R v Cailes

[2023] SADC 36

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v CAILES

Criminal Trial by Judge Alone

[2023] SADC 36

Reasons for the Verdicts of her Honour Judge Telfer 

14 April 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON

The accused was charged with Aggravated Assault (count 1), two counts of Unlawful Choking, Suffocating or Strangling (counts 2 and 4), Aggravated Threatening to Cause Harm (count 3) and Attempting to Dissuade a Witness (count 5).  The complainant in respect to each count was the accused's partner.  It is alleged that on 17 April 2021 the accused committed various acts of domestic violence against the complainant.  After he was arrested it is alleged that he asked the complainant on numerous occasions to drop the charges that had been laid.   The accused gave evidence denying the allegations.

HELD: The accused is not guilty of Aggravated Assault but guilty of Assault on count 1, guilty on count 2, 3 and 4 and not guilty on count 5.

Criminal Law Consolidation Act 1935 (SA) ss 20(3), 20A(3)(c), 19(2), 244(3)(a), 265; Juries Act 1927 (SA) s 7; Family Relationships Act 1975 (SA) 11A, referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; R v Gardner; R v Webb [2021] SASCCA 68, considered.

R v CAILES
[2023] SADC 36

Introduction

1. The accused Stephen Francis Cailes is charged with a series of offences of violence, each of which is alleged to have been committed against Ms P on 17 April 2021.   At the time of the alleged offences Ms P was the accused’s partner.  The allegations arose in the context of discord and arguments over the conduct of each party to the relationship.

2. In April 2021 the accused and Ms P had been in a relationship for approximately 6 months.  They met initially through a dating application ‘Plenty of Fish’.  Throughout the relationship the accused and Ms P maintained separate dwellings, but as the relationship developed, the majority of their time was spent staying at the accused’s home at Salisbury East.  The accused lived at these premises with his mother Ms Rita Rech.

3. On 17 April 2021 the relationship was in a precarious state.  The accused became aware that Ms P had been dishonest with him about the nature of a friendship she had with a man by the name of Mr Marius Liddle.  There was a dispute between the accused and Ms P.  What occurred during the course of that dispute is the focus of the issues in this trial.

4. Ms P alleges that she was subjected to a series of assaults across the day which culminated in the accused choking her as she lay on the bed in his bedroom.  Those allegations form the basis for counts 1-4:

   1.Aggravated Assault contrary to section 20(3) of the Criminal Law Consolidation Act, 1935 SA (CLCA).

   2.Unlawful Choking, Suffocating or Strangling another contrary to section 20A of the CLCA.

   3.Aggravated Threatening to Cause Harm contrary to section 19(2) of the CLCA.

   4.Unlawful Choking, Suffocating or Strangling another contrary to section 20A of the CLCA.

5. In the days following 17 April 2021, Ms P and the accused remained in contact with one another.  Ms P reported the matter to police on 24 April 2021. The accused was arrested.  Upon him being granted bail, contact between Ms P and the accused continued.  During this period, it is alleged that the accused made a series of statements aimed at having Ms P discontinue the criminal charges against him.  These allegations are charged as count 5:

   1.Attempting to Dissuade a Witness contrary to section 244(3)(a) of the CLCA.

6. In respect to those 5 charges the accused elected to be tried by a Judge sitting without a jury, pursuant to section 7 of the Juries Act 1927 SA.

   Preliminary Directions

7. In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury.  The following observations by Kirby P (as he then was) have been cited with approval in this state:[1]

   It has not yet been possible for the Court to accumulate a body of precedent regarding the approaches to be taken by a judge instructing himself or herself on the applicable principles of law. It seems to have been assumed that the judge is bound to record (as if in an instruction to a jury) the considerations which have been taken into account in reaching the determination on the issue of guilt. It also seems to have been assumed that the same explanations for adopting one course rather than another, which are regularly used to justify decisions at trial before a jury, are to be incorporated, without modification, in a trial before a judge sitting alone. I question these assumptions. It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone. It should be perfectly possible for the judge to hear inconsistent submissions put in the alternative. In the hands of a trained judicial officer, these would be evaluated on their merits and decided as the law and the factual findings required.

   The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal. One of the obvious advantages intended by Parliament in the procedure of trial before a judge sitting alone is the saving of time, the consideration of the case by a trained and experienced decision-maker and the provision of reasons for the decision which may be reviewed on appeal. (References omitted)

   [1]     R v Winner (1995) 79 A Crim R 528 at 30-531, cited in R v Keyte (2000) 78 SASR 68 at [54].

8. With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.

   Presumption of Innocence and Right to Silence

9. The accused has the presumption of innocence in his favour.  He is innocent of the charges unless and until the prosecution prove his guilt beyond a reasonable doubt, and he need not prove anything.  He cannot be convicted on any count unless the evidence relevant to that count proves the elements to the requisite standard.

10. In this matter the accused chose to give evidence. In doing so he did not assume any burden of proving or disproving the allegations against him.

    Separate Consideration

11. I have considered each count on the Information separately.  In particular, I have not used the evidence of statements made by the accused to Ms P about dropping the charges which are relevant count 5, Attempting to Dissuade a Witness in respect to my consideration of counts 1, 2, 3 or 4.

    The Background Relationship

12. The proof of each charged count relies on the acceptance of the evidence of Ms P as truthful and reliable.  Her evidence as to the assaults is circumstantially supported by the injuries observed to her face, neck and chest in the days following, and recorded in photographs.

13. The prosecution relied on a body of evidence about the background relationship to establish that the accused was controlling and possessive.  It was argued this attitude casts light on why he behaved as he is alleged to have on 17 April 2021.  The prosecution submitted that the relationship was punctuated by frequent and highly charged arguments about Ms P’s past, her friendships with males and her conduct generally. The prosecution submitted that the accused was simply unable to let go of the fact that Ms P had past boyfriends and had friendships with males outside of her relationship with the accused.  The prosecution argued that the events of 17 April 2021 were the culmination of the accused’s intense preoccupation with Ms P’s fidelity and honesty.

14. On the other hand, counsel for the accused relied on evidence given by the accused, and a series of text messages sent and received between 4 October 2020 and 24 April 2021.  It was argued that the text messages supported the inference that Ms P wanted the relationship much more than the accused did, and that she was the ‘driving force’ behind the relationship continuing.  Counsel for the accused argued that when the accused ended the relationship, Ms P exacted her revenge by making a false complaint about having been assaulted.  Counsel for the accused submitted that the allegations had been fabricated as revenge because the accused did not make good on his promise to marry Ms P, to give her an expensive engagement ring and buy a nice house for them to live in.[2] 

    [2]     TS 816.

15. The prosecution and the accused submitted that the evidence supported two quite contrasting characterisations of the background relationship. 

    Evidence of Ms P

16. Ms P worked as a Front Office Manager at a Hotel.  She lived on her own in rented premises.  She met the accused on an online dating site called ‘Plenty of Fish’.  Following a period of contact via snapchat, text messages and social media, she and the accused met for the first time in person in October 2020 when they went out to a restaurant together.  Ms P said the relationship soon became romantic, and in November 2020 Ms P began staying most nights at the accused’s home in Salisbury East.  That pattern began at the time of the first state-wide lockdown which resulted from concern that Covid-19 was circulating in South Australia from a pizza shop.  That lockdown came to be referred to by the shorthand ‘the pizza lockdown’.

17. From that time, the couple spent most nights together, more often at the home of the accused than at the home of Ms P.

18. Ms P said that from an early point in the relationship the accused expressed his expectations of the relationship clearly.  She said he controlled who she could have as friends, restricting her from friendships with males and asking her to remove some of the people she was connected with on social media.  Ultimately the accused asked her to delete her social media accounts and change her mobile telephone number to avoid contact with people he did not approve of.  She did as he asked. 

19. Ms P’s sexual history and previous relationships became a focus for the accused, and he became preoccupied with knowing how many men she had previously been intimate with.  The records of text messages sent between the accused and Ms P record this topic as a regular point of discussion.

20. Ms P described an argument between she and the accused which occurred just prior to her travelling to Whyalla to see her family.  She was wearing a necklace that the accused had given her as a Christmas gift.[3]  Ms P understood the necklace to have cost in the vicinity of $1,900.00.  During the argument the accused told her that the relationship was over and grabbed at the necklace to pull it from her.  His hands touched her neck, and she told him never to touch her again.  She said that the accused was very angry.  He held his fist to her face and she removed the necklace and handed it to him.  She described a pattern where the accused would become angry and escalated and could not calm down quickly.[4]

    [3]     TS 130.

    [4]     TS36-37.

21. In a text message closely following that argument that accused told Ms P:

    “I do love you with all I have to offer, I hate when we argue, and I apologise for the way I speak to you. It’s not OK”.[5]

    [5]     D10 at 3 (Part 2).

22. Ms P said that arguments would constantly develop, escalate and resolve.  The accused regularly threatened to end the relationship during those arguments, but things always resumed after the argument de-escalated.[6]

    [6]     TS 39.

23. On one occasion an argument developed when the accused woke Ms P from sleep early one morning to accuse her of having feelings for a friend of his identified as ‘Bill’.[7]

    [7]     TS 40.

24. As a result of the argument, Ms P decided to return to her home to have some time away from the accused.  She packed some belongings into a suitcase and tried to take it to her car.[8]

    [8]     TS 41.

25. The accused stopped her from putting the suitcase into the car, asking her to return inside to talk.[9]  He told her to “go back in the house we are not finished yet”.[10]  The accused said various things about her past sexual partners, and used abusive language about her weight.[11]  Ms P eventually, at his request, got into the car to accompany him to his work shed.  As they travelled down the road Ms P became frightened by the accused’s behaviour.  She said that he was screaming ‘shall we go and see Tristan’, a reference to a male known to both the accused and Ms P who lived close by.  Ms P jumped out of the car while it was moving, although it was moving slowly.  She ran back towards the house where Ms Rech, the accused’s mother was at home.  She said that Ms Rech would not allow her to come back inside the house.  The accused returned to the house and Ms Rech encouraged her to get back into the car and talk to the accused at his shed.[12]

    [9]     TS 41.

    [10]   TS 41.

    [11]   TS 42.

    [12]   TS 44.

26. Ms P did go to the shed and the accused was much calmer.  He cleaned some scrapes she had sustained on her leg and ankle in the course of jumping out of the car. 

27. That evening Ms P stayed at the accused’s home.  As they lay in bed together the accused proposed marriage to her.  Ms P told him that she wanted to marry him.  She said she was frightened that saying no would result in an escalation into further arguments.[13] 

    [13]   TS 46.

28. A text message sent from Ms P to the accused at 10.46pm attached a screen shot of a diamond engagement ring.  Ms P said she had sent that image to the accused because they were discussing the topic and he asked her what style of ring she wanted.[14] 

    [14]   TS 268.

29. The following morning Ms P left the premises before the accused was awake.  She took her two dogs and some personal belongings and went to work.  She left the accused a note saying that she “can’t do this anymore in the relationship”.[15]  When she arrived at work Ms P took some photographs of injuries to her leg which she had sustained when she jumped from the moving car.[16] Those photographs showed some abrasions to her right ankle and linear abrasions to the front of her right calf.  I consider that the injuries are consistent with the mechanism of landing after jumping from the car.[17]

    [15]   TS 47.

    [16]   P2.1 and 2.2.

    [17]   TS 43.

30. The accused began to repeatedly telephone her at work.  She eventually answered his call, and they discussed her feelings that she could not keep defending herself from cheating accusations and defending her history of past relationships.[18] 

    [18]   TS 47.

31. The same day the accused attended Ms P’s workplace unannounced.  The accused and Ms P continued the discussion that had begun on the phone.  Ms P repeated that she could not continue to defend herself against constant allegations of cheating.

32. In the month which followed, Ms P described the relationship as having good and bad days, mostly good.  It is notable that the text messages following 20 March 2021 record the accused seeking out Ms P and wanting to speak to her.  On 21 March the accused sent a barrage of photographs of he and Ms P during happier times, together with more than one text message which describe his love and care for her.  The communications are consistent with him actively seeking to repair the relationship and have Ms P remember happier times.[19]

    [19]   D10, pages 58-60 (part 2).

