R v Evans; R v Stott
[2020] ACTSC 220
•14 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Evans; R v Stott |
Citation: | [2020] ACTSC 220 |
Hearing Dates: | 25-29 May; 1-3 June 2020 |
DecisionDate: | 14 August 2020 |
Before: | Burns J |
Decision: | See [176]-[177] |
| Catchwords: Legislation cited: Texts cited: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – unlawful confinement – intentionally inflicting actual bodily harm – make demand accompanied by a threat – attempt to detain another with the intent to hold for an advantage – consideration of the evidence Crimes Act 1900 (ACT) ss 23, 32, 34, 38 Criminal Code 2002 (ACT) ss 44, 45A Supreme Court Act 1933 (ACT) ss 68B, 68C Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 15th ed, 2020) |
Parties: | The Queen (Crown) David Micheal Evans (Accused) Sharon Stott (Accused) |
Representation: | Counsel K Lee (Crown) J Moffett (Accused) S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused) Kamy Saeedi Law (Accused) | |
File Number: | SCC 156 of 2019; SCC 90 of 2019 |
BURNS J:
On 25 May 2020, David Micheal Evans and Sharon Ann Stott (the accused) were arraigned on an indictment dated 23 July 2019, containing four counts. The accused pleaded not guilty to the charges that on 18 January 2019, at Canberra in the Australian Capital Territory, they:
(1)unlawfully confined another person, namely DT, contrary to s 34 of the Crimes Act 1900 (ACT) (the Crimes Act) by virtue of s 45A of the Criminal Code 2002 (ACT) (the Criminal Code);
(2)intentionally inflicted actual bodily harm on DT, contrary to s 23(1) of the Crimes Act by virtue of s 45A of the Criminal Code; and
(3)made a demand of another person, namely DT, with threat to endanger the health, safety or physical wellbeing of DT, contrary to s 32(2) of the Crimes Act by virtue of s 45A of the Criminal Code.
Ms Stott also pleaded not guilty to a further offence that on 18 January 2019 at Canberra, she:
(4)did attempt to take away or detain a person, namely DT, with the intent of holding him for an advantage, contrary to s 38 of the Crimes Act by virtue of s 44 of the Criminal Code.
Election
The accused have both elected to be tried by judge alone, pursuant to s 68B of the Supreme Court Act 1933 (ACT) (the Supreme Court Act).
Procedural history
Ms Stott and Mr Evans were charged with the present offences in the ACT Magistrates Court on 1 February 2019 and 6 May 2019 respectively. The accused and three other co-accused were also charged with several other offences relating to a separate incident at Oaks Estate, ACT (the Oaks Estate charges). The accused entered pleas of not guilty in the ACT Magistrates Court.
The charges were committed for trial to this Court on 15 March 2019 in relation to Ms Stott, and on 21 June 2019 in relation to Mr Evans. On 6 May 2019, the present charges were severed from the Oaks Estate charges. The Crown filed an indictment on 23 July 2019 in relation to the present charges, and these matters were listed for trial commencing on 18 November 2019. The Oaks Estate charges were listed for trial commencing on 25 November 2019.
On 22 August 2019, the Crown filed a Notice of Intention to Adduce Tendency Evidence in relation to Ms Stott’s present charges. The application came before myself on 26 August 2019. At that time, counsel for Ms Stott were not in a position to make submissions and sought an adjournment. I adjourned the matter to 12 September 2019. The application was then heard by Mossop J, and on 9 October 2019 his Honour ruled that two of the incidents were admissible in the trial of Ms Stott. Ultimately, the Crown only led evidence of one of these incidents in the present trial, consisting of events that occurred in 2009.
The matters were listed for a Criminal Case Conference on 21 October 2019 and 24 October 2019 but were not resolved. On 31 October 2019, the Crown filed a joint indictment containing both the present charges and the Oaks Estate charges. This joint trial was opposed by the other co-accused in the Oaks Estate trial. On 7 November 2019, the matters were listed for directions before the Registrar and parties indicated that an agreement may be able to be reached. On 13 November 2019, the matters were listed for callover before Murrell CJ. It was agreed that the Oaks Estate trial should be heard first to allow the evidence of the complainant to be recorded (the tendency evidence). It was proposed that this recording of the tendency evidence be admitted in the present trial. Her Honour vacated the trial date for the present charges.
The Oaks Estate trial came before Loukas-Karlsson J on 25 November 2019. The matters resolved and proceeded to sentence before her Honour.
On 20 May 2020, the present matters were listed for callover before Murrell CJ and this trial came before me on 25 May 2020.
General principles to be applied
Section 68C(2) of the Supreme Court Act requires that I set out the principles of law applied and the findings of fact on which I have relied. I must take into account the directions and warnings which would be required by law to be given to a jury: s 68C(3) of the Supreme Court Act.
The Crown holds the onus of proving the accused guilty with respect to each of the charges to the standard of beyond reasonable doubt. The Crown must prove each element of the offences charged to this standard. If the Crown fails to do so, the accused must be acquitted.
The accused is presumed to be innocent of any charge until such time as the Crown establishes their guilt beyond reasonable doubt. The accused is not required to give evidence and bears no onus of proof in this trial.
I must only draw inferences against the accused if it is the only inference that may rationally and reasonably be drawn from the circumstances.
I must assess the reliability of each witness. I must consider the evidence dispassionately and rationally. I may also apply my common sense. I must bring an open and unbiased mind to the evidence in making findings of fact.
Specific principles to be applied
Joint trials
The cases against Mr Evans and Ms Stott must be considered separately. Each charge against each accused must also be considered separately.
Joint commission
The accused have been charged with Counts 1 to 3 by virtue of s 45A of the Criminal Code. The Crown must prove beyond reasonable doubt that the offence was committed. Each element of the offence must be proven beyond reasonable doubt, irrespective of which accused committed them. The Crown must also prove beyond reasonable doubt that each accused was a participant in the commission of the offence, and the offence was undertaken in the course of carrying out an agreement.
Expert evidence
Expert evidence was led by the Crown. Unlike other witnesses, a witness with such a specialised knowledge may express an opinion on matters within his or her particular area of expertise. I must have regard to the reliability and accuracy of the material which the expert used to reach his or her opinion, and the skill and experience the expert brought to bear in formulating the opinion given.
Audio-visual link evidence
Several witnesses gave evidence by way of audio-visual link, including the complainant. This is standard practice. I must not draw any inference against the accused because the evidence was given in this way. I must not give the evidence any greater or lesser weight because it was given in this way. I should assess the evidence in the same way as I would assess the evidence of any other witness.
Hearsay assertions
The Crown relies on hearsay assertions in this trial, including text messages sent by Ms Catherine Howsan to her father and others. I must warn myself that hearsay assertions may be unreliable: s 165(1)(a) of the Evidence Act 2011 (ACT) (the Evidence Act).
Consciousness of guilt
The Crown submitted that Ms Stott’s phone call to the police assistance number, rather than 000, where she only referred to the damage to her car, was evidence of a consciousness of guilt. Before I may take this into account as evidence of Ms Stott’s guilt, I must first be satisfied that this relates to an issue that is relevant to the offence. Secondly, I must be satisfied that Ms Stott acted in this way because she feared that telling the truth might reveal her guilt in relation to the offence.
Tendency
In its case against Ms Stott, the Crown relies on evidence of an incident to establish that Ms Stott has a tendency to: participate with one or more male accomplices in holding or confining a person against their will to recover the debt or the purported debt; and to threaten and use violence and to direct accomplices to use violence against a person to recover a real or purported debt.
If I am satisfied that this incident occurred, I must consider whether I can conclude from the incident that Ms Stott had one or more of the tendencies alleged by the Crown. If I am not satisfied of this, I must disregard these tendencies.
If I am satisfied that Ms Stott had one or more of the tendencies, I may use this fact in considering whether the accused is guilty of the offences. However, I must also consider whether Ms Stott acted in a way consistent with one or more of the tendencies on 18 January 2019. I direct myself that the evidence of this incident must not be used in any other way.
Attempt
Ms Stott is charged with attempting to take away or detain a person with the intention of holding him for an advantage, contrary to s 38 of the Crimes Act by virtue of s 44 of the Criminal Code. In order to convict Ms Stott of this offence, I must first be satisfied beyond reasonable doubt that Ms Stott intended to commit this offence. Secondly, I must be satisfied beyond reasonable doubt that Ms Stott embarked upon the commission of this offence. Mere preparation to commit the offence is insufficient.
Self-defence
Counsel for Mr Evans submitted that self-defence has been raised in relation to Mr Evans by the evidence of Ms Howsan. If the evidence of Ms Howsan is accepted and self-defence has been raised, the onus falls on the Crown to establish beyond reasonable doubt that the accused was not acting in self-defence.
Identification
In relation to Mr Evans, I direct myself that there is a special need for caution before accepting identification evidence: s 116 of the Evidence Act. I must warn myself that identification evidence may be unreliable: s 165(1)(b) of the Evidence Act. There is a possibility that a witness may be mistaken about their identification of the accused. I must carefully consider the circumstances of the complainant’s identification of the accused, which may affect the reliability of the evidence.
