R v Chavez
[2022] SADC 153
•20 December 2022
District Court of South Australia
(Criminal)
R v CHAVEZ
Criminal Trial by Judge Alone
[2022] SADC 153
Reasons for the Verdicts of her Honour Judge Tracey
20 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
The accused is charged with one count of unlawfully choking, suffocating, or strangling another contrary to s 20A of the Criminal Law Consolidation Act 1935 (CLCA) and one count of aggravated assault – the complainant is the accused’s former partner – Count 1 alleged to have occurred in November or December 2019 and Count 2 in November 2020 – accused entered pleas of not guilty to the offences charged - later entered a plea of guilty to aggravated assault in relation to the events arising in relation to Count 1 – accused gave interview to police - application for exclusion of the interview on grounds it was made involuntarily or was unfair - application dismissed - prosecution not established complainant’s respiration stopped, significantly hindered or restricted or that threat made as alleged in Count 2.
Held: Not guilty of Count 1 – guilty of aggravated assault in the alternative.
Not guilty of Count 2.
Criminal Law Consolidation Act 1935 (SA) ss 20A and 20(3), referred to.
R v Fraser [2020] SADC 127; R v Tracey & Ors (No 5) [2005] SASC 359; R v Azar (1991) 56 A Crim R 414; H, SA v Police [2013] SASCFC 86; Police v Dunstall [2014] SASCFC 85, considered.
R v CHAVEZ
[2022] SADC 153
Herick Omar Bolanos Chavez (the accused) is charged with the offences of unlawfully choking, suffocating or strangling another and aggravated assault. He pleaded not guilty to the charges and elected to be tried by judge alone. The charges are as follows:
First Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Herick Omar Bolanos Chavez between the 1st day of November 2019 and the 31st day of December 2019 at Golden Grove, being or having been in a relationship with Monica Guerra, unlawfully choked, suffocated or strangled Monica Guerra, without her consent.
Second Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Herick Omar Bolanos Chavez on the 20th day of November 2020 at Golden Grove, assaulted Monica Guerra.
It is further alleged that Herick Omar Bolanos Chavez committed the offence knowing that Monica Guerra was a person with whom he was, or was formerly, in a relationship.
During the defence opening address the defence conceded that the elements of aggravated assault were met in relation to the allegations made in Count 1 and the accused was re-arraigned for the purpose of pleading guilty to the alternative offence of aggravated assault.
Elements of the offences
Unlawfully choking, suffocating or strangling another
The prosecution listed the elements of the offence which must be proven beyond reasonable doubt as follows:
1.At the time of the alleged offending the accused was in a relationship with Ms Guerra.
2. The accused applied force by choking, suffocating or strangling Ms Guerra.
3. The accused did the act deliberately, that is, intentionally.
4.At the time of doing the act the accused intended to stop, hinder or restrict Ms Guerra’s breathing or was recklessly indifferent as to whether the force would stop, hinder or restrict her breathing.
5.Ms Guerra’s breathing was stopped, hindered or restricted by the accused’s act.
6. That the act was unlawful.
The accused took no issue with elements 1 to 3, with elements 4 and 5 in dispute. Furthermore, he argued that the mens rea required for an offence against s 20A did not include ‘recklessness’. Given my ultimate findings in relation to Count 1, it is not necessary for me to address the issue in detail. I indicate, however, that I am in total agreement with Fuller DCJ’s conclusions in R v Fraser[1] that intention or recklessness must be proved by the prosecution in relation to the charge.
[1] [2020] SADC 127 at [30]-[32].
Aggravated assault
To prove this offence the prosecution must prove the following elements beyond reasonable doubt:
1. The accused performed a deliberate act.
2. The act involved intentionally threatening Ms Guerra.
4. The act was unlawful.
5.The accused and Ms Guerra are former domestic partners.
For the purposes of this case, the prosecution must prove there was a threat to apply force to Ms Guerra. The threat must have been to apply force immediately rather than at some other time and the accused must have intended, or known it was possible that Ms Guerra would fear that the threat would be carried out. Ms Guerra must also have reasonably believed that the accused was able to carry out the threat and intended to do so, or that there was a real possibility the accused would carry out the threat.
Prosecution case
The offences charged against the accused concerned two acts of domestic violence towards Ms Guerra, allegedly occurring in December 2019 (the December 2019 events) and then in November 2020 (the November 2020 events). The accused and Ms Guerra began a relationship in 2015. They have two children together. The prosecution alleges that after the birth of their second child, the accused became more controlling over Ms Guerra.
The first count concerns an incident where the accused is alleged to have used both of his hands to squeeze Ms Guerra’s throat in a fit of anger in December 2019. The second count relates to an incident where the accused is alleged to have raised his arms towards Ms Guerra in November 2020.
On the prosecution case, on a Saturday night in December 2019 the accused, their two children and Ms Guerra’s mother, Laura Langella, were in the loungeroom of the accused’s and Ms Guerra’s house (the house). The accused asked to speak to Ms Guerra in their bedroom. While in the bedroom the accused launched at Ms Guerra without warning, grabbing her around the neck with both hands and forcing her backwards against the wall. It is alleged that Ms Guerra could not breathe and the accused held his hands around her neck for more than three to four seconds. Ms Guerra used both her hands to push against the accused’s ribs and drove him backwards towards the door. As he released her neck, she was able to breathe again. When Ms Guerra tried to leave the room the accused pushed her away from the door.
Ms Langella heard Ms Guerra and the accused arguing before hearing a loud bang on the wall. She forced open the bedroom door and Ms Guerra left the room taking both of her sons into the loungeroom. Ms Guerra’s voice was hoarse and she had two red marks around her throat. Ms Guerra did not report the incident to police at the time and remained living with the accused. She was no longer intimate with him.
On 8 November 2020 the accused and Ms Guerra were driving home from a family event when the accused agreed that in doing what he had done back in December the previous year, he had tried to kill her. Ms Guerra told the accused he needed to speak to someone and get help.
On 20 November 2020 Ms Guerra and the accused argued. She was in her mother’s bedroom holding her younger son. She told the accused to leave, and he walked towards her and stood over her. It is alleged that the accused repeatedly said to Ms Guerra, ‘Go on, hurt me Monica, hurt me, do it’. Ms Guerra asked the accused to leave again and she walked towards the family room. The accused was in front of her and suddenly stopped to face her and lunged towards her. He was at an arm’s length from her and raised both of his arm above his head with open palms and then said, ‘Fuck you Monica’. It is alleged that during this time Ms Guerra immediately feared the accused was going to assault her again. The accused told her to call her father, Giovanni Guerra because he could not control himself. Ms Guerra told the accused to leave, and he packed some belongings and left at around 11.00pm. Ms Guerra told the accused he could come back to get his belongings at 8.00am the following morning when her father was present. The accused arrived at about 6.00am when he is alleged to have told Ms Guerra that she needed to call her father because he did not know what he was going to do to her.
Mr Guerra told the accused he needed to report what he had done to police. Later that day Ms Guerra’s brother-in-law, Mr Nick Giourgas, Ms Guerra and her father, attended the Grenfell Street police station. Ms Guerra left without making a formal statement. The following day they all attended the police station and Ms Guerra reported the matter.
The accused attended at the Golden Grove police station on Sunday 22 November 2020 at 8.31pm and was given his arrest rights. He said that he understood those rights and had no requests. He told police that he just wanted ‘to do the right thing for her’.[2] He was then taken to the Elizabeth police station and participated in a police interview commencing at 9.05pm. His arrest rights were again given, and it was confirmed with him that he was under arrest for two aggravated assaults. In the prosecution’s submission, the accused made the following admissions in the interview:
[2] MFI D8 – record of interview at Golden Grove police station.
·That the argument, the subject of Count 1, before the strangulation, occurred in December 2019. They were arguing in the living room and moved to the bedroom.
·Ms Guerra was shouting at the accused and he just ‘lost it’ and grabbed her by the neck.
·The accused recalled having his hands on Ms Guerra’s neck and seeing the look of fear and anger in her eyes.
·The accused then said he did not recall the action of putting his hands around Ms Guerra’s neck, however later recalled her trying to defend herself and pushing him off.
·The accused agreed that his hands were around Ms Guerra’s neck for one or two seconds but could not recall how much pressure he was applying.