33. Ms P said the relationship continued after the 19 March 2021 incident.  She described herself as ‘taking the blame for everything”[20].  She said she would frequently apologise in order to de-escalate an argument and make the accused happy.

    [20]   TS 50.

34. After 19 March 2021, one text message records Ms P telling the accused she feels guilty because “of all the damage I’ve done Stephen.  The fighting, the nit picking and what I …done last Saturday.  It was so low of me.  I cant just imagine the pain I would have experienced if I woke up to that”.[21]  Ms P said that message related to her taking responsibility for leaving the accused house with her dogs and belongings and leaving the note on 20 March.[22]

    [21]   D10, page 58 (part 2).

    [22]   TS 276.

35. In the month between 20 March and 17 April, Ms P described herself as “exhausted with everything.  I didn’t know what to do.  I didn’t feel safe to stay, didn’t feel safe to leave, but unfortunately at that point, the only thing I felt to keep myself safer was to return”.[23]

    [23]   TS 51.

36. It was suggested in cross examination to Ms P that she was the driving force in the relationship.[24]  She agreed that all going well, she was interested in a future with the accused.  She denied that she was desperate for marriage and was pushing that agenda.[25]  The text messages do not support the view that discussions of marriage and a future together were one-sided but suggest that a future together was a mutual aim for both parties, if things worked out.[26]

    [24]   TS 130.

    [25]   TS 134.

    [26]   See, for example text messages D10 page 17, 19, 41, 48, 58, 64, 70 (part 2).

37. It was further suggested to Ms P that she wanted marriage, a nice house and a happy life, and that she thought she had ‘hit the jackpot’ with the accused, as he appeared to be in a good financial position.[27]  Ms P denied she was a materialistic person.

    [27]   TS 138.

38. Ms P said that by the end of December 2020 to early January 2021 she began to withdraw from her own family and friends.  Her life became consumed with the accused and his family, and she lost confidence and independence.[28]  She described a cycle of escalation, following by de-escalation and a calm loving period.  Ms P said that at the time leading to the 17 April incident:

    I was miserable with him.  There were really good days with him.  There were really great days with him but then when there were some bad days they were terrible and you don’t just flick a switch and get over it the next day.  I had to suffer inside for days but I had to put on a brave face.  You can’t just – you cannot leave these situation and just leave [sic].[29]

    [28]   TS 141.

    [29]   TS 137.

39. She said by March and April of 2021 she felt particularly trapped, and was “living in survival mode”.[30]

    [30]   TS 144.

40. It was suggested to Ms P that in the period January, February and March 2021 she was constantly barraging the accused with text messages about how much she loved him, how she wanted to get married and buy a house together.  Ms P disagreed that characterisation and said if her contact could be construed in that way, it was for good intentions.

41. I have examined the text message records for those months closely.  The records show that the couple were frequently in contact, Ms P probably more often than the accused.  I do not agree that the messaging can properly be characterised as a ‘barrage’ of messages.  Ms P and the accused send messages to one another with expressions of love and affection.  There is no evidence in the text messages from the accused that he was distancing himself from Ms P or rethinking his desire for a joint future.

1. In April 2021 there is evidence that Ms P and the accused were looking at a real estate website for homes to buy.  During that month each sent links of homes to one another.  The interest in real estate did not appear to be one sided, but mutual.

   Evidence of the Accused

2. At the time of the alleged assaults, the accused was 34 years of age.  He worked for himself buying and renovating light vehicles from mine sites for re-sale.  In his evidence he described a limited history of relationships with women, saying that work was his main priority.[31]  In 2020/2021 he was living with his mother at her home at Salisbury East.  Just prior to meeting Ms P he had been in a short relationship with a woman he met on a dating application, which I infer ended badly.

   [31]   TS 403.

3. In October 2020 he began to communicate with Ms P. The couple met in person and had dinner together on 9 October 2020.  He described aspects of their first few dates which concerned him, and said that in the early stages he was not interested in seeing Ms P again. He said that it was Ms P who was requesting to see him again.[32] 

   [32]   TS 410-411.

4. At this time the accused had been planning a holiday with his sister to Queensland.  He went to Queensland for two weeks, and stayed in regular phone and text contact with Ms P.  In evidence he said that Ms P was excessive in her communication and pushing for a relationship.  The accused said he did not want to be exclusive and was still talking to other females on dating applications.[33]

   [33]   TS 415.

5. The text messages during this period did not reflect the narrative given in evidence by the accused.  The text messages reveal that it was in fact that accused who suggested a second date after the first, and he who suggested organising a trip away together to the Flinders Ranges.[34]  The text messages reveal that at the time that accused said he was reluctant to become exclusive, and was himself talking to a number of different women, he was upset that Ms P was still on the dating application Plenty of Fish, and told her “I’m looking for someone to build a future with, not play games”.[35]

   [34]   D10 page 7 and 34 (part 1).

   [35]   P10, 122 (part 1).

6. While the accused was on holiday in Queensland, he asked Ms P to jump on a plane and join him.[36]  His consistent responses to Ms P’s text messages while he was in Queensland do not suggest that he regarded her communication as excessive.

   [36]   D10 page 64 (part 1).

7. The accused maintained that after his return from Queensland Ms P continued to be forceful in having him commit to a relationship that he did not feel ready for.[37]

   [37]   TS 416.

8. In November 2020 the accused agreed to allow Ms P to stay at his house during the Covid lockdown.  Prior to that time Ms P had met his family at a Sunday family lunch.  Evidence was given that Ms P was the only women that the accused had ever brought home to attend Sunday family lunch.

9. By Christmas 2020 the accused said he had committed to a one-on-one relationship with Ms P, at her insistence, and despite his continuing concerns.[38]  One of those concerns was the nature of a friendship she had with Mr Liddle.  Another concerned her history with other male partners, how many people had she taken to meet her parents, and how many sexual partners she had in the past.[39]  The accused frequently returned to that topic in conversation.  In cross examination he complained that Ms P would only ever tell him an approximate number.  He could not accept anything other than a precise count of how many men Ms P had previously been intimate with.[40] He considered such an approximation dishonest.  He described his views about men being friends with women as “my morals are its just males and females can be friends in a couple setting.  A single male and a female in a relationship, they don’t really belong to each other”.  He went on to describe a friendship between a woman in a relationship and a single man as a “recipe for disaster”.[41]

   [38]   TS 420.

   [39]   TS 421.

   [40]   TS 540.

   [41]   TS 553.

10. The accused recounted instances when Ms P received communication from people on her phone that raised his suspicions.  One of those occasions was when she received a long text from an unsaved number, which the accused said meant that Ms P was “doing the wrong thing”.[42]  These issues continued to occupy the accused and led to disagreements.[43] 

    [42]   TS 425.

    [43]   TS 433.

11. The accused said there had been an argument in late January where the necklace he had given Ms P for Christmas was returned to him.  He denied that he had attempted to grab it from Ms P’s neck.[44]  He considered it was usual for couples to return gifts given in the course of the relationship to one another if the relationship ended, and it was significant that the necklace was expensive.[45] 

    [44]   TS 434.

    [45]   TS 555.

12. The accused acknowledged an incident when he and Ms P had argued, and she had got into his car to drive to his shed to talk.  The accused agreed that there had been a dispute and Ms P had packed her suitcase.  The arguing continued in front of his Mother Ms Rech and he suggested they continue discussions away from the house.  He said along the journey that he did make a comment that Ms P should be with the man ‘Tristan’.  Ms P, he said opened the door of the car and he brought the car to a stop.  Ms P got out of the car and did not fall over.  The accused did not see any injuries that were sustained during that event.[46]  The accused said he planned to end the relationship that day, but he also agreed that the same evening the couple had discussed marriage.[47]

    [46]   TS 453.

    [47]   TS 454.

13. The accused said in mid-April 2021 he became aware that Ms P had some lumps in her genital area.  He used his mobile phone to photograph them so that Ms P could also see them.  This discovery resulted in the accused again questioning Ms P about her sexual history.  Ms P and the accused attended a medical appointment about the issue.  The Doctor indicated that the condition was genital warts.  The accused said as a result of that information, as far as he was concerned, the relationship was over.[48]  By 16 April 2021 the accused described the relationship in the following way:

    I was exhausted with Bree.  It was an endless argument.  An argument that couldn’t be won. One, that she could not tell the truth in the questions.  One that I could not get rid of her successfully without hurting my feelings or hurting her feelings, whatever the case may have been [sic].[49]

    [48]   TS 475.

    [49]   TS 475.

    Findings – the Relationship

14. Defence counsel described the relationship between Ms P and the accused in his closing address as toxic.  This is an apt description.  I do not however accept the accused’s claim that he was not interested in a committed relationship with Ms P, and that he was consistently attempting to end the relationship.  His claims in this regard were not reflected in the things he said in the text messages, which he said were a complete record of the text communications between 4 October 2020 and 24 April 2021.

15. The accused was clearly interested in a committed and ongoing relationship with Ms P.  His commitment to this goal however was tested by his preoccupation with her personal and sexual past.  The more preoccupied the accused became with seeking answers about her past, her sexual experience and her friendships with other men, the less open and honest Ms P felt able to be with him.  The accused demonstrated in his evidence that his thinking about the relationship at times bordered on paranoid.  He attributed meaning to things as simple as her receiving a text message from an unsaved number.  It was common ground that one of the topics that would be consistently raised in this context was the accused’s suspicions about Ms P’s friendship with Mr Liddle. 

16. It is not necessary for me to reach conclusions about who was at fault in this dysfunctional relationship.  It is sufficient for me to record that I am satisfied on the evidence of Ms P, the text messages and aspects of the evidence of the accused that the following were persistent features of the relationship between the two:

    ·The accused held fixed views about male/female relationships and expected Ms P to behave in accordance with those views.  That included restricting her friendships with men.

    ·Ms P had greater experience in relationships than the accused and he became preoccupied with her emotional and sexual history.

    ·Ms P became guarded about what she was prepared to share with the accused because of his preoccupation with the topic.

    ·Ms P withdrew from some relationships which she knew the accused would not approve of.

    ·Ms P said some things to the accused about her friend Mr Liddle being married which were not true.

    ·The accused and Ms P continued to enjoy some good times, and both hoped they would be able to work through the issues which consistently came between them.  I am satisfied that the topic of a marriage and a future together was, during good times, actively discussed by both parties. 

    ·From the start of 2021 tension within the relationship was building.  The accused continued to be preoccupied with honesty and fidelity. Ms P was unable to provide answers which the accused found acceptable. 

    ·The accused considered the diagnosis of genital warts to be significant in his assessment of the value of the relationship.[50]  The diagnosis resulted in the recycling of old complaints about honesty, fidelity and the relationship between Ms P and Mr Liddle.

    ·The topic of infidelity and dishonesty were highly charged and emotionally laden within the relationship.

    [50]   TS 474.

    The Incident

17. On 17 April 2021 the tensions which had been simmering came to a head.  There was an argument between Ms P and the accused at the accused’s home.  For reasons that I will come to, I am satisfied that Ms P suffered injuries during that day while at the accused’s home.

18. Ms P says that it was the unlawful actions of the accused that resulted in those injuries.  The accused, and his mother Ms Rech say that nothing happened at the house on 17 April 2021 which would explain the existence of those injuries.

    Evidence of Ms P

19. Ms P stayed the night at the home of the accused on 16 April 2021.  She woke earlier than the accused.  When the accused woke up, he told Ms P that he had contacted a woman by the name of Marissa Liddle, the former wife of Mr Liddle.

20. Ms P had previously told the accused that Mr Liddle was married and that she was catching up with he and his wife.  She told this lie because of the accused’s attitude about her friendships with men.  The truth of the matter was that she had met Mr Liddle on a dating application and had dated him for a short time before becoming friends.  The truth was that Mr Liddle had previously been married to Marissa Liddle, but had not been for some time.[51]

    [51]   TS 53-54.

