R v David Anthony O'Brien - [2014] ACTSC 16

R v DAVID ANTHONY O’BRIEN
[2014] ACTSC 16 (17 February 2014)

CRIMINAL LAW – trial by judge alone – assault occasioning actual bodily harm – unlawful confinement – domestic violence – credibility of complainant and of accused – inconsistencies in complainant’s evidence considered in context of assault and consumption of prescription drugs – self-assessments of intoxication subjective – accused an admitted liar – accused’s telephone calls with son and complainant suggesting of willingness to concoct – verdicts of guilty

Crimes Act 1900 (ACT), ss 24, 34
Supreme Court Act 1933 (ACT), s 68C

No. SCC 204 of 2012

Judge: Burns J
Supreme Court of the ACT

Date: 17 February 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCC 204 of 2012
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: R
v

AND: DAVID ANTHONY O’BRIEN

ORDER

Judge:  Burns J
Date:  17 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

I find the accused David Anthony O’Brien guilty of the charge that on 19 August 2012 he unlawfully confined another person, namely Dana Tosolini.
I further find the accused guilty of the charge that on 19 August 2012 he assaulted Dana Tosolini and thereby occasioned to her actual bodily harm.

On 8 October 2013 the accused, David Anthony O’Brien, was arraigned on an indictment dated 13 November 2012 in the following terms:
Count 1That on 19 August 2012 at Canberra in the Australian Capital Territory David Anthony O’Brien unlawfully confined another person, namely, Dana Tosolini.
Count 2And further that on 19 August 2012 at Canberra aforesaid David Anthony O’Brien assaulted Dana Tosolini and thereby occasioned to her actual bodily harm.
Count 3And further that on 19 August 2012 at Canberra aforesaid David Anthony O’Brien assaulted Dana Tosolini and thereby occasioned to her actual bodily harm.

The accused entered pleas of not guilty to Counts 1 and 3, but entered a plea of guilty to Count 2. The accused had previously elected trial by judge alone, and the trial took place before myself on 16 and 17 October 2013, and 8 November 2013.

The Crown case with respect to Count 2, a charge under s 34 Crimes Act 1900 (ACT), was that the accused struck a number of blows to the face and body of the complainant. The Crown case with respect to Count 3, a charge under s 24 Crimes Act 1900 (ACT), was that he placed his hands around her throat and strangled her.

The procedure in a trial by judge alone is governed by s 68C of the Supreme Court Act 1933 (ACT) which, in summary, provides that a judge in criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a jury verdict. The section also provides that I must include the principles of law which I apply in the course of the judge alone trial, and the findings of fact that I make.

I direct myself that the Crown has the onus of proving the charges against the accused, and it must prove them to the standard of beyond reasonable doubt. The accused does not have to prove anything in this trial, and in particular does not have to prove that he is innocent of the charges. He is entitled to be presumed innocent of any charge until his guilt has been proven beyond reasonable doubt. To prove his guilt, the Crown must prove each and every element of the offences charged to the standard of beyond reasonable doubt. It is not enough for the Crown to prove that the accused is probably guilty or even that he is very likely guilty. I further direct myself that if the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disapprove the explanation or to show that it is irrelevant. If the accused offers an explanation which is consistent with his innocence, and the Crown does not disprove that explanation, the accused is entitled to be acquitted.

THE CROWN CASE

The complainant

The first witness for the Crown was Dana Tosolini. She gave her evidence by way of Closed Circuit Television. I direct myself that I am not to give her evidence any greater or lesser weight because she gave her evidence in this manner. I also do not raise any inference against the accused that her evidence was given in this way.

Ms Tosolini testified that she had known the accused for approximately 30 years, having initially met him at a nightclub where he used to work. At that time she was about 17 years old. She lost touch with him for many years, but came to know him again about nine or ten years ago through mutual friends. They commenced a romantic relationship in about August 2011. She moved into the accused’s residence in approximately January 2012. At that time the accused rented premises at 8 Norman Street in Deakin. He resided there with his son, C. Ms Tosolini testified that on 18 August 2012 she went to a housewarming party in Weston with the accused. She believed that they left the accused’s residence at about 9:00 pm and arrived at the party at about 9:15 pm. At the party she consumed two glasses of wine and two vodka cranberries. She described her level of intoxication as about two out of ten, where one was completely sober and ten was “rolling drunk”. She saw the accused drinking beer during the evening, but was unable to recall how many he had consumed. During the night they were not always together and frequently talked to other people. Ms Tosolini also consumed some cocaine which she obtained from the accused. She did not see whether the accused also consumed cocaine.

Mr Tosolini testified that they left the party at approximately 12:00 am. She said that she looked at her watch and said that they should go. As they were standing at the door of the house in Weston saying goodbye to the owners of the house, the accused appeared to become angry and stormed off. As it was raining, Ms Tosolini took her umbrella and followed the accused. They got into a car and the accused drove Ms Tosolini back to the house in Deakin. During this trip there was no conversation between them. Ms Tosolini testified that when the car pulled into the driveway at Deakin the accused turned towards her and punched her on the right side of her face. At that time he was seated in the driver’s seat, and she was in the front passenger seat. He did not say anything to her at that time. She got out of the car and went to the front door and went inside. Once inside she looked in the mirror near the door and saw a large lump on her face. She called out for the accused’s son C, who just looked at her and ran off. As C ran off, the accused took hold of Ms Tosolini and said words to the effect of “Don’t call my son” or “Keep my son out of this”. He then grabbed her by the hair and dragged her into the main bedroom and threw her on the bed and started punching her. While he was dragging her to the bedroom the accused told her to shut up and not to involve his son.

In the main bedroom, Ms Tosolini said that the accused punched her numerous times whilst she was on the bed and then on the floor.

Ms Tosolini described the accused as being much bigger and stronger than her, and that each blow by the accused knocked her senseless. She remembered being punched from everywhere and trying to get away, and then falling on the floor and the accused still punching her on the floor and swearing at her. She was unsure of the number of blows that were delivered, but thought that it may have been ten to fifteen in the first few minutes. Most of those blows landed on her head and shoulders. She tried to get away, but every time she moved he hit her. Following the first series of blows, the accused then grabbed her by her hair and slammed her head against the wall and told her to “Fucking shut up” or he would “Kill her and bury her in the forest and no one would ever find her”.. She then fell to the floor again. The accused continued to hit her. She was still calling out for C. Ms Tosolini called out “Help me. Call the police. Call an ambulance. Help”.

The accused later choked her with his hands, and told her to “Shut the fuck up”. He was telling her she was a “Stupid fucking cunt bitch”, and she was just like all the rest of them, and to shut up. Ms Tosolini said that this incident had been going on for hours before she was choked by the accused. She kept falling in and out of consciousness. When she woke up she would plead with the accused to take her to hospital, or would call to C, and every time she did that the accused would bash her again. When she was being choked by the accused she almost passed out and thought that she was going to die.

Ms Tosolini was uncertain about the sequence of events, saying that she was blacking out all the way through the continuing assault upon her. She recalled that early in the continuing assault upon her she woke up on the floor, and looked in a mirror and saw that her head was swollen to twice its normal size. Her eyes were black and she could hardly see, and she could feel blood running down either side of her nose. She begged the accused to take her to hospital, saying “I think I’m going blind”. She was begging him and crying. She said that the accused replied “Oh, that’s just a cut on your forehead. Shut up.” He then stuck his fingers into her eyes and said “I’ll show you fucking blind”. His fingers went into the corners of her eyes.