Circumstantial case on the identification of the male offender
The Crown’s case against Mr Evans is circumstantial. There is no direct evidence that Mr Evans was the male person who was involved in the commission of these offences. The Crown must prove that there is no inference reasonably available on the evidence other than the guilt of the accused. I must look at the evidence holistically, rather than adopting a piecemeal approach.
The evidence
DT
DT gave evidence that on the afternoon of 18 January 2019 he stopped at the house of a friend in Kambah, ACT. The house was occupied by a friend of his whom he knew as “Cathy”. It is clear from other evidence in the trial that this was the residence of Catherine Howsan. He was riding a pushbike, and in evidence-in-chief he said that he believed that he arrived around mid-afternoon. In cross-examination, he said he believed he arrived at about 1 or 2 pm. Just as he was arriving, a car pulled into the driveway of the premises. DT said that the accused Ms Stott was driving the car and that there was a male passenger. DT had known Ms Stott for a long time. He used to own a smash repair yard in Tuggeranong, ACT and he used to do some work for her. DT did not know the male person who arrived with Ms Stott.
DT said that he said hello to Ms Stott, and that Ms Stott and the other male followed him into Ms Howsan’s house. The front door opened into the lounge room where there was a single seater lounge chair directly in front of the door, a two-seater lounge to the right of the door, and a further single seater lounge chair on the wall directly opposite the single seater lounge chair near the front door. DT said that he sat down on the lounge chair directly in front of the door, Ms Stott sat on the single seater lounge chair directly opposite him, and Ms Howsan sat on the two-seater lounge to his right. The male who had arrived with Ms Stott walked in, locking the front door behind him, and took hold of a baseball bat that was leaning against the lounge where Ms Howsan was seated.
DT gave the following evidence of what then occurred:
So what happened after the male picked up the baseball bat?---And that’s when the threats started from him. He wouldn’t let me move. Wouldn’t let me take my hands off – off my legs, just – yes. That’s when it started.
What were the kind of things that he was saying to you when you say he wouldn’t let you move?---Well yes, sort of said that – he was stating that yes, if I – if I moved or if I moved my hands or anything he’s – he was going to smash me up with the baseball bat.
How was he holding the baseball bat?---Like he was ready to swing. Just – to hit me with it.
How did that make you feel at that stage?---I was confused at that stage because I didn’t know the person. I didn’t know what was going on.
What was Sharon saying, if anything?---I was – well Sharon was just talking to me, just telling me to keep calm, you know, everything’s, everything will be all right if I – if I, you know, if I cooperate or whatever, yes.
So everything would be all right if you cooperate. What did she want you to cooperate with?---Well – at that stage I wasn’t sure, you know, just – yes, I don’t – didn’t really know what was going on at that stage like I said.
Did you figure out what was going on?---As things went on, yes. Like, yes. Yes.
How did you figure it out?---Well I was told that I owed some money from, yes, ten years ago or something.
Who told you that?---That I didn’t know about. Yes. Yes, I’m pretty sure Sharon was the one who told me that.
Did you owe her money?---Not that I knew of.
How much did she say that you owed?---Twenty grand.
Did she say why you owed her that money?---No.
Whereabouts was she when she was – when you were having this conversation?---Still sitting on the same seat the whole time, yes.
So this is the seat opposite you?---Yes, it is.
And where was the male?---Still standing in the corner with the baseball bat.
So when Ms Stott was saying for you to cooperate, what was the male doing?---Making sure I didn’t move my hands. Kept threatening me. Telling me that he was going to smash my kneecaps. And smash me up with the bat if I moved my hands. And every time I looked at him he told me if I looked at him like that again he’s going to smash me with it.
Did you feel you could ‑ ‑ ‑?---And I was getting really – I was getting really frustrated with the situation because I didn’t know what was going on and I – and there was no money owing. You know, I didn’t have any money owing to Sharon from ten years ago. I said all the time that I didn’t owe any money.
When was the last time you had seen her?---A week prior.
Had she said anything about the money?---Never before.
Did you feel you could get up out of that chair?---Not at all. No, not at all because, you know, got a bloke standing up over the top of me with a baseball bat telling me he’s going to smash me with it.
Did you feel you could leave the house?---No. I tried – I lined up everywhere I looked everywhere how I could get out of it and yes, there was no real way out of it for me, no.
When you looked up and looked at trying to – or how you could get out of there, did the others do anything?---No. But the male kept telling me, ‘What are you looking at?’ you know. It was just, yes. Wouldn’t let me do anything. Wouldn’t let me move my hands. Wouldn’t let me look. Wouldn’t let me do anything.
Where was Catherine or Cathy during all of this?---Sitting on the – sitting in the same place on the two seater lounge.
DT said that the male person kept the baseball bat above his shoulder, ready to swing it. At that time the male was no more than a metre away from DT. DT described the male as “ugly” and “a little chubby”, he had a “stocky build”, “terrible teeth”, dark brown hair and “a real angry look on his face”.
DT said that Ms Stott kept telling him he owed her “twenty grand from ten years ago and it needed to be paid”. DT said that he denied owing Ms Stott any money. This continued for some time. DT gave the following evidence of what then happened:
Were you able to get up from that single seater at some stage?---No, not until the very end when I was asked to.
So, who asked you to?---Sharon asked me to.
What did she say?---She asked me to walk over to the seat where she was.
Did she say what was going to happen?---Yeah. She said – she wanted to check my pockets and check out, you know, what – check me out and see what I had on me or whatever.
Did she say why?---Yeah, I think she – we were going to go back to her house. She was going to take me back to her house.
Did you want to go back to her house?---Well, no – definitely not. Not under these circumstances, no.
How did she say that she was going to take you back to her house?---In the car.
……..
Okay. How did Miss Stott say that you were going to be taken to her house?---She was going to cable tie my hands together and put me in the car and take me with her.
Did you see any cable ties?---No, I didn’t.
At any stage during this incident did you see any cable ties?---No, I didn’t.
Was there any conversation about what would happen when you got back to her place?---Yes, they gave me an ulterior motive that if I could make it to the back – out of the back door to the fence without the dog getting me, then I was right – free to go. I remember that. And, you know, not a lot other than that, no.
Okay. And, sir, when you said just then, “They said, ‘if you can get to the back without the dogs getting you’.” When you said they, who was it that said those words?---The male – the male with the baseball bat. He was enforcing that.
Did you understand what they meant when there was a reference to the dogs?---Yes, I do. Yes, I do – I do know the dogs and yes, they’re pretty vicious and yes. I know the dogs.
How did it make you feel when they said that?---Well, there’s no way I could have done it. You know, I knew of the attack by the dogs if that was going to happen. So, you know, I wasn’t leaving, in other words.
Did Miss Stott say why she wanted to take you back to her house?---No.
…..
And so what happened next?---Well, I stood up and walked out of the lounge where she was. Then, yeah, that’s what happened. And then when I left the lounge where she was, that’s when things started. The male started attacking me with a baseball bat, and – yeah, and started to bash me up with a baseball bat, continuously hitting me and hitting me and just kept going. Yes. He kept – he was attacking me with a baseball bat to kill me. Like, you don’t attack someone with a bat like that unless, you know, you are after some serious damage and he caused some serious damage. I was fearing for my life.
How hard was he hitting you with the baseball bat?---He couldn’t have hit me any harder. He couldn’t have used that baseball bat any harder than what he was using it that day.
Where was he hitting you with the baseball bat?---All over the place. He split my head open, he broke my fingers, he smashed me up – broke my arm, slit me open everywhere. Yeah, all the way from top to toe, just kept attacking me with the bat.
So if I could just break up a little bit here. You’ve gone to stand up. You’ve said that’s when things started?---Yes.
What happened between you standing up and him hitting you?---Well, I walked over to Sharon and – and, yes, I can’t really remember exactly how things went at that point. It was a bit of a – yeah, I can’t exactly remember. No, sorry, I can’t.
What sort of state were you in at that stage?---I was fearing for my life.
DT testified that he remembered ending up in the kitchen while being attacked with the baseball bat. He recollected Ms Stott trying to stop the male from hitting him with the baseball bat at some point. He recollected getting hold of a knife from the kitchen, at which point the male ran away and ran out the front door. DT said that he was screaming, but could not remember much of what happened at that point. He recollected that both the male and Ms Stott went out the front door, and that the male still had the baseball bat. When asked what he did after Ms Stott and the male went out the front door, DT said:
I was in a state that I’ve never experienced before in my life. Like I said I don’t – I can’t recall what I did or what happened. Yes I really can’t. I know – I remember I ended up calling the police – trying to call the police and I was, like, trying to see where they were because I didn’t want them to get away before the police got there…
DT said that he called the police as soon as he could. He said that he called the police when he saw that Ms Stott and the male were out the front of the house and away from him. At this point, DT was still in possession of the knife. When asked whether there was any conversation between him and the male outside the house at this point, DT said:
Yes, we were – yes, there was. We were screaming and I was really losing it. Yes, I was really losing it at this stage. I didn’t know what was going on or – like, yes, I just – he had just beaten me nearly to death and I was really, really angry at this point and I thought that he was going to just – they were leaving. He was leaving and he was going to get away with it. I was really worried about that.