21. The accused told Ms P that he had received a message in response from Marissa Liddle.  He told Ms P that he knew that Mr Liddle was no longer married, and that Marissa Liddle had told him that she would not be surprised if Mr Liddle was sleeping with another married woman or woman in a relationship.[52]  The accused was fuming, and began to yell.

    [52]   TS 55.

22. Ms P says she tried to leave the house, but the accused grabbed her mobile telephone out of her hand and smashed it onto the floor.[53] 

    [53]   TS 56.

23. The accused grabbed her on either side of the shirt she was wearing.  The shirt was described as a v-collar.  The accused shook Ms P violently, his fists coming into contact with her chest as he shook her back and forth.[54]  At some point the accused grabbed the Tiffany necklace he had given Ms P for Christmas and grabbed it from her neck, causing it to break.[55]

    [54]   TS 56.

    [55]   TS 89.

24. The accused stopped the assault and began to pace around the room.  It was at that point that the accused’s mother Ms Rech came into the room and asked what was going on.[56]  After Ms Rech left the room, the arguing continued, with the accused asking her to provide more information about her relationship with Mr Liddle.  The accused did not accept the answers she gave.[57] 

    [56]   TS 57.

    [57]   TS 57.

25. Ms P said that she was on a sofa in the living room and the accused went outside and came back with a pair of secateurs.  He pinned her wrist down on the couch with his leg and placed the secateurs around the webbing between her thumb and forefinger.    He told her that she was going to lose a thumb or a toe. 

26. Ms P moved her hand away from the secateur blade and the accused then grabbed her hair and pushed her face into the arm of the sofa, and then onto the floor.[58]  As she was on the floor the accused moved over the top of her and covered her nose and mouth with his hands.  Ms P described her breathing as restricted, and she fought to get away.  She used her hands to grab at his hands in an attempt to break free.  When she broke free, she ran towards Ms Rech’s room.  Ms Rech came out of her room and was standing between Ms P and the accused.  The accused said “you’re lucky I’m letting it go this time”.  Ms Rech told the accused to go back to the loungeroom and told Ms P to go and clean her face up.  Ms P was bleeding from an injury to the inside of her lip that had been caused when she moved her face away from the accused’s hands which were smothering her.

    [58]   TS 58.

27. Ms P returned to the lounge room after she had cleaned her face.  Across the day the accused made various comments about the bruising that was visible to her face. She overheard him tell his sister on the telephone that “I can’t let her go now because she has bruising to her face she could go to the police”.[59]  The accused told Ms P that she could not go back to work until the bruising had disappeared.  Ms P said that Ms Rech asked her if she was going to go to the police.[60]

    [59]   TS 62.

    [60]   TS 62.

28. Later Ms P went to the accused’s bedroom to change the shirt that had been ripped during the first assault.  The accused threw her backwards onto the bed and placed both his hands around her neck.  He used both hands to compress her neck.  She held his wrists and dug her nails into him to loosen his grip.[61]  Ms P did not think that the accused loosened his grip.  She next remembered laying on the sofa, with her head throbbing and her lips and face tense.[62]

    [61]   TS 65.

    [62]   TS 66.

29. At some point during the day the accused wanted to check Ms P’s e-mail messages and since her mobile telephone was broken, he wanted to access her laptop computer.  The laptop was retrieved from Ms P’s vehicle and the accused went through her e-mails.  Ms Rech was also present, and she was speaking to the accused attempting to de-escalate the situation.[63]  While examining her e-mails the accused located something very dated and discovered that it attached an image of Ms P’s private area.  He became enraged and snapped the computer, causing the screen part to become separated from the keyboard.  Pictures of the damaged computer and mobile telephone were tendered in evidence.[64]

    [63]   TS 66-67.

    [64]   P3.

30. At one stage the accused went into the back yard where Ms P’s two dogs were and grabbed one of them, lifting it up by its collar to bring it inside.  The dog was struggling in the air and Ms P grabbed the dog.  Ms Rech was present and took the dog from Ms P.[65]

    [65]   TS 70.

31. Ms P gave evidence of other threats that the accused made throughout the day.  She alleged that he threatened to knock her out, said she would end up in a body bag and made threats about harming her family.[66]  He told her that if police attended because of her screaming, she would be stabbed and there would be a police shoot-out.[67]

    [66]   TS 69.

    [67]   TS 69-70.

32. Ms P went to sleep on the sofa later in the day.  She was woken by the accused who had calmed down.[68]  The two went to the bedroom to lie down and the accused apologised for what he had done.  He said he had closure, and he would not bring up issues related to Ms P’s past again.  He asked Ms P to apologise for telling lies about Mr Liddle.[69]  The accused told her to shower and change so that they could go out for dinner.  He asked her to put make up on.[70]  By this time Ms P was aware that she had bruises and scratch marks to her face.

    [68]   TS 71.

    [69]   TS 72.

    [70]   TS 72.

33. Ms P wanted to leave and go home.  Arrangements however had been put in place for a replacement mobile telephone to be provided, to replace her damaged one.  That phone was to be provided by one of the accused’s sisters and would take a little time to obtain and prepare.[71]  Ms P left about 10 pm, understanding that the accused would bring the replacement telephone to her home later.  She took her SIM card from the damaged phone, her dogs, and some personal belongings.

    [71]   TS 76.

34. Ms P travelled from the accused’s house at Salisbury to the Holden Hill house of Mr Liddle.  She spoke briefly with Mr Liddle and asked him to take photographs of her injuries.  Those photographs were tendered as P4. 

35. Ms P said she did not stay for long with Mr Liddle as she needed to arrive home promptly.  She had a CCTV system set up at her home which the accused could access.  He had monitored her on occasion using that system and she believed that he would check what time she arrived home.[72]

    [72]   TS 82.

36. The accused arrived at her house at about midnight and provided her with the new phone. She described him as “extremely apologetic”.[73]  She could not recall if he brought her food, but he did bring her a drink from Hungry Jacks.

    [73]   TS 82.

    Evidence of Mr Liddle

37. Mr Liddle gave evidence at trial.   He said that at about 11 pm on a Saturday night Ms P arrived unannounced.  He described her as dishevelled, upset and anxious.  Her voice was wavering and there were marks on her face and neck.  As a result of a conversation Mr Liddle took two photographs on his Samsung mobile phone. 

38. Mr Liddle described by reference to those photographs what injuries he observed on that evening.  He said that Ms P’s face was puffy and there were marks around her neck that appeared fresh.  She also had some cuts and abrasions to her face, in particular to the right side of her lip and her chin.  On the left side of her face, he observed a red mark between her nose and cheek.[74]  In cross examination Mr Liddle confirmed that what was shown in the photographs P 4 reflected what he observed when he saw Ms P late on the evening of 17 April 2021.[75]

    [74]   TS 355.

    [75]   TS 356.

    Evidence of Ms Wootten

39. Ms Wootten is a colleague of Ms P, having worked at the same hotel for about five years. She described their relationship as being a “close working relationship”,[76] and a friendship which included socialising outside of work on occasion.

    [76]   TS 357.

40. On a Monday morning towards the end of April 2021 Ms Wootten noticed that Ms P was wearing heavy make up at work, which was unusual for her.  Ms Wootten first noticed three dark dots on Ms P’s chin.  Ms P moved the high-necked blouse that she was wearing down and Ms Wootten observed marks and bruising around her neck.  She pulled her bottom lip down and there was a cut and bleeding at the gum level visible.[77]

    [77]   TS 359.

41. Ms Wootten was shown photographs said to depict the injuries and identified P 5.2 and P 5.3 as reflecting the appearance of the black dots to the chin and the marks on the neck that she observed.[78]  She did not notice a bruise to the right side of her face which is evident in the same photographs. 

    [78]   TS 360.

    Evidence of Constable Buckley

42. Constable Buckley was stationed at Port Adelaide Police Station during the afternoon of Saturday 21 April 2021.  Ms P attended at the front counter in company with Mr Liddle.  Constable Buckley took a report from Ms P in a private room.  He made observations of physical injuries, including bruising to Ms P’s neck and around her collar bone.  Ms P moved her clothing to show him what he described as significant bruising to the left side of her chest.  The bruising appeared to him to be faded.[79]

    [79]   TS 379.

1. Evidence was led from both Constable Buckley and Constable Farrell about Ms P’s demeanour when she presented the police, and her reluctance to report the matter.  I have not taken into account evidence of her demeanour and reluctance in any way against the accused.  The demeanour evidence was associated with the reporting of the matter, and not the offences themselves.  I do not find that that evidence assists me in the resolution of the issues in this trial and I have given it no weight. 

   Evidence of the Accused

2. The accused gave evidence that after the doctor’s appointment on Thursday 15 April 2021 he and Ms P continued to argue.  He said he had told Ms P prior to the appointment that if the condition turned out to be genital warts, then the relationship was finished.[80]  By the evening of 16 April their communication was “down to nothing” although Ms P did stay that night at his home.[81]

   [80]   TS 475.

   [81]   TS 475.

3. The following morning the accused sent a message on Facebook to Marissa Liddle asking why her husband was messaging Ms P. Ms Liddle responded that “he is not my husband and has not been for some years”.[82]  He began to question Ms P about lies that she had told during the relationship, including contact she had with Mr Liddle. 

   [82]   TS 480.

4. The accused asked Ms P to show him an e-mail she had received from Mr Liddle that she had stored on her mobile telephone.  The accused said she refused to show him the e-mail and he wanted to see it and check how many e-mails were in existence.  He said that the argument continued about the telephone and Ms P threw the phone in his direction.  He did not catch it, and it hit the ground.  As a result of that, the screen of the phone broke.  The accused said that Ms P became extremely upset, accusing him of breaking her phone.  In a rage, she threw the phone to the ground a second time.

5. The accused said at this time his mother Ms Rech was coming down the hallway into the lounge and would have seen the whole thing happen.  The argument continued to escalate.  The accused said that Ms P then changed her position on showing him the e-mail messages, offering to show them to him by accessing them on her laptop computer.  Ms P went to the car to retrieve her laptop, then logged into a Hotmail account which the accused saw had been cleared of e-mails.[83]

   [83]   TS 485.

6. The accused made a telephone call to Ms Bocchino, a friend who he knew had knowledge and experience with computers.  He asked her if there was a way the e-mails could be retrieved.  During that time the accused said Ms P reached over, grabbed the laptop and slammed it shut.  He then said she bent it backwards then slammed it shut.[84]

   [84]   TS 485.

7. The accused said he asked Ms P to leave.  Ms Rech asked both he and Ms P to leave.  When Ms P refused, the accused said he grabbed her by the shirt and “tried to drag her out of the house”.[85]  He described that he grabbed one side of Ms P’s shirt and as Ms P pulled away from him, her shirt tore.  He grabbed her shirt a second time to try and make her leave.  Ms P still refused to leave, saying she wanted to talk, and sort out the problem.[86]

   [85]   TS 487.

   [86]   TS 489.

8. The accused said that after it became clear that Ms P was not prepared to leave, he went to have a cigarette outside.  Ms P was sitting on the sofa and her shirt was torn.  He then sat on a sofa and watched Netflix with Ms P.  They both went to sleep.  Ms P and the accused went to his bedroom for a time.  He lay down and Ms P had a shower.  He said Ms P finally agreed to leave his house at between 7.30 pm and 8 pm.[87]

   [87]   TS 491.

9. By that time, an arrangement had been reached for a spare phone to be provided from the accused’s sister to Ms P.  The phone became ready about 11.30 pm at which time the accused dropped it to Ms P at her home.[88]  He took her some Hungry Jacks take away and arrived at her home at about 12 am midnight.  He stayed there long enough to make sure that the phone was working, and Ms P was able to retrieve her data onto it.[89]

   [88]   TS 491.

   [89]   TS 492.