During the course of this incident the accused forced Ms Tosolini to take painkillers and also Xanax tablets. Ms Tosolini said that she tried to leave the bedroom on a number of occasions during this incident, but that the accused stopped her. She said that on one occasion she was on the bed in the main bedroom while the accused was cleaning blood around the house. He came in and out of the bedroom on a number of occasions. When he was out of the bedroom Ms Tosolini opened the curtains and tried to unwind the window, but the accused returned and caught her and beat her. He told her to just keep quiet and stay in the bedroom. She thought that this occurred the day after the incident began. On another occasion, she tried to leave through the front door, and he grabbed her and beat her again. She was unable to recall precisely when she made these attempts to leave the bedroom, but thought that they were some hours apart. On the Sunday night, she found her mobile phone and took it with her into the bathroom. She dialled ‘000’, but received a recorded message. She put the phone down flat with a cover facing up so that the accused could not see that she had rung ‘000’ if he entered the bathroom. When he came in she started talking loudly because she was scared that he would hear the sound of the recorded message on the phone. She was not sure, but she thought that he grabbed the phone, and then beat her again. He then threw her on the bed again and told her to stay there and shut up.

Ms Tosolini testified that she was begging the accused to take her to hospital, because her eyes were black and swollen and she thought that she had suffered some form of damage. She could hardly see. The accused put her on the bed, and got a wet towel and wiped her head, saying “I will take you to hospital tomorrow, darling, when your swelling goes down”. She said that she did not try to escape again because she was too scared and drugged. She did not recall how many times she blacked out, but said it occurred lots of times. She also testified that she called out for C quite a few times, probably somewhere between four and six times. She said that on occasion C would open the door to the bedroom, look in and look scared and then close the door.

On Monday morning, Ms Tosolini again pleaded with the accused to take her to hospital. He agreed and drove her to Calvary Hospital. On the way to Calvary Hospital he told her to say that she had been beaten up in the toilets at the Hellenic Club by some women and a guy, and to say that he had come in to save her. He said that he would pay for any reconstructive surgery that she needed and everything would be fine. At Calvary Hospital she was immediately admitted through the Emergency Department and given a CT scan. Ms Tosolini said that she told the staff what had happened to the best of her ability, however she was very drugged at the time. Police arrived shortly thereafter.

Photographs taken of Ms Tosolini’s injuries shortly thereafter became Exhibit 1 in the trial. There can be no doubt that Ms Tosolini suffered extensive injuries in the course of this incident. She suffered extensive bruising, cuts and abrasions.

During the course of Ms Tosolini’s evidence recordings of two telephone conversations between the accused and Ms Tosolini, whilst the accused was on remand at the Alexander Maconochie Centre (AMC), were played. The first such conversation occurred on 16 January 2013:

Ms Tosolini:    DPP, and, um, and she said, look I can come and see you if I want to. I’ve got to – the first thing I’ve got to – I went then into - - -
Accused: Mm.
Ms Tosolini:    - - - and they gave me all these papers that I’ve got to fill in – it’s not just a matter of doing one paper. So I’ve bought them home. I’m doing that today. I’m going to sit – I’m going to put it in today and they said it takes five to ten working days - - -
Accused: Okay.
Ms Tosolini:    - - - before I can come in.
Accused: Oh, before you can come in? Okay.
Ms Tosolini:    Yeah.
Accused: Okay. Well, I’ve got some half good news because, um, I spoke to my solicitor yesterday - -
Ms Tosolini:    Yeah.
Accused: - - - and, um, he said, you know, that the order’s not going to change anything legally. It’s not going to – it’s not going to change, ah, I’m not going to be able to, um, apply for bail on the basis of that. He said, but what does happen, is that, you know, if you don’t, um, um, I mean if – if – if she doesn’t turn up to court to, ah, to bury me, then they’ve actually got to fucking withdraw – they’ve got to withdraw the whole thing, so you know, they turn around and say to you oh well, you know, we can just go right ahead now and, um, and do it without her, well that’s bullshit. You know, they haven’t got - - -
Ms Tosolini:    Yeah, but I can’t...(inaudible)...- - -
Accused: - - -a case – they haven’t got a case without her.
Ms Tosolini:    I can’t just not show up at court though, they’ll fucking come and get me. I have to turn up to court.
Accused:Ah, well you don’t actually. Um - - -
Ms Tosolini:    Really?
Accused: Yeah, really. And, um, I’ve also – look obviously – obviously we can’t talk to him about it because it’s a, um, conflict of interest, but we’ve, um, did you know Mark’s back in town?
Ms Tosolini:    Yeah.
Accused: Um, I’m wanting to talk to him or wanting to get you to talk to him regarding where you stand, because that’s what mine told me to do, he said, look, I can’t talk to her but do you know somebody who can? And I said yeah, I said – and then as it turns out, he’s back here now – Mark’s back here in - -
Ms Tosolini:    He is, yeah.
Accused: - - - Canberra, so um, I, um, I’d like to see him actually. But first up, I mean, yeah, if we can do that, there’s a good chance anyway that, um, that they’re not going to do ahead with it and, ah – look, they’re not going to be happy, obviously. There going to fucking jump up and – but this is what happens in ninety percent of these cases. This is what, you know Danielle did five, six months later, almost identical amount of time goes by and usually the girl just goes look, I want to get on with my life, I’m not going to be fucking dragged through the courts over this sordid bullshit, so leave me alone, um. Basically, what all – all – all she had to do was go and get a bloody a psychologist to say that you are in no fit state emotionally to be giving fucking statements at that time anyway and they dismissed the fucking thing.
Ms Tosolini:    Well, I’m not – I’m a total - - -
Accused: Exactly.
Ms Tosolini:    - - - emotional wreck. I’ve had to go - - -
Accused: Exactly.
Ms Tosolini:    - - - and find another psychologist and my anti-depressants aren’t working and - - -
Accused: No, but I’m talking about – I’m talking about the very first – you know the days afterwards, when – when the statements and the accounts were given. You were even in less of a bloody mental, um, you know, place of clarity to be able to be doing it then, by, you know, ten times, so um, it’s really quite an easy thing to get out of and girls do it every single fucking day of the week and like I said, Danielle – it’s almost identical to that. Because that’s - - -
Ms Tosolini:    Why is it all falling on me?
Accused: Hey?
Ms Tosolini:    Why does this all have to fall on me?
Accused: Well, it’s only for one time - - -
Ms Tosolini:    You know, the fully ...(inaudible)...
Accused: Well, it’s only for the one time, its only for the one time. You just have to bear the brunt of them being oh, [they’re] going to say this and that and you’re a public nuisance and we can charge you with that and you just go yeah, yeah, yeah. I mean that’s just bullshit anyway, because – because of that fact. The fact is that, you know, two or three days after this happened, you were giving a statement you were not in a physical or an emotional – you weren’t a hundred percent right? You weren’t in a state to be – to be thinking clearly. So, you know, and that’s more than easy enough to be proven. So you don’t take on their guilt. They’re public servants, right, who are just trying to fuck me. As I keep telling you, all they’re trying to do - - -
Ms Tosolini:    ...(inaudible)...
Accused: - - - is get another little notch on their belt and put another fucking – put another person away. That’s their job. Their job is to get convictions and never - - -
Ms Tosolini:    Yeah, I know.
Accused: - - - and never lose sight of that darling. They’re not there to help you or me, all they’re there for is to just fucking destroy families, break they up and throw people in jail and they don’t give a fuck about all the other stuff – that’s not their job.