In relation to the second offence, the accused said that he and Ms Guerra got into an argument, and he told her, ‘Monica do you want to hurt me? If you want to hurt me, just do it’. He followed her into the corridor and said, ‘You know what, Monica, fuck you!’ He did not lunge at her or raise his arms in the air. He said Ms Guerra turned pale in the same way she did when he choked her and she told him to leave the house, which he did. He agreed he returned to the house around 6.00am the next morning and that Mr Guerra came. He packed his things and Ms Guerra and his children left the house.
Application to exclude accused’s record of interview
The accused made an application for exclusion of the record of the interview that he gave to police on the basis that it was not apparent that he properly understood the caution police provided and attended to speak to police because Mr Giourgas, who is a solicitor, had given him legal advice that he was in fact required to go to police. It was argued that his attendance at the police station and participation in the interview was thereby not voluntary or was unfair.
The prosecution called Mr Giourgas and Mr Guerra to give evidence.
Mr Giourgas said that he is a solicitor specialising in worker’s compensation.[3] On Saturday 21 November 2020 he accompanied Mr Guerra to the house to collect keys and a remote from the accused. He said that on the way there they contacted a locksmith to change the locks.[4] The accused was there packing up his belongings. He recalled the accused saying that he did not know what to do and Mr Guerra had told him to do the right thing and hand himself in.[5] Mr Giourgas told the accused that he was disappointed in him.[6] The accused then left the premises.
[3] T 20.1.
[4] T 21.24.
[5] T 22.2.
[6] T 22.4.
He went with Ms Guerra and her father to Grenfell Street police station where Ms Guerra had a brief chat with police before leaving. The accused had tried to contact Mr Guerra but as Mr Guerra had not answered his phone, called him instead. He told the accused to go to Grenfell Street police station, which was open. He heard again from the accused when he was with police and the accused handed the phone to the officer to whom he was speaking at the time.[7] Mr Giourgas said he did not recall the officer’s name but understood the accused was letting him know that he had attended a police station and to prove that he had gone in to provide his confession.
[7] T 23.32.
He did not recall having any contact with the accused on 22 November and denied he had told the accused that he needed to go to police, otherwise things would ‘get worse’ for him. He denied Mr Guerra had told the accused that things would get so bad for him that he would not even be able to get a job cleaning the streets.[8] Mr Giourgas denied he told the accused that he wanted to speak with police once the accused had given a statement or that when he spoke with police, he had introduced himself as the accused’s lawyer. Mr Giourgas said that the phone was handed to the police officer by the accused so that he could provide him with information to give to the family that he had attended a police station to give his statement. Mr Giourgas denied that he provided the accused with any advice, or that when the accused appeared in the Magistrates Court, he reported to the sheriff’s officer that he was there as a lawyer.[9] He agreed that on 21 November the accused sent him an SMS in the evening asking whether police had been there to speak with Ms Guerra. Mr Giourgas agreed that his police statement made no reference to previously having spoken with the accused on the phone or with a police officer on 21 November 2020. Mr Giourgas said he had previously given some advice to Ms Guerra and the accused in a real estate matter.[10]
[8] T 27.15.
[9] T 29.30.
[10] T 30.37.
Mr Guerra said that on 21 November 2020 he received a distressed call from his daughter asking him to come straight away.[11] When he arrived, he approached the accused, asking what was going on. The accused told him that he had tried to strangle Ms Guerra.[12] Mr Guerra told the accused to get his stuff and get out and to do the right thing and go to police and admit what he had done.[13] Mr Guerra described the accused as looking ‘scary’ and very distressed.[14]
[11] T 22.36.
[12] T 33.10.
[13] T 33.12.
[14] T 33.26.
Mr Guerra went back to the house later that day with Mr Giourgas to make sure the accused was leaving. He and Mr Giourgas then went outside, and by the time they got back inside, the accused had left and all the keys and the remote were on the table. The only thing he heard Mr Giourgas say to the accused was that he was disappointed.[15] Mr Guerra did not recall the accused calling him on the Saturday. He did not speak to the accused at all on that day apart from the first meeting and did not speak to him on the Sunday.
[15] T 34.9.
Mr Guerra agreed that he had only told police the week before trial that when he got to the house for the first time on the Saturday, the accused had said that he tried to strangle Ms Guerra. He said, ‘It came to me when I had a meeting with the barrister’.[16]
In submissions, defence counsel argued that Mr Guerra and Mr Giourgas had together told the accused that he needed to go to police and that things would be worse for him if he did not go, and that the accused believed that was legal advice being given to him by Mr Giourgas who is a partner in a national law firm.
When the accused spoke to Mr Giourgas, he was told to go to the Grenfell Street police station, Mr Giourgas called the accused again to make sure he was there and asked him to call him again so he could speak to police. The accused’s statement was taken on 22 November, with the accused believing that it was just a continuation of what he had been doing, that is, talking to police, because he was told he needed to.
Defence counsel argued that the evidence of Mr Giourgas was simply unreliable and his evidence, in combination with the accused not properly understanding that the interview was recorded and could be used in evidence, combined to show that the ‘confession’ was not made voluntarily.
The prosecution submitted that Mr Giourgas said little to nothing at all to the accused when he was at the house and Mr Guerra told the accused, he should go to police after the accused had asked what he could do. As to the later phone calls, it was the accused who was remorseful and wanted to let Mr Guerra know that he was doing the right thing by admitting what he had done. When the accused was questioned by police he had been cautioned, he was alone, and it was his choice to speak with police. While defence does not rely on any inducement, there was no suggestion that Mr Guerra was in a position of authority in any event. He had no real influence on the proceedings and did not attend the police station at the time.
[16] T 36.10.
Defence counsel referred to the ruling by Nyland J in R v Tracey & Ors (No 5)[17] where her Honour set out a summary of relevant authorities concerning voluntariness and fairness as follows:
[17] [2005] SASC 359.
Voluntariness and Fairness:
1. In Cleland v The Queen,[18] Murphy J described the test of voluntariness as follows (at 13):
[18] (1982) 151 CLR 1.
Voluntariness. To be admissible the alleged confessional statement must be voluntary, that is, made by the choice of the accused completely free from any threats or other pressure. It may be a question of classification whether a confession induced by false representations or other trickery is voluntary. In older decisions these were regarded as negating voluntariness (see for example Reg v Johnston; Attorney-General (NSW) v Martin; see also various statutory provisions such as Crimes Act 1900 (NSW), s. 410; Evidence Act 1928 (Vic), s. 144 which treated inducement by false representations as requiring exclusion).
In Reg v Johnston Hayes J. said:
‘... that word [voluntary] is to be understood in a wide sense, as requiring not only that the prisoner should have free will and power to speak, or refrain from speaking, as he may think right, but also that his will should not be warped by any unfair, dishonest, or fraudulent practices, to induce a confession.
Upon this principle it is that, in the tenderness of modern times, Judges have uniformly refused to receive in evidence a confession that has been either certainly or probably procured by a promise of good or a threat of evil; by exciting a hope of reward or a fear of temporal punishment other than that which the law has prescribed for the offence charged. So also a confession will be rejected if it appear[ed] to have been extracted by the presumed pressure and obligation of an [illegal] oath, or by pestering interrogatories, or if it have been made by the party to rid himself of importunity, or if, by subtle and ensnaring questions, as those which are framed so as to conceal their drift and object, he has been taken at a disadvantage, and thus entrapped into a statement which, if left to himself, and in the full freedom of volition, he would not have made. These are cited merely as instances of the several ways in which a confession may be unfairly and improperly procured, so as to deprive it of the character of being voluntary ... ’. (Footnote references omitted)
In R v Azar,[19] Gleeson CJ (then President of the New South Wales Court of Appeal summarised the principles with respect to voluntariness in the following way (at 417):
[19] (1991) 56 ACrimR 414.
1. Evidence that an accused has made a statement which contains some admission may not be received in evidence against him unless the Crown establishes that the statement was voluntary.
2. In this context the meaning of the word ‘voluntary’ is not self-evident. Having regard to the variety of circumstances that might accompany the making of an admission, or a confession, some of which might be personal to an accused, and others of which might be external to him, and which might affect in one way or another his decision to make the statement, it is not surprising that judicial expositions of the rule have usually been accompanied by an explanation of what is meant by the concept of voluntariness.
In Ibrahim [1914] AC 599 at 609 there appears the classic statement of the relevant principle:
It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
In Cornelius (1936) 55 CLR 235 at 245, Dixon, Evatt and McTiernan JJ said:
At common law no confession is admissible in evidence unless it is a free and voluntary statement. If it is made as a result of violence, intimidation, or of fear, it is not voluntary. It is not voluntary if it is given in consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority, as, for instance, an officer of police.