10. In cross examination the accused was asked why he organised a replacement phone when it was Ms P who had broken it.  He said that he considered it “his duty” to ensure that she had a phone.[90]  He denied that he had made that arrangement because he was the person who had broken it.

    [90]   TS 649.

11. The accused was asked in cross examination what he knew about the injuries that were evident in the photographs.  He said he believed the marks to Ms P’s throat may have been caused by the front of her shirt rubbing against her neck when he had a hold of her and she pulled away, ripping her shirt. He did not think he had caused the bruising to Ms P’s face and under her chin.  He could not explain how those injuries could have been caused.  He said in respect to the bruising to Ms P’s chest that he believed that the photographs had been manipulated.[91]  The accused confirmed that he had seen Ms P on 18 April 2021, a date on which some of the photographs were said to have been taken.  He said that when he saw Ms P it was dark. I infer that what he meant was that he was not in position to notice either way whether she had visible bruising on that date.

    [91]   TS 652.

    Evidence of Ms Rech

12. The accused’s mother Ms Rita Rech was called on the defence case.  She described the relationship between Ms P and the accused, as she observed it, as ‘rocky’.  She said that they would discuss issues, but she would let them have their space and would retreat to her bedroom and watch a movie.  The issues were not discussed in her presence.[92]

    [92]   TS 726, 728.

13. By March 2021, with her permission, Ms P had a key to her house and her two dogs regularly stayed there.

14. Ms Rech was asked about an incident when Ms P injured herself getting out of the accused’s car.  She denied that she had seen any injury and denied that Ms P had returned to the house and asked her to assist.  Ms Rech said she left her house earlier and would not have been home for Ms P to speak to.

15. Ms Rech gave evidence that on 17 April 2021 she got out of bed between 8.30 am and 9 am. She was in her bedroom having a cup of tea when she heard raised voices.  As she emerged from the hallway into the loungeroom she saw Ms P throw her mobile phone to the ground.  She said “what the hell are you doing Bree” and the accused responded “Mum stay out of it, she is going home”.[93]

    [93]   TS 733.

16. Ms Rech said that she then asked for both the accused and Ms P to leave, but Ms P said she did not want to leave, but wanted to sort the issue out.[94]  The arguing continued, and Ms P went to the car and retrieved her laptop computer.  Ms Rech thought something went wrong with the computer and she made a telephone call to Ms Bocchino to ask for some advice on recovering whatever was missing.[95]  During discussions which followed Ms Rech said she saw Ms P become agitated, grab the laptop off the table and bent it backwards in a rage.[96]

    [94]   TS 734.

    [95]   TS 734.

    [96]   TS 735.

17. Ms Rech repeated her demand for Ms P and the accused to leave.  Ms P headed down the passageway towards the accused’s bedroom rather than towards the front door to leave.  She saw the accused grab Ms P’s t-shirt by the shoulders from the back and guide her towards the front door.[97]  Ms P was asking to be allowed to stay and sort the issue out.[98]  She said she heard a rip during this period, and later she saw that Ms P’s shirt was ripped.

    [97]   TS 751.

    [98]   TS 752.

18. Ms Rech said Ms P did not leave, but she and the accused ended up back on the sofas in the living area.  They continued to talk to one another.  Ms Rech said she then went outside to have a cigarette and she noticed that Ms P’s two dogs had torn up something in the back yard and made a mess.[99]  Both the accused and Ms P went outside to attend to the mess.  They then lay on the sofas and went to sleep.

    [99]   TS 754.

19. Ms Rech maintained that from the first moment that she heard raised voices and came out to see the phone being broken, through to the time they went to sleep on the sofas she remained in their vicinity.  She denied having gone to her bedroom at any time to give them privacy.  She maintained that she remained in the general area, except when she went to the toilet.  The general area included hanging washing outside and doing jobs in the kitchen.  Ms Rech described the argument she observed as different to their usual disagreements.  She considered it was more heated than usual and she believed she should not leave them on their.[100]  Both the accused and Ms P were raising their voices.  She maintained that she had been present with her son and Ms P for the entire day.  She was certain that the pair had never gone to the accused’s bedroom together at any time.[101]

    [100] TS 758-759.

    [101] TS 760, 761.

20. Ms Rech denied that she was ever made aware that Ms P has an injury to her mouth that was bleeding.  She denied that she had told Ms P to go and clean herself up.[102]  When asked if she saw any marks on Ms P during that day she responded emphatically, “No I’m a mother of three kids and three grandchildren, one on the way.  I would never, ever let anything, anyone, get hurt, no.  Definitely no.”.[103] 

    [102] TS 759.

    [103] TS 759.

21. Ms Rech confirmed that she saw nothing occur in her house that could have resulted in an injury to Ms P.[104]  In cross examination Ms Rech confirmed that she had seen Ms P face to face in the week following 17 April 2021.  During that time, she saw no marks on Ms P’s face or body.[105]  Ms Rech was taken to photographs of the injuries, in particular marks and bruises visible on Ms P’s face and neck.  Ms Rech confirmed that “That was never, I’ve never seen that and she came to my house through the week and there was nothing like that at all”.[106]

    [104] TS 762.

    [105] TS 763.

    [106] TS 764.

    Evidence of Alison Bocchino

22. Ms Bocchino is a friend of the accused’s family and has known them for about 15 years.  She gave evidence that she is very close to the family.  In the second part of 2020 Ms Bocchino was living upstairs in Ms Rech’s home.  She met Ms P through the accused.  Ms Bocchino moved out of the premises into her own home in April 2021.

23. On 17 April 2021 she was contacted by Ms Rech asking for assistance with a computer related problem.  She was asked if there was a way to retrieve deleted e-mails.  Ms Bocchino found some instructions via a google search and sent them through to Ms Rech.  Later that day, between 3.30 and 4 pm she attended at the accused’s home to collect a jacket for a child that had been left there.  Ms P and the accused were in the loungeroom, and Ms Rech was outside.  Ms Bocchino did not observe Ms P to be distressed in any way or injured.  She collected the jacket and left the premises.

24. I do not consider that Ms Bocchino’s evidence is inconsistent with the evidence of Ms P. The fact that she did not observe injuries is neutral.  Her opportunity to observe the injuries were limited and it is clear from the photographs that their appearance developed over time.

25. I accept that she was a truthful witness, but I do not consider that her evidence undermines the evidence called on the prosecution case.

    The Injuries

26. Dr Vicki Jones, a medical practitioner with some specialist forensic training gave evidence. In particular she had undertaken specialist training in the assessment of injuries in people who complain that they have been strangled.[107]  Much of her work involves the assessment of people presenting with physical injuries following allegations of domestic violence.[108] 

    [107] TS 366.

    [108] TS 366.

27. Dr Jones examined Ms P on 12 July 2021, some months after the alleged assaults.  Dr Jones found no neurological or other abnormalities during the examination.  Dr Jones was then asked to view and comment upon a series of photographs of Ms P’s injuries.  Dr Jones viewed the photographs in P 4 and assumed for the purpose of her opinion that they were taken 6-8 hours following the assault.  She assumed that P 5.1-P 5.5 were taken 10-12 hours after the assault and P 5.6 and following were taken approximately 24 hours after the assault.[109]

    [109] TS 374-375.

28. Dr Jones described the injuries that she considered were evident in the photographs.  In summary, she identified probable facial bruising to the face and neck. The neck bruising she identified as probably petechial bruising with potentially some overlayed linear abrasions.[110]  She identified red markings to the upper chest, with possible abrasions or petechial bruising, and a red grey area to the left upper chest which is a possible bruise.[111]

    [110] TS 369-370.

    [111] TS 371.

29. On the back and side of Ms P’s neck Dr Jones identified a possible area of bruising and two linear abrasions or areas of inflammation.[112]  In Exhibit P 5.5 Dr Jones identified bruising and swelling to Ms P’s lower lip.  She identified a potential cause for an injury of that kind as trauma to the inside or outside of the mouth, including force to the outside of the face resulting in the inside surface pushing back against a tooth.[113]

    [112] TS 373.

    [113] TS 373.

30. Dr Jones considered the appearance of the bruising to Ms P’s face and the petechial bruising to her neck.  She concluded that the changing appearance of the injuries across time was generally consistent with the time frame she was asked to assume the images were taken in.[114] 

    [114] TS 373.

31. Dr Jones was of the opinion that the neck injuries were consistent with having been caused by the application of direct pressure to Ms P’s neck.[115]  Dr Jones agreed in cross examination that some of the images that she reviewed were poor quality, and those deficits made her assessment more difficult.  However, she said that some of the images were of reasonable quality, although not of the quality she would obtain if the images were taken by a forensic photography specialist.[116]

    [115] TS 376.

    [116] TS 376.

32. Dr Jones said that the probable cause of the injuries to Ms P’s neck is direct application of force. She said one of the possibilities for that direct application of force would be clothing being pulled across the area.[117]

    [117] TS 377.

33. Ms P described the circumstances in which the various photographs were taken. The photographs in P 4 were taken by Marius Liddle at approximately 11 pm on 17 April 2021.  They were then sent to Ms P via text message.[118]

    [118] TS 79.

34. Further photographs in exhibit P 5 were identified.  Images P 5.1-P 5.5 were taken by Ms P at around 3 am on 18 April, and P 5.6 and 5.7 later on 18 April.  Exhibit photographs P 5.8 and 5.9 were taken the following day, 19 April.[119]  Ms P said that after she took those photographs of herself, she sent them to her Facebook messenger account which was a location they could be stored, where the accused would not see them if he inspected her telephone.  She then deleted the photographs from her mobile telephone.[120]

    [119] TS 91.

    [120] TS 324.

35. Constable Farrell met with Ms P on 24 April 2021 and photographed injuries that were faint, but still visible to her face and chest.[121]  Constable Farrell was taken through the photographs and gave evidence that the bruising was darker than what was captured in the photographs.[122]

    [121] P9.

    [122] TS 388.

36. Dr Matthews was called on the defence case.  He is an expert in digital forensics and holds a PhD in image forensics and a Bachelor of Engineering (Electrical and Electronic).  There was no challenge to his expertise to give evidence about the provenance of the digital images which were tendered in evidence as P 4 and P 5. 

37. Dr Matthews explained that every digital image will have within it records which are image file directories, which contain image metadata.  Image metadata is data about various aspects of the image.  Image metadata can be easily accidentally modified every time an image file is opened, moved, copied, or otherwise dealt with.  It is also possible to deliberately alter metadata to conceal or misrepresent the true provenance of an image.[123]

    [123] D14, Report 17 February 2023, page 2-4.

38. Image metadata relating to the time and date of photographs can easily be manipulated without any high-level skill or knowledge.

39. Dr Matthews examined the images which were tendered as P 4 and P 5, as well as audio-visual recording of the electronic images, which included limited amounts of metadata associated with those images.

40. He provided the opinion that the images he examined fell into three broad categories.  Category one were the two images tendered as P 4.  Ms P said those images were taken by Mr Liddle on the evening of 17 April immediately after she left the home of the accused.[124]

    [124] TS 663-664.

41. The metadata associated with those images supported the conclusion that the images had been taken using a Samsung Galaxy S21 mobile telephone.  The images were recorded as having been taken on 17 April 2021 at 11.00.41 pm and 11.11.43 pm.  Those details are consistent with the evidence of Ms P as to the date and time that the images were taken.

42. Dr Matthews described a second group of images which included the images at P 5.1 through to P 5.7 (with the exception of P 5.5).  Dr Matthews considered that the data available for those images was consistent with those images having been uploaded to Facebook.  Dr Matthews explained that when an image is uploaded to Facebook (or Facebook messenger) the original metadata is stripped from the image.  The process of uploading the image causes changes to be made to the original image which could include changes to size, resolution and colour.  Not enough is known about these processes to be precise about what changes may be expected, and they are not always consistent in the changes that are made.[125]

    [125] TS 669-671.

43. In particular, Facebook applies its own colour profile to images uploaded to the platform. This means that the colours in a photograph obtained from Facebook will not be identical to the colours captured at the time the electronic image was originally created.  The image therefore will be different to the original, and the original metadata will be discarded, so any changes will be more difficult to track.