The second conversation occurred on 17 January 2013:

Ms Tosolini:    Well, I didn’t remember of course. You know me. But - - -
Accused: Yeah.
Ms Tosolini:    - - - when I read the form, it said I have to go to the hearing - - -
Accused: Mm.
Ms Tosolini:    - - - it says – anyway, I’m there Tuesday.
Accused: Well, Danielle had a few interesting things to say, which - - -
Ms Tosolini:    Oh, did she – what did - - -
Accused: - - - ah, I’d like you to have a talk to her about it. Well, she just said that once she’d, ah, once she’d declined – what we have to do is just to officially, you have to, you know, get some advice from a – some legal advice - - -
Ms Tosolini:    Yeah, I’m meeting him tomorrow.
Accused: - - - I – Mark?
Ms Tosolini:    Yes.
Accused: Oh, really? Well done, darling.
Ms Tosolini:    ...(inaudible)...
Accused: Oh, good girl. Good girl. It’s really – I mean it’s really just a matter of – I mean – um, the sooner this can be done, so I really appreciate you, um, um, you know, like stepping up the pace of this because the sooner it’s done, the bloody sooner I’ve got a chance of getting out of here, you know, and, ah, and that’s almost a surreal concept to me. I’ve been in here so fucking long. You know what I mean. I mean, there’s no – the trial hasn’t been set. I thought it had, but it hadn’t been set. Um, so we don’t know when the trial’s going to be, whether it’s even this year or not so - - -
Ms Tosolini:    Yeah.
Accused: - - - um, it’s going to be a long time though, and, ah, and if we can get these other matters out of the way, um - - -
Ms Tosolini:    Well, I can’t – I can’t reverse – like I’ve spoken to the DPP, there’s no way I can reverse it, but I’ll speak to Mark tomorrow - - -
Accused: No, no, no, but there’s all – yeah, Mark will - - -
Ms Tosolini:    I’ll speak to Mark - - -

Accused: Mark will tell you, yeah.
Ms Tosolini:    Yep.
Accused: There is such a thing as a hostile witness and basically you just don’t, ah, it’s pretty much pleading the fifth amendment – or similar to pleading the fifth amendment, but you don’t just say anything, basically. They can’t – they can like, like they say, you know, you can drag a – you can take a horse to water but you can’t make it drink.
Ms Tosolini:    Yeah.
Accused: You know, so they can call you into a – on the witness box, but they can’t – they can’t bloody make you, you know, say anything you don’t want to, so.
Ms Tosolini:    Yeah.
Accused: Um, and it’s best to be seen that, um, it’s best to be seen that you’ve, um, done that on your own bat, and, um, and the bat of legal advice, rather than - - -
Ms Tosolini:    Yep.
Accused: - - - me or, um, or obviously my – my legal representation - - -
Ms Tosolini:    Yeah.
Accused: - - - because it’s um, not in their interests – it’s a conflict of interests for them and it’s not in my interests either, so, um, so yeah, it’s got to be seen that your doing of your - of your own volition.
Ms Tosolini:    Yep.
Accused: So, anyway. Um, yeah.

Ms Tosolini explained that “Danielle” referred to in the course of the above conversation is a reference to the accused’s oldest child. The “Mark” referred to is a lawyer friend of Ms Tosolini.

Ms Tosolini explained that she came to speak to the accused because his daughter, Danielle, rang her in a distraught condition while the accused was in custody, and Ms Tosolini attended her house to try to calm her down. The accused rang his daughter while Ms Tosolini was at the house. Danielle passed the phone to Ms Tosolini without telling her it was the accused. She spoke to him because she wanted to know why he had done what he did. She said that she was an emotional wreck and that she thought he could also help her financially. She said that she did not initiate the conversation about whether she would be giving evidence in court proceedings, she simply responded to him. She testified that she wanted to see him in the AMC to try to understand why he had done these things to her. She said that it was the accused who brought up the possibility of her changing her story, and she was trying to tell him that she could not change her evidence. She said she just agreed with him because she did not want to make him angry.

In cross examination Ms Tosolini clarified that the extracts from the two conversations set out above did not occur on the day that she went to Danielle’s house. She said that she had many telephone conversations with the accused whilst he was in custody, probably 20. She was asked whether she was considering reconciling with the accused when she had those conversations, and she said not really, she just wanted some closure.

Ms Tosolini was questioned about events at the housewarming party on the night of 18 August 2012. She said that she did not really know the owners of the house, and that they were really friends of the accused. She reiterated her earlier evidence that she looked at her watch at 12:00 am and thought it was time to leave. She said that she thought they left within half an hour to three quarters of an hour after that. She agreed that they were amongst the last to leave.

It was suggested to Ms Tosolini that she was much more intoxicated than she had indicated in her evidence in chief, a proposition she rejected. She denied the suggestion that she said to one of the hosts of the party as she left the house following the accused “The cunt’s making me walk”. Ms Tosolini also denied the suggestion that she was not punched in the car by the accused when they arrived at the house in Deakin. She said that she was shocked by the blow, because she was engaged to the accused. She knew that he was angry by the look on his face, and it was her “defence mechanism” when he was angry to just “shut up”. She said that she had said nothing to make him hit her, and he just punched her for no reason.

Ms Tosolini said that at that time she had nowhere else to go. She agreed that her ex-husband lived about 20 minutes walk from the accused’s house in Deakin, but she had very high heel shoes on and it was 1 o’clock in the morning and her ex-husband would not have picked her up anyway. She agreed that up to that time she would, from time to time, reside at her ex-husband’s house to look after her children. She was asked whether it occurred to her on the night to leave the accused in the car and walk away from the house. She replied that she had often thought about that since then, and she had no idea other than perhaps she was in shock.

Ms Tosolini gave evidence that after leaving the car she unlocked the front door to the house and entered. She denied the proposition put to her that the front door had been unlocked. She said that she was the first person into the house, followed closely by the accused. She said that after she looked at herself in the mirror in the hallway she called out “[C], look what he’s done to me this time”. The accused then came in behind her, and told C to go away, and told her to “Shut the fuck up” and started dragging her into the bedroom. She denied the proposition that after entering the house she went to the kitchen and started to make a cup of tea. She denied that an argument had commenced between herself and the accused in the kitchen, and that she had thrown a cup of hot water over the accused. She said that as the accused began to drag her to the bedroom by her hair, and she was screaming. She could not recall what she was saying.

It was put to Ms Tosolini that when she spoke to police about an hour after her arrival at hospital she told them of being punched by the accused in the car, to which she agreed. It was suggested to her that she was then asked whether the car was in the driveway of the house in Deakin, to which she replied to the police:

Yes, so I assume. Look, it’s all a big blur, I have to say. But I assume – I tried to get in the house. And as soon as we got in the house, I started calling out for [C], his son, to say, “Look what he’s done. Come and help me.” And of course he grabs me by the head, and he says, “Don’t call [C]. Shut your mouth” and dragged me kicking and screaming into his bedroom.

Ms Tosolini agreed that she said that to police, because at the time she was still under the influence of Xanax, and had been severely beaten. She said that at that time some things, such as the sequence of events, were a blur but there were some things that were extremely vivid. She denied being blurry about the circumstances of the incident just after entering the house. She said that her memory of events improved over the next few days after she was admitted to hospital as the drugs wore off.

Ms Tosolini said that she first tried to leave the house after this incident commenced some time on the Sunday morning. She could not remember exactly when, as her eyes were shut from the bruising and she found it hard to see at that time. She found it hard to estimate times that things occurred during the course of this incident because she kept blacking out. She said that on one occasion she tried to leave the house by opening the bedroom door very carefully and sneaking around the corner, presumably to leave by the front door, but the accused caught her. She said that the accused was cleaning up blood around the house, and kept coming and going from the bedroom. There was a lot of blood in the bedroom which he was trying to clean up. She agreed that there was blood in the hallway of the house, and thought that the accused must have beaten her as he was dragging her to the bedroom. She said that whilst she could not remember, she assumed that she was beaten in the hallway as well. She also testified that the accused caught her on the Sunday trying to make it to the front door, and he punched her again.

