of sorts”, in which he pleaded with her to feed the baby. At one stage he touched her arm in a “kind of caressing motion” and “kind of ducked and weaved in front of her trying to smile at her”. He was saying “Darling, let’s calm down. Let’s feed the baby” and she sometimes said nothing, sometimes said “No”.
119. He said that Mrs Burdon then went into the kitchen and emerged with a knife and came as close as a metre to him. She swung the knife in an upward motion towards his chest and he “leapt backwards”. She swung the knife to the right and left “in a wild motion” and it connected with a decorative collection of flowers which fell to the floor. He retreated and went and grabbed his mobile phone and said “Rea, I want to get video of this”. He said she turned away from him as he took a photo, which showed the absence of the flowers. This was the photo previously tendered. Mrs Burdon re-emerged from the kitchen without the knife and Mr Burdon sat on the couch and took the first of the videos I have earlier described.
120. Mr Burdon said that the telephone rang and he answered it. It was Family Services and he said that he would continue to try and get his wife to feed the baby and hung up. He sat down on the couch and talked to his wife for a while longer as she appeared to be calmer. He said to her that she should calm down as there was no cause for her anger.
121. He stated that she then became very angry again. At this stage they were standing face to face and Mrs Burdon was threatening him, saying “vicious things about death and certainly a lack of [his] safety”. She started poking him in the chest and then grabbed him by the hair. His evidence then was:
[MS WARWICK] What did you do at that point?
[MR BURDON] This is blurry, but I did turn with her still grabbing my hair. She was behind me and I did with one hand reach behind me over my shoulder and grab her clothing. Our bodies were swaying side to side. There was movement, very unsteady, her hands were pulling my hair. I was pulling on some of her clothing over my shoulder.
[MS WARWICK] And what happened?
[MR BURDON] We fell to the floor.
122. Mr Burdon stated that he was “pretty good on [his] feet” and so was able to step over her and with her grip on his hair released, he let go of her. She was yelling at him and he grabbed his phone again and recorded her, saying that “this has got to stop”. This was the second video recording I saw.
123. He recalled that Mrs Burdon then stood up, walked out of the lounge room and the next thing he heard was the back door slide closed and he saw her go past the window.
124. The allegation that he lifted Mrs Burdon by her scarf was put to Mr Burdon and he said:
[MR BURDON] I accept that it’s possible, even likely, that the portion of her clothing that I grabbed was her scarf, that I lifted her from the ground I think’s [sic] maybe not impossible. I was trying to get her off my back. Is it – can I definitely say no? No. Can I definitely say yes? No, not either.
[MS WARWICK] Did you – Were you at any stage face-to-face with her and take hold of her scarf and lift her from the ground?
[MR BURDON] No.
[MS WARWICK] When she was on the ground did you slap her?
[MR BURDON] No.
[MS WARWICK] When she was in the bedroom did you touch her in any way.
[MR BURDON] I didn’t go to the bedroom with her.
[MS WARWICK] And when she was in the lounge room did you shake her?
[MR BURDON] No.
[MS WARWICK] Grab her arms?
[MR BURDON] No.
125. He said that he then followed Mrs Burdon to the bus stop and heard her call to the police.
126. He said his height was 5’11” and his weight was 93 kg.
127. In cross-examination, it was suggested to Mr Burdon that he did not speak to Mrs Burdon while she was at Woden because that would mean there was no reason to call Family Services as he then knew she was about to return, but he said he did call them because when he came home she was not there.
128. He also denied that he was aggressive when trying to convince Mrs Burdon not to leave. He also denied that there was an argument and suggested that Mrs Burdon was saying that she wanted to leave but was not yelling. He denied following her into the bedroom, grabbing her by the shoulders and shaking her.
129. The version of events outlined by Mrs Burdon was put to him and he broadly denied them. He said that the baby was crying and suggested that this could be heard on the videos. I listened to both of them a number of times but could not hear that.
130. He said that when Mrs Burdon came out with the knife he went and sat on the couch.
131. He said further that the discussion about her leaving became “an argument, a discussion encouraging her to take control of her behaviour”.
132. He denied that he had grabbed Mrs Burdon by the scarf and lifted her up despite what he had said in his earlier evidence (at [124]). He agreed that he was very vague about this part of the incident in his interview with police.