44. Dr Matthews’ forensic examination of the metadata associated with images P 5.1 to P 5.7 was consistent with the evidence of Ms P about what she had done with the photographs she took of the injuries.  She used Facebook messenger to save them in a location where they would not be located by the accused. 

45. Dr Matthews gave evidence about a third category of images, which included only the image tendered as exhibit P 5.5.  The metadata for image P 5.5 was corrupted.  The data which Dr Matthews was able to examine was not consistent with the changes he would expect of an image that had been uploaded and retrieved from Facebook.  Dr Matthews expressed the opinion that the metadata had been deliberately altered.  Information in the metadata could not be created by any normal process in his view.[126]  Dr Matthews was unable to comment on the effect of the tampering, or specifically how it had been achieved.[127]

    [126] TS.

    [127] TS 673, 698.

46. Dr Matthews then described a fourth category of images he examined.  Within this category were images exhibits P 5.8 and P 5.9.  From examining the metadata, he concluded that those images had not been extracted directly from the camera (an ‘off camera original’).  These changes could be deliberately made, or simply the result of uploading to a website or other process.[128] These images had not been modified by uploading them to Facebook.  The changes to the metadata mean that the original off camera metadata is no longer available for authentication.[129]

    [128] TS 676.

    [129] TS 676.

47. Dr Matthews conducted an examination of images P 5.8 and P 5.9 for colour alterations.  He was provided with the exhibit versions of those images, but also other electronic images which appeared visually to be the same photographs but had metadata which suggested they were the same images but from a different stage of the provenance process.[130] Using a colour from a poster in the background of an image as the colour for comparison, he analysed whether it was the same in each image.  His analysis revealed that the colour of the poster was not the same.  This means, in his opinion, that there had been a change to the electronic data which represented that colour.  This could reflect a deliberate change to the image but could also reflect a process such as uploading the image to a website which had made small changes to the colour data.[131]

    [130] TS 695.

    [131] TS 696.

1. The images that he subjected to this analysis had been uploaded to Facebook. In cross examination Dr Matthews confirmed that the colour comparison was conducted by him using a histogram tool.  The changes to colour were not detectable with the naked eye.[132]

   [132] TS 700.

2. With the exception of changes to the metadata in image P 5.5, all the observations described by Dr Matthews could be explained by the process of uploading the images to Facebook or other transfers of image through different processes.  Ms P admitted that the images were not extracted directly from her mobile telephone.  There was nothing in the analysis of Dr Matthews that was inconsistent with the evidence of Ms P as to how the images were produced.

3. Image P 5.5 is more complex.  Dr Matthew’s opinion was that the changes to metadata required some deliberate alteration process and could not be accounted for by uploading to Facebook or other storage processes.  Image P 5.5 captures an injury to the inside of Ms P’s lip.  In that image, the bruise to the left side of Ms P’s face and the redness on the right side of her face are visible, supporting the inference that the image was taken at the time and that the other injuries were visible and not at a completely different time.  Ms Wootten gave evidence that she saw the injury to Ms P’s lip in person, when she also saw other facial injuries.

4. If Ms P, or someone at her direction, deliberately altered the metadata to conceal the true provenance of the image, then why do other photographs not show the same alterations?  The appearance of the other injuries in the same photo, and the evidence of Ms Wootten supports the conclusion that Ms P had an injury to the inside of her lip at the same time as some of the other injuries to her face.

5. In those circumstances, it is difficult to draw any firm conclusion about what has happened to image P 5.5 to cause the changes to the metadata described by Dr Matthews.  The presence of the injury depicted is consistent with the evidence of Ms Wootten, and the image shows that it was taken at a time when the other facial injuries were visible.  In those circumstances the evidence of Dr Matthews does not cause me to doubt that Ms P had an injury to the inside of her lip at about the same time as other facial injuries were visible.  I am unable to conclude that Ms P, or someone at her direction deliberately altered metadata to present a false picture to the Court.  I am unable to draw any inference about how and why the metadata for that image came to be altered in the way described by Dr Matthews.

6. The evidence of Dr Matthews was that where the examination of the metadata of an image shows that the image in not an “off camera image”, changes that might have been made along the provenance journey can be hidden.  The images therefore are not authenticated by contemporaneous metadata. 

7. Dr Matthews’ evidence also raises the possibility that the images do not faithfully record the colours captured by the camera originally.  His colour comparison using the histogram tool showed that there were changes between the images (noting the differences were not visible to the naked eye).  I have not used the specific details of colour or contrast to draw any inference about the severity of the injuries, bearing these limitations in mind.

   Findings: The Injuries

8. I have considered the photographs P 4 and P 5 along with the evidence of Mr Liddle, Ms Wootten, Constable Buckley and Constable Farrell[133] and their in-person observations of injuries at various stages after the alleged assaults.  Considered together I am satisfied that Ms P had injuries that were observable as early as 11 pm on the evening of 17 April 2021.  Although the images provenance cannot be proved through embedded metadata, I am satisfied on the basis of the evidence overall (the images together with the in-person observations of various witnesses) that Ms P has visible injuries by the evening of 17 April 2021.

   [133] TS 384-390

9. I am satisfied that the following were visible on the 17 April 2021 and the early hours of 18 April 2021:

   1.Bruise to the left side of the mouth

   2.Bruises to the underside of the chin

   3.An area of redness/abrasion to the right-hand side of the nose

   4.Petechial bruising or patchy red marks and/ or linear abrasions to the front of the neck

   5.Bruising to the chest

   6.A linear area of redness at the back/side of the neck which appeared to be a superficial abrasion.

10. I am satisfied from exhibits P 5.6 – P 5.9 that the bruising to the chest and face developed and became more visible over time.  Some injuries were visible to Ms Wootten, Ms P’s colleague despite Ms P wearing heavy make up on Monday 19 April 2021.

11. Ms Rech, the accused’s mother was asked about whether she saw anything occur inside her house on 17 April which might have resulted in an injury.  She said she had not.[134] In the week following 17 April Ms Rech saw Ms P at her home.  Ms Rech was shown photographs which were taken of scratches to Ms P’s neck taken at 11 pm on 17 April by Mr Liddle.  She gave evidence that she did not see those injuries when Ms P left her home. She was shown exhibits P 5.1 and P 5.2 which showed bruising to Ms P’s face, neck and shoulders.  She said, “That was never, I’ve never seen that and she came to my house all through the week and there was nothing like that at all.”[135]

    [134] TS 762.

    [135] TS 764.

12. I do not accept that Ms Rech was being truthful when she gave that answer. I consider that her certainty about the issues exposes her statement as a deliberate lie.  I have taken that lie into account when considering her evidence overall.

13. The accused was asked about whether he saw the injuries depicted on the photographs on Ms P on the days he saw her in person after 17 April 2021.  He confirmed that he saw Ms P every day up to Saturday 24 April.  When asked if he had seen the injuries in person he said, “every time I saw Bree it was dark just about”.[136]

    [136] TS 657.

14. I do not consider the accused’s answer to the question about Ms P’s injuries to be truthful.  I am in no doubt that there were visible injuries to her, and the accused’s answer which suggests that he only saw Ms P in the dark, hence was not in a position to comment on injuries, is not plausible.

    Contact after the incident

15. It was common ground between the prosecution and defence witnesses that there had been contact between Ms P and the accused after the alleged assaults, including after the accused was arrested and granted home detention bail on the charges.

16. Ms P gave evidence that her delay in reporting the matter to the police, and her contact with the accused in the intervening period was because she feared that if she went to the police the accused’s violence might escalate.  She had read information about domestic violence which suggested that an arrest might escalate things.  She did not know what would happen and she feared she did not have anyone to support or protect her.[137]

    [137] TS 93.

17. Counsel for the accused submitted that Ms P’s conduct in this regard was inconsistent with having been the victim of a series of serious assaults on 17 April 2021.  He submitted that her conduct supported the inference that she had fabricated the allegations after an argument on 24 April 2021 when the accused took back the house keys from her and made it clear that the relationship was over.

    Evidence of Ms P

18. Ms P agreed that between 17 and 25 April 2021 she had frequent contact with the accused, via phone text and face to face contact.  She described the interactions as civil at times, but other times hostile and not good.[138]  She said the accused was moody and found it difficult to accept that she was not able to go back to normal as though nothing had happened.[139]

    [138] TS 93.

    [139] TS 93.

19. The day following the alleged assaults Ms P initiated contact with the accused, texting him at 9 am “hope you slept well”.[140]  That evening, at 7.42 pm she sent a photograph of a pregnancy test with a negative result accompanied by a message which read “It’s negative.  I don’t know why but having a negative test with you makes me feel a little sad without that sounding weird…are you OK ?”.[141]

    [140] D10 page 95 (part 2).

    [141] D10 page 95 (part 2).

20. On Friday 23 April 2021 Ms P and the accused spent time together at the accused’s shed.  Ms P said in evidence that they discussed the fact that Ms P appeared unable to revert back to normal after the events of 17 April.  Ms P agreed in cross examination that during that meeting the accused asked her to return his house keys. He refused however to return the keys he had to her house.  Ms P described the argument as being the accused saying they needed time apart, for her to think about whether she wanted the relationship to continue.  Ms P disagreed with the suggestion that it was clear to her that the accused was breaking up with her.[142]

    She said:

    It was not a break-up.  It was time apart for me to think if I still wanted to be with him or not.  So it wasn’t a break-up sir.  There was never a breakup.  And the thing is we are relying off these messages when we don’t see the full aspect of the relationship.  It’s because I was not able to revert to being normal.  I was so terrified of this person.  I had spent the Saturday being in fear of my life having another woman there, defenceless, not able to protect myself.  I can’t return back to normal like that.  How can you ?  How can you return back to normal?  You are too scared to leave.  You are too scared to stay.  The safe option was staying.  The scary option was leaving.  I was threatened so much in the past that if I left this would happen.  He got angry at me during the week because I just couldn’t move from it.[143]

    [142] TS 303.

    [143] TS 303.

21. Ms P’s characterisation of the events of 23 April are supported by text messages sent by the accused during that evening.

    The accused wrote:

    Babe please trust me it’s the best for both of us.

    Ms P responded:

    Having to give those keys back doesn’t feel like it.  I feel like it could be any minute you text or call and say it’s over.  Its so terrifying but I trust you.  Ill be OK Stephen.

    The accused wrote:

    That’s not the case at all, you know very well that I’m not like that !  This is not an end, to nothing but the problems and in fact the start of something much better. We both will be because we have real love.[144]

    [144] D10 page 103 (part 2).

22. On 24 April at approximately 3 pm Ms P attended the front counter of the Port Adelaide Police Station.  She said her intention was to tell someone what had happened.  She said that she wanted the fact that she was at risk to be known, if anything further were to happen in the future.[145]  Information was provided by Ms P to Constable Buckley during that meeting.  As a result of providing that information three uniformed officers were sent to her home address to check on her welfare.[146]

    [145] TS 94.

    [146] TS 382.

23. The accused telephoned Ms P that afternoon to ask her why she had not opened a snapchat message that he had sent her.  During the conversation Ms P says she was nervous and unable to act normal.  The accused, she said, was frustrated with her that she was unable to move on from what had happened.  During the telephone call, the uniformed officers arrived at her door.[147]  Ms P said that the accused asked her “what are SAPOL doing there”?[148]

    [147] TS 95.

    [148] TS 95.

24. Ms P explained during her evidence that the accused had access to the CCTV material which was recorded on cameras at her home address.  She had installed a system of CCTV cameras which were motion activated.  The footage could be accessed via an application on her mobile telephone.  She had given the accused access to the same application, and she knew that he received a notification when the cameras were motion activated.  She assumed that is how the accused was aware of the presence of the police.

25. At 6.27 pm on 24 April, after SAPOL attended her home, the accused sent a series of texts to Ms P saying “Bree, what is happening…Bree please it is stress me out…Is everything OK…please cram [sic] down it will be OK”.[149]  A further text from the accused was sent to Ms P at 10.05 the same evening: “Is everything OK you said you were going to call me back and I haven’t heard from you”.[150]

    [149] D10 page 104 (part 2).