DT said that Ms Stott started to get into the car that she had arrived in and he used the knife to try to stab the front tyre to stop the car getting away before the police arrived. Another car pulled up in front of the house, and the male with the baseball bat got in the car and left. DT said that he called the police. A recording of the 000 call made by DT was played in the course of the hearing. In his evidence-in-chief, DT also said that he called his mother at about this time. He said that he continued to hold onto the knife until police arrived. He was later taken to hospital.
On 1 March 2019, DT attended Woden Police Station and was shown a photo board containing a number of photographs. He recognised one of the photographs as being a photograph of the male person who attacked him with the baseball bat at Ms Howsan’s house on 18 January 2019. There is no dispute that this was a photograph of the accused, David Evans.
In cross-examination, DT agreed that he was interviewed by police on 31 January 2019 regarding this incident. He agreed that he told police in that interview that he had been “off drugs for about 10 years”. DT went on to agree, however, that he was in fact using heroin at the time of this incident on 18 January 2019. He said that he had family troubles in 2018 [redacted], and he recommenced drug use around June 2018. At that time, he was smoking cannabis, but he began to use heroin towards the end of 2018. He said that he was not using heroin on a daily basis and had not used it on 18 January 2019, although he had probably smoked cannabis. He also denied the suggestion that he was “hanging out” for heroin at that time.
DT agreed that he had on a couple of occasions gone to Ms Howsan’s house to purchase heroin, but he denied that was the reason for his attendance there on 18 January 2019.
DT agreed that he had gone to Sims Metal at Hume, ACT earlier on 18 January 2019 and sold some lead batteries for $83.00, although he was unable to recall details of that transaction when he gave evidence. He was shown a receipt from Sims Metal which contained his driver’s licence number and the registration number of his mother’s car which suggested that the sale of the batteries occurred at about 3:23 pm on 18 January 2019. This, of course, suggested that his attendance at Ms Howsan’s house was some hours later than the estimated time he gave in his evidence-in-chief. DT was questioned as to why he had not told police in his interview on 31 January 2019 that he had been to Sims Metal on 18 January 2019 before visiting Ms Howsan, and he said he did not consider it to be relevant.
DT was cross-examined at length regarding whether Ms Stott was in the car or trying to get into the car when he stabbed the front tyre. Initially DT said that Ms Stott was in the car and was about to leave. He subsequently could not remember if Ms Stott was sitting in the car. Then he said that if she was not in the car, she was about to get in the car and drive away. Later, DT said that he was able to remember her sitting in the driver’s seat. DT was shown photographs of the car Ms Stott arrived in on 18 January 2019 and agreed that he caused damage to the front mudguard of the car when he was attempting to stab the tyre. He also agreed that he attempted to stab the rear tyre but denied having caused damage to the spoiler using a brick. He agreed that he was “out of control” when he was stabbing the tyre. DT also denied having returned to Ms Howsan’s property on the morning of 19 January 2019 and damaging the remaining tyres on the car driven by Ms Stott.
In cross-examination, DT said that as far as he was aware, he had “no issues or dramas” with Ms Stott prior to this incident. It later emerged in cross-examination, however, that on 16 March 2018 DT had sent a text message to his former partner’s mother in which, inter alia, he threatened to kill Ms Stott.
DT denied that people were coming and going from Ms Howsan’s house while he was there with Ms Stott and the other male on the afternoon of 18 January 2019. DT agreed that he and the male with the baseball bat started “to get lippy” with each other prior to DT being hit with the baseball bat. By that, I understand DT to mean that there was some aggressive speech between them. DT agreed that while this was occurring Ms Stott was telling both of them to calm down. DT denied that he was only hit with the baseball bat after he picked up the knife in the kitchen. He also denied that the male with the baseball bat had not locked the front door, and that the front door had been left open.
It was suggested to DT that he was aware of an incident where Ms Stott was sentenced to imprisonment over allegedly trying to get money out of someone saying that they owed her money for drugs, and DT said that he was aware that Ms Stott had been in jail, but that he did not know it was for that reason. He said that he thought it was for holding a hostage. He agreed that he had told police that he had heard stories about Ms Stott “putting people in the boot”. He also agreed that police would probably know where to locate Ms Stott. DT also accepted that Ms Stott would not have been aware that he was going to visit Ms Howsan that afternoon.
In cross-examination by counsel for Mr Evans, DT agreed that he had been told by someone after 18 January 2019 that the man with the baseball bat was David Evans. DT could not recall who told him that.
In re-examination, DT said that he had seen Ms Stott on a few occasions after he sent the message to his former partner’s mother on 16 March 2018 and had not done anything, or tried to do anything, to her. DT also said that by January 2019 he had been smoking cannabis for about 15 years, and it had little effect upon him.
DT’s 000 call
The 000 call made by DT was recorded, and a copy of the recording was tendered by the Crown. In the call DT is heard saying:
I’ve just had Sharon Stott in here with some bloke, beating me up with a baseball bat. Now they’re trying to get away.
…
...they nearly killed me. I'm pissing out blood everywhere.
…
Yeah, she’s coming in, trying to be a standover, and just fucking – she’s got this fat cunt with a baseball bat and he tried to fucking bash me up and keep me in the house here for so long. They kept me here for fucking ages and then beat me up…
…
They full on kept me hostage.
…
I’ve been bashed.
…
I’ve been hit with a baseball bat…
…
I’ve been slapped over the head with a baseball bat... about three or four [times]… My arms up like a – like a balloon.
NT
NT is the mother of DT. She testified that at about 5:00 pm on 18 January 2019 she was grocery shopping. Just after she came out of the shops and went to her car, she received a telephone call from her son. She said he was in a state of panic and frenzy, and was “freaking out on the phone telling me that someone was trying to kill him”. She said that DT stated “Mum, they’re trying to kill me. These people are trying to kill me”. She questioned him about what was happening, but he hung up. She got in her car and started to drive home, and the phone rang again. It was her son, who said to her “Mum, this bitch, she’s trying to kill me. You have to get here now, please, Mum”. NT was able to get a very general description of where her son was, and ultimately arrived after the police had arrived. She could see her son in the middle of the street “with blood gushing out the back of his head and he was bloodied up everywhere…”.
When NT was able to speak to her son, he said to her “Mum, this bitch tried to kill me”. He went on to say that “one of her thugs” hit him on the back of the head with a baseball bat. In examination-in-chief, NT was asked whether her son had used any names, and she said “Sharon. He said, ‘Sharon tried to kill me.’ He said that actually – he actually said that a couple of times”.
NT said that she had never heard her son talking like he did when he telephoned her that day. She said, “[h]e was in a state of frenzy and panic and fear for his life”. She said that she had never previously seen him like he was when she arrived at the scene.
In cross-examination, NT said that she was not aware that her son was using drugs in January 2019. She knew of the metal recycling plant in Hume, Sims Metal, but she could not remember going there on 18 January 2019. She accepted that she may have done. She also accepted that when her son rang her on 18 January 2019, he did not say anything about being kidnapped or any demand for money. She also said that as far as she was aware her son had never been diagnosed with schizophrenia.
Catherine Howsan
Ms Howsan gave evidence that on 18 January 2019 she was living at [redacted] in Kambah in the ACT. She lived there alone. She said that she knew DT as an acquaintance of about 12 months standing as at 18 January 2019. Ms Howsan said that she had known Ms Stott for about 18 or 20 years, although she did not have a social relationship with her. Ms Howsan said that on the afternoon of 18 January 2019 Ms Stott, a male person who Ms Howsan did not know, and DT came to her house. She said that Ms Stott and the male person arrived first, and minutes later DT arrived. After DT arrived, he sat down and there was conversation between those present. Ms Howsan said that an altercation occurred, which she described in the following terms:
I went out to the kitchen to get some drinks for everybody and [DT] came flying in, ripped the kitchen drawer open, grabbed a knife, everyone was in the kitchen at that stage, he was being attack – like attacking with the knife, and then he was hit over the head with a baseball bat.
Ms Howsan said that nothing had happened before DT grabbed the knife. She said that “we were just sitting around having drinks, it was just conversation”. Ms Howsan identified the baseball bat as one which belonged to her, and which had been sitting on the back of her three seater lounge in her lounge room. She said that it was the male person who arrived with Ms Stott who had the baseball bat and who hit DT with it. Ms Howsan said that she did not remember the male person who arrived with Ms Stott sitting down after they arrived, she recalled him standing. She recollected Ms Stott sitting on a dining chair. Before DT came and grabbed the knife, she did not see anything which would explain his actions, but she did sense that not everybody got along. Ms Howsan could only remember DT being hit once with the baseball bat.