133. He emphasised that he was not trying to control his wife. He accepted “perhaps” that he goaded his wife and accepted that this may have been the culmination of his frustration with not being able to control her.
134. Mr Burdon agreed that he had not told police that when Mrs Burdon was pulling his hair she was behind him nor that he had to reach over his shoulder to grab some clothing. It was suggested to him that he had made up part of his story where his memory seemed to have improved since speaking to the police. He replied “I have to piece together the pieces I do remember.”
135. Mr Burdon was asked about why he had told police that both he and Mrs Burdon had fallen to the floor when in evidence he said he managed to keep to his feet and step over her. He answered that when talking to police he believed that but now he was not so sure. He was sure he was never on top of her.
136. He was also asked about how he could be quite specific with some matters, such as with which hand he grabbed Mrs Burdon’s clothes but omit or be vague about other matters. Police had asked him how Mrs Burdon had pulled his hair and he answered “No”.
137. He agreed that at the bus stop his son was not crying.
Contentions
138. Mr T Hickey, who appeared for the prosecution, submitted that Mrs Burdon gave a consistent version of events, unshaken in cross-examination and consistent with the marks on her neck.
139. He submitted that she was yelling at her husband and did not minimise her role in the altercation, an attitude consistent with what was seen and heard of her on the videos. On the critical issue, namely the incident with the scarf, she was, he submitted, not shaken.
140. He submitted that Mr Burdon changed his story a number of times and his evidence was not reliable. He submitted that the marks on Mrs Burdon’s neck were clear and if I were to reject Mr Burdon’s version of how they occurred, I only had her version which I should accept.
141. He submitted that both Mr and Mrs Burdon did engage in a certain amount of minimising their evidence. He submitted that Mr Burdon, unable to control his wife, was at the end of his tether and the incident occurred.
142. Mr Hickey further submitted that the knife was “a red herring”. It was not relevant to the incident with the scarf. He submitted that Mr Burdon’s changes of story were to fit in with the evidence of the medical practitioner.
143. He submitted that the emergency call was also corroborative: Mrs Burdon was distressed at first and then seems to have calmed down but made it clear she could not tell the operator what was going on because her husband was right next to her. He noted that her version of events to all the police, to the ambulance officer and to the doctor were consistent. This, he submitted, contrasted with the evidence of Mr Burdon which was not consistent.
144. Ms T Warwick, for Mr Burdon, submitted that, as Mrs Burdon was not aware of the marks on her neck, they could not amount to actual bodily harm, especially as it could not be seen by the doctor some eighteen hours later.
145. She submitted that Mr Burdon was responding to an attack by his wife. She noted that the grabbing of Mrs Burdon’s clothing was spontaneous and if the force is applied in a melee or fight, consent can be inferred. She submitted that it may rather be a matter of accident than consent.
146. Ms Warwick submitted that Mr Burdon’s descriptions of the events of the day were, in fact, consistent when considered carefully. He had mentioned at the bus stop that he may have held on to Mrs Burdon’s scarf when she was pulling his hair. She also submitted that he did give an explanation, which she submitted was reasonable and should be accepted, as to why he had not mentioned the pulling of his hair earlier.
147. She also submitted that the doctor’s evidence was not inconsistent with Mr Burdon’s explanation of how the incident occurred. She accepted also that Mr Burdon made an “incomplete statement” when spoken to by police at the bus stop, though she did point to the reasons he gave for that.
148. She pointed to his answers to police in the formal interview and submitted that, despite the vagueness, it had the ring of truth about it, that he was not “trying to make it up, he’s not trying to say something he’s not certain of it [sic], he’s just saying as best he can”.
149. His answers, she submitted, were, when scrutinised carefully, consistent. She also submitted that they were corroborated by the two videos he had taken with his phone, including the ringing of the phone which Mrs Burdon had denied happening. The absence of flowers when it appears that Mrs Burdon is walking back into the kitchen and the text message were, she submitted, also consistent with his version. She also relied upon Mr Burdon’s absence of criminal history for violence offences.
150. Ms Warwick noted that Constable Corcoran, who was present when Mr Burdon had been interviewed, was not called. While that was generally irrelevant, it did mean that there was no corroborative evidence as to the demonstration Mrs Burdon gave of how she claimed Mr Burdon had grabbed her scarf.