    [150] D 10 page 104 (part 2).

26. Ms P said the next contact she had from the accused was in May 2021.  She explained that during their relationship she used the application Spotify to create playlists of music.  She gave the accused access to her Spotify account which meant that he could log in, play the music, add to the playlists and change the titles and other details associated with the playlists.[151]

    [151] TS 96.

27. One day she was driving to Whyalla, where her family lived, and she noticed one of her music lists titles had been changes to “Something to Drive To”, with a love heart.  After noticing a few changes to playlist titles Ms P used the same mechanism to respond.  That led to exchanges of communications between the accused and Ms P using the text area in the Spotify application.[152]  Screen shots of some of those communications were tendered as P 8.1, 8.2.  The communications include “I’m sorry babe I just get frustrated and use the wrong words”; “a true love is two imperfect people refusing to give up on one another” and “songs to drive too [sic]”.

    [152] TS 96.

28. The prosecution tendered a series of screen shots from a Facebook page operated by the accused.  The accused used the name “Stephen Soprano” for his Facebook account.  One image was a photograph of the beach at Whyalla, the location where Ms P grew up.  The words “True love is two imperfect people refusing to give up…Never let go” were printed across it.[153]  The first part of those words are the same as the words which appeared in one of the Spotify song titles that Ms P said the accused had changed.  Ms P said that photograph and words were posted to the accused’s Facebook page during the period he was subject to home detention bail conditions, after his arrest.

    [153] P 8.5.

29. On 24 June 2021 a different image was posted on the Stephen Soprano Facebook page.  It was an image of a silhouette of a woman and a man watching a sunset and had the words “Happy Birthday to my true love.  Your birthday is so special to me because without it, I would not have had the chance to love you”.[154]  The 24^th of June was Ms P’s birthday. 

    [154] P 8.7.

30. During the same period, after the arrest of the accused, two screen shots of messages exchanged between the accused and Ms P during happier times were posted to the accused’s Facebook page.  The messages included expressions of wanting a future together.[155]

    [155] P 8.9 and 8.10.

31. Ms P said on 11 May 2021 a bouquet of tulips were delivered to her home by a person called ‘Terry’, who Ms P knew to be his sister Natalie’s partner.  Ms P saw that Terry delivered the flowers because the CCTV system at her home captured her attendance.[156]  A photograph of a large arrangement of white tulips was tendered as P 6.  Ms P said in later discussions she had with the accused that he said that ‘they’ had gone to different places to collect the flowers.[157]

    [156] TS 96.

    [157] TS 98.

32. The day following, the accused’s sister Tanya attended Ms P’s workplace.  She was in possession of a box of Ms P’s personal belongings, and asked Ms P to come outside to the car as there were more belongings there.  Tanya then showed Ms P a Tiffany’s brand ring box which contained an engagement ring in the style of the ring Ms P had previously told the accused she liked.  Ms P gave the ring back to Tanya.[158]  A still from a CCTV system at Ms P’s workplace was tendered in evidence as P 7.  It shows a woman attending the front counter with large cardboard box which appears to be full.  Ms P identified the person as Tanya, the accused’s sister.

    [158] TS 102.

33. I am prepared to infer from the nature of the contact with the third parties that they were acting at the direction, or at least with the knowledge of the accused.  The delivery of the flowers and the engagement ring shown both occurred after the accused was arrested and released on home detention bail.  Those actions are inconsistent with his claim that he was uninterested in a relationship with Ms P and consistently attempting to end it.

34. After 12 May face to face contact at the accused’s workplace began.  Ms P said that this was arranged on the Spotify application.  Over a three week period Ms P said she attended the accused’s workplace between 10 and 15 times.  Some visits were arranged via Spotify, and others were arranged in the course of face-to-face visits.[159]  The face-to-face visits included acts of intimacy.

    [159] TS 105.

35. During those visits the topic of dropping the charges against the accused was discussed.  Ms P said that there were discussions about what needed to be done, that she would need legal advice, and what she could tell the police about the reasons for wanting the charges not to proceed.  She said that it was the accused who instigated the discussions, and he encouraged her to go and seek legal advice.  The accused gave her the name of a lawyer who she should call to obtain that advice.  The accused also told her that she would need to obtain a form known as a Form 207 to ask to drop charges.[160] 

    [160] TS 114.

36. Ms P said the accused told her to tell the lawyer she consulted, that she had a mental breakdown associated with the removal of the Implanon birth control device she was on, which provoked her to press the charges.[161]  Later the accused began to discuss what might happen if Ms P did not drop the charges.  That included repercussions for her family, and a threat that he would instruct a particular lawyer who would dig up things in her and her families past.[162]

    [161] TS 118.

    [162] TS 115.

37. The accused, at one time, made reference to a video recording he had in his possession of her genital area.  Ms P asked him to delete the video and he said he would do so after the charges were dropped.[163]

    [163] TS 117.

38. The statements and conduct of the accused asking Ms P to drop the charges form the basis for count 5, Attempting to Dissuade a Witness.

    Evidence of the Accused

39. The accused told the Court that following the events of 17 April he attended Ms P’s house in the early hours of the morning on 18 April, then possibly 19 April but definitely 20 and 21 April.  The accused said he was seeing Ms P to comfort her.

40. The accused gave evidence that on Wednesday 21 April Ms P made a threat to him.  She said that if he broke up with her, she would take his firearm’s licence away.  That is, he “hurt her, she will hurt me”.[164]

    [164] TS 503.

41. The accused said that on the evening of Thursday 22 April he and Ms P went for dinner at the restaurant of a friend.  More arguing followed that dinner.  The accused took some advice from his sister Natalie and decided to clearly state his position to Ms P.  He told her to take her things and go home.  He asked for his keys back and told her to stop coming to his workplace to see him.  In the morning he assisted Ms P to pack up her belongings.  During the conversation Ms P was upset and asked, “am I never coming back here” to which he responded, “of course you are”.[165]

    [165] TS 505.

42. The accused told the Court that on Saturday 24 April he had not heard from Ms P, so he telephoned her.  The accused told the Court that during that telephone call she sounded heavily medicated, talking slowly and she did not sound like herself.  He said that she whispered to him “there is somebody out the front” and then told him that the police were in attendance.  The accused asked her why police were there, and she said that she did not know why.  The accused overheard a conversation between Ms P and a voice he assumed was a police officer.  She told the officer she was speaking to her partner Stephen.[166]  The accused said that Ms P told him they had attended for a welfare check, but she did not know why.[167]  Ms P then said she was getting a call from a private number, and she had to hang up.  She said she would call back later.

    [166] TS 509.

    [167] TS 510.

1. The accused said that Ms P did call him back.  During that call she was breathing heavily and began “sort of yelling” at him.[168]  He thought perhaps she was having a panic attack.  He said he kept asking her why the police were there, and she told him that she did not know.  He feared that Ms P had made good on her threat to have his firearms confiscated from him.[169]

   [168] TS 510.

   [169] TS 511.

2. The accused said shortly after this telephone call he was arrested by the police and remanded in custody.  He remained in custody for 11 days before he was granted bail on home detention conditions.  On his first day back at work he was listening to music on the Spotify application.  While he was listening, a new song began playing, one that he had not previously had in his song list.  He noticed that new songs were being added to the list as he was looking.  He said he knew that it was Ms P adding songs.  It was only at that point that he remembered that he was using Ms P’s Spotify account.[170] Having realised that, he added a song that was “probably a love song”.

   [170] TS 516.

3. The accused said a few days later Ms P attended unannounced at the shed crying.  He said that he hugged her, and she apologised to him.  She remained at the shed for a few hours.  Other visits followed.  The accused said there were discussions about trying to mend the relationship. 

4. Facts were agreed that between 21 May 2021and 13 June 2021 there were 94 voice calls initiated from Ms P’s mobile phone service to the accused.  On 12 of those 16 days Ms P’s mobile telephone was using the tower at Para Hills West, a tower very close to the accused’s workplace at Para Hills West.[171] It is obvious that Ms P frequently initiated contact during that period.

   [171] D 25 Agreed Facts.

5. The accused identified a screen shot of a message left through the Spotify application.  He said that Ms P had left the message for him.  It read:

   “Are you there?  I’m sorry for the trouble I’ve caused.  I hate being apart as well.  I’m sorry for all the lies.  I’m sorry for all the wrong I’ve done, I take full responsibility of them.  I wish I could take them back or go back in time and be honest but I can’t and that’s what kills me.  You don’t deserve to be lied you.  You are honest even when it hurts.  Honesty is better than lies”.[172] 

   The accused took a screenshot of that message and sent it to his sister.  There is nothing on the face of the screenshot which establishes whether that message was written by the accused or Ms P.[173]

   [172] D 12.

   [173] TS 625.

6. In cross examination the accused was asked about his surveillance of Ms P via accessing the CCTV footage at Ms P’s home.  His evidence was that he only knew that police were at Ms P’s premises on 24 April because she told him so. He claimed that he had previously deleted the application which gave him access to her CCTV.[174]

   [174] TS 577.

7. The accused was taken to text messages after the date on which he said he had deleted the CCTV application.  On 7 February 2020, the accused sent Ms P text messages including “Looks like you have your hands full, sorry for bothering you”, then “they look very drunk Ill leave you be”.  At this time Ms P had her mother and a friend over at her house.  The accused said he was not checking the CCTV, but perhaps knew what was going on because Ms P had sent him a photograph or a snapchat.  On 20 April 2021 (three days after the incident alleged) there was a text exchange which included the accused saying “everything ok…..Yeah, I was just worried because its 10.30 and there’s been no movement”. Ms P was in her home at that time.  The accused denied that Ms P had a camera over her bedroom door, and he had been checking what she was doing.[175]

   [175] TS 579.

8. I do not accept the accused’s evidence on this topic.  The text messages disclose clearly that the accused was, on occasion, monitoring Ms P’s home when she was there on her own.  I consider his evidence that he deleted the CCTV application that permitted him to view the footage was a lie, exposed by the text messages he later sent to Ms P.  His continued monitoring of her demonstrates an ongoing interest in Ms P.  I consider that he did know that the police were in attendance at Ms P’s home because he accessed footage from her CCTV cameras.

9. The accused was asked about posting the image of the Whyalla foreshore with the words about “two imperfect people refusing to give up”.  He agreed that he had posted the image and the quote.  He claimed that he had blocked Ms P from Facebook and the message was not intended for her eyes, but was a general statement about love, not about Ms P.[176]

   [176] TS 631.

10. With respect to the Facebook posting on 24 June, Ms P’s birthday, he said  that was posted to celebrate the birthday of his friend Carmel Minutolo, and he had no idea when Ms P’s birthday was.  Mr Minutolo gave evidence that his birthday was in fact the 24^th of June and the same image and words were sent to him as an electronic message on his birthday by the accused.[177]  Mr Minutolo said that the use of an image of a couple watching a sunset on a bench together was not strange to him in the context of the relationship he had with the accused.

    [177] TS 715.

11. The accused also denied that the posting to Facebook of old love messages between he and Ms P were intended to have any significance for her.[178]  He said he believed that they were nice messages and he could not explain with any clarity why he posted them to Facebook.  He agreed that he had posted the messages after his lawyer had told him in no uncertain terms to cease all contact with Ms P.[179]

    [178] TS 635.

    [179] TS 635-637.

12. For the purposes of drawing conclusions about the significance of the accused postings to Facebook, I have put aside the posting on 24 June.  The evidence of Mr Minutolo was that the same image and message was sent to him privately.  While the nature of the image makes that surprising, I put that to one side in drawing my conclusions from the remainder of the messages.

13. I am satisfied that the accused posted the image in P 8.4 intending it for the attention of Ms P.  I am further satisfied that he posted the two screenshotted loving text messages to Facebook (P 8.9 and 8.10) intending them for the attention of Ms P.  I found the accused evasive and unconvincing in his answers about why he posted all three images.  I found his claims that the messages did not relate to Ms P, to lack credibility and were deliberate lies.