It was put to Ms Tosolini that when she returned to the accused house early Sunday morning she was quite intoxicated, which she denied. It was further put to her that she was angry with the accused, which she also denied. It was also suggested to her that she had not called out to C, and that C had only appeared after she had thrown hot water over the accused. She denied both propositions. It was put to Ms Tosolini that an argument broke out between her and the accused on the Sunday about her leaving the house. It was suggested to her that the accused ordered her out of the house early Sunday morning, after she had thrown hot water over him. She denied this proposition. It was suggested to her that the accused had not dragged her to the bedroom by her hair, which she also denied. It was also suggested to her that she had attempted to punch the accused in the bedroom. Ms Tosolini vehemently denied this suggestion, pointing out that the accused is 6’4” tall and much larger than her. Ms Tosolini is 5’8” tall, and at that time weighed about 59 kg. It was then put to her that after she struck the accused in the face, he hit her twice to the face. She denied this. It was suggested that only two blows were struck, one a backhander to her face and then a second blow moving in the opposite direction. She denied that this occurred. It was suggested that the second blow caused a cut over her eye which bled profusely. Ms Tosolini said that that was not how it happened.

Ms Tosolini gave evidence that the door of the main bedroom remained closed throughout the period after the initial beating, and when she was slipping in and out of consciousness. It was suggested to her that the door had in fact been open the whole time, which she denied.

It was put to Ms Tosolini that at some point at the outset of this incident in the early hours of the Sunday morning she actually managed to get out of the house, which she denied. It was suggested to her that she managed to leave the house and get into a Volkswagen vehicle and drive a short distance, knocking over the accused and running over his leg. She described the suggestion as nonsense and an absolute lie. It was suggested that after this occurred she simply stopped the vehicle, and went back inside. She denied that suggestion.

It was suggested to Ms Tosolini that the accused provided her with Thai takeaway food on the Sunday. Ms Tosolini denied this suggestion, saying that she could not have eaten and that she could hardly swallow. It was also suggested to her that the accused left the house on the Sunday to pick up his son C from a skate park. Ms Tosolini said that that might have happened, but she would not have known. She said “He stuffed me full of so much Xanax he could have done that before and left me for half an hour and made sure that I was knocked [sic] and then gone and picked up [C].”

Ms Tosolini was cross examined about her evidence that she made a telephone call from the ensuite bathroom to the main bedroom. She was asked when that occurred in the sequence of events she had described. She said:

It was towards the end. When I say “towards the end”, I mean the incident, the actual bashing incident happened from when we got home all the way through until probably mid Sunday afternoon, late Sunday afternoon. So it was towards the end of all of that.

Ms Tosolini said she was sure that she had made this call, but had received a recorded message. She said that the accused came into the bathroom, took the phone away from her and threw her back into the bedroom and beat her again. When asked to describe the beating, she said that he punched her a number of times.

It was put to Ms Tosolini that when she gave a statement to police she did not say that she had blacked out on a number of occasions throughout this incident. It was suggested to her that she had only referred to blacking out at some point on Sunday night. Ms Tosolini said that she had not referred to every incidence of blacking out in her statement because she did not realise that it was important. Ms Tosolini denied the allegation that she was embellishing her evidence.

At the end of his cross examination, counsel for the accused put a number of propositions to Ms Tosolini about these events. I have already dealt with some of those propositions, and I will not rehearse them here. It was suggested to Ms Tosolini that after the argument in the main bedroom the accused picked her up and carried her towards the front door. She denied this. It was suggested that the accused deposited her outside the front door, and closed the door. It was further suggested that she kicked the door, damaging the hinge. She denied all of these suggestions. It was suggested that she then asked for her handbag, and the accused opened the door and handed her her handbag. She denied this. It was put to her that she then proceeded to the Volkswagen vehicle in the driveway, and the incident occurred in which it was alleged she ran over the accused’s leg. She also denied this allegation. It was suggested that she then went back into the house where a violent struggle occurred between the accused and her, and that during the struggle she fell and hit her head either on a clothes horse or a helmet. Ms Tosolini agreed that she could have fallen over when the accused was dragging her when she was trying to get out the front door while trying to escape, but denied that events occurred in the way suggested by the accused. She denied a further suggestion that during the course of a further violent exchange between the two of them in the bedroom the accused hit her on several further occasions to the face. It was suggested to her that the accused had not forced her to take any painkilling medication or Xanax, and that she took it of her own accord. She rejected that suggestion. It was further suggested that it was about 3:00 am when she arrived home, and that she went to sleep at about 5:00 or 6:00 am and that she didn’t wake up again until Sunday afternoon. She rejected those suggestions. It was also suggested that she was always free to leave the property, which she denied.

The other Crown witnesses

The next Crown witness was Tamasin Abbs. She testified that on Monday 20 August 2012 she was residing in Deakin. That morning, at about 8:20 am, she drove past a house in Norman Street Deakin, which she thought was had the number it is admitted is the accused’s address, and saw a young lady on the steps of the house who appeared to be slumped over with her hands in front of her face. She removed her hands and Ms Abbs noticed a lot of swelling, which seemed disproportionate to her body and her stature. She was slumped, and appeared to be staring and looked like she was beyond caring. She appeared to be wearing a tracksuit.

The next Crown witness was Constable Mark Grima. At about 1:00 pm on 20 August 2012 he attended Calvary Hospital in response to a call from staff alleging a suspected assault on a female. He spoke to Ms Tosolini, and took some photos of her injuries. At about 8:30 pm, after obtaining a search warrant, he conducted a search of the accused’s premises at Norman Street, Deakin. In the course of executing that search warrant the accused made a number of statements to the police about events that had occurred between him and Dana Tosolini. He said that when they arrived home on Sunday morning they were both bleeding because of an altercation that they had been in. He said that they were both extremely intoxicated when they arrived home. He said that the altercation took place in the car park near the Hellenic Club. He told police that he had done his best to care for Ms Tosolini’s injuries, but she had been cantankerous and not particularly rational. He said that he did not contact the police about the assault, and that he does not contact the police about anything. In the course of the search police located Ms Tosolini’s white Apple iPhone, which had a damaged screen. When asked how the phone was damaged, the accused said that had been cracked for ages.

Constable Grima gave evidence of remarks made by the accused which were not recorded during the execution of the search warrant:

As best you can remember, can you tell his Honour what you recall him saying to you?---Yes, there was a remark where he said, “If she had have kept quiet, this wouldn’t have happened. We had a long sleep about 20 hours that day although I “ – being the accused – “didn’t sleep that long. She slept longer”. There was a remark about having a big night, drinking a lot of alcohol or possibly not a lot of alcohol but they had French champagne, and that makes them silly. The accused made a remark about Ms Tosolini apparently making a comment that she wasn’t permitted to go to the hospital, but as soon as the accused woke up the next morning, it was obvious that Ms Tosolini needed to go to hospital. I think that’s---
Did he say anything about the accused – sorry, about Ms Tosolini keeping quiet?---Yes, he said that if she had kept quiet, this wouldn’t have occurred.

During the evidence of Constable Grima portions of footage of the accused’s admission to the watch house after his arrest were played. This footage displayed portions of the reception of the accused into the watch house on 20 August 2012, and his interaction with staff of the watch house. The accused shows no sign of any injury to his leg, and appears to walk without any difficulty or discomfort. He is able to stand for relatively long periods of time without any obvious discomfort. When asked by the watch house Sergeant whether he has any medical conditions, the accused makes no reference to any leg injury other than to say that he has a problem with his knees, and that he had previously had knee reconstruction surgery.

Photographs taken of the accused by police whilst he was in custody as part of a forensic procedure were also tendered into evidence. In cross examination of Constable Grima counsel for the accused suggested that in addition to those photographs, photographs were taken of the accused’s left leg. Constable Grima said that to his knowledge no photographs were taken of the accused leg.