In McDermott (1948) 76 CLR 501 at 511, Dixon J said:
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made: per Cave J in Thompson. The expression `person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority (Ibrahim; Voisin [1918] 1 KB 531). That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject.
In Lee (1950) 82 CLR 133 at 149 the High Court said:
The word ‘voluntary’ in the relevant connection does not mean ‘volunteered’. It means ‘made in the exercise of a free choice to speak or be silent’.
It is the references in the cases to ‘free choice’ that have apparently inspired the argument for the appellant in this case.
3.The simplicity of words such as ‘in the exercise of a free choice to speak or to remain silent’ can be deceptive. There are many situations in which a person who makes an admission, if left uninfluenced by other persons or considerations, would not have done so. It does not follow that a statement made in such circumstances is involuntary. People speak under all manner of constraints, and impelled by all manner of influences, and the meaning that a psychiatrist or a philosopher would attach to the concept of free choice in this context is not necessarily the same as that which a lawyer would give it.
After discussing a number of cases and articles which considered this question, Gleeson CJ went on to say:
7.There is authority for the proposition that what will render a confessional statement involuntary must be some factor external to the accused, although, obviously, the operation of that factor will usually need to be judged by reference to matters personal to the accused. In Collins (1980) 31 ALR 257 at 307, Brennan J said:
‘The ultimate question is whether the will of the person making the confession has been overborne, or whether he has confessed in the exercise of his free choice. If the will has been overborne by pressure or by inducement of the relevant kind, it does not matter that the police have not consciously sought to overbear the will. ...
A confession is not held to be involuntary merely because the confessionalist is by nature or temperament predisposed to confess and is furnished with an opportunity to do so; it is the effect of an external factor, of the kind referred to by Dixon J in McDermott's case, upon the will which determines admissibility.’
It is unnecessary for present purposes to consider whether there might not be some circumstances in which the personal condition of an accused will alone be such as to render a statement involuntary: cf Ward (1979) 44 CCC (2d) 498. It suffices to say that, usually, the inquiry is as to some matter external to the accused.
8.It is also important to note that what is involved is an inquiry as to the accused's will, rather than as to the accused’s state of knowledge, including knowledge of his legal rights. What a person knows or does not know may be relevant, as an evidentiary fact, to the question whether the person's will has been overborne, but knowledge or belief, on the one hand, and will, on the other hand, are different concepts.
9.There is no justification for the proposition that a statement is voluntary in the relevant sense only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. …
Defence counsel placed particular reliance on paragraph 9 in the decision of Gleeson CJ in R v Azar[20] as highlighted above, to show that the accused merely being offered a choice as to whether he remained silent or not was not sufficient to establish that his statements were made voluntarily.
[20] (1991) 56 A Crim R 414.
I was also referred to the Full Court decision in H, SA v Police[21] as relevant authority in a case where pressure was applied to an accused by someone other than police, where a neighbour was sitting in on the interview with an accused and kept interrupting. It was found by the majority that the neighbour had put sufficient pressure on the accused to confess such that the confession could not be seen as voluntary.
[21] [2013] SASCFC 86.
I note that there were significant factual differences between the case against the accused and that which was the subject of the decision in H, SA v Police, which concerned a child of 14 or 15 years with an intellectual disability and the neighbour was present with police, telling the child to ‘Just come clean’.
I accept that Mr Guerra was angry with the accused when he spoke to him on 21 November 2020 and that Mr Giourgas told him he was ‘disappointed’. The attendance by Mr Guerra at the house initially, and then his attendance with Mr Giourgas at the house on 21 November 2020, cannot have given the accused any assurance that they were acting in his best interests. The accused knew that he had to leave the house and that they wanted him gone so that they could get a locksmith to attend. They assisted him with getting boxes out of the house. The accused could not have had any understanding that they were being friendly or helpful or that they were going to do the right thing by him.
Even on the accused’s version of the conversation, Mr Giourgas was not involved to the extent that it could be thought he was giving the accused legal advice. There was nothing in the evidence of either Mr Guerra or Mr Giourgas to undermine their version of the events. That Mr Giourgas did not tell police previously about the phone calls with the accused was in my view of little moment.
The accused had been told of his rights on two occasions by police. While he may well be ‘trusting’ as was submitted by his counsel, on the evidence before me, which did not include the accused’s evidence, the accused was not in a situation where he was overborne by anything that he had been told the day prior to his interview on 22 November 2019 and he spoke to police having exercised a free choice. I was satisfied that the statements to police that the accused made were voluntarily, and I ruled accordingly.
Defence counsel then argued that it was not apparent that the accused understood that the interview could be used against him later. It was, defence counsel argued, not apparent from the police interview that the accused understood what the process was, and that the interview was something that could be used against him later. The accused gave evidence in support of the application that the record of interview should be excluded because of unfairness.
The accused said that when Mr Guerra and Mr Giourgas attended at his house on 21 November, Mr Guerra was very angry. He was told he had to leave the house because they wanted to change the locks and that he should go to the police because it was better for him to do so. Mr Giourgas was present when Mr Guerra spoke to him. Mr Guerra said that he could make his life very difficult if he did not do it and that he would not be able to even work on the streets. The accused said that he understood from what they said that they could take him to police and take away his children and put him in gaol. They both started helping him pack up and placing his boxes in his car. The accused told Mr Giourgas that he did not know where to go and Mr Giourgas told him to go to the Elizabeth police station. When he went there, police told him to go home and come back tomorrow because it was lockdown. He called Mr Giourgas because he had told him that he wanted to be informed of everything that he was doing. The accused said that at that moment he understood Mr Giourgas was telling him what to do and giving him legal advice. Mr Giourgas was calling him when he was there asking where he was and saying he wanted to talk to the police officer. The accused said he told police to talk to Mr Giourgas because he was a lawyer.
Later in the day he sent an SMS message to Mr Giourgas, who told him that Ms Guerra was scared. The accused said he wanted to confirm that she was okay and especially wanted to see his children. On Sunday night he received a call from police asking him to come to the Golden Grove police station because they had follow-up questions. He went and spoke to them. He thought it was a continuation of what he had done the day before. The accused said that if he did not think that Mr Giourgas was his lawyer, he would have contacted another lawyer. He was shocked when police advised him that he should now look at getting legal advice.
In cross-examination the accused agreed that he had called Mr Giourgas multiple times. He said that was because that was what Mr Giourgas had told him to do. The accused agreed that he was taken from the Golden Grove police station to the Elizabeth police station to give an interview. He agreed he did not call Mr Giourgas on 22 November and said he had not done so said because the day before Mr Giourgas had not answered his last text message.
The accused agreed that police offered for him to make a phone call when he got to the Golden Grove police station. He said he did not take that offer up because he thought he did not need to. He said he had already been there the day before, following the advice of Mr Giourgas, so he thought it was exactly the same thing. He agreed that he had been told he could have a solicitor present but had refused that offer because he thought he had already had advice to go on his own from Mr Giourgas.
The accused agreed that he had understood at the time that he was under arrest, but that he was trusting a lawyer who told him that this is what he had to do. The accused agreed that he understood that he did not have to answer the questions if he did not want to. He knew that he had a choice to say he did not want to. He agreed he had not told police when he spoke with them on the Sunday that he had already spoken to a lawyer. The accused said that he thought that Mr Giourgas was helping both him and Ms Guerra and did not think that he would try to do something that was against him.
Defence counsel relied on Police v Dunstall[22] where Sulan J discussed the discretion to exclude confessional evidence as follows:
[22] [2014] SASCFC 85 at [146] –[147].
Martin J observed that Swaffield’s case confirmed that there was an overall discretion to exclude confessional evidence, if to include it would be unfair to the accused. The unfairness discretion to exclude confessional evidence is not confined to unlawfully or improperly obtained evidence. That discretion focuses upon the effect any conduct has had on the particular accused, unlike the public policy discretion which has a wider ambit and focuses upon the conduct of the police or law enforcement agency.
The unfairness discretion focuses on whether it would be unfair to a defendant in the case of confessional evidence, where there has been no fault on the part of the police. For example, if it were established that the defendant suffered from a mental condition and was, therefore, unable to understand the caution administered by a police officer and was unable to make an informed decision as to whether to answer questions, that may give rise to the exclusion of the evidence of the confession. The Court might conclude that it would be unfair in the sense that the confession may be unreliable or that a person may have not adequately understood their rights, even though there was no misconduct or unlawful conduct on the part of the police.