14. The accused agreed that in the weeks following his release on bail there were discussions between he and Ms P about the charges.  He said that the topic was raised by Ms P and at no time did he give her the details of the legal firm she should contact to seek advice about dropping the charges.  The accused maintained that it was Ms P who told him about the requirement for a 207 form to drop the charges.[180]  He denied that he had offered to delete intimate images he had of her after she dropped charges.  He said those images had been deleted well before 17 August 2021.

    [180] TS 640.

    Good Character

15. Evidence was led from the accused that he had no prior court appearances or involvement with the police.  There was no positive evidence of good character called.  His lack of prior convictions is some evidence of previous good character.  I direct myself that the evidence does bear on the probability that the accused committed the offences charged.  I have also had regard to the accused’s good character when I have assessed the evidence that the accused gave, and the weight I am prepared to give his denials and explanations.  I have also had regard to that evidence insofar as it might be relevant to how the accused behaved after his arrest – that he was unaccustomed to the seriousness of bail obligations.

    Discreditable Conduct

16. The prosecution relied on two specific instances where the accused is alleged to have engaged in discreditable conduct:  the grabbing of the necklace on Ms P’s neck during an incident earlier than April 2021, and the incident which caused Ms P to jump from the moving vehicle.  This evidence is properly characterised as discreditable conduct evidence and has a permissible and impermissible use.  Its permissible use is to demonstrate the growth in tension and discord in the relationship.  It may also be used to demonstrate the accused’s particular preoccupation with issues of infidelity and dishonesty, and his attitude of possessiveness and jealousy within the relationship.

17. It may not be used to reason that the accused has a tendency towards violence or is of bad character generally.  I have not used the evidence in that prohibited way.

    Motive to Lie

18. Counsel for the accused argued that the evidence supported the conclusion that the allegations were reported by Ms P to the police very soon after an argument where the accused took the keys to his house and shed back from her.  Counsel for the accused submitted that Ms P fabricated the allegations out of revenge because of a breach of the accused’s promise to marry her.[181]  He said the timing of the allegations immediately after the argument where the accused asked for his keys back, supports that characterisation.

    [181] TS 822.

19. I do not accept the accused’s evidence that what occurred on Thursday 22 April 2021 was a final end to the relationship.  The text communications support the version of events deposed to by Ms P that what was discussed was time apart, and not an end to the relationship.[182]  I do not consider that the events of 22 April provide a plausible motive to fabricate the allegations.

    [182] TS 306.

20. Having reached that conclusion, I direct myself that my rejection of the posited motive to lie does not in any way enhance the weight to be given to the evidence of Ms P.  I remind myself that it is for the prosecution to prove that the witness is credible and reliable and not for defence to prove otherwise. 

21. People may lie for all kinds of reasons, and a rejection of one identified reason does not mean there is no reason at all.  Further, the absence of an identified reason to lie adds nothing to the task of assessing the credibility and reliability of the witness called and I have not used it in that way.

    Spotify Message

22. It is common ground that the accused and Ms P communicated via changing song list titles on Spotify.  Exhibit D12, a screen shot of a Spotify song title was tendered through the accused.  Its contents are set out earlier.  The accused gave evidence that Ms P made the entry which refers to being sorry for having told lies. The accused agreed that there was nothing on the face of the screen shot that identified the author of those words.  It is the evidence of the accused only that links the words to having been authored by Ms P.  Ms P denied that she had authored the words, pointing out that the accused also had access to change words on that account.[183]

    [183] TS 315.

23. The accused’s sister Tanya Kontos gave evidence of the screen shot D12 being sent to her mobile telephone on 3 June 2021.   She said that she knew the words were written by Ms P because the accused showed her the mobile telephone and the account said it was Ms P’s account.  Her evidence does not add to the question of who changed the words in the Spotify account.[184]

    [184] TS 774.

24. For the reasons I outline later, I did not find the accused to be a truthful witness.  I do not accept that Ms P authored the words in D12.  I do not draw any other inference from the exhibit D12.  I have not drawn any conclusion adverse to the accused arising from my rejection of his evidence that he did not author it.

    Conclusions

25. The verdicts in this matter depend heavily on my assessment of the evidence given by Ms P.  Her evidence was contradicted by the evidence of the accused and his mother Ms Rech.  Her evidence was supported by the evidence of injuries visible on her in the evening of 17 April and the days following.

26. To convict the accused of any of the five counts I must find that his evidence, and the evidence of Ms Rech can be excluded as a reasonable possibility.  If I cannot exclude their account as reasonably possible, the accused must be acquitted.  Further, if I do exclude their evidence beyond a reasonable doubt, I must still examine the evidence called on the prosecution case and consider whether it proves the charges to the requisite standard.

27. I have earlier recorded my conclusions about the injuries to Ms P which were visible by 17 April at 11 pm and the hours and days thereafter.  The accused and Ms Rech each gave evidence that they did not see any such injuries.  Further, the accused gave evidence that he did not assault Ms P in a way that could have caused those injuries (with the exception of some neck bruising/redness).  The accused said that Ms P pulled away from him when he grabbed the side of her shirt and pushed her in the direction of the front door of the house, asking her to leave, and he hypothesised that that may have caused the marks to Ms P’s neck.  He could not explain how the shirt would come to be in contact with the front of her neck if he was holding the side and she was pulling away from him.[185]  His explanation did not account for the red linear area visible at the side back of Ms P’s neck which in my view are far more consistent with a necklace being pulled from her neck as she described.[186]

    [185] TS 651.

    [186] P 5.4.

28. The accused’s evidence about the events of 17 April could not account for the existence of the bruising to Ms P’s chest and face. 

29. Ms Rech’s evidence about Ms P’s shirt being grabbed to guide her out of the house was not consistent with the accused’s version of events.  She said that the accused grabbed the shirt from the back and guided Ms P out of the house.

30. I do not accept Ms Rech’s evidence that Ms P had no injuries to her when she left the house on 17 April and that she had no visible injuries in the days following when she saw her.[187] Ms Rech’s certainty on these issues left no room for her to be mistaken or to have not noticed the marks on 17 April or later.  Ms Rech’s evidence was firm that she was keen to supervise the accused and Ms P that day because of the nature of the argument and she was sure that the accused had not behaved in the way Ms P alleged.  She was firm that there was no time that her son and Ms P were on their own on 17 April.  Count 4 is alleged to have occurred in the accused’s bedroom.  Ms Rech gave evidence that she did not see the pair go into the bedroom at all.  She maintained that hey stayed in the lounge.

    [187] TS 652.

31. Although the accused denied that any assault had occurred in his bedroom, he admitted there was a time when he and Ms P had gone to that room.  He said that Ms P had taken a shower and had tried to get him to join her.  Even on the accused’s version, Ms Rech was incorrect when she said that he was never alone with Ms P that day.

32. Ms P’s evidence placed Ms Rech as being in a position to observe various aspects of the accused’s behaviour.  Ms P gave evidence on the occasion that she had injured herself jumping out of the car, she returned to the house and Ms Rech would not allow her inside, but encouraged her to get into the car with the accused and talk to him.  Ms P said that on 17 April Ms Rech was speaking to the accused in an attempt to de-escalate the situation.  At another stage she said Ms Rech told her to go and rinse her mouth out because she had injured her lip trying to break free from the accused putting his hands over her face and mouth.[188]

    [188] TS 61.

33. Ms Rech’s evidence contradicted Ms P’s evidence on each occasion.  I consider it unlikely, as a matter of common sense, that Ms P would provide a fabricated account which included that Ms Rech witnessed important aspects of the events.  If Ms P was determined to fabricate an account of being the victim of an offence, including inflicting or otherwise fabricating injuries to herself, she would not include that Ms Rech was an eyewitness.  This is not a decisive consideration, but it one factor.

34. I reject Ms Rech’s evidence as a reasonable possibility where it conflicts with the evidence of Ms P.  I consider that she did tell deliberate lies about having seen injuries to Ms P on 17 April and thereafter.  I also consider that she over-stated the level of supervision she was able to maintain over the accused and Ms P on 17 April, and this was exposed by the evidence of the accused and Ms P.  I further consider her evidence that over the course of the entire day she placed herself in a position to observe the accused having a heated argument with Ms P, inherently unlikely.

35. The evidence of the accused was unconvincing in a number of ways.  The accused maintained that Ms P was driving the relationship to be more serious than he wanted it to be.  He gave evidence that from the early stages she wanted an exclusive relationship while he did not.  He said that he planned to break up with her on a number of different occasions but found himself completely unable to. He blamed Ms P for his inability to carry through with ending the relationship, saying that she would become too upset and he would not follow through.

36. The accused’s evidence that he was uninterested in a serious relationship with Ms P was contradicted by a number of text messages across the length of the relationship when he expressed feelings of love, commitment, and hope for a life together.

37. In his closing address counsel for the accused submitted that the evidence established that the true nature of the relationship between the accused and Ms P was that the accused wanted out of the relationship and Ms P wanted in.  He submitted that Ms P had expectations that she wanted met in the relationship - she wanted to get married, to have a nice house, to have nice jewellery.  He submitted that the accused was obviously in a financial position to provide those things, pointing to the fact that he owned a nice vehicle, his own business and was able to purchase her expensive jewellery.  On the other hand, it was argued, the accused wanted to go slow.  He did not want the same level of commitment, and by the end was determined to end the relationship.  It was submitted that the end of the relationship was the catalyst for the fabrication of the allegations by Ms P.

38. An examination of the text messages send between Ms P and the accused throughout the relationship does not support that characterisation.  I consider that the accused often expressed an interest in building a life with Ms P.  He told Ms P that he had deep feelings for her.  Both parties were sending one another pictures of houses and locations for holidays away together.  I accept that marriage was discussed, and the text messages reveal the accused as participating willingly in that discussion.

39. Despite the accused’s wish to pursue a relationship, there were aspects of Ms P’s past that the accused found difficult to leave behind. Ms P was clearly more experienced in relationships that the accused who had very limited past experience. The accused had views about honesty, fidelity and commitment which were not consistent with Ms P’s views.  For example, the accused gave evidence that he considered it inappropriate for women in relationships to be friends with single men.[189]  He found it difficult to cope with the fact that Ms P was sexually experienced, and that she had spent time with previous partners in the house he visited.

    [189] TS 553.

40. The accused attempted to maintain in his evidence that he was unconcerned with Ms P’s past but was frustrated by her dishonesty and avoidance of his questions about how many previous partners she had been intimate with.  This evidence was exposed as a lie by text messages in which he expressed that “the thought of you with all those guys makes me feel sick”, and his concerns about certain sex aids she was in possession of.[190]

    [190] D10, page 218 (part 1).

41. The accused’s evidence about his intentions in the relationship was frequently out of step with his expressions of love and affection in the text messages he sent Ms P.  His description of himself as being “worn down” into a relationship which he did not want was not reflected in contemporaneous communications in text messages. ^[191]

    [191] TS 539.

1. I have earlier outlined lies that I have concluded that the accused told about his monitoring of Ms P via CCTV and his claim that the images posted to Facebook were not intended to reference Ms P.

2. I also consider that he deliberately avoided the question about whether he saw injuries to Ms P in the days after 17 April, when she clearly had visible injuries to her face and chest.

3. I have used those lies as relevant to the accused’s credit.  I consider the fact that he was prepared to tell deliberate lies, and his avoidance of the topic in relation to Ms P’s injuries relevant to the weight I am prepared to give his evidence overall.  I consider that the topics he was prepared to lie about were important matters which bore on the offending charged.

4. During closing submissions I asked counsel for the accused what inference I could to draw from the fact that the accused continued to have face to face contact with Ms P even after he was arrested on what, on his version, was a series of wicked lies told by her to the police.[192] Counsel for the accused submitted that I could infer that the accused has chosen to risk contact with Ms P because the physical intimacy was good, and he was prepared to take that if it was on offer, even though he was certain that he did not want any ongoing relationship.[193]

   [192] TS 823.