The next Crown witness was Katrina Dwyer, who was a registered nurse on duty in the Emergency Department at Calvary Hospital on 20 August 2012. She gave the following evidence of her observations of Ms Tosolini, and the complaint Ms Tosolini made to her:

Did you observe – or could you tell his Honour what, if any, injuries you observed about her person?---Her face was extremely swollen. Her eyes were – she had extensive bruising over her face, particularly both her eyes. She could barely open both of her eyes. She had bruising behind her right here [sic]. She had dried blood all in her right ear. She had what looked like – well, my initial impression was strangulation marks to her neck. Her neck was very swollen as well. She – when she cried, she had bloodstained tears. She had dried blood all over her face. She – that was my initial impression. Initially what I saw.
Did you get a look at her eyes?---Yes, when she – I asked her to open her eyes and she could open her eyes a little bit, I had to help her. And she had quite broken capillaries in both eyes. One was worse than the other, but I cannot remember which.
Just for his Honour’s benefit, what are capillaries?---Small blood – the smallest blood vessels.
So that is bleeding in the eye, essentially?---Yes.
Did you make any observations about her capacity to swallow?---She described – she wanted a cup of tea or – and a drink of water because she felt that it was very hard to swallow. She had pain on swallowing.
Did you observe anything about her arms, legs and torso?---I do not remember her arms, legs and torso. I do remember her complaining of leg pain and – actually, later I did look at her torso and she had bruising on her torso. I do not remember – I did not examine her leg or anything.
Now, did you ask her how she sustained these injuries?---Yes, I did.
What did she tell you?---She told me that her partner had assaulted her, that – repeatedly and that each time she tried to get away he would assault her again, and that he had her in a bedroom and that is where he sort of kept her and would not let her leave.

Did she say anything about choking or strangulation?---Yes, she said that he had tried to strangle her.

In the course of the Crown case a number of statements were tendered by consent. A statement from Samantha Cunningham, a crime scene investigator for the AFP, recorded apparent bloodstains being found on the hallway floor, on the rear of the couch in the main living room, on the floor to the rear of the couch in the main living room, on the hallway door handle, on a clothes rack behind the hallway door, on the wall in the main living room, on the doorframe to the hallway door, on the foyer floor, on the toilet door, in the shower recess of the main bathroom, on the central cupboard door in the foyer, on the floor of the main bedroom, on the exterior door handle to the main bedroom, on the head rest of the bed in the main bedroom, on the wall clock in the main bedroom, on the chest of drawers in the main bedroom, on the floor and exterior shower wall of the ensuite to the main bedroom, on the wall near the toilet roll in the ensuite to the main bedroom, on the mirror in the ensuite to the main bedroom, on the ceiling of the main bedroom and on the laundry floor. In addition hair was located on the floor between the hallway and the foyer, and hair and apparent blood was located on the floor of the main bedroom towards the foot of the bed. Apparent blood staining was also found on some clothing and other material within the house. Photographs of the house showing the areas of blood staining were tendered as an exhibit. Samples of the bloodstains at the house revealed DNA highly consistent with that of Ms Tosolini.

THE DEFENCE CASE

After the close of the Crown case, a document containing formal admissions made by the accused was tendered by his counsel. The following admissions were made:

1.During the execution of a search warrant at the accused’s premises at X Norman Street, Deakin, ACT, the accused told police:
a.That he caught a taxi home to his premises at X Norman Street Deakin the early hours of 19 August 2012 with Dana Tosolini; and
b.He and Dana Tosolini were involved in a fight in the car park at the Woden Hellenic club that evening.

2. Neither of the comments referred to in paragraphs 1(a) and (b) were true. Neither he nor Ms Tosolini were involved in any incident at the Hellenic Club, and they did not catch a taxi home.

3.On 20 August 2012 the accused conveyed Dana Tosolini to the Canberra Hospital so that her injuries could be treated. When the triage nurse at the Emergency Department counter asked Ms Tosolini to provide a brief history as to how she sustained her injuries, the accused replied that:
a.She occasioned them during an incident at the Hellenic Club involving persons unknown;
b.He also sustained injuries during that incident.

4.The comments made by the accused referred to in paragraphs 3 (a) and (b) were untrue.

5. At 3:00pm on 20 August 2012 the accused spoke with Bruce Adams. The accused [sic] Adams that he had been in a fight that he had been in a fight [sic] at a house warming party involving himself, Ms Toslini, two unnamed females, and a male. He then asked Mr Adams to take care of his son, [C], for the night as he expected to be detained by police.

6. The comments made by the accused to Mr Adams about being involved in a fight at a house warming party were not true. Neither of the accused nor Ms Tosolini were involved in a fight at a house warming party.

The accused

The accused gave evidence. He said that in August 2012 he was residing at premises at Norman Street Deakin, and at that time was a single parent and a musician. He had primary care of his son, C, who was 13 years old at the time. He testified that Ms Tosolini used to alternate weeks between his house and her own house, because she had alternating weeks of custody of her own children at that time. He said that he and Ms Tosolini had been effectively living together in this arrangement for about six months. He said that on Friday 18 August 2012 he and Ms Tosolini went to dinner with friends and consumed a lot of alcohol. On the Saturday night, 19 August 2012, they attended a housewarming party with people he knew at Weston. They arrived at about 9:30 or 9:45 pm. He testified that they left the party between 3:00 and 3:30 am the following morning. He said that he consumed alcohol and cocaine at the party. He described himself as heavily intoxicated. He saw Ms Tosolini drinking wine, champagne and vodka throughout the night. He said that she was clearly intoxicated.

He said that when he and Ms Tosolini left the party, he drove them home in his BMW. He denied being in a bad mood during the journey back to Deakin. He denied punching her in the car after the car pulled into the driveway. He said that Ms Tosolini alighted and went into the house first. He followed her, and they went straight to the kitchen. As far as he could remember, the front door was unlocked. In the kitchen they started arguing. He said that he told Ms Tosolini that he resented the fact that she treated her children differently to his. He said that she denied that suggestion and also took offence to some comment of his about her drinking. He testified that this argument only went on for a few minutes, becoming louder and louder. Ms Tosolini was making tea at that time, and he said that she picked up her mug and threw the water at him, hit him in the face and the chest area. He said that the water was very hot, and he felt pain. He testified that Ms Tosolini then got up and stormed towards the bedroom. He was telling her that she had to leave. He followed her into the bedroom and brushed himself off with a towel, where there was a further confrontation. He continued to tell her that she had to leave, and the argument degenerated into the two of them yelling abuse at each other. He grabbed her by the arms, and tried to remove her from the house. She scratched his face with her fingernails. He then slapped her with the back of his hand a couple of times. He said that a ring on his middle finger hit her over the eye, making her bleed. He described the ring as a big square, gold ring with a diamond in it. He described the first blow to her as a backhand. He said that he hit her two or three times at that point, describing them as “hard, controlled hits”. He said that she then began bleeding.

The accused testified that Ms Tosolini continued to scream at him, and he was pleading with her to shut up. He may or may not have slapped her again at that time. He denied ever using a closed fist to hit her. He accepted that he was angry, and lost his temper, but he was concerned about his son. He said that this initial incident lasted for about five to ten minutes, after which he attempted to physically remove her. He put his arms under her arms and tried to escort her to the front door, but she kicked and screamed, at one point falling over. When she fell over she knocked over a clothes horse and his son’s bike helmet. He struggled to get her out the front door, eventually succeeding. He testified that he thought he slapped her again, giving her another few backhands because she was kicking and hitting him.

The accused said that when she got outside the front door, he slammed the door shut and locked it. He said that Ms Tosolini then forcefully kicked the lower part of the front door causing some damage to the hinge. He opened the door again and told her to leave, reminding her that C was in the house. She said she needed her handbag. He believes that he obtained her handbag, and gave it to her. He then shut the front door again. He heard the jingling of keys from behind the front door, at which time he recalled that she had keys to his Volkswagen motor vehicle. He didn’t want her driving the car, as he was concerned for her safety, so he opened the front door and went down to where the Volkswagen and the BMW were parked in the driveway. He said that Ms Tosolini was in the car, which she started and revved heavily. He tried to prevent her from leaving. He had one hand on the roof of the car, and one hand on the door of the car and tried, with his foot, to remove her foot from the accelerator. He said that he was also trying to get the keys out of the ignition. He testified that the car jerked backwards about a foot and a half and he fell onto his backside. He said that his left leg was under the front tyre and Ms Tosolini accelerated up the driveway about three or four metres. He said that the car ran over his lower leg, which at the time he barely felt because it happened so quickly.