Ms Howsan then gave the following evidence:
What happened next?‑‑‑Everyone went outside. I think Sharon went out first then we all followed and then we got out the front and [DT] was still attacking with the knife, he was running around the front yard chasing Sharon and Dave, and round the telegraph pole, round the car, round the little garden, and then he proceeded to maliciously damage Sharon's car.
How?‑‑‑With the knife, a lot with the knife, and I didn't see him pick it up but I think he's grabbed one of my garden stones and used that as well, but, yes.
You said you didn't see him pick it up but you think he used it, how did he use it?‑‑‑Smashing into the car. He went ballistic, he was going crazy.
Where was Sharon at this point?‑‑‑Running around trying to get away from him.
How was she?‑‑‑She was - well, she was stressed of course.
How did you tell that she was stressed?‑‑‑Well with someone coming with you with a knife and the way he was, anyone would be.
Okay but what I'm asking you is about your observations of her, how she sounded at the time?‑‑‑Concerned.
What about Dave, where was he?‑‑‑He was out the front too, yes, like it all happened so quickly that I don't remember every place and everywhere everybody was at every split second but they were just steering clear of him, trying to stay away from the knife.
Were there any other people around?‑‑‑Not - I don't know, I'm not - I hadn't ‑ I'm not aware. I was just sort of spinning out at what was happening.
During that period where [sic] they were at your house, inside, just you and the three of them, did anyone else come over?‑‑‑Not that I can recall, but I'm not 100 per cent, I don't think so, I can't really recall if anyone else came.
And so now you're outside, the four of you are outside, you say eventually the police arrived, do you know who called the police, did you see that?‑‑‑No.
When the police arrived was Dave still there?‑‑‑I'm not sure.
So [DT] is going crazy out the front with the knife. Does he at some point stop?‑‑‑He was - he kept yelling. Yes, I guess it eventually stopped. I don't really know what - like, whether he was there when the cops come. I don't remember.
Whether who was there when the cops came?‑‑‑[DT].
How long was it after everybody came into the house to the point where [DT] grabbed the knife?‑‑‑I honestly don't know.
Can you estimate whether it was minutes or closer to an hour or half an hour or two hours?‑‑‑I would say minutes to maybe 15/20 minutes.
And the point in time where [DT] grabbed the knife, how long was it that he was going crazy inside the house?‑‑‑It happened pretty quickly, but I don't know. Maybe a minute or two.
And how long was he going crazy for with the knife outside the front lawn, running around as you described?‑‑‑I'm still not 100 per cent, but minutes.
And how much longer until the police arrived?‑‑‑It wasn't that long. I don't know, minutes.
I just want to understand how it happened that everyone ended up outside. You have described [DT] getting the knife, being attacking with it, Dave hitting with the baseball bat. What happens from there to get everybody outside?‑‑‑Well, that's what happened. He - the way I saw it was he was attacking Sharon with the knife. The way I saw it is Dave was self‑defending Sharon and then, as you would, Sharon's run outside, we've all run outside, [DT] has run outside and kept going, kept chasing her.
How did he react when he was hit with the bat? What effect did that have on him?‑‑‑Well, as I said, I sort of just ducked for cover and - it was just so fast.
The police arrived, you said?‑‑‑Yes.
Did you speak to them?‑‑‑I did, but I don't know what I said.
At this point, the Crown was granted leave to cross-examine Ms Howsan pursuant to s 38 of the Evidence Act on the basis that her evidence was unfavourable to the Crown and that she had made prior inconsistent statements.
Ms Howsan agreed that she had a mobile phone with her on 18 January 2019 and used it to send text messages both during and after the incident which occurred at her house. At 16:20:20 (4:20 pm) on 18 January 2019, Ms Howsan sent a message to “B” (later identified as a friend of Ms Howsan’s called Bec) saying “SS here baseball bat and [DT] I’m scared”. At 16:21:49 she sent a further message saying, “[s]he caught him here…”. Ms Howsan agreed that she was intending to convey that Ms Stott caught DT there (at her house).
At this point, Ms Howsan said that she could not remember writing these text messages, but she agreed that her memory of events would have been better on 18 January 2019 than it was when she was giving evidence. She agreed that she had sent the above messages when the incident was actually occurring. By reference to a schedule of text messages to and from her mobile phone number, Ms Howsan agreed that after she sent the above messages, she received a text saying “[o]h good, he can cop what he deserved are you ok”. Ms Howsan agreed that she responded “[n]o I’m fucking spinning I’m deleting texts…”. Ms Howsan agreed that she was in fear at that time.
Ms Howsan agreed that the person with whom she was communicating then sent her a text saying “[w]hat did she wanna know about us. Don’t tell her a thing about us. Call me when U can”. Ms Howsan responded “that [s]he is watching u and how much u know fuck can’t talk [DT] is shitting”. Ms Howsan agreed that in that message she intended to convey that DT was scared.
Subsequently Ms Howsan received a text saying “[u] need cop?”, to which she replied at 17:12:01 that the police were already there. At 17:17:12, Ms Howsan texted “[DT] got bashed baseball bat and grabbed my kitchen knife and chased him the SS offsider my house trashed…”. It was suggested to Ms Howsan that in that message she had said that DT was bashed before he obtained the knife, and she replied, “[w]ell that’s not correct, actually, he started the aggression”.
Ms Howsan was then taken to a text message that she sent at 5:30:17 on 19 January 2019, which stated “[b]abe, shazza had a guy bashed in my home my home trashed…”. It was suggested to Ms Howsan that she was communicating that Ms Stott had someone else bashed in her home, and Ms Howsan said “[w]ell, that’s what it says, yes, but I – it – I can’t say I know that that’s fact, that’s not – I don’t know why I wrote that”.
At 5:58:48 on 19 January 2019, Ms Howsan sent a text message to her father asking for money and saying “[h]ey dad the lady I owe money to came and had a man with her they bashed my friend with a baseball bat...”. Ms Howsan said that this was a story that she gave her father in order to try and get money from him. She said that she regularly lied to her father to try to get him to give her money.
At 8:12:43 on 19 January 2019, Ms Howsan sent a text message to a person who was not her father saying “[h]ey sorry About yesterday I had Sharon Stott have a guy bashed in my home yesterday had police here til 3am this morning”.
Ms Howsan denied that she was scared of Ms Stott either at the time of this incident or at the time that she gave evidence. In that regard, she was taken to a number of text messages. As part of the text message she sent to her father at 5:58:48 on 19 January 2019, she said:
dad I need a one off payment of $1600 to finish this it’s gone to far dad look at photos!!!!!!!!! Fuck I’m scared a friend put me in motel last night cops had it blocked off as a crime scene dad it’s beyond serious I owe her $2500 down from $10,800 sobite nearly finished this night mare” (spelling and grammar as per original).
At 10:06:20 on the same day, Ms Howsan sent a text message to Bec’s number saying “[d]on’t come here I got ss visiting fuck I got [M] with me thank God I will call when she left she not here yet she on her way...”. The reference to “[M]” in this message is a reference to a friend of Ms Howsan’s, EM. At 17:36:56 on the same day, Ms Howsan texted “[o]h babe I know I’m scared too but u and I and all of us did nothing wrong and r no part of this mess she caused and created this it’s karma for her hun”. I observe that these text messages cannot be used by the Crown to prove the offences with which the accused are charged. They are relevant only to the credibility of Ms Howsan.
Ms Howsan described the man who attended her house in company with Ms Stott as having brown hair and being of a solid build. She could not recall any other distinguishing features. It was suggested to Ms Howsan that she spoke to a police officer, Detective Senior Constable Daniel Shaw at about 7:50 pm on 18 January 2019 and told him that the unknown male was average height, heavy, fat build, with shaved light brown hair, crooked and missing teeth and dodgy tattoos. Ms Howsan responded, “I honestly don’t remember saying it but if you’re saying I did then I did”. She agreed that if that was what she told police it would have been the truth. Ms Howsan agreed that at that time she was trying to assist the police and was doing her best to tell them the truth. It was further suggested to Ms Howsan that she told police that the unknown male forced his way into the house with DT and Sharon and grabbed the baseball bat and threatened DT. Ms Howsan answered, “[w]ell, I honestly don’t think I would have said he forced his way into the house. I opened the door and let them in”. She agreed that she did tell police that the male grabbed the baseball bat and threatened DT. Ms Howsan also said she could not remember telling police that while in the house Ms Stott and the male were talking to DT about a $20,000 debt that he owed. Ms Howsan said about her memory of speaking to the police on the night of 18 January 2019 “[y]es, I honestly can’t remember talking to the police; I was wasted”. Ms Howsan did, however, deny that she would have said to the police words to the effect of the unknown male “smashed [DT] in the head, body, arms and legs – it was a bad beating.”