151. She also relied on inconsistencies in Mrs Burdon’s evidence: whether Mr Burdon had or had not sat on the couch, her denial of the telephone call, the text message she could not recall, the absence of flowers when she was in the kitchen and that she did not tell police that she was yelling and that she did not tell police that her husband had followed her into, and touched her in, the bedroom. She also pointed out that her evidence before me was the first time she mentioned that Mr Burdon straddled her with his knees on either side of her and his weight on her, though that seemed to be confirmed by the video.
152. Ms Warwick also submitted, as I had earlier suggested to Mr Hickey, that I could take judicial notice of the physics of the suggested manoeuvre where Mr Burdon is claimed to have lifted Mrs Burdon off the ground with one hand, making it an impossible feat. I note, however, that Mr Burdon conceded that it may have occurred, though denying that it was an intentional assault.
153. She further submitted that I should accept Mr Burdon’s denial of any slap, particularly as Mrs Burdon’s evidence about that was inconsistent with her evidence of that to police. She noted that no-one observed a mark on her that could have come from the slap.
Consideration
154. The question at issue in this case is whether the mark that was clearly to be seen on Mrs Burdon’s neck, in the photographs, by police and by ambulance officers was caused by the deliberate action of Mr Burdon and, if so, whether it amounted to actual bodily harm.
155. There was a lot of other evidence about the events of the day, some of which gave context to this particular event and some of which can only be said to have been relevant to any finding I could make about the reliability of the evidence given.
156. There can be no real dispute that the mark was there and there was no suggestion that it was caused other than during the events of 20 July 2009. I find, beyond reasonable doubt, that the red marks I saw on the photographs of Mrs Burdon’s neck were caused by the scarf, that I also saw in a photograph, being tightened around her neck.
157. I found neither Mrs Burdon nor Mr Burdon to be entirely satisfactory witnesses in some respects. Mrs Burdon was somewhat excitable and had a poor recollection of some matters. Despite Mr Hickey’s submissions, some of her evidence was uncertain. That may, in part, have been a result of the fact that English is clearly not her first language and some nuances may have led to some of the difficulties, though not all. Her memory, or lack of it, played a real part.
158. Thus, Mrs Burdon denied that during the altercation, her husband received a phone call. The audio-visual clearly showed a phone ringing, though it does not show whether it was answered. Mr Burdon appears to be getting up to do so, but the video does not record that. It seems likely that he did.
159. Ms Warwick relied on the fact that Mrs Burdon did not tell police that her husband yelled at her, even though she gave that evidence before me. I do not see that this goes much to her credibility, particularly as she admitted that she yelled at him. There were also a number of other parts of the incident which she apparently did not tell police, though she said they happened in evidence before me. These included that Mr Burdon was sitting on the couch during part of the altercation after she had produced the knife. The problem with this is that while this appears to be the situation shown in the first video, it cannot be linked to a particular time.
160. It appears, however, that she did not tell the police that Mr Burdon followed her into the bedroom and touched and harassed her there or that when she fell over he was straddled over her with his knees on both sides of her.
161. The incident was, of course, some fifteen months before the trial and Mrs Burdon admitted that she had some vagueness about some of the events of the day; she said she had concentrated on the central issue of Mr Burdon pulling on her scarf and lifting her from the ground. On this, she was consistent in her evidence to police and paramedics very soon after the incident.
162. Mr Burdon also failed to tell police things he later said. For example, he did not tell police at the bus stop when first approached that Mrs Burdon had pulled his hair, a fact that, as Constable Thomson observed, was a pretty significant part of the circumstances that led to Mrs Burdon receiving the red marks on her neck.
163. I found, too, his evidence about the baby to be problematic. He said he made two phone calls to Family Services seeking help with feeding, yet on the first occasion, he knew his wife was returning home, and, indeed, she arrived before he had finished the call. He also suggested that they should call him back, but it was entirely unclear why he did so.
164. The most curious aspect, though, is that I could not hear the baby crying on either audio-visual, there is no conversation on either where he urges Mrs Burdon to feed the baby, which, on his version, is an uppermost concern in his mind, and then at the bus stop the baby seems surprisingly no longer to be crying or in need of feeding. Indeed, the paramedic describes the baby as sleeping and “comfortable”. There could not have been time for him to be fed on the events as outlined by him and no-one suggested this was occurring.