Defence counsel urged me to find the accused a reliable witness who was not directly challenged with respect to the conversations said to have occurred with Mr Giourgas and Mr Guerra and prosecution had not called the police officer who allegedly spoke with Mr Giourgas. I was urged to accept the accused’s evidence that he believed Mr Giourgas was his lawyer. Mr Giourgas had previously given advice in relation to a real estate matter. Defence counsel argued that the accused has a trusting and compliant nature, evidenced by the accused telling police that he just wanted to do the right thing for Ms Guerra. The accused’s compliance and cooperation in the interactions he had with police can only be explained by the unusual circumstances that preceded it.
In my view, it is noteworthy that the accused was not told what to say to police or to admit to having strangled or choked Ms Guerra. Rather, he was told he must go to police. Even on his version of what he was told by Mr Guerra, which I find is more likely, there was no coercion. The accused was not told to lie or admit to something he had not done. It was evident that the accused knew he was in serious trouble in that his evidence was that if he had not thought that Mr Giourgas was his lawyer, he would have contacted lawyers straight away. This is not a matter where it could be said that the accused did not understand how serious the situation was. The situation had changed dramatically in that he was under arrest. He had been given his arrest rights on two occasions and acknowledged his understanding of those rights. He was taken into a room and knew he was being recorded. While Mr Giourgas had called the accused on 21 November, the following day when the interview took place, the accused made no follow-up call to him to seek advice and Mr Giourgas made no contact with him. The accused cannot have thought that Mr Giourgas was acting as his lawyer. I refused the application for exclusion of the interview on the ground of unfairness to the accused.
Evidence at trial
At trial, the prosecution called evidence from Ms Guerra, Mr Giourgas, Mr Guerra, Ms Langella and police officers Senior Constable Chelsea Sanders (SC Sanders), Sergeant Anthony Passmore and Sergeant Daniel Guzej.
The defence called no evidence.
Evidence of Monica Guerra
Ms Guerra said that she and the accused met in March/April 2015 and began their relationship in late 2015, or early 2016. She said that in the beginning they had good times together. They began living together when their eldest son was 10 months old when the accused came to move in at her mother’s apartment in Salisbury Heights. In July 2018 they purchased the house together.
Ms Guerra said that sleeping arrangements in the house changed after November 2019,[23] whereas prior to then she and the accused had shared a bedroom described as bedroom 1. She said, ‘Either I would sleep in my mother’s bedroom,[24] or he would be out in the family room, but it wasn’t – I wouldn’t call it a communal shared space anymore between us’.[25]
[23] Ms Guerra denied that the events in Count 1 had occurred in December 2020.
[24] Described in the evidence as bedroom 3.
[25] T 87.37.
Ms Guerra said that she was consistently questioned or put down by the accused. She began to withdraw herself from engaging in any deep conversation and became self-conscious. The accused’s behaviour changed. He would be angry at times and really happy at others. She said that she would probably call it quite controlling.[26] He would ask where she was and who she was with and what she was doing. Ms Guerra agreed that it would be ‘correct’ to say that in November 2019 an event happened that changed the living arrangements in their bedroom.[27]
[26] T 89.16.
[27] T 89.20.
Ms Guerra said that on an evening in late November/early December she was with her mother on the couch watching television with her sons. The accused approached her wanting to have a conversation. She told him that she was quite upset and that if she was to swear, he was not to get upset with her.[28] She said that if she had sworn in the past, the accused would get quite upset at her. The accused told her that was completely fine because they needed to try and talk. She passed her younger son to her mother who remained in the family room. The accused closed the bedroom door. The accused’s demeanour started to change. She said that his eyes were quite dilated and dark and that it almost reminded her of a cartoon-like character. He became quite angry, and his facial expression completely changed, and then he launched forward at her. She had her back up against the wall in between a cot that was in the room and the door, and he proceeded to put his hands around her throat. Ms Guerra indicated that the accused’s thumbs were in the centre of her throat with his hands around the back of her neck.[29] She said she was struggling to breathe and to get him away from her. She went into panic and thought she was going to die.[30] She said it felt like she was completely blocked in the middle area of her throat, and she remembered trying to lift her hands up underneath but failed the first few attempts because the accused was hunched over her. She managed to get her hands up underneath somehow and push him in the rib area and he let go and went back onto the door. When asked how long his hands were around her throat, Ms Guerra said that while initially she had said it was about four seconds, the more she processed it, she believed it could be a little bit longer.[31] She said she was gasping for air and could not swallow. The pain was excruciating, and she was struggling to breathe. The accused was not saying anything at the time. Ms Guerra could not recall the conversation in the lead up. She just felt excruciating pain in her throat around her neck and had a hard pressure across her chest as she was trying to breathe. She said she did not 100% recall whether her feet were on the ground.[32]
[28] T 90.11.
[29] T 91.19.
[30] T 91.33.
[31] T 92.7.
[32] T 93.11.
She was trying to open the door to get out and the accused had his hand blocking the door.[33] Her mother was pushing from the outside. Her mother managed to open the door and she just ducked under the accused’s arm and walked out of the bedroom. She grabbed her son from her mother’s arms and took him into the family room trying to comfort him and breast fed her younger baby to try and settle him because she was worried she might lose her breast milk from the fear she had experienced.[34] She could hear the accused saying, ‘She’s lying, she’s lying’. It almost felt like she had an apple or a potato stuck in her throat.[35] When asked whether she saw any marks on her neck she said that she was still comforting the boys, sitting on the couch.
[33] T 94.6.
[34] T 94.22.
[35] T 95.29.
Ms Guerra said that she and the accused continued to live with each other after this because she did not want to go through the legal process with the kids. She said from that moment on her whole life and world changed and that from then on she would not call it a relationship. Rather, they were simply cohabitating.[36]
[36] T 96.19.
She said the accused never spoke to her about the incident until they attended a family function around the beginning of November 2020 when he compared himself to other couples and said that he knew that they were never going to be like them.
Ms Guerra described a conversation on a Saturday afternoon, probably around 14 November 2020, near to her niece’s birthday when she was sitting with the accused and her mother and a conversation started about a work colleague of the accused. He was saying not very nice things about her. She said:[37]
[37] T 98.9.
And then we spoke about the Jill Meagher incident, and I don't recall if it was on the radio or the TV but it was brought up and it's obviously a tragic story, and his response was 'Well, how do you know that, you know, she didn't have anything to do with it', and that's when mum then engaged in the conversation and expressed concern for that. And he said 'Well, I have boys, so I just need to do what I have to do to protect them'. And then he said, almost like ironically to mum 'Well, you didn't do anything - I did what I did to your daughter and you didn't do anything'. Almost like 'Well, at least I'm protecting my children, what are you doing to protect yours'.
Ms Guerra then added that the accused had said ‘When I tried to kill your daughter’.[38]
[38] T 98.29.
As to the events on 20 November 2020, the State was in lockdown. The accused, as a frontline worker in a hospital, was home for the morning and then needed to go to work in the afternoon. Ms Guerra said her mother was not at home as she was with her sister who had just given birth. The accused went off to do some shopping and came back mid-morning. As she was putting the shopping away, she found a handwritten card with her name on it that had been left on the breakfast bench.[39]
[39] Exhibit P2.
The card read:
I’ve noticed the angry look in your eyes,
When I move my ugly ass
The serious and short tone of your voice
Reacting to every noise.I think one action would be right:
Desperate angry sex tonight.Serious and as a sign of revenge
We can even kiss like French.
We can do it on the bed or the couch
With the spanking and the such.Just a suggestion, not pressure
But we might as well have some pleasure.Written by Herick for Monica
(in desperation and deprivation)20/11/2020
Ms Guerra said:[40]
[40] T 105.19.
I opened that card and what I read wasn't the nicest of things, it wasn't something that I appreciated, nor did I take in the light that he assumed that I would have. I was actually quite offended and upset by what was written in that card and the discussion stemmed from that, of my dislike to what was written in there and then he left to go to work.
…So I opened the card and when I read what was inside, it was of a sexual nature, which referred to certain sexual actions with some sort of physical force or being held down and given what had happened in the past I didn't appreciate it, nor was it reflective of anything that we had ever done in our relationship, so it was completely out of the blue.