The accused testified that he suffered an injury to his leg when it was run over by Ms Tosolini. He said that he indicated the area of that injury to police on 21 August 2012 when he was photographed as part of the forensic procedure after his arrest, and that police took a photograph of the injury. He said that he was absolutely certain that police had taken such a photograph, as he had to pull his trousers down to show the injury because his jeans were too tight around his calves. He testified that he did not initially seek medical assistance for that injury, and that his leg became swollen and sore the day after it was injured. He said once he was remanded in custody, the injury flared up and he sought medical assistance. He said that he was hospitalised on 23 August 2012 due to a blood infection. Initially, he was in hospital for two or three days before he was released. However, two days later he was readmitted for a further period of two weeks. In the course of his evidence the accused pulled up the left leg of his trousers, revealing an area of discolouration to his leg.

The accused testified that he followed Ms Tosolini back into the house after his leg had been run over. He said that Ms Tosolini was in the landing area outside the bedrooms, pulling clothing out. She said that she was concerned about “all her stuff”. The accused told her that she could come back and get her stuff tomorrow. He said that she just continued pulling stuff out. She was making a lot of noise, which caused him to become agitated. He said that she was laughing at him, which incensed him even more. He testified that he then slapped her again about two or three times. The next thing he remembered was being in the bedroom, when things had calmed down a little bit. Ms Tosolini’s face was all bruised, and he said he felt incredibly bad for the disgusting behaviour of both of them and what he done to her. He apologised to her, and said that she apologised to him as well. He said that her injuries had started to swell, which horrified him.

The accused said that he offered Ms Tosolini painkillers, which she accepted. He also gave her either a sheet of Xanax tablets, or the entire packet. He said that Ms Tosolini took the tablets herself, without his assistance. He denied having forcibly administered Xanax to her. He described Ms Tosolini as taking a handful of his Xanax tablets.

The accused testified that after Ms Tosolini took the Xanax tablets he started cleaning the blood from around the house. At that time Ms Tosolini was in bed. After he had done the cleaning he and Ms Tosolini talked for about an hour until she fell asleep. He believed that it was just getting light when she fell asleep. When his son got out of bed he tended to him. At about 8:30 or 9:00 am his son left the house to go to a skate park. The accused said that he went to bed at about 10:00 am, and then both he and Ms Tosolini woke up at about 3:30 or 4:00 pm. He disputed vehemently the proposition that Ms Tosolini had been confined to the house during the course of the Sunday. He said that when the two of them woke up Ms Tosolini took another “handful” of Xanax, and he made a cup of tea for them both. He said that he spent the rest of the day tidying up, trying to make Ms Tosolini feel comfortable, apologising to her and trying to make sense of it all. He left the house, he said, between 4:30 and 5:00 pm to pick up his son. He said that Ms Tosolini was awake when he left. He was away for about 15 minutes. He said that he later left the house at about 7:00 pm to get takeaway food at Manuka. He said that during the day he made Ms Tosolini toast and cups of tea and gave her juice. He also gave her some of the takeaway food. He said that she ate it whilst she was in bed.

The accused said that he and Ms Tosolini discussed obtaining medical treatment for her on the Sunday. He said that they discussed her injuries and came to the conclusion that she did not have any broken bones. She asked him about her eyes, and he looked at them and told her that if she wanted him to he would take her to the hospital in the morning. She said she was fine with that. In his evidence the accused said that he had concerns about the ramifications for himself of taking her to hospital, as he thought he would be arrested and he did not want his son to be left alone.

The accused said that on Monday 21 August 2012, he took Ms Tosolini to Calvary Hospital. He said he was not aware of Ms Tosolini leaving the house and sitting on the front steps that morning. He said that on the way to the hospital there was a conversation about what account would be provided to the hospital staff of how Ms Tosolini sustained her injuries. He said that he suggested the account of Ms Tosolini being injured at an incident at the Hellenic Club. He said he was concerned that his son would be taken away from him, and that was why he suggested that account to Ms Tosolini.

In cross examination the accused agreed that he has, in the past, told lies to get himself out of trouble. He denied having told lies with respect to this matter however. He did, subsequently, agree that he had lied to the police in the course of the execution of the search warrant by telling them he had been in a fight at the car park of the Hellenic Club on Saturday night. He was also cross examined about whether he told police that he had taken a taxi home on Saturday night. I am satisfied that his conversation with the police during the execution of the search warrant is equivocal on this issue. However, in the admissions signed by the accused and tendered as Exhibit 14 he said that he did take a taxi home on Saturday night. He explained this by saying that he had not properly read the document before signing it.

The accused agreed that at Calvary Hospital he told the triage nurse that Ms Tosolini had been in a fight at the Hellenic Club, and he agreed this was another lie. He also agreed that on Monday evening he met with a friend of his, Bruce Adams, and told him that he and Ms Tosolini got into a fight at a housewarming party. He agreed this was also a lie. He accepted that he had lied to police, hospital staff and his own friend about what had happened. A telling piece of evidence was the following exchange:

Well, let me ask you this, Mr O’Brien. If you’re prepared to lie to the police and to your own friends, is there anyone who you would not be prepared to lie to?
If it involved my son, which it did at the time, probably not.

The accused was then cross examined about his telephone conversations with Ms Tosolini from the AMC. He agreed that he had suggested to Ms Tosolini that she tell the police she was mentally ill and that she should not have given a statement. He disputed telling her that she should become a hostile witness, saying that he had “made an observation”. It was put to the accused that he had a telephone conversation with his son C on 10 October 2013, and made it clear to his son that he should come and see the accused before he went to see his lawyers. Initially, the accused said that he had told his son that he wanted him to come and see him before they went to court, but quickly agreed that he may have said that his son should see him before he saw his lawyers. It was suggested to him that after saying this to C, C had replied “So I can get the story?”, to which the accused replied “Yes, yes, yes”. The accused responded to this question by saying “Wrong, wrong, wrong”.

The accused agreed that he had been drinking alcohol and using cocaine on the evening of 18 August 2012. He said that he snorted three or four lines of cocaine over about five or six hours. He was shown the photographs of the injuries inflicted on Ms Tosolini and asked whether it was his evidence that those injuries had only been inflicted with the back of his hand. The accused said that was his evidence. He thought that the bruising around her chest area was caused by him being rough with her clothing, and when they were wrestling in the bedroom. He was taken to the photos which depicted injuries to Ms Tosolini’s neck and throat and asked whether that was also caused by him grabbing her clothing. He said that he could not be 100% sure. He denied the proposition that he had struck Ms Tosolini all over her body with a closed fist. He was unable to recall how many times he had hit her with the back of his hand, but said that it might have been between eight and ten times. He agreed that Ms Tosolini had bruises to her legs, but he thought they were probably inflicted during the struggle. He agreed that he is 6’4” tall, and at the time weighed about 108 kg, and that Ms Tosolini is 5’8” tall and weighed about 60 kg. He agreed that, in terms of weight, Ms Tosolini was about half his size. He agreed that the struggle with Ms Tosolini was one-sided and involved him bashing her. It was suggested to the accused that he was never run over by a car driven by Ms Tosolini on 20 August, which he denied. He agreed that he had told police at the watch house that he had no medical conditions or complaints. He said that when police took a photo of his leg at the police station, it occurred at the same time that they took the other photographs. He said there was no break between the police taking the other photographs of him, and of the photograph of his leg. When asked how he would explain a video recording of the forensic procedure not showing his leg being photographed he said “Perhaps something’s happened to it”.