Ms Howsan was cross-examined regarding whether she spoke to a female police officer on the afternoon of 18 January 2019. It was suggested to her that she told Officer Pruckner that “[o]ne bloke I didn’t even know came into my house and found my baseball bat”. Ms Howsan responded that she did not remember conversations with police that day. It was further suggested that she said to the police officer “[s]omeone must have told him where it was, it was hidden. Because he came straight in and went to where it was hidden”. Ms Howsan said that although she could not recall the conversations, the bat was not hidden but it was on the back of the lounge.
Ms Howsan agreed that she and Ms Stott had recently been in custody together. She agreed that she had seen Ms Stott from time to time in prison, but denied that she had changed her evidence because she was scared of Ms Stott.
In cross-examination by counsel for Ms Stott, Ms Howsan agreed that she had known Ms Stott for about 20 years and that Ms Stott would come to her address occasionally. Ms Howsan had been to Ms Stott’s house a few times. Ms Howsan agreed that in January 2019 she was dealing heroin. At that time, she said she was “in full blown addiction”. She said that she had used heroin on 18 January 2019 before Ms Stott, DT and the other male arrived. She further said that she used heroin again just before the police arrived that day. She believed that an ambulance came later on 18 January 2019 to take her to hospital.
Ms Howsan agreed that 18 January 2019 was a very hot day. She did not have air‑conditioning and it was her practice to leave some of her doors open to allow airflow. She said that in early January 2019 she was mostly selling single use deals of heroin called “quarters” for $80. She said that DT was a regular customer of hers who would attend every day or couple of days to buy a quarter of heroin. She said that he never attended for any other purpose than to purchase heroin. He was not someone that she would class as a friend or someone she would associate with other than for the sale of heroin. Ms Howsan agreed with the proposition that she knew Ms Stott was not a person who liked heroin or liked having anything to do with “junkies”. She said that, to her knowledge, Ms Stott did not know that she was dealing heroin in January 2019.
Ms Howsan agreed with the proposition that when Ms Stott came into the house, Ms Stott only had a mobile phone and a car key with her. She further agreed with the suggestion that when Ms Stott ran out of the house she left the key where it was on the side of the lounge. Initially, Ms Howsan said “the key was still there the next day” but immediately thereafter agreed with the proposition that the police gave her the key the next morning, asking her to return it to Ms Stott. She said that she saw DT in front of her house on the morning of 19 January 2019 at the same time that Ms Stott was there.
In cross-examination, Ms Howsan was taken by Ms Stott’s counsel to a number of text messages Ms Howsan had sent to her father begging for money and in which she said she had not told him the truth. She said that DT would pressure her to buy heroin on credit or to swap items such as blowtorches and chainsaws for drugs. She had seen DT when he was “hanging out for drugs” and resisted the description of him as “aggressive or agitated” at such times, saying that he was “pushy and persistent”.
Ms Howsan said that she saw DT damage Ms Stott’s car with a brick on 18 January 2019. She said that the brick came from her garden.
Ms Howsan was again taken to the text message that she sent at 5:30:17 on 19 January 2019 in which she said “[b]abe shazza had a guy bashed in my home my home trashed Hun I’m in distress I can’t handle this shit cops were here for nearly 12 hrs and I wasn’t allowed in”. It was suggested to Ms Howsan that this was a message in which she was manipulating the circumstances and the facts to “either get sympathy or something” from the person to whom the message was directed. Ms Howsan said “[s]ounds like it, yes”.
Ms Howsan said that DT attended her home on the morning of 19 January 2019 to purchase heroin. Ms Stott was there, but DT did not get out of his car.
In cross-examination by counsel for Mr Evans, Ms Howsan agreed that by the time police arrived on 18 January 2019 she was significantly affected by heroin. She agreed that the description that she gave to police of the male person who had arrived with Ms Stott could have been incorrect given the significant effects of heroin that she was suffering. The following cross-examination then took place:
Okay, before 18 January 2019 I suggest that in the days and weeks leading up to that time you had a relationship with David Evans such that he would administer heroin in your house, that's so, isn't it?‑‑‑Pardon?
In the days and weeks leading up to 19 January 2019 [sic] David Evans would come around and administer heroin at your place, correct?‑‑‑I'd never met him till that day.
I suggest to you that not only had Mr Evans come around to your place in the days and weeks leading up to that time but he'd also purchased heroin from you in the confines of your home?‑‑‑I don't recall that.
Could it have been the case?‑‑‑I don't think so.
Later in the same cross-examination, the following exchange occurred:
Ms Howsan, I have suggested to you that Mr Evans has been in your premises before 18 January 2019, and I think your evidence was you denied that, but it could be possible. Is that so?‑‑‑No, I don't remember ever meeting him before or seeing him before.
I am not suggesting - I withdraw that. You have agreed with me that a number of persons at any particular time during this time had come through your house, correct?‑‑‑Yes.
And the purpose, in part, of some of those persons coming to your house was to administer heroin, correct?‑‑‑Yes.
And it is possible that you do not recall all of the persons who came to your premises at any particular time. Is that right?‑‑‑Well, I guess that's right. But it's unlikely. Yes, I wouldn't have let someone in if I didn't know them, or if they weren't, yes, someone I knew.
My suggestion to you is this: that you not only knew Mr Evans, but you were aware of the fact that he had attended your premises on a number of occasions to shoot heroin. Do you agree - - -?‑‑‑It's not true.
- - - or disagree with that?‑‑‑It's not true.
I also suggest that you have observed Mr Evans in your house come into physical contact with the baseball bat?‑‑‑On that day?
No, not on that day?‑‑‑He hasn't been to my house that I can recall, and I'm sticking by that.
HH
HH was the occupant of a house just down the street from that of Ms Howsan. On the afternoon of 18 January 2019, he was driving home from work when he saw police on the road in front of Ms Howsan’s house. He reversed his car and trailer into his driveway, and in doing so noticed a baseball bat on the ground across from his driveway. He picked up the bat and carried it down the street to the police, who then took possession of it. There can be no doubt that this was the baseball bat taken by the unknown male from Ms Howsan’s house.
Constable Cameron Paule
Constable Paule was attached to Tuggeranong Police Station on 18 January 2019. He was on shift with First Constable Craig Vickers that afternoon. They received a radio transmission reporting a disturbance at [redacted] in Kambah. They attended that address and Constable Paule spoke to DT. Constable Paule observed that DT “had a big egg on his head and he also had a big, long cut on the back of his head as well, and it was bleeding. He had blood sploshed all over his clothes and he seemed to be injured by his shoulder and both elbows, I think it was, or it seemed to be a bit injured and bruised”. Constable Paule gave the following evidence about his conversation with DT:
What did he tell you?‑‑‑So he told me that Sharon Stott and another bloke had attended the house, someone he didn't know, and then - he'd visited that house because his friend lived there. So after [DT] had got there, Sharon Stott and this other guy had rocked up and he said to me that they tried to tie his hands, search him and beat him with a baseball bat.
Did he describe the male person who was there?‑‑‑It was a big bloke, big-bellied guy.
Did he say what happened after they had tried to cable tie his hands?‑‑‑Yes. He said they were beating him in the kitchen. He grabbed a knife from a drawer and tried to defend himself, to the point where they left the house. He said that he followed them out of the house to see if they'd gone yet, and that is when they became aggressive again out the front. And so [DT] has put the knife into one of the tyres of the car, the white Commodore, that Sharon Stott had arrived in.
Did he tell you what happened after that?‑‑‑He said that they then jumped in a white - I think it was a Hilux, and drove away.
Just before I go on, about what time was that that you spoke to him?‑‑‑It was probably quarter past 5, I think, when we got there.
How was his demeanour when you spoke to him?‑‑‑He was shaking, he was frightened. He was just physically shaken.
When asked whether he saw Ms Stott at the scene, Constable Paule said that someone pointed her out to him, and she had walked down the street in the opposite direction from that which DT said the “white ute” had left. He did not speak to her that evening. DT was taken to the Canberra Hospital in an ambulance, and Constable Paule followed behind in a police car. Constable Paule said that some family members of DT spoke to him on the street in front of Ms Howsan’s property, but they did not enter the property.
In cross-examination by Ms Stott’s counsel, Constable Paule agreed that DT had told him that he, DT, stabbed the tyre on the car Ms Stott had arrived in after “they” became aggressive again out the front of Ms Howsan’s house. He also agreed that DT had told him both the unknown male and Ms Stott initially left in a white HiLux with a black bonnet. There was also some cross-examination about things that people who arrived on the scene after the incident said to Constable Paule about Ms Stott, but that was irrelevant and entirely hearsay.
First Constable Craig Vickers
First Constable Vickers was on duty with Constable Paule on the afternoon of 18 January 2019 when they attended [redacted] in Kambah. First Constable Vickers said that when he arrived he saw DT who had blood on his head and shoulders. He noticed that DT had about an inch long cut to the back left side of his head and his lower forearm was swollen. He had blood over his upper body. He described DT’s demeanour as “a little bit dazed, a little bit scared and flighty, if I can use the word flighty”. First Constable Vickers subsequently became aware of a male person (HH) further down the road with a baseball bat. He took possession of that baseball bat and put it in an AFP evidence bag.