The accused told her that it was just a joke to make her laugh. He said that maybe if they tried hard to be intimate then things would be okay. The accused left and went to work. The conversation continued through text messaging and then she received an apology message along the lines of that was not what his intention was. She responded something along the lines of ‘…maybe if it was given to me earlier on in our relationship, like before, I would have found it funny, but right now, at that time, I didn't’.[41]
[41] T 106.31. Exhibit P3
Ms Guerra said that during the day they had had a conversation about how she wanted to go and see her sister and her new baby. She would be taking her two sons with her. She said:[42]
[42] T 108.21.
At this point in time my sister had just found out, or recently found out about what had happened between our relationship and didn't want him around the baby, and I respected her wishes and was saying that I was just going to take the boys.
She said that the accused was angry at the fact that she and her sons were wanting to go and see the baby. When the accused came home that evening he was quite upset, which she attributed to her reaction. The accused helped bring her son into her mother’s room ‘because at this point, we weren't sleeping in the same bed’[43] and she was following behind him with her other son, with the accused following her through the corridor expressing his dislike for the fact she was going with her sons. She said she went to sit on the edge of the bed where her son was already lying asleep and the accused leant in over her in quite a firm voice and said ‘Hit me Monica, hit me’.[44] She said she felt that he was trying to egg her on to get a reaction out of him.
[43] T 109.35.
[44] T 110.7.
Ms Guerra said that at this time she had been speaking to her doctor and kept in contact with him asking for help on how to get out or what to do because:[45]
[45] T 110.14.
I really believe within my heart if I hadn't spoken to anyone and someone found me dead somewhere, no-one would know the reason why. That was my fear. So I kept in contact with him, and he explained that generally when someone is violent to you the first time, chances are it will happen again. So I was super vigilant of signs and it was reminiscent of the behaviours from the first incident in 2019. So I went to go and get out of bed to close the door and grab my drink bottle and then as I was walking out of the corridor, the far end of the house, there's a little bathroom area. So I'm about to walk out and he's kind of blocked me, so stopped me from leaving through the sliding door - not sliding, a door that slides that separates the corridor from the family room area, and he lunges over me, with the same facial expression, those black eyes, which are unforgettable, leans over me as if to grab me again with open hands, and I'm still holding [child] and I had to raise [child] up above my chest to just protect myself and he was mad and shaking and then he said to me a swear word.
… He said, 'Fuck you, Monica, fuck you', and I was just holding onto [child] just as tight as I could just to protect the both of us, and I said, 'You need to leave, you need to go'.
She went into her mother’s room and shut the door. She could hear slamming and moving, and she heard from outside the door ‘I’m leaving’ and left.
The accused came home the next morning and still ‘had that look in his face’. She told him he needed to leave. The accused just rocked himself back and forth, holding onto his arms and said, ‘If you don't call your dad, I don't know what I'm going to do to you’.[46]
[46] T 111.27.
Ms Guerra said that she had just spoken to her father that Friday during the afternoon when he was helping with her son. She told her father that she was ‘really fearful’ and explained to him the situation from almost a year before.[47] She told him that she was fearful that it was happening again because all the signs are matching up to what her doctor was telling her. She said she sensed his behaviour was changing, so she made her father aware of it, and when she called him she said ‘He tried to do it again’.[48] The accused told her father that he had asked her to call him because he was not sure what he was going to do to her. She said that her father told the accused that he needed to leave and there was a further conversation that she did not recall clearly.
[47] T 111.33.
[48] T 112.1.
Ms Guerra demonstrated how she recalled the accused screaming with his hands up. She said his hands were not touching her, but they were probably just under her eyes. His arms were extended forwards with palms open facing down. She said, ‘I thought he was going to strangle me again’.[49] The accused is taller than her. She raised her son up, almost to protect her throat and to make sure that she could hold him tightly.
[49] T 113.19.
She made the decision overnight that it was too risky to continue any form of relationship with the accused and went to police the following day.[50]
[50] T 114.19.
In cross-examination, Ms Guerra agreed that she began a relationship with the accused when he was a priest and when she became pregnant, the accused needed to make a decision as to whether he was going to remain a priest or leave the priesthood and raise a family with her.[51] The accused was required to spend six months in Sydney. Ms Guerra agreed that after his time he returned home and worked as a funeral director.
[51] T 115.16.
Ms Guerra denied that the accused gave her almost all the money that he earned.[52] She denied that she made all of the decisions about how the money was spent. She denied that when the accused was working two jobs he continued to give most of the money he earned, except for petrol and small emergency money, to her each week. Ms Guerra denied that the reason the accused sent her messages most days telling her when he was leaving work was because she wanted to know where he was.
[52] T 116.17.
With respect to the events in December 2019, Ms Guerra denied that before she had gone into the bedroom with the accused that she was screaming at him and swore at him.
Ms Guerra denied that when they were in the bedroom, she screamed at the accused even more and he asked her not to do so. She denied that the accused raised his hands and put them on her neck for one second, or that he said, ‘I’m sorry, I didn’t mean it’.[53] She denied that the accused’s back was to the door and that she was pushing him against it. She denied that the accused’s hands were on her neck for only one or two seconds, and it was with almost no force. She denied it had not affected her breathing or that no marks were left on her neck.[54]
[53] T 119.26.
[54] T 120.37.
When asked how long she said she had the marks on her neck, she said ‘I don't know how long I had marks on my neck for, but I was left with pain for a long time after the strangulation’.[55] When asked whether she saw the marks herself, she said ‘I didn’t get up to go and look in the mirror. I just spent my time with the boys, and I was quite in shock, to be honest’.[56] She agreed that even on that night she had not looked in the mirror to see if she had any marks. She had never gone to the doctor.
[55] T 121.1.
[56] T 121.8.
Ms Guerra denied that when the accused would try and talk to her about what had happened that she would tell him she could put him in gaol for what he had done and that he was lucky she had not reported it to police because he would never work in Australia again and she could take the children away from him.[57]
[57] T 122.12.
Ms Guerra denied that for at least 11 months after the first incident, she continued sleeping in the same bedroom as the accused. She said that what she had told police on 22 November 2020 that they had not been sharing a bed for approximately one week was not true.[58] When challenged, Ms Guerra said that she accepted what was in the police statement. She said the accused was not in the room from when the youngest child was born because he needed to sleep because he was going to work. The accused actually slept in the children’s bedroom, and she had both of the boys in bed with her. The accused was not in the room straight after the birth in October 2019. Ms Guerra then appeared to deny that she had earlier in her evidence said that she stopped sharing a bedroom after the first incident as a result of that incident. She said:[59]
[58] T 124.28.
[59] T 125.19.
So Herick never actually made it back into the bedroom because he chose to sleep through the night whilst I looked after the newborn child because he had to go to work.
She denied that she had told the court that she stopped sharing a bedroom as a result of the first incident because she wanted to create the impression that the first incident was bigger than it really was.
With respect to there being messages between the two after the first incident, Ms Guerra said that she would respond to the accused’s messages most of the time. She said that if she did not respond then that would cause more issues more times than not.[60]
[60] T 126.4.
Ms Guerra agreed that the accused had referred to seeking counselling. She said that she believed she had conversations with her doctor prior to the doctor’s notes which recorded her disclosure to him about the strangulation almost a year later, on 5 November 2020.[61] She denied that on that date she had told him that approximately a year ago the accused had grabbed her by the throat and left bruises on her neck.
[61] T 127.5.
She agreed that on 20 November she told her father for the first time about the incident from the year earlier.[62]
[62] T 127.28.
She denied that she had understood the card the accused left for her was meant as a joke. She again asked to read the card out loud and agreed that the card does not actually say anything about being held down.
Ms Guerra said that she did not recall exactly when she told her sister about the first incident. It was maybe a month before the second incident.[63]
[63] T 129.7.
She denied that the accused had asked her whether he could at least spend Saturday with his son and that she could have him on the Sunday with her sister. Ms Guerra denied that the conversation between them just before the second incident was such that the accused remained calm and that she had said to the accused in an aggressive voice ‘Stop patronising me. Don’t talk to me like I’m a patient’.[64]
[64] T 130.32.
She agreed that he said ‘If you want to hurt me, do it. Go on, hurt me, do it’.[65] She did not recall whether the accused pointed towards himself with his hands while he was saying that. She said he left the room eventually and she went to get her water bottle. She denied that the accused did not raise his hands when he said ‘Fuck you, Monica’. She denied he did not say that with a loud and aggressive voice. She denied that the accused sat on the floor hugging himself because he was afraid she was going to take the children away.[66] She agreed the accused said that he was going to leave the house and she should call her father. She denied he returned and apologised.
[65] T 130.37.
[66] T 131.30.
