R v Danielsen No. DCCRM-03-368

R v DANIELSEN
[2003] SADC 128
Judge Lowrie
Criminal

Mr Danielsen is charged with three offences. The first count is aggravated serious criminal trespass, in that it is alleged that on 30 December 2002 he entered and remained in a residence at Bordertown as a trespasser with the intention of committing an offence, namely an offence against the person, or, in effect was recklessly indifferent to the consequences of his acts.
The second count was assaulting a family member, namely his wife, Helen Fisher.
The third count was common assault on the young man, Paul Delaney.
Mr Danielsen pleaded not guilty to the first count, but guilty to the second and third counts. It appears from his evidence he alleged that factually he was involved in a pushing melee involving his wife, Ms Fisher, in the shed and very much a grappling encounter coming into contact with Mr Delaney who was also in that shed at that time. That was the basis of his plea. The Crown allege that the basis of those counts was an entry and a forceful hit to the face of Ms Fisher, and two blows in and about the head of Mr Delaney.
The matter went to trial. Mr Danielsen elected for trial by judge alone.
I am conscious, of course, of the extensive obligation on the Crown. I will not outline those directions, but the Crown has an onus to prove all matters beyond a reasonable doubt before Mr Danielsen can be convicted of these offences.
Helen Fisher and the young man, Paul Delaney, and two police officers gave evidence, including a short video interview that occurred at Mount Gambier after Mr Danielsen had been arrested at Bordertown for breaching a restraining order. Following that time these charges were laid.
Ms Fisher gave evidence about the nature of her marriage to Mr Danielsen. In brief terms, it was a marriage that lasted approximately eight years. She had been married on a prior occasion and has two adult children, and of her marriage to Mr Danielsen, there were two children, Sarah and Kane, both now aged, I think, 13 and 12.
She outlined a number of unfortunate incidents that had occurred in their married life. Shortly prior to this time Mr Danielsen had been in gaol at Mount Gambier. She outlined briefly a number of places where she had lived before living at Bordertown with her children. Clearly, it has been an ongoing difficult and violent marriage. In recent years she said the marriage was ‘not pleasant’.
That may be an understatement, and particularly it appears, even from Mr Danielsen’s evidence, there were, as he motioned with his hands, ‘up and down’ problems, with some violence occurring between the partners.
In any event, it seems that Mr Danielsen was about to be released from gaol at Mount Gambier and there had been some contact between the two of them. It appears that shortly before this incident Ms Fisher had sought a restraining order with the assistance of police at Bordertown directed to Mr Danielsen and restraining him from contact. That was served on Mr Danielsen, who was then, after his release in December, living with his parents at Goolwa.
There seems to have been no doubt about some contact between Mr Danielsen and Ms Fisher in this time. She outlined how, when he was released, he was for a time at Bordertown. There was discussion about where he should live. She said that she eventually took him to Tailem Bend, where he was picked up by his mother and then taken to where she lived at Goolwa. From the text messages today, in this time there was some contact. But notwithstanding that, she took out the restraining order. It was served in December. I have said it is apparent that there was some social contact particularly with Ms Fisher endeavouring to arrange accommodation for Mr Danielsen and discussions concerning contact with his son, Kane.
In any event, Ms Fisher outlined how she had a rented house at Bordertown. It was a house comprising a number of bedrooms and living rooms in the main house and a shed at the rear. She had her bedroom in this shed. She worked at Bordertown where she met this young man, Mr Delaney. He was, in effect, on the day of the incident between houses and she said that for a few days she let him reside in the shed.
She was in the shed with him this evening. She was sitting on the bed. She believes they were in conversation, when suddenly Mr Danielsen came through the door. Clearly, there was some abusive language used, certainly by Mr Danielsen, and probably by both, and in that instant of entry, she said she was struck a forceful blow by him to the bridge of her nose, which resulted in abrasions to both sides of her face.
She then described how briefly Mr Danielsen attacked Mr Delaney who was on the bed. She believed he was struck. In any event, Mr Delaney was able to get out of the shed. She saw him go. She remained. There is no doubt the strong language continued. She may have been hysterical. Both Ms Fisher and Mr Danielsen returned to the house. The police subsequently arrived.
Mr Danielsen was arrested for being in breach of the restraining order.
Ms Fisher made it plain that she had not, in fact, invited Mr Danielsen into the shed this evening. He had no consent to be there. He was there without her consent, and certainly of his own initiative.
Mr Delaney is a young man in his early 20s, very forthright and very straightforward in his allegations of what occurred on this night. He expressed himself very simply in a most honest and convincing manner. He described how he was in the shed talking to Ms Fisher when he saw the handle move on the door and then saw ‘Gus’ enter. Mr Delaney had met Gus on one prior occasion.