After taking possession of the baseball bat, First Constable Vickers returned to where DT was situated. He heard DT have a conversation with a person who identified themselves as DT’s brother, in which DT said: “[t]hey tried to cable tie me. They hit me in the head about 20 times with a bat and she had a big guy with her”.
Senior Constable Jon Burnes
Senior Constable Burnes was on duty with Constable Ainslee Pruckner on the afternoon of 18 January 2019 when they attended [redacted] in Kambah in relation to a reported disturbance. When they arrived one other police officer was already at the scene. Senior Constable Burnes saw DT in the front yard and observed that he was bleeding profusely from the back of his head. Senior Constable Burnes also observed a lump on DT’s wrist. DT told Senior Constable Burnes that he had been struck about 20 times with a baseball bat by Sharon Stott “and a fat bloke who came to the residence” and that Ms Stott had said to him “[a]re you going to come with us or do you need to be cable tied?”. DT said that the “fat bloke” had a tooth missing.
Senior Constable Burnes saw a white SS Commodore with New South Wales registration in the driveway of Ms Howsan’s property. A search warrant was obtained to allow that vehicle to be searched. The search commenced at 10:45 pm and Senior Constable Burnes was allocated the role of searcher. He could not recall whether the vehicle was locked when he commenced the search, or whether any of the doors of the vehicle were open. Using gloves as required, he commenced a search of the front driver’s seat area and located a set of black cable ties on the driver’s side seat. He also located a Fox branded right-handed motorcycle glove, coloured black and grey, in the door pocket of the driver’s side door. He then located a white mobile phone inside the centre console just in front of the gear shifter. All of those items were seized and given to Detective Senior Constable Daniel Shaw, the designated property officer.
In cross-examination, Senior Constable Burnes stated that he could not say with certainty that no other police officer had entered the white Commodore before he commenced his search at 10:45 pm. He said that he had not seen any police officer do so, but he was not watching the car constantly.
SH
SH was a neighbour of Ms Howsan. On 18 January 2019 she participated in a conversation with the emergency 000 operator in which she referred to a disturbance in the next-door premises, [redacted] in Kambah. Her evidence was unclear and appeared to go no further than asserting that she heard a male calling out “[c]all the police”, and perhaps making a reference to a baseball bat. She was not cross‑examined.
Constable Ainslee Pruckner
On the afternoon of 18 January 2019, Constable Pruckner was on duty with Senior Constable Burnes when they attended a disturbance at [redacted] in Kambah. Another police officer, Senior Constable Sy Humphrey was already in attendance. Constable Pruckner entered the residence at [redacted] in Kambah and observed a small reddish-brown smear about midway down the front entrance wall. She also observed that there was furniture turned over in the lounge room and that there were several syringes and a powder crystal substance on the floor. She then had a conversation with a female who told her that her name was Sharon Stott. Ms Stott told her that a person by the name of DT was at the location and he was going crazy, he had a knife and he tried to stab her and he stabbed at her car and tyre. Ms Stott told her that she had been there visiting Ms Howsan. Ms Stott said that there had been other people present but she would not tell Constable Pruckner their names. Constable Pruckner told Ms Stott that police intended to obtain a warrant to search her car, and Ms Stott replied, “I’ve got no drugs in the car, there is only zip ties and chain”. At the time Constable Pruckner was dealing with Ms Stott, she believed Ms Stott was the victim of a crime at that point. At some point Ms Stott also said to Constable Pruckner words to the effect of “Cath is dealing heroin to [DT] to support her habit”. Ms Stott was not placed in custody, and was allowed to leave the scene before a search of the white Commodore was undertaken.
Just prior to 7:50 pm, Constable Pruckner also had a conversation with Ms Howsan. Ms Howsan said “[o]ne bloke I didn’t even know grabbed my baseball bat before I could, someone must have told him where it was hidden because he came straight in and grabbed it to use it. Those fucks left my house smashed up and they don’t give a fuck about me”.
When the search warrant was obtained to enable a search of the white Commodore to be undertaken, Constable Pruckner and Senior Constable Burnes were both assigned roles as searchers. Constable Pruckner initially searched the boot of the vehicle. During the search, she wore gloves on her hands. In her evidence-in-chief, Constable Pruckner said that “I opened the boot of the vehicle, I looked inside, in plain view I located an item… I located a red pillowcase containing black cable ties and rubber gloves”. Those items were seized and given to the property officer. Constable Pruckner then conducted a search of the vehicle. At 11:30 pm she found a Louis Vuitton wallet in the glove box which contained a driver’s licence in the name of David Evans and some cash. This item was also seized and provided to the property officer. Constable Pruckner then found a black wallet in the driver’s door console which contained identification material with Ms Stott’s name on it and some cash.
In cross-examination by counsel for Ms Stott, Constable Pruckner agreed that when it was seized, Ms Stott’s purse had $1170 in it. Constable Pruckner agreed that when she spoke to Ms Howsan, Ms Howsan appeared to be under the influence of a drug or some other substance. Constable Pruckner did not see Ms Howsan go back into the house, but she was aware that Ms Howsan may have been in the house at one point because she saw another officer speaking with her through the door.
Constable Pruckner was shown photographs of the contents of the boot of the white Commodore apparently taken approximately twenty minutes prior to her commencing her search. The red pillowcase located by Constable Pruckner is not obviously visible in those photographs. Constable Pruckner said that she was mistaken in her evidence‑in-chief when she said that the red pillowcase was in plain view when she opened the boot. She went on to say:
[w]hen I’ve searched the boot, I can’t recall whether when I first opened the boot I’ve seen the red pillowcase. However, I moved things around. I do remember that there were several items in several different bags. On locating a red bag and I – yes, I recall moving a lot of those items around when I’ve gone into the boot.
Constable Pruckner also recollected in cross-examination that she had found a chain, a lock, a torch and a glove under the front passenger seat. It does not appear that these items were seized.
In cross-examination by counsel for Mr Evans, Constable Pruckner agreed that in the centre console of the white Commodore she also found a Southern Cross Club card in the name of UU.
Sergeant Sy Humphrey
On 18 January 2019 Sergeant Humphrey was attached to the Specialist Response Group Dog Team. He was on duty that day with a police dog. At 5:05 pm, he received a radio call from ACT Police Operations, as a result of which he attended [redacted] in Kambah. He was the first police officer to arrive at the scene. When he drove up the street, he noticed a male person opposite [redacted] in Kambah who had a knife in his hand. Sergeant Humphrey stopped his vehicle and got out, at which time the male person placed the knife behind his back. Sergeant Humphrey called upon him to drop the knife, which the male did. Sergeant Humphrey then had a brief conversation with the male person, clearly DT, who told Sergeant Humphrey that he had been bashed and hit in the head with a bat. Sergeant Humphrey said that DT was “pretty lucid”, “perhaps a bit upset, but he wasn’t aggressive towards me”.
At the front of the premises, Sergeant Humphrey saw Ms Howsan sitting on the front porch. He initially did not make any observations of her because she did not appear to be injured. Later he formed the opinion that she appeared to be drug affected. Shortly after he arrived, other police arrived and Sergeant Humphrey went into the house with Constable Pruckner to ensure that the house was cleared. When he came out of the house, he saw that Ms Stott had arrived in the front yard. A bit later, he saw that Ms Howsan was no longer sitting on a chair near the front door of the house so he went inside to check on her welfare. He found her lying on a couch, and she appeared to be under the influence of drugs. This was about 6:00 pm. At that time an ambulance had arrived, and he requested the ambulance officers to check on her.
Senior Constable Sean Evans
Senior Constable Evans arrived at [redacted] in Kambah at about 6:35 pm on 18 January 2019. When he arrived, he observed a number of people present out the front of the premises, mostly police officers. There was a female who he later found out to be Ms Stott. There was another female sitting on the front porch who was later identified as Ms Howsan. He also observed a white Holden Commodore bearing New South Wales registration [redacted]. Senior Constable Evans received a briefing, from which he understood that there were two versions of events, one from Ms Stott and one from DT. DT alleged that he had gone to the house and was assaulted by an unknown male while Ms Stott was there. Ms Stott’s version was that she was at the premises and had been assaulted by DT. Senior Constable Evans left the premises to obtain a search warrant to search the premises, having formed the opinion that Ms Howsan was too intoxicated to provide informed consent. That warrant was issued at 9:50 pm that evening. The warrant included the right to search the premises and the white Commodore vehicle.
Senior Constable Evans returned to Ms Howsan’s property at about 10:35 pm. He could not recall Ms Howsan being present at that time. Senior Constable Evans said that he was not aware of any requirement to have an independent Sergeant present during the search of premises where the occupier was not present. Before the search began, forensics photographed the scene, including the vehicle. When the car was examined, Senior Constable Evans observed black cable ties on the driver’s seat. After the examination by forensics, Senior Constable Evans assigned Senior Constable Burnes and Constable Pruckner to do a formal search of the car. Senior Constable Evans went into the house and observed that it was in a general state of disarray within the lounge and dining room, with upturned furniture. He testified that drugs were seized from the premises.