   [193] TS 824.

5. On the accused’s evidence, Ms P has reported a series of lies to the police which result in his arrest and remand in custody. Notwithstanding that he been trying to break up with her over an extended period of time and no longer wanted a relationship with her, he continued to have face to face contact with her at his workplace, without reporting it to police or his community corrections officers.  I consider his conduct to be inconsistent with his version of events and consider it a piece of circumstantial evidence that I can take into account in assessing the evidence overall.  I do not consider the explanation that he was prepared to take the risk to pursue physical intimacy to be a plausible explanation.

6. I have rejected the accused’s denials of the offending as a reasonable possibility.  I did not consider him to be a truthful witness for the reasons I have outlined.

7. I considered that Ms P’s evidence was plausible and, in general, consistent with the picture of the relationship painted in the text messages.  Ms P described a relationship which began and progressed quickly.  She said that she was looking for a long-term relationship with marriage and children with the right person.[194]  Ms P described the deterioration of the relationship starting in approximately December 2020.  Ms P was asked why she stayed in the relationship if it was toxic and dysfunctional by December 2020.  She described having lost a great deal of independence and having withdrawn from her other supports over time.  She described a cycle of escalation and threats, which would then move to the accused becoming calm and loving and the relationship resuming as normal.  She said by February 2021 she felt she had lost the ability to cope on her own.[195] By that time she said she was “living in survival mode”.  She described this as not knowing what to do, not knowing what the next day will bring.  She felt she had lost connections to family and friends and was missing much of the outside world.[196]

   [194] TS 134.

   [195] TS 142.

   [196] TS 143.

8. Ms P clarified that there were good aspects to the relationship, even towards the end.  She said that the majority of the time he was a “great guy” and very loving.  She said however that when things became bad, they were very bad and the fear that things could become very bad was always with her.[197]

   [197] TS 153.

9. Ms P’s description of the assaults which form the basis of counts one to four were plausible and consistent with the appearance of the injuries which were later visible.  The bruising and redness to Ms P’s cheek and chin, along with the injury to the inside surface of her mouth are consistent with her account of the accused pressing his hands over her nose and mouth in a forceful manner.  The marks to her neck are consistent with the application of force described in respect to count four, and the mark to the back of her neck supports the conclusion that the necklace was ripped from her (uncharged conduct).  The bruising to her chest supports her account of the accused’s fists coming into contact with her chest when he shook her violently while holding her shirt.

10. I have considered the possibility that the injuries to Ms P were self-inflicted, or inflicted by someone else, or otherwise fabricated between leaving the accused’s home on 17 April and arriving at Mr Liddle’s home.  If the injuries were fabricated, then they were fabricated with the purpose of buttressing a false account of an assault.  The difficulty with this hypothesis is that no report of an assault was made to the authorities at that time.  The report to authorities was made at a time that the injuries had significantly faded.  For the reasons I have earlier outlined, I do not consider the suggestion that the photographs were manipulated to show injuries which did not exist, is plausible.

11. The allegations in respect to count 3 are that a verbal threat was made accompanied by the use of secateurs.  No injuries were alleged to have been caused and none were visible.  On this charge therefore Ms P’s evidence is not supported by any physical injury visible after 17 April 2021.  Notwithstanding, I am satisfied on the basis of the evidence given by Ms P, that I am prepared to accept beyond reasonable doubt in all the circumstances on that matter that the accused did utter that threat in the circumstances alleged.  For the reasons I have outlined I have rejected the evidence of the accused and his mother Ms Rech that nothing of that kind occurred in the lounge area.

12. It was submitted that Ms P’s behaviour in the days and weeks following 17 April were not consistent with her having experienced an assault at the hands of the accused.  The day after she alleges she was seriously assaulted, Ms P contacted the accused via text saying she feels a little sad about a negative pregnancy test.[198]  She went on to have regular face to face contact with the accused, even after she reported his conduct to the police.  I do not consider it necessary to make findings about who initiated that contact.  It is common ground that the relationship continued with the consent and active participation of the accused and Ms P.  The fact that she continued to attend at his place of work even after reporting the matter to police is behaviour which must be grappled with.

    [198] D 10 page 96 (part 2).

13. The idea that a person who is assaulted in a domestic context will necessarily leave their partner is one dimensional and outdated.  A person’s response to violence committed in a domestic context will necessarily be informed by complex emotional attachments, which experience shows are not always severed by the perpetration of violence.   Ms P gave evidence about the complexity of emotions that she experienced in the relationship.[199]  She made it clear that there were very attractive aspects to the relationship when things were going well.  She described herself in the later phases as “in a very bad place and I was in a very stuck place not knowing where and what to do”.[200]  She described the pattern of the relationship as :

    When we were in arguments he threatened to and wanted to [break up] and then he’d de-escalate into the loving side, you know, ‘I love you, I won’t bring it back up, I’m sorry for what I said, I was mad.  You still love me, you still see a future with us, you still want to fix this.

    [199] TS 153 and following.

    [200] TS 153.

14. This pattern I consider was evident in the behaviour of the accused after17 April 2021.  The flowers, the engagement ring, posting messages for Ms P to Facebook and seeing her in person at his workplace all fall within the pattern that she described. 

15. In my view, the evidence on the prosecution case is not fatally undermined by Ms P’s contact with the accused following 17 April.  It is a circumstance that I have considered when I have assessed what weight I am prepared to give Ms P’s evidence overall.  In my view however, a close examination of the complexities of the domestic background and emotional attachments between Ms P and the accused do render her conduct explicable.

16. The following elements must be proved for count 1:

    1.The accused assaulted Ms P.

    2.The assault was voluntary.

    3.The assault was unlawful.

    Aggravating factor: The accused committed the offence, knowing that Ms P was his domestic partner.

17. For the reasons outlined I find the elements of count 1 satisfied.  The accused assaulted Ms P by grabbing hold of her jumper and moving his fists into her chest as he shook her.  I exclude the possibility that the assault occurred in circumstances where the accused was lawfully preventing a criminal trespass pursuant to section 15A of the CLCA.  I exclude this possibility on the evidence of Ms P that she was trying to leave when the assault occurred.  I have accepted that evidence beyond a reasonable doubt.

18. I do not find the circumstance of aggravation proved.  The prosecution particularised the aggravating circumstance that the accused knew Ms P was his domestic partner.  That term is defined in the Family Relationships Act 1975 section 11A. A domestic partner is defined as a person who is living in a close personal relationship with the other and has done so for the preceding three years or three of the preceding four years. Ms P does not meet that definition.

19. I find the accused guilty of the basic offence of assault on count 1.

20. The following elements must be proved for counts 2 and 4:

    1.At the time of the alleged offence, the accused was or had been in a relationship with Ms P.

    2.The accused did an act which choked, suffocated or strangled Ms P. Choked, suffocated or strangled means to include stopping Ms P’s breathing or significantly hindering or restricting Ms P’s breathing.

    3.The act of choking, suffocating or strangling Ms P was a deliberate, intentional act.

    4.The act of choking, suffocating or strangling Ms P was done with the intention of choking, suffocating or strangling her. In other words, with the intention of stopping, or significantly hindering or restricting Ms P’s breathing; in the alternative, the accused did the act of choking, suffocating or strangling Ms P foreseeing as a reasonable possibility that his act could result in stopping, or significantly hindering or restricting her breathing, but continued to do the act regardless.

    5.The act of choking, suffocating or strangling Ms P was done without lawful justification.

    6.The act of choking, suffocating or strangling Ms P was done without Ms P’s consent.

21. For the purpose of the first element to counts 2 and 4 a relationship is broadly defined.  It includes two people who are in an intimate relationship in which their lives are inter-related and the actions of one affects the other.[201]  On the basis of the analysis I have already set out I am satisfied that the elements of this offence are made out.  The evidence I have accepted is that the accused placed his hands over Ms P’s mouth and nose and restricting her breathing (count 2).  The injuries support her account of this assault.  I am satisfied that the elements of the offence are also satisfied for count 4, that the accused placed his hands around Ms P’s throat.  Her evidence establishes that her breathing was in fact restricted and the nature of the act in my view proves to the requisite standard the accused’s intent.

    [201] Criminal Law Consolidation Act s20A(3)(c).

22. I find the accused guilty on counts 2 and 4.

23. Count 3 requires proof of the following elements:

    1.The accused made a threat.

    2.The threat was a threat to cause harm.

    3.The accused intended to arouse fear in Ms P that the threat would or was likely to be carried out, or was recklessly indifferent to whether such a fear would be aroused.

24. Aggravating factor: The accused committed the offence knowing that Ms P was, or was formerly his domestic partner. The accused used an offensive weapon, namely a pair of secateurs to commit the offence.

25. I am satisfied beyond a reasonable doubt that the accused used a pair of secateurs to threaten to do harm to Ms P.  The circumstances prove the accused’s intent was that a fear be aroused in Ms P that the threat would, or was likely to be carried out.

26. I am satisfied of the aggravating feature that an offensive weapon was used, namely secateurs, but not that Ms P was the accused’s domestic partner at the time.

27. I find the accused guilty of count 3.

28. The following matters must be proved for the prosecution to prove the charge laid as count 5 beyond a reasonable doubt:

    1.That at the time of the alleged offence, Ms P was or may have been required at some time in the future to be a witness at judicial proceedings.

    2.That the accused knew that Ms P was or may be required to attend as a witness in judicial proceedings or he was recklessly indifferent as to that matter.

    3.That the accused intentionally did an act to attempt to prevent or dissuade Ms P from attending as a witness at judicial proceedings.

    4.That the judicial proceedings were in progress or were to be, or might have been, instituted at a later time.

    5.That the accused had no lawful authority or reasonable excuse for his actions.

29. To prove the offence of Attempting to Dissuade a Witness contrary to section 244 (3) of the CLCA the prosecution must prove that the accused acted with the intent of preventing or dissuading Ms P from attending at judicial proceedings.  The focus of the prohibition is on conduct designed to intimidate witnesses from attending court to give evidence.  It is the intent behind the statement/s made that must be assessed, and not the effect that they may have.[202]

    [202] R v Gardner; R v Webb [2021] SASCCA 68 at [98].

30. There is nothing in section 244(3) that prohibits a person from acting with the intention of encouraging a person to exercise their lawful right to express a view to the police about whether they want criminal charges to proceed.  What intent is disclosed by a statement about “dropping the charges” will depend on all the circumstances in a particular case.  It is not possible to be categorical about whether that is a prohibited statement per se.

31. Ms P’s evidence is that the accused asked her to drop the charges on a number of occasions.  He threatened that he would dig up dirt on her and her family if the matter went to trial and he offered to delete intimate photographs once the charges were dropped.  He also however encouraged her to obtain legal advice.  The high point of the evidence was that he told Ms P to tell the lawyer she had a nervous breakdown which provoked her to press the charges.

32. None of the words alleged to have been spoken by the accused aim specifically at dissuading Ms P from giving evidence at judicial proceedings.  The accused’s encouragement to Ms P to tell a false story about a nervous breakdown to the lawyer refers to her pressing charges with the police.  There is nothing to exclude the possibility that he was asking her to tell police that she did not wish for charges to proceed.  That is especially so in circumstances where notwithstanding the conditions of bail the two were meeting and communicating amicably. The conduct of the accused, if successful, might have the effect of Ms P not being required to attended judicial proceedings, but I am not satisfied beyond a reasonable doubt that was the accused’s intent in uttering the  words relied upon. 

33. I therefore find the accused not guilty on count 5.

34. The CLCA provides a statutory alternative in section 256 where a person is acquitted on another charge laid against a provision in Part 7.  An offence against 244(3) of the CLCA therefore carries with it a statutory alternative of attempting to obstruct or pervert the course of justice.  No submissions were made about this alternative by the prosecution or defence.  The prosecutor did not indicate a reliance on that alternative.  In the circumstances I do not consider it appropriate that I make any findings in that regard.