In any event, he saw a forceful blow by Gus to the face of Ms Fisher. By that time he thought he was standing up. In any event, Gus hit him twice to each side of his head. He said there might have been more. He remembered he called them ‘two big ones’ to his face. He felt one miss. Mr Delaney was then able to rush out of the shed, jumped the fence and went down to the neighbour’s and immediately used a phone to call the police. The neighbour persuaded him to stay until the police arrived and then he went back to the house.
His evidence was really in very short compass. It was very direct. I believe it was given in an honest fashion in describing the entry of Mr Danielsen into the shed and the blows that then occurred both to Ms Fisher and himself.
The police evidence was formal. I will not go through it, or indeed the video interview where Mr Danielsen explained his reasons for being in and about the premises on this evening. There are some matters there, which do raise concern.
Mr Danielsen gave evidence on oath and outlined his background, outlined this difficult marriage, and agreed that there had been some incidents of violence between the two of them. Clearly, it was a dysfunctional relationship. He outlined how he had worked at the Tatiara Meat Company, living at Bordertown, and was endeavouring after his release in December to get back and put his marriage on foot again, and no doubt driven very much, I would assume, by his need to contact his children, particularly Kane.
He recalled how after he got out of prison, Ms Fisher drove him to Tailem Bend. His mother took him to her home, and thereafter there was contact between Ms Fisher and himself with Ms Fisher endeavouring to arrange alternate premises for him to live in at Bordertown. There were a number of text messages. He recalled having a discussion with her when they endeavoured to lay out some conditions of their ongoing relationship and some strict conditions about him not drinking, and indeed only able to see her when she consented. He said he was prepared to do this in an effort to keep his marriage on foot.
He outlined on the day in question how he had been to Kingston and he had returned and saw the child Sarah at Bordertown who said her mother was not at home. He asked where Kane was and thought Sarah said he was at the house. He then went to the house. He did not expect that Ms Fisher would be there. He heard some talking and entered the shed.
On entering the shed, he observed Ms Fisher and Mr Delaney, and he said, in his words, ‘they were on the bed’. He said he became ‘very emotional’. He said there was a grappling at the door. He said he was motivated more out of frustration. There was pushing. He remembered pushing Ms Fisher into the fridge. He thought Mr Delaney came at him quickly, and he grappled with him in the doorway, and then Mr Delaney got past and left.
He said he could not recall hitting Ms Fisher. His only involvement was a pushing of her and similarly Mr Delaney. He did not recall punching Mr Delaney. He remembered the verbal confrontation. He outlined his understanding of the restraining order that had been made and felt because of the nature of his ongoing discussions with Ms Fisher that there was this general invitation for him to visit Kane.
This morning in court he produced a SIM card. There is no doubt that there were discussions by text messages on 23, 24 and 26 December 2002 from Ms Fisher to him. I refer to those messages and the content of them.
Mr Kyrimis has outlined at length what he believes are the uncertainties that have occurred in the evidence of both Ms Fisher and Mr Delaney. There are some. I would regard them as small inconsistencies, not of great moment. A suggestion of Ms Fisher’s motives was to place the accused in breach of the restraining order, and I should not accept the evidence of the assaults and view their evidence as unreliable.
In breakdown situations between spouses, matters can get out of control and irrational and violent behaviour can occur. Clearly the restraining order was on foot and had been served on him. Mr Danielsen was aware of the nature of that order. On the other hand, there seems to have been some social conduct between the two in endeavouring to sort out the basis of their relationship, and, some discussions regarding the child, Kane.
I am not here to concern myself with the basis of that restraining order and/or if it was breached.
I am here to concern myself whether Mr Danielsen did, as a trespasser, enter the shed, and in entering the shed was the intention then to commit the offence against the person.
There are some issues that do cause some concern about the nature of the relationship at that time between Mr Danielsen and Ms Fisher. However, they do not place her in a bad light really only to try and house her spouse other than with her. I have little doubt in accepting Ms Fisher’s evidence. The social contact relationship issues after Mr Danielsen was released from prison do not cause me any concern. I accept she had not invited Mr Danielsen to her home this evening. He entered and almost immediately on entering he erupted with anger and violently hit her to the face.
I have no doubt at all accepting the evidence of the young man, Mr Delaney. Such evidence went unquestioned. The entry, immediate violence, the punch to Ms Fisher and numerous punches to him.
There is no doubt whatsoever that the Crown has established to my satisfaction beyond reasonable doubt all of the elements that are necessary to prove that Mr Danielsen did on this evening, as a trespasser, enter this room and became visibly angry and assault the victims in the manner as described by both in their evidence.
Consequently, I find all charges proved beyond a reasonable doubt and convict Mr Danielsen on each charge.

[2003] SADC 128

7 August 2003