In cross-examination by counsel for Ms Stott, Senior Constable Evans agreed that when he returned to Ms Howsan’s property with the search warrant Ms Stott was no longer present. He was unaware of where the key came from to open the white Commodore for it to be searched. He denied a suggestion that there was an attitude that because Ms Stott was involved she must be guilty. Senior Constable Evans said that he believed that the key for the white Commodore was left at Ms Howsan’s property when police left after conducting the search. He agreed that Ms Stott later made a complaint about police leaving her car keys with a “heroin addict”. Senior Constable Evans was questioned about perceived deficiencies in the police investigation at the scene but, for reasons which I will give later, it is unnecessary to record that cross-examination in detail.
Detective Senior Constable Lara Williams
On 18 January 2019 Detective Senior Constable Williams was acting as a Duty Sergeant attached to the Criminal Investigations Response Crime Team 2. She attended [redacted] at Kambah that afternoon and had a short conversation with DT. She noticed that he had a laceration to his head and was bleeding quite a bit as he sat in the gutter outside Ms Howsan’s property. She saw that he had blood and some swelling and some cuts to both of his hands. Sometime shortly after 6:25 pm, she had a conversation with Ms Howsan. She said that Ms Howsan was “sometimes in and out of sleep” and she was aware that Ms Howsan was under the influence of some sort of illicit substance. She was present when forensics offices Evan Robinson and Paul Spryszynski examined the white Commodore vehicle.
In cross-examination by counsel for Ms Stott, Detective Senior Constable Williams stated that she was unaware of where Ms Stott’s car key was located. Detective Senior Constable Williams said that she could recall Ms Stott complaining that a tyre on the vehicle had been stabbed with a knife, but she did not recall Ms Stott complaining about a brick being thrown at the car. She agreed, by reference to her notes made at the time, that Ms Stott may have made such complaint to another police officer who was present, Sergeant Michael Serbatoio. Detective Senior Constable Williams denied coming to the investigation with an “assumption of guilt” against Ms Stott.
In cross-examination by counsel for Mr Evans, Detective Senior Constable Williams stated that she had not undertaken any enquiries about the Belconnen Soccer Club temporary membership card in the name of ES, or the Canberra Raiders Club Card in the name of ON that were found in the Louis Vuitton wallet which was located in the glove box of the white Commodore.
Dr Amanda Barry
Dr Barry is a medical practitioner working in forensics as a general practitioner. Her qualifications were not the subject of challenge. Dr Barry prepared a report regarding the injuries sustained by DT. That report was admitted as Exhibit 21. The report states that Dr Barry examined DT at the Canberra Hospital commencing at 9:45 pm on 18 January 2019. DT complained of pain in the left shoulder and wrist, right fifth finger and pain at the back of his head. She described DT as lucid and oriented to time, person and place. He was frequently distressed throughout the examination and repeatedly expressed how much pain he was in due to his head wound. Dr Barry noted a vertical 5 cm left-sided parieto-occipital laceration with a surrounding 3 cm haematoma. The laceration was not a full-thickness wound. Dr Barry also observed a 5 cm x 6 cm irregular shaped purple/red bruise located over the anterior left shoulder. She also observed a 1 cm ovoid petechial bruise with central pallor on the inner aspect of the right arm located 5 cm above the elbow. Located on the inner aspect of the right mid-forearm there was a 3 cm x 4 cm red bruise with central pallor. There was also a 3 cm diameter swelling over the left distal ulnar and a 0.4 cm superficial laceration located on the dorsal aspect of the left hand and over the fifth proximal interphalangeal joint. Finally, there was a 0.4 cm incised wound located on the palmer aspect of the right fifth finger over the mid proximal phalanx.
With respect to these findings, Dr Barry concluded that DT sustained injuries resulting from multiple applications of blunt force. The wound sustained on his right fifth finger was consistent with DT’s report of him cutting himself when he stabbed a tyre. In evidence-in-chief, Dr Barry stated that due to the various planes of injury she observed, she formed the opinion that there were multiple applications of blunt force trauma.
In cross-examination by counsel for Ms Stott, Dr Barry agreed that if someone was hit 20 to 50 times with a baseball bat one might expect some broken bones. She agreed that other than two broken little fingers, no other broken bones were found on examination of DT. Dr Barry stated that some of the injuries she observed were consistent with being hit by a baseball bat. Dr Barry agreed that at the time that she saw DT, there were no obvious injuries consistent with DT having been attacked very forcefully with a baseball bat to his body, shoulder and arm. There were also no obvious injuries consistent with multiple forceful blows to the head with a baseball bat.
Detective Senior Constable Bradley Humphrey
Detective Senior Constable Humphrey was the informant with regard to the present charges. On 18 January 2019 he was a member of Criminal Investigations at the Woden Police Station in the ACT. At about 6:05 pm that day he attended [redacted] in Kambah and received a briefing. He then had a brief conversation with Ms Howsan. He also observed Ms Stott to be present. Detective Senior Constable Humphrey had a conversation with Ms Stott about what had occurred before police arrived, and she said there had been an altercation with DT and that she had been the victim in the altercation and that she had been injured by DT with a knife. Ms Stott showed Detective Senior Constable Humphrey some injuries she said she had sustained. He observed some minor scratches on her wrist and her upper arm. Detective Senior Constable Humphrey said that Ms Stott was quite calm and pretty collected when he spoke to her. He asked who else she had been at the residence with but she declined to identify that person.
At about 7:40 pm, Detective Senior Constable Humphrey drove Ms Stott to her residence before returning to Ms Howsan’s property. He subsequently attended the Canberra Hospital and spoke to DT. He then returned to Ms Howsan’s property. As the informant, a number of exhibits were tendered through Detective Senior Constable Humphrey. One of those was a recording of a telephone call made by Ms Stott to the police assistance number, 6256 7777, at 4:59 pm on 18 January 2019. In this call, Ms Stott complained that “[DT]” had “demolished my very expensive car”.
Detective Senior Constable Humphrey testified that he had conducted enquiries in relation to the name UU and had discovered that this was a female person. Detective Senior Constable Humphrey also presented images of KX and ES taken from Closed‑Circuit Television footage.
In cross-examination, Detective Senior Constable Humphrey was asked further questions about his conversation with Ms Stott on 18 January 2019. The following occurred:
Can you just read out what you then wrote as a result of your conversation with Sharon Stott?‑‑‑'Came to address, check on Cath, other guy, other guys, unsure, may have been hitchhikers. [DT] went crazy. Had a' - that may have been 'knife'. 'Her, stabbing and at car. ...(inaudible)... her car registered to Gerhard's - happy to provide consent.'
Okay. So she told you that she'd come to the address to check on Cath Howson [sic]?‑‑‑Yes.
She said there were two other guys and she was unsure, that they may have been hitchhikers?‑‑‑Yes.
Was that a reference to there being other people hanging around in the house?‑‑‑That was in reference to people who attended the address with Stott.
'[DT] went crazy, had a go at her, stabbing and at car'?‑‑‑Yes, that's correct.
You've crossed out the word, but 'damaged her car, registered to Gerhard's ‑ happy to provide consent'?‑‑‑Yes, that's correct.
With regard to the decision to leave the keys to the white Commodore with Ms Howsan, Detective Senior Constable Humphrey said his understanding was that a phone call was made to Ms Stott but it was not answered and that the keys were then left with Ms Howsan. Detective Senior Constable Humphrey denied a suggestion that when DT said he had been stood over, there was a presumption that he was the victim and Ms Stott was the perpetrator.
Paul Spryszynski
Mr Spryszynski is a crime scene investigator with the Australian Federal Police. On 18 January 2019 he attended [redacted] in Kambah, arriving at about 6:00 pm. He was in company with crime scene investigators Evan Robinson and Brett Scott. They initially took photographs outside the premises and then waited for a search warrant to be obtained. That warrant was issued at 10:42 pm after which he and his colleagues inspected the residence and the car. They took photographs of the interior of the white Commodore and of the residence. They examined the interior of the car for fingerprints and collected material for DNA analysis. A bundle of black cable ties was located on the front seat of the white Commodore.
No fingerprints belonging to Mr Evans were identified. A number of shoe marks with ridge detail developed were located at the scene but no identification of the type of shoes was made.
Detective Leading Senior Constable Daniel Winston Shaw
Detective Shaw attended the premises of [redacted] in Kambah at about 6:03 pm on 18 January 2019 in company with Detective Acting Sergeant Lara Williams. He observed a male person that was later identified to him as DT sitting on the gutter outside the premises. A number of police and members of the public were standing around him. DT had blood on his head, his arms and his hands. He had some swelling or a lump on his left shoulder and he appeared to be quite agitated.