In cross examination the accused agreed that he had told the Court that he attended hospital on 23 August 2012. It was pointed out to the accused that he in fact attended the Magistrates Court for a bail application that day. The accused said that he must have gotten the day wrong. The Crown suggested to him that he did go to the hospital on 24 August 2012, but not for treatment of a crush injury but for treatment for blood pressure. The accused said that was nonsense.

The accused accepted that the injuries sustained by the complainant were “horrific”. However, he said that she agreed not to attend hospital until the Monday morning. It was suggested to him that he initially did not take her to hospital because he was afraid that police would be notified, and he would be charged with serious criminal offences. The accused said that he was quite prepared to take her to hospital and admit to what he had done, which was obvious from the fact that he took her on Monday morning. It was suggested to him that he only took her to hospital on Monday morning because he knew that she had an ex-husband and children who would be looking for her. The accused said he did not think about that.

It was put to the accused that he was in a very agitated state in the early hours of 19 August 2012 after having consumed a significant quantity of alcohol and cocaine. He denied that.

The accused’s son

The second and final witness for the defence was the accused’s son, C. As at 17 October 2013 when he gave evidence he was 15 years old, but he was 14 at the time of these events. He gave evidence that he is currently residing in New South Wales with his mother and that he arrived in Canberra to give evidence in the preceding on Tuesday, presumably 15 October 2013. He said that he had not seen the accused face-to-face in the week before he gave evidence. He testified that prior to 20 August 2012 he was residing with the accused. He recalled the accused and Ms Tosolini returning home at about 2:00 am on the Sunday morning. He was asleep at the time, but was awoken by the car pulling into the driveway, and he heard them walking up the front stairs. He said that at that time he got up and unlocked the front door to make it easy for them to get into the house. He then went back to his bedroom and tried to go to sleep. He recalled that the accused and Ms Tosolini got into an argument. It went on for “a little bit” before he went to the kitchen to try to defuse the situation. He said that he saw Ms Tosolini throw hot tea over the accused. He testified that he then returned to his bedroom, and the accused and Ms Tosolini were still arguing as they made their way towards the main bedroom.

He testified that the next thing he recalled was that the accused and Ms Tosolini had gone out to the car, and were having an argument near the car. He said he was looking out the front window and saw Ms Tosolini try to start the car. He said that he looked down, and the car moved. He saw the accused in a position that “basically looked like he got run over”. He saw the car stop, and he saw the accused hobble and sit down on or lean against the ledge in the driveway. He said that they both then came back into the house.

C testified that he saw the accused strike Ms Tosolini four times over the whole night. When he saw that he was in his bedroom, looking out the door, and the accused and Ms Tosolini were in the main bedroom. He saw Ms Tosolini leaning against the bed and he saw the accused’s hand raise and he heard the contact with Ms Tosolini. This occurred not long after the incident where he thought his father had been run over by the car. He also testified that he saw other similar instances of violence between the accused and was Tosolini during the course of the night. He was able to recall that the accused and Ms Tosolini were yelling and swearing. He thought that the whole incident took about two and a half hours. He testified that the next morning he went to Woden skate park. His father picked him up and took him home early to mid afternoon. At the house he saw Ms Tosolini walking around and getting food and drink. He noticed that her face was injured. That night his father left the house to get Chinese food. He said that when the accused left to get the Chinese food he was left in the house with Ms Tosolini and their tenant Matt. The accused was only away from the house for five or ten minutes. He recalled that Ms Tosolini had called out his name on one occasion just after the accused struck her the first time.

In cross examination C agreed that the accused spoke to him before he was arrested and advised him that he, the accused, expected to be arrested. He denied that the accused told him what to say to the police. He said that his father had simply told him to tell the truth. He agreed that he had visited the accused a number of times in the AMC, and regularly spoke to him on the telephone. He agreed that he had spoken to the accused on the telephone the preceding Thursday prior to him giving evidence, presumably 10 October 2013, but denied speaking to the accused about what evidence or story might be told in court. The Crown then played a recording of the conversation between the witness and the accused.

The witness agreed that the recording was of a conversation between himself and the accused. He was asked whether he heard himself in that recording saying to the accused “So I can get your info and use that”, and his father reply “Yes, yes, yes”. The witness said:

Well, when I say “info”, I don’t mean, like, as in a story. I just mean – like, he just wanted to know – well, basically, to run me through what we’re going to be speaking about. And then I’ll do it with the lawyer as well, just because, as you know, I’m emotional and, yes, I was just upset. So he was helping me through it, as my dad, because I haven’t lived with my mum my whole life and dad helps me through everything. And he was just helping me.

The witness denied the suggestion that the “info” was a reference to the evidence to be given in court in this trial. He said “No, I don’t mean the actual story and the evidence. I just mean what we would be talking about, because I was just – I just didn’t understand it. And I was just nervous.” He could not recall what he meant when he said, in reference to the “info”, “to use that”.

The witness said that he did not like Ms Tosolini, and agreed that he told police that he hated her. He said that he had exaggerated a bit when speaking to police, and that he just did not get along with her, and “just disliked her a bit”. It was suggested to the witness that he had lied to police by telling them that Ms Tosolini had punched him in the jaw. He denied having said that. He was then shown a record of conversation between himself and police and agreed that it recorded him telling police that Ms Tosolini had punched him in the head. He said that he had not remembered making that statement when denying having told the police that Ms Tosolini had punched him.

Before closing his case the accused tendered two single page documents from the records of the Canberra Hospital. The first is a report of an x-ray of the accused on 30 August 2012. It records the accused complaining of being run over by a car 10 days previously. The findings on examination were that knee joint effusion was present and no fracture was identified in the left tibia and fibula. The second document is nursing progress notes recorded on 30 August 2012, recording that the accused presented with left leg cellulitis after being run over 10 days earlier.

CROWN CASE IN REPLY

After the close of the case for the accused, the Crown was granted leave to call evidence in reply. Constable Grima was recalled and testified to being present during the forensic procedure in which the accused was photographed on 20 August 2012. He testified that the forensic procedure was video recorded, and that he had not in any way edited or tampered with the recording. He denied that during the course of the forensic procedure the accused requested that photographs be taken of his legs, or complained of an injury to his legs. He said that no photographs were taken of the accused’s legs, nor did the accused remove his pants at all during the procedure. Counsel for the accused accepted that the video recording of the forensic procedure, which became Exhibit 16, did not depict photographs being taken of the accused’s leg, or the accused removing his pants.

In reply the Crown also tendered medical records from the Canberra Hospital. Those records show the accused being examined in the Emergency Department on 24 August 2012 complaining of chills, rigor and a general body ache since the previous night. The records show no complaint of any injury to his leg. Progress notes from the AMC Clinic for the period 24 August 2012 to 29 August 2012 reveal that the first complaint made by the accused that he had been run over by a car wheel prior to arrest was at 6:15 pm on 28 August 2012.

CONSIDERATION

It is obvious that the credibility of Ms Tosolini, the accused and C are important issues in this trial. I found Ms Tosolini to be a generally reliable and credible witness, if somewhat excitable. The accused attacked her credibility, saying that she had minimised her degree of intoxication at the housewarming party on 18 and 19 August 2012, and that she was wrong in her evidence as to the time she and the accused left the party. He also submitted that her evidence denying that she had thrown a cup of hot water or tea on the accused in the kitchen on their return from the party was contradicted by the evidence of C. He further submitted that her account of the commencement of this incident was implausible, as it revealed no rational motive for the accused to have punched Ms Tosolini while they were in the car in the driveway to his home. Counsel for the accused was also critical of the lack of precision in the evidence of Ms Tosolini, particularly as to the chronology of events after they returned to the accused’s home. Counsel also criticised Ms Tosolini’s evidence when she said she lost consciousness after being strangled by the accused, whereas she had told police that she nearly lost consciousness. It was also submitted that the evidence of Ms Abbs contradicted the evidence of Ms Tosolini that she had been held against her will in the accused’s house. It was further asserted that if events had occurred in the way described by Ms Tosolini one would expect that she would have suffered even more serious injuries such as broken bones or loss of teeth.