Ms Guerra agreed that depending on the circumstances, text messaging between herself and the accused would sometimes be initiated by her.
Ms Guerra agreed that in her police statement she had not said that when she was strangled by the accused, she was in excruciating pain. She did not say there was pressure around her neck but rather just said that he was choking her. She had said ‘He grabbed me around the neck with both of his hands’.[67] She did not say that she thought she was going to die. She did not say that she felt blocked in the middle area of her throat. She said she was not asked. She denied that she had made up this evidence so as to give the court the impression that she was choked rather than just having had his hands around her neck. She did not describe the accused having his thumbs in the middle of her throat. She said that she believed by saying that the accused was choking her was self-explanatory.[68]
[67] T 138 26.
[68] T 139.19.
She denied that she had embellished her evidence and version of events this week saying that he had his thumbs on the middle of her throat and applied pressure to the middle of her throat because she knew that for the charge of choking, the accused needed to be found to have inhibited or restricted or hindered her airway.
She did not say in her statement that she felt pressure across her chest or that that the accused had his hand on the door.
In relation to her statement taken on 18 April 2021, she had not described the accused’s thumbs being in the middle of her throat. She had said his hands were crushing against her throat and he was squeezing.
Ms Guerra denied that the reason that she would like the accused to be convicted for choking is that it would help her in the Family Court to obtain full custody of their children.[69]
[69] T 140.37.
When asked again about the money that the accused had given her from his wages and to answer with respect to her own knowledge, Ms Guerra said ‘I remember at some point he was depositing money into my account, but without looking I'm not certain on the date of that’.[70] She agreed that the bank statements put before her showed that the accused paid her $550.00 a week from his wages.
[70] T 143.18.
Ultimately, she did not agree that when the accused started working a second job, which was with the Calvary Hospital, he increased the sum of money that he gave to her.[71]
[71] Westpac electronic statement 3 July 2017-3 January 2018 - Exhibit D4.
She denied that the WhatsApp messages between herself and the accused on 20 November 2020 suggested that the discussion between them was that the accused was hoping to stay with the children on Saturday but that she said no and was taking the children for the Saturday and Sunday.
In re-examination, Ms Guerra said that she spoke Italian and English at home. The accused’s native language is Spanish. She cannot speak Spanish. She did not go to the doctor after the first incident because she thought the doctor would report an incident of domestic violence and she was concerned for the children.
Evidence of Laura Langella
Ms Langella said that in the beginning the accused and Ms Guerra seemed very happy. She said she noticed a change in the relationship between her daughter and the accused when her daughter was pregnant with her second child. She said the accused had mood swings and was emotionally abusive.
With respect to the incident in November/December 2019 the accused and her daughter had not been talking to each other. She suggested that they go into the bedroom while she looked after the children so they could talk and talk it out. She heard a huge bang and went to have a look but could not open the door straight away. As she opened the door the accused kept saying ‘She’s lying’. Her daughter walked out and she followed her with the children. Ms Guerra took the youngest child from her and fed him because he was screaming, and the elder child was crying. She said that after that, her voice was really hoarse.[72] She could see red marks on her daughter’s neck and her eyes were really watery. She could not get words out.[73] She said that while they were in the room both of their voices were raised. She had to use force to open the door and when it opened the first person she saw was the accused standing near the ensuite sliding door. Ms Langella marked on the floorplan where each were standing.
[72] T 154.18
[73] T 154.24.
She described her daughter as being unable to breathe and gasping. She told her mother that the accused had just tried to strangle her. She indicated that there were marks around the sides of her daughter’s neck. They were visible, not like a blood red, but red. Her daughter’s voice was hoarse for what seemed like a really long time. The following day she had pain and said it hurt.
She described an occasion where the accused was sitting having lunch with her when he said ‘You know I tried to kill your daughter and you didn’t do anything about it … And you didn’t tell anyone’.[74] She said she had been to her doctor to tell him about it. The conversation came about when discussing a lady on the news who had been murdered and raped. She told the accused that she felt sorry that you could not even walk the streets anymore without something happening and the accused replied ‘Well, how do you know what she did?’[75] The accused kept going for a little while and said that he had to protect the boys from this kind of thing happening and so they had a little bit of a disagreement. After they were talking about the matter he turned around with a little smirk on his face and said ‘You know I tried to kill your daughter and you didn’t do anything about it’.[76]
[74] T 160.
[75] T 162.5.
[76] T 162.16.
Ms Langella said that she had slept in bedroom 3 all of the time that she was living at the Golden Grove address. The accused and Ms Guerra were sleeping in bedroom 1. She agreed that she slept in bedroom 1 with Ms Guerra and her son when he was born ‘until the weekend’. She said that after the strangulation allegation she saw them back in bedroom 1 sleeping together.[77]
[77] T 164.32.
In cross-examination, Ms Langella denied that she ever observed Ms Guerra raising her voice at the accused or swearing at the accused. She could not recall if the red marks that she saw on her daughter’s neck were there the next day.[78] She said that she was really shocked that someone had done that to her daughter.
[78] T 165.24.
She said that she had told her other daughter about the incident almost a year later, before the second incident.[79]
[79] T 167.4.
She denied that the accused had said that ‘You shouldn’t judge the person until he’s been found guilty’ when they were discussing the Jill Meagher case.[80] She denied that the conversation in fact happened earlier than in November 2020.
[80] T 168.22.
In her statement to police dated 28 January 2021 she said that she recalled a conversation she had about a young woman who was raped and murdered in Melbourne and all the accused could say was ‘We don’t know what she did’, and that she took this to mean he felt that she deserved it as he had a smile on his face’.[81] It was put to her that the conversation was not the same conversation where she said the accused had told her ‘I tried to kill your daughter’. In her statement she had said that in November 2020 about a week before the accused went to police to self report, he sat down at the table and said ‘I tried to kill your daughter, if she did it to me I would have gone straight to police, I love her, I gave up priesthood for her’.[82] Ms Langella maintained that both topics occurred in the same conversation. The conversation was in November 2020 just before her granddaughter was born.
[81] T 169.2.
[82] T 169.19.
Ms Langella said that after her daughter had told her father about the strangulation, Mr Guerra came to her to ask if she knew. She said the conversation happened maybe a couple of months before the second incident.[83]
[83] T 172.29.
She said she told her daughter maybe a couple of weeks after the first incident happened. She told her doctor about it a few months after the strangulation had occurred and had told her daughter that she had spoken to her doctor.
In re-examination, Ms Langella said that when her former husband came to speak to her about the strangulation allegation, she assumed that Ms Guerra had told him. She was not telling him for the first time. At the time of the conversation the accused was still living with them.
Evidence of Giovanni Guerra
Mr Guerra said that he spoke to Ms Guerra on Friday 20 November 2020 and she told him how distressed she was about the way things were with the accused. She told him they were having troubles and arguments and that a year prior the accused had tried to strangle her. Mr Guerra said that no-one had told him about that before.
The following day on 21 November 2020 he received a distressed call from Ms Guerra at around 6.00am and he went to her house straight away. He saw Ms Guerra was distressed and saw the accused looking very distressed himself. Mr Guerra said he told the accused that he needed to pack his things and go and do the right thing and go to police and admit to what he had done.[84]
[84] T 180.8.
Later in the day he went back to the house with his son-in-law to make sure the accused had left the premises.[85] He told the accused to leave the keys and the remote. They had already rung a locksmith to change the locks and once they thought the house was safe, they left. Ms Guerra was too distressed to give a statement to police at first, but they returned to the police station the following day.
[85] T 182.21.
In cross-examination Mr Guerra agreed that before the second incident his daughter had never spoken to him about the first incident.
Mr Guerra had made a statement to police wherein he had made no mention of the accused having told him that he tried to strangle his daughter. He explained:[86]
[86] T 186.5.
I recall that coming to me on a meeting with [the prosecutor] and upon asking her, you know, 'Is there anything you've forgotten or, you know, haven't told us for your affidavit?', and I mentioned that, on the Wednesday.
He said he had remembered it but did not bring it up because he thought there would be a time when he would have to bring it up.
He said he has never had a conversation with his daughter Stephanie about the first incident.
His son-in-law was on his way out when Mr Guerra had told the accused that he needed to go to police. He denied that the conversation happened on the second occasion. He said that the first time he got there he told the accused he needed to go to police and tell them what he had done, and he was alone on that occasion. It was not said in front of Nick on the second occasion.[87]
[87] T 187.36.