Detective Shaw had a conversation with DT at about 6:20 pm, and made notes of that conversation. He testified:
[DT] told me that he was at [redacted] with the woman who lives there. Ms Stott and a male arrived in a white SS. Male threatens him with baseball bat, stated he was from Long Bay. They went inside the premises. Ms Stott said that [DT] owes her from 10 years ago. [DT] said he’d never been so scared. Ms Stott told him to spread his legs and put his hands on the back of the couch so she can search him. She told him to empty his pockets. He asked her why. She says ‘What’s in your pockets? A phone, cash?’ He said ‘My phone’. She said ‘Give it to me’. He said ‘No’. The male that was with Ms Stott started beating him with the bat around the head, arms and hands. He fell to the floor and the male was kicking and stomping him. That continued into the kitchen where he was still beating him and [DT] reached into a drawer and grabbed a kitchen knife. He chases Ms Stott and the male outside calling for help. Stabs tyre of white SS to stop them leaving before police arrive. A four wheel drive arrives and picks up Stott and the male who leave. The four wheel drive returns. Ms Stott gets out. The four wheel drive leaves. [DT] doesn’t know why this happened. He said he saw Ms Stott three days ago at Kambah village at which time she gave him a hug.
At about 7:50 pm Detective Shaw had a conversation with Ms Howsan. Prior to that time, DT had been conveyed from the residence by ambulance. Detective Shaw did not see DT and Ms Howsan converse with each other while he was present. He said “they were quite a distance from one another”. At the time he spoke to her, Ms Howsan appeared drowsy and her speech was slow. Detective Shaw believed her to be drug affected.
Ms Howsan told Detective Shaw:
She said [DT] arrived at the house. Sharon and an unknown male arrived at the same time. She described the male as average height, a heavy or fat build, shorts, white T-shirt, shaved light brown hair, crooked or missing teeth, and dodgy tattoos. The male forced his way into the house with [DT] and Sharon, grabbed Ms Howsan’s baseball bat and was threatening [DT]. The male was ordering Catherine around to get cold drinks for them and was ordering [DT] around. Sharon and the unknown male said that [DT] had a $20,000 debt that he had been dodging for 10 years and the male that he owed the debt to was going to attend the location. They were asking [DT] when he got paid and to go on a payment plan. They waited ages, the male didn’t arrive. The unknown male attacked [DT] with the baseball bat, smashed him in the head, body, arms and legs, gave him a bad beating. [DT] got a knife from the kitchen and chased Sharon and the male outside and stabbed a car tyre. She told me that she had had a one by 5 milligram Valium and three by 150 milligram Lyrica at lunch and heroin that morning.
Before Ms Howsan left the scene at about 10:20 pm, Detective Shaw accompanied her into the house to collect some personal items. She subsequently left in a taxi.
Detective Shaw gave evidence that the Louis Vuitton wallet located in the white Commodore (see [88] above) contained a driver’s licence in the name of David Michael Evans and a St George Visa payWave card in the name of David Evans. It also contained a Belconnen Soccer Club temporary membership card in the name of “[ES]”, a “Tradies” card in the name of KX, a “RUC” card in the name of David Evans and a “Raiders Club” card in the name of ON.
Gita Lala
Ms Lala is a forensic biologist with the Australian Federal Police, having held that position for nearly 15 years. She prepared a report dated 8 May 2019 which was tendered into evidence. Ms Lala undertook an examination of items and material obtained by the police from the scene of this incident on 18 January 2019. She undertook a comparison of DNA located at the scene of the incident and taken from objects found at or near the incident with DNA samples from DT, Mr Evans, Ms Stott and ES.
A mixed DNA profile from a minimum of three individuals was obtained from a tape lift taken from the front passenger seat headrest, seatbelt and interior door grab of the white Commodore in which Ms Stott and the unknown male arrived at Ms Howsan’s property on 18 January 2019. Ms Lala stated that Mr Evans could not be excluded as a contributor to that profile. She stated that the evidence is at least 100 billion times more likely if Mr Evans is one of the three contributors to the mixed DNA profile than if the profile originated from three unknown individuals, unrelated to Mr Evans, selected at random from the Australian Caucasian subpopulation. In her opinion, this finding provides extremely strong support for the proposition that Mr Evans is a contributor to the DNA profile.
A mixed DNA profile from a minimum of two individuals was obtained from the handle of the baseball bat which the unknown male had used to hit DT at Ms Howsan’s property on 18 January 2019. Ms Lala stated that Mr Evans could not be excluded as a contributor to this profile. She stated that the evidence is at least 100 billion times more likely if Mr Evans is one of the two contributors to the mixed DNA profile than if the profile originated from two unknown individuals, unrelated to Mr Evans, selected at random from the Australian Caucasian subpopulation. In her opinion, this finding provides extremely strong support for the proposition that Mr Evans is a contributor to the DNA profile.
A mixed DNA profile from a minimum of three individuals was obtained from the shaft of the baseball bat. Mr Evans could not be excluded as a contributor to this profile. Ms Lala stated that the evidence is at least 100 billion times more likely if Mr Evans is one of the three contributors to the mixed DNA profile than if the profile originated from three unknown individuals, unrelated to Mr Evans, selected at random from the Australian Caucasian subpopulation. In her opinion, this finding provides extremely strong support for the proposition that Mr Evans is a contributor to the DNA profile. DT could not be excluded as a contributor to this profile. Ms Lala stated that the evidence is at least 100 billion times more likely if DT is one of the three contributors to the mixed DNA profile than if the profile originated from three unknown individuals, unrelated to DT, selected at random from the Australian Caucasian subpopulation. In her opinion, this finding provides extremely strong support for the proposition that DT is a contributor to the DNA profile.
Nearly two minutes later, Ms Howsan texted Bec saying “[s]he caught him here…”. I am satisfied that the “she” referred to is Ms Stott and the “him” is DT. The clear representation that Ms Stott “caught” DT at Ms Howsan’s house is inconsistent with Ms Howsan’s evidence. There was no reason suggested why Ms Howsan would seek to lie to or mislead the recipient of this text message.
The text message sent by Ms Howsan at 5:17 pm is significant. In it she said, “[DT] got bashed baseball bat and grabbed my kitchen knife and chased him the SS offsider my house trashed”. The “[DT]” referred to is clearly DT, and SS is a reference to Ms Stott. I have no doubt that the representation Ms Howsan was making was that DT was bashed with a baseball bat following which he grabbed Ms Howsan’s kitchen knife and chased Ms Stott’s “offsider”. This representation is evidence of the fact that DT was bashed with the baseball bat before he obtained the knife as DT testified, and not after as suggested by Ms Howsan in her evidence. There was no reason suggested why Ms Howsan would seek to lie to or mislead the recipient of this text message.
At 5:30 am on 19 January 2019, Ms Howsan sent another text message saying “[b]abe shazza had a guy bashed in my home my home trashed…”. The reference to “shazza” in this text is clearly a reference to Ms Stott and the “guy” referred to is clearly DT. If events had occurred as described by Ms Howsan in her evidence, it is completely inexplicable why she would have texted at 5:30 am that Ms Stott had had DT bashed in her home. The fact which Ms Howsan intended to assert in this text is that Ms Stott had (in the sense of being responsible for) DT bashed at her house. The evidence of this text is admissible to establish the truth of that representation. The suggestion accepted by Ms Howsan in cross-examination that she sent this text with a view to getting sympathy or something from the recipient is improbable.
At 5:58 am on 19 January 2019, Ms Howsan sent a text message to her father saying “[h]ey Dad the lady I owe money to came and had a man with her they bashed my friend with a baseball bat...”. The reference to the “lady” is a reference to Ms Stott. The reference to “my friend” is clearly a reference to DT. The text itself is clearly a reference to the events that occurred just prior to 5:00 pm on 18 January 2019. In this text, Ms Howsan has asserted that Ms Stott and a man came to her house and they bashed DT with a baseball bat. The evidence of this text is admissible to establish the truth of that representation. I will interpolate at this point to deal with Ms Howsan’s evidence that in her texts to her father she was lying to him in order to get him to give her money. On the basis of the evidence of text communications between Ms Howsan and her father, I accept that Ms Howsan would commonly, at about this time, lie to her father for the purpose of trying to convince him to give her money. As such, I accept that I need to exercise caution in accepting the truth of representations made by Ms Howsan to her father. For example, as part of the text message she sent to her father she claimed that she owed Ms Stott $2500 “down from $10,800”. In the absence of any corroborative evidence, I would not accept Ms Howsan’s assertion in this text that she owed money to Ms Stott. It is important to note, however, in determining to what extent weight should be given to Ms Howsan’s assertions in the text messages to her father that there is no evidence, or even a suggestion, that Ms Howsan had spoken to DT about his version of events before she sent the text message at 5:58 am on 19 January 2019, or that she had become aware in some other way of the content of his version of events. It would be an extraordinary coincidence if the lie Ms Howsan told her father just happened to coincide with, on her version of events, DT’s untruthful version given to police. That suggestion is simply not credible. I am satisfied that in making the assertion that Ms Stott