Before I consider any further the question of the credibility of Ms Tosolini, it is appropriate that I consider the credibility of the accused and of C. If I cannot be satisfied beyond reasonable doubt that events did not occur as described by the accused, and as somewhat corroborated by C, I could not be satisfied that the accused was guilty of the charges to which he has entered pleas of not guilty.

I make it clear that I found the accused to be a most unsatisfactory witness. He himself admits that he lied to police, to staff at the hospital and to his friend about how Ms Tosolini received her injuries. He also admits suggesting to Ms Tosolini in the car on the way to the hospital that she lie about the way in which her injuries were inflicted, by telling hospital staff that she had been involved in an altercation at the Hellenic Club. I am also satisfied that he lied in the course of the trial by saying that he complained to police during the course of the forensic procedure about an injury to his leg, and that police photographed his leg as a consequence of his complaint. I am satisfied that this is not something about which the accused could have been honestly mistaken. He was adamant that this had occurred, and explained his certainty by reference to the need for him to take off his trousers for the photograph to be taken. That is not something about which the accused could have been mistaken. I am satisfied that he deliberately lied about that issue. I am satisfied that the accused is willing to lie whenever he thinks that he may profit by a lie.

I am also satisfied that in his telephone conversations with Ms Tosolini from the AMC, as set out above, the accused was attempting to manipulate Ms Tosolini either into changing her statement to police as to how she received her injuries, or refusing to cooperate in the process of trying the accused. I accept that this does not prove a consciousness of guilt with respect to the counts to which the accused has pleaded not guilty, but it is relevant to determining his credibility. If nothing else, it reveals the extent to which he is prepared to go to avoid conviction for these charges.

It is also, in my opinion, utterly implausible that Ms Tosolini, suffering the injuries depicted in the photographs, would not have asked for the accused to take her to hospital for immediate medical treatment. To suggest, as the accused did, that he and Ms Tosolini agreed that she would be taken to hospital on the Monday morning is so implausible that I dismiss it out of hand.

Turning to the evidence of C, I am also satisfied that he was not a credible witness. The telephone conversation between him and the accused on 10 October 2013 revealed his willingness to confer with the accused prior to the trial to ensure that he told the same version of events in his evidence as the accused. His explanation for this conversation was confused and implausible. It is also clear that he bears some animosity towards Ms Tosolini.

I am satisfied that neither the accused nor C are truthful or reliable witnesses. As such, I am satisfied their evidence cannot support the proposition that events occurred in the manner in which they described.

Returning to Ms Tosolini, it is possible that she underestimated the extent of her intoxication on 18 and 19 August 2012. I note that in the statement of Paul Miller, the host of the 18 August housewarming party, he formed the view that Ms Tosolini was already intoxicated when she arrived at the party. This does not appear to be supported by any other evidence, and in particular was not asserted by the accused. Assessments of intoxication, including (perhaps particularly) self assessments, are notoriously subjective. It may well be that Ms Tosolini was more intoxicated than she now appreciates, but that does not give me any concern about her credibility generally. Similarly, she may have been mistaken about the time when she and the accused left the party, but that does not give me any concern about her credibility generally. It is fair to say, as counsel for the accused did, that the evidence of Ms Tosolini about the chronology of events after they returned to the accused’s home was imprecise. It must be remembered, however, that even on the accused’s version of events she was subjected to a brutal beating which resulted in significant injury. It would hardly be surprising in those circumstances if Ms Tosolini had difficulty remembering the sequence of events. Ms Tosolini also alleged that the accused forced her to take Xanax tablets. That could also explain her inability to be precise about the sequence of events. As such, her lack of precision about the sequence of events does not, of itself, give me any reason to doubt her credibility. I was not at all convinced that there was any material difference between what Ms Tosolini told the police occurred after the accused strangled her, and what she said in evidence at the trial.

As noted earlier, counsel for the accused submitted that Ms Tosolini’s version of the commencement of this incident was implausible because it did not explain why the accused would have struck her in the car. As the accused’s counsel expressed it, human nature would expect that there would be some trigger involved in bringing about the violence that subsequently occurred. Ordinarily, I would accept that to be the case. However, in this case the accused admitted to consuming cocaine as well as alcohol at the party. It is notorious that those affected by illicit drugs do not always act rationally or as might be expected of those who were not so intoxicated.

There was a minor inconsistency between Ms Tosolini’s evidence and that of Mr Miller, in that Mr Miller said that when she was leaving the housewarming party on the morning of 19 August 2012, the complainant said, referring to the accused, something like “the cunt’s making me walk”. Ms Tosolini denied saying this. I note that Mr Miller was, apparently, not certain of the exact words used. In any event, it is not a matter which causes me to doubt the credibility of Ms Tosolini about the subsequent events of that day.

In assessing the credibility of Ms Tosolini I also take into account that she made an immediate complaint to staff at the hospital about not only being assaulted by the accused but also held by him against her will. Not only is this complaint relevant to assessing the credibility of Ms Tosolini, it is also evidence of the truth of the contents of the complaint.

I now turn to the allegation that Ms Tosolini ran over the leg of the accused in the driveway of the house at Deakin on the morning of 19 August 2012. I am satisfied that this simply did not occur. The only direct evidence of this alleged event came from the accused and C. For the reasons that I have given I do not accept them as credible or truthful witnesses. In addition, the accused sought no treatment for, nor did he make any complaint about, an injury to his leg until eight days later, when he was being held in custody. In those eight days he did not make any complaint to police at the watch house, or to staff at the AMC, about any injury to his leg. I was able to observe on video tendered by the Crown the accused moving freely at the watch house without any indication of pain or discomfort. The medical records for Canberra Hospital and the AMC Clinic also so not record any complaint by the accused in those eight days. The accused first attended hospital on 24 August 2012 in relation to a cold, chill and body ache, he was discharged after a few hours. Following his brief visit to the Emergency Department at Canberra Hospital on 24 August, the nursing notes from the AMC Clinic until 28 August reveal continued review by medical staff several times a day both in the clinic and on their rounds. The accused’s principal complaints during this time are recorded as being of abdominal pain and rash. The accused is recorded as feeling better on 27 August. The accused first made a complaint in relation to his left leg on 28 August at 18:15 pm; he told the nurse at that time that his leg had been run over prior to his arrest. He was hospitalised in relation to his leg infection on 30 August 2012. He appears to have remained in hospital for some time. I have no doubt that the accused did suffer an infection in his left leg which required hospitalisation and treatment. I am, however, also satisfied that the accused opportunistically used that condition to suggest that he had been injured by Ms Tosolini in this incident.

CONCLUSION

I accept the evidence of Ms Tosolini and reject that of the accused and C. I am satisfied beyond a reasonable doubt that on 19 August 2012 the accused punched Ms Tosolini to the face when they were both seated in a car in the driveway of the accused’s residence in Deakin. She got out of the car and went inside. Inside the house she was attacked by the accused after she called to C to help her. I am satisfied that the accused took hold of Ms Tosolini’s hair and dragged her to the main bedroom. He threw her on the bed and, later on, the floor. He threatened to kill her. He subsequently choked her with his hands. He physically stopped her from leaving the premises on 19 August, despite her injuries and the fact that she made it clear that she wanted medical attention. Ms Tosolini lapsed in and out of consciousness by reason of the assaults upon her, and the drugs the accused forced her to take.

I am satisfied beyond a reasonable doubt that the accused is guilty of Counts 1 and 3.
I certify that the preceding eighty four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Burns,.
Associate:
Date: 17 February 2014

Counsel for the Crown:  Mr A Williamson
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Accused:  Mr R Livingston
Solicitor for the Accused:  Craig Lynch & Associates
Date of Hearing:  16, 17 October & 8 November 2013
Date of Judgment:  17 February 2014