Evidence of Nick Giourgas
Mr Giourgas said that on 21 November 2020 he was at home when Mr Guerra and Ms Guerra arrived. She was a bit distraught and a bit hysterical. He was provided with some details as to the events that had happened the night before. He drove with Mr Guerra to the house to meet a locksmith. When at the house he told the accused that he was very disappointed, and the accused said something along the lines of ‘What can I do?’[88] Mr Guerra told him to do the right thing and go and confess to what he had done. They waited until the accused had left the home and waited for the locksmith to attend. They then locked up and left.
[88] T 191.17.
In cross-examination Mr Giourgas agreed that you could infer from what Mr Guerra had said to the accused on 21 November, that he was telling the accused to go to police.[89] He did not recall Mr Guerra telling the accused that things were going to get worse if he did not go to police. Nor did he recall he would not get a job cleaning the streets if he did not. He recalled speaking to the accused twice on that day. His recollection was that he received a phone call because the accused could not get through to Mr Guerra. He denied introducing himself as his lawyer to police.[90] He agreed he did not make any mention of phone calls in his statement to police but denied that was because he was seeking to distance himself from his role in the accused going to police.[91]
[89] T 194.33.
[90] T 196.6.
[91] T 196.14.
Mr Giourgas said that he did not recall what he knew about the December 2019 events when he was told about the events in 2020. He did not recall when he was told about the strangulation. He did not recall the first time that he had a conversation with his wife about the events. His wife had never told him whether she had heard about the strangulation before the second incident.
Evidence of SC Sanders
The investigating officer, SC Sanders said that on 22 November 2020 she and her partner were tasked to the Golden Grove police station in relation to a gentleman who had handed himself in as a wanted suspect. She met with the accused and checks on the system revealed he was a wanted suspect in relation to a domestic violence matter. She gave him his arrest rights and conducted a record of interview. Exhibit D6 is the arrest rights and Exhibit D7 is the record of interview.
In cross-examination, SC Sanders agreed that the accused had been told he was under arrest for two aggravated assaults. At the time of giving his interview he had not been informed that he was a suspect or under arrest for the offence of strangulation.[92]
[92] T 208.22.
Evidence of Sergeant Anthony Passmore
Sergeant Passmore said he recalled speaking to a female and two males on 21 November 2020. It became apparent that the female was very, very distraught and there was some suggestion that there was a domestic violence history, and they were seeking some advice. They left the station temporarily as the female wanted to get some air.[93] He sought for patrols to go outside to find her. The following day he was again on duty and became aware that the female and her support people had reattended.
[93] T 211.19.
Evidence of Sergeant Daniel Guzej
Sergeant Guzej said that he recalled the accused coming into the Grenfell Street police station on 21 November 2020 looking forlorn and sad. After speaking to him, Sergeant Guzej created a tasking for police to attend at Ms Guerra’s home and he contacted the Child and Family Unit for guidance.[94] The accused gave him Ms Guerra’s full details.[95]
[94] T 218.32.
[95] T 219.2.
In cross-examination Sergeant Guzej said he had no recollection that when speaking with the accused, he spoke with someone else on the accused’s phone. He said there was definitely no conversation with a lawyer.[96]
[96] T 219.28.
Prosecution address
The prosecution submitted that in the record of interview the accused admitted his hands were around Ms Guerra’s neck. While the accused did not admit it was in anger or rage, he did say her face turned pale and remembered the look of fear and anger in her eyes. The accused indicated the motion in his interview. The immediate events thereafter is where the real dispute lies and whether the accused intended to stop, hinder or restrict Ms Guerra’s breathing or was reckless as to that fact that her breathing was stopped, hindered or restricted.
The prosecutor submitted that in carefully scrutinising Ms Guerra’s evidence and how it fits with the balance of the evidence in the trial, I could conclude that her account gained corroborative support on a number of key topics from a number of sources. Ms Guerra was said to have lacked malice or ill will towards the accused and to have provided a matter-of-fact account of things that had happened to her. In relation to the accused’s hands being around her throat, she gave evidence that she felt excruciating pain in her throat and was gasping for air after his hands were released. When asked whether her feet were on the ground, she could not recall, consistent with someone not trying to embellish their evidence.
Ms Langella said she saw red marks on her daughter’s neck. There was a conversation where the accused said words to the effect that he had tried to kill her. The prosecutor urged me to consider that in addition to the red marks, Ms Guerra gasping for air and the comment that he tried to kill her, established a reasonable, foreseeable possibility that the accused would have hindered or restricted Ms Guerra’s breath by his actions. Even if the accused’s version is accepted, Ms Guerra was shouting at him immediately prior to him coming to having his hands around her neck and the natural inference meant pressure on her neck was to stop her shouting.
As to the inconsistencies between the witnesses as to the sleeping arrangements, the prosecutor argued that Ms Guerra never qualified exactly how the arrangements changed or in what configuration or for what duration. In acknowledging that Ms Langella’s evidence differed to Ms Guerra’s, I might, the prosecutor submitted, consider that the person who was sleeping in the bedroom would be more certain. Ms Langella was described by the prosecutor as clearly confused and getting frazzled when giving her evidence. She was nervous and needed to drink from her water bottle multiple times, perhaps causing me to think she was overwhelmed by giving evidence. I should, the prosecutor submitted, prefer Ms Guerra’s evidence.
Ms Langella, the prosecutor submitted, must have been wrong about speaking to her former husband about the strangulation while the accused was still living in the house. Mr Guerra said he learned about the strangulation on 20 November, consistent with Ms Guerra’s evidence.
As to Count 2, Ms Guerra said the accused lunged towards her, raised both of his arm with open palms and said ‘Fuck you’, showing the positioning of his hands, which in her mind indicated that the accused was going to strangle her again. Ms Guerra said the accused told her that if she did not call her father he did not know what he was going to do, consistent with what Mr Guerra said the accused told him namely ‘I don’t know what I would have done if you never came’.
The prosecution urged me to find that moments before the allegation of Count 2 the accused having said to himself ‘That’s when I said I need to leave now because I don’t want to lose control’, show a state of mind consistent with someone who was going to lash out and threaten someone.
In summary, the prosecution submitted that in relation to Count 1, I could be satisfied of an intention beyond reasonable doubt, if I was satisfied that the choking had occurred. If I am not satisfied of the accused having the requisite intention, there was a reasonable possibility that the accused would have known or should have known that his actions would have caused a hindrance of breath.
Defence address
Defence counsel argued that the elements of the offence in Count 1 do not include ‘recklessness’ but that on any view, the prosecution had not made out the elements of either the act of Ms Guerra’s airways being stopped, hindered or restricted or any intention to stop, hinder or restrict the airways.
In relation to Count 2 the prosecution needed to show that the accused intended to put someone in fear or engaged in the conduct knowing it was possible the victim may be put in fear.
The accused went to police and forthrightly and candidly admitted that he placed his hands on Ms Guerra’s neck for one or two seconds in a manner that he demonstrated in the interview. If that were accepted there is reason to doubt Ms Guerra’s version. There was, defence counsel argued, no plausible reason to believe that the accused tailored his evidence in any way to admit to the offence of aggravated assault, but not tell the truth in relation to the elements of the offence of choking given that at the time he was not told he was under suspicion for choking. It was evident from watching the accused that he was being honest during the interview. He was motivated by a sense of duty to his wife and the desire to do the right thing. He was asked whether he was sure he wanted to continue and he said yes, he wanted to do the right thing. His motivation was that he thought if he did not do the right thing, he would be precluded from seeing his children.
Ms Guerra could not remember much of the lead-up to the December 2019 events. She could not remember any conversation other than wanting to know if she used a profanity whether the accused would be okay with that. The conversation only makes sense if there is a history of her swearing rather than simply having that conversation for no reason. It would appear from the complainant’s evidence that the choking came out of the blue and the accused simply launched at her from a metre away. The complainant’s version lacked credibility. Her version of the effect upon her was different to what she gave in her police statement, and I could not, defence counsel urged, be satisfied beyond reasonable doubt that the events happened in the way Ms Guerra claimed. In all likelihood there was embellishment added during the trial for the purpose of securing a conviction on choking and I could not be satisfied that there was an actual restriction, hindrance or blockage of the airways or any intention or reasonable foreseeability to do those things.
The evidence Ms Langella gave as to where the accused and complainant were when Ms Langella entered the bedroom was inconsistent with them having an altercation whereby Ms Guerra was trying to exit and the accused was blocking the door.