165. Mr Burdon mentioned to police that he had been drinking that day, but did not mention that to me. He also appears not to have told police that he followed Mrs Burdon twice to the bus stop, once in the car and once on foot.
166. His evidence to me was a little curious and argumentative. He rejected the characterisation of the incident as an argument. He plainly said “there was no argument”. If, as he suggested, the first video was taken after Mrs Burdon had produced the knife, then, despite his assertion, what is recorded on that video is clearly an argument. I cannot characterise it in any other way. He was, perhaps understandably, also reluctant to accept that in parts of what I heard he was clearly goading her, though he appears ultimately to have accepted that. He clearly was intent on minimising his part in the incident and I so find.
167. On the other hand, Mrs Burdon was a somewhat excitable witness and I find that she exaggerated some parts of her evidence. Nevertheless, I formed the clear view that she was generally a witness of truth and was doing her best in the circumstances which were obviously very distressing to her to recall.
168. Taking all this into account, I have to determine whether I can find beyond reasonable doubt that Mr Burdon, by intentionally or recklessly pulling on Mrs Burdon’s scarf assaulted her and caused her actual bodily harm.
169. Mrs Burdon’s explanation of what happened is clear and consistent. It is true that she does not mention the incident until the red marks on her neck are pointed out to her by police at the bus stop, but it does not seem to me that this is particularly significant. The force needed to leave the marks seen and the tenderness identified by Dr Sansum some eighteen or so hours later would be equally memorable whether intentionally or accidentally inflicted.
170. On the other hand, Mr Burdon’s evidence of this issue is, unlike the evidence he gave of almost everything else, quite confused and vague. The failure to mention to police initially a critical element of his version, namely that she pulled his hair, also undermines the confidence I can have in his version. His explanation is quite unconvincing when compared with his eagerness to interrupt Mrs Burdon’s emergency call to say that she had produced a knife and threatened him with it.
171. I found it quite curious that Mr Burdon would record this incident but only partially.
172. I found it quite difficult to understand how Mr Burdon was explaining the incident in his sworn evidence before me. He said that Mrs Burdon was poking him in the chest. She must then have been in front of him. He then says she grabbed his hair. That must have been from in the front. He then says she was behind him, but I found it really hard to see how that occurred.
173. He then said that he reached behind him and pulled on her scarf, apparently to steady himself. This is inconsistent with his concession that he may have pulled her off the ground.
174. His evidence then was that Mrs Burdon fell over, but if Mrs Burdon was behind him and pulling his hair and he was hanging on to her scarf – it is, in my view, inconceivable that he would not have fallen with her, either on top of her or beside her. His explanation of being nimble-footed would not have prevented that in the circumstances he described.
175. Of course, Mr Burdon does not have to prove anything. His explanation can only go to raising, if it does, a reasonable doubt about how the red marks were inflicted on Mrs Burdon’s neck. She gave an explanation. I did not disbelieve her, though I was concerned by the possibility of exaggeration as to how long she was held off the ground.
176. I find that the two were arguing and shouting at each other and that, consistent with what I saw on the audio-visual recordings that at times Mr Burdon became quite heated and angry. I also find that Mrs Burdon was angry and upset.
177. Ultimately, I am satisfied that Mr Burdon deliberately pulled the scarf around Mrs Burdon’s neck causing the red marks subsequently seen there. I find, however, that I have a real doubt as to whether he was able to pull her off the floor for twenty seconds or so. Further, the red marks do not seem to me to amount to actual bodily harm. I have a doubt, when I consider the demeanour of Mrs Burdon shown in the second video, that any “blurriness” she felt was such as to amount to actual bodily harm. Without that, it seems to me that there was no actual bodily harm.
178. Accordingly, I will make findings in accordance with these reasons.
I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 1 June 2011
Counsel for the prosecution: Mr T Hickey
Solicitor for the prosecution: ACT Director of Public Prosecution
Counsel for the defendant: Ms T Warwick
Solicitor for the defendant: Jeffrey Silk
Date of hearing: 5 and 6 October 2010
Date of judgment: 1 June 2011
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