Defence counsel described as ‘extremely odd’ that Ms Guerra did not look at her neck and Ms Langella, despite having seen red marks the night before, did not look to see whether the marks were still there the next day. Given Ms Guerra said she had pain for some time in her throat but did not look in a mirror is, defence submitted, quite bizarre and lacked plausibility.
Defence counsel submitted that across all four of the family witnesses, their evidence was either extremely detailed and perfectly remembered or they were not willing to answer at all and referred to Mr Giourgas not being able to say whether his wife knew about the December 2019 event at all. Defence counsel argued that the inference to be drawn was that on topics that were not addressed in previous statements, no witness was willing to venture anything in case it was not consistent with another witness.
Ms Guerra said that she and the accused no longer had any relationship and they were simply cohabitating with minimal interaction between them after the events in Count 1 and stopped sharing a bedroom in November 2019. This was contrary not only to the statement she had given to police, but it was also contrary to the evidence given by her mother, who said she slept in the home every night during the intervening period.
Defence counsel referred to inconsistencies between the evidence of family members about who was told what and when about what would be a serious and important event in any family’s life, namely an attempt to strangle Ms Guerra. Ultimately, he submitted that if it really was the event that Ms Guerra now described where the accused’s thumbs were in the middle of her neck and she could not breathe, then it was inexplicable as to the differences between the family members as to when and whether they ever heard about it. Ms Langella can simply not be believed with respect to conversations said to have taken place at the breakfast table. It appears she has merged the two different conversations.
As to Count 2, Ms Guerra sought to make more of the card the accused gave her than was reasonably open. She said it referred to certain sexual actions with some sort of physical force or being held down, a meaning, defence counsel submitted that was not apparent upon reading it. The messages between the accused and Ms Guerra on that day show that a discussion had arisen about her plan to spend the weekend with the children at her sister’s house, and that is consistent with the accused’s account given to police about what they were arguing about. Ms Guerra could give no description of any conversation leading up to the accused saying ‘Hit me, Monica hit me’. The accused on the other hand set out a full version of events which is plausible, is corroborated by the SMS messages and had a ring of truth about it. In defence counsel’s submission, the accused gave an honest account to police and there could not reasonably have been any fear of immediate force or intention to make a threat of immediate force by him against Ms Guerra.
Analysis
Ms Guerra appeared as a confident witness, committed to the version of events that she described. I have no doubt that she genuinely felt anger and frustration at the deterioration of her relationship with the accused and that the December 2019 events were an extremely frightening and confusing experience for her, on any version of the facts. The accused’s behaviour, even on his own account, was totally unacceptable.
I do however have concerns as to the credibility and reliability of Ms Guerra’s account of events, given what I have perceived as an attempt on her part to present her evidence so that it reflects more poorly on the accused.
Ms Guerra was prone to elaborating her answers for dramatic effect, for example her descriptions regarding the need to breast feed her baby immediately because her milk might dry up, and her need to tell her doctor about the accused’s behaviour because she might be found dead, and no one would know why.
She appeared reluctant to accept that the accused was contributing financially to the household, even when shown bank records which demonstrated the extent of that contribution. Her evidence of the interpretation that she gave to the card from the accused was that she found it referred to sexual acts involving some sort of physical force or being held down. Clearly, she believed it demonstrated some sort of propensity for violence by the accused which she appeared to wish to emphasise by it being read aloud to the court. While I accept the message and what the accused meant by what he wrote is open to her interpretation, it is difficult to attribute weight to the note in the way Ms Guerra sought to highlight.
Ms Guerra’s insistence that she and the accused did not share a bedroom after the December 2019 events was inconsistent with the statement she gave to police, and inconsistent with her mother’s evidence. In my assessment, while clearly the relationship between herself and the accused was deteriorating, Ms Guerra’s evidence on this topic and her characterisation of the relationship in the almost 12 month period intervening between any allegation of violence against her, was aimed at bolstering the seriousness of the December 2019 events and the degree to which it affected her.
Furthermore, I found it difficult to reconcile the graphic account she gave in evidence of the December 2019 events with her statements to police where there was little reference to such detail. While she said in evidence that she thought she had covered the details of what she experienced by telling police she was choked, it is surprising, given my assessment of her presentation, that such a vivid and comprehensive description as she gave in her evidence was not provided to police. Her evidence that she did not look at her neck at all after the incident was difficult to reconcile with her description of the accused’s actions and lacked credibility. Plainly she is mistaken as to when it was that she spoke to her doctor.
The account given by the accused during his police interview was comprehensive and coherent and, in my view, a very frank and logical account of what he recalled from both incidents. While I do not resile from my finding that the record of interview was voluntary and not unfair, it is obvious to me that the accused attended police to tell his story and to admit to what he had done, consistent with the advice given to him by Mr Guerra. He presented in the interview as a man genuinely trying to honestly tell police what had happened with his partner. He believed he had caused Ms Guerra to be fearful of him and plainly wanted the best for her, thinking that by speaking to police he would secure that. There were times when the accused was at pains to emphasise that he accepted whatever it was that Ms Guerra had told police, despite for example, not having seen red marks on her neck himself or being aware she was unable to talk properly. At the time of the interview, the accused was aware that he was under arrest for offences of aggravated assault and there is nothing to indicate that he was tailoring his evidence to suit the elements of the offence for which he was ultimately charged.
I have concerns as to the credibility and reliability of the account given by Ms Langella. There were times when she needed to take time to collect her thoughts and while that of itself would not perhaps be thought unusual in such a stressful setting, I was left with the impression that she was at times trying to recall what it was she was supposed to say, as opposed to having a genuine recollection of the events. While Ms Langella did not demonstrate any animosity towards the accused or give an appearance of having ‘an axe to grind’, her evidence with respect to the conversations she alleged took place with the accused regarding Jill Meagher and the accused saying he had tried to kill Ms Guerra were difficult to accept as accurate given the inconsistencies between her statement to police and her evidence. In my view the conversations were more likely to have occurred as was put to Ms Langella by defence counsel in cross-examination.
Mr Guerra also appeared on occasion to need time to think before answering questions. That he would only a week before trial remember that the accused had confessed to strangling his daughter, was entirely implausible and not to his credit.
The defence have suggested a motive on Ms Guerra’s part to lie. That is, for the accused to be denied access to his children. Although I cannot conclusively find that the description Ms Guerra gave of the events in December 2019 and November 2020 was consciously coloured so as to make more dramatic or serious the consequences for the accused or not, I have been left with serious concerns as to the veracity of her evidence and the reasons for it, such that I cannot exclude as a reasonable possibility the evidence given by the accused in his record of interview as to how each of those events took place.
In this regard, with respect to the December 2019 events, I find that the accused placed his hands around Ms Guerra’s neck and held them there for one to two seconds. While he was unable to recall how much pressure he had applied, the accused told police Ms Guerra did not look like she was going to lose consciousness or blackout and was not coughing or spluttering. Having rejected the description given by Ms Guerra, I cannot be satisfied beyond reasonable doubt that in applying his hands around Ms Guerra’s neck for one or two seconds, Ms Guerra’s breathing was stopped, hindered or restricted and I find the accused not guilty of Count 1.
I am satisfied that the prosecution has proven beyond reasonable doubt each of the elements of the alternative offence of aggravated assault in December 2019.
With respect to Count 2, I have considered my findings in relation to Ms Guerra’s evidence on Count 1. I cannot be satisfied that the events as described by Ms Guerra occurred in the manner she has described. The accused gave an account of the event wherein he thought that Ms Guerra may have misunderstood the meaning of his message to her about being able to see her sister’s new baby and an argument ensued. When Ms Guerra asked him to stop patronising her, he asked her if she wanted to hurt him and if she did, to just ‘do it’. Ms Guerra told him to get out and he realised he needed to leave because he did not want to lose control. Ms Guerra came out of the room and he followed her into the corridor. He said ‘You know Monica’ and when she turned and angrily said ‘what’, he said ‘fuck you’. He told police that he was now in therapy, and he appreciated that she might feel threatened at any time and understood that he just had to take it. He said that at no stage had he tried to touch Ms Guerra or even get close to her. Having accepted this account given by the accused, I cannot be satisfied that the accused threatened Ms Guerra as she has alleged, or that Ms Guerra held a reasonable belief that the accused would carry out any threat.
I find the accused not guilty of Count 2.
Conclusion
I find the accused not guilty of Count 1, but guilty of the alternative offence of aggravated assault in December 2019.
I find the accused not guilty of Count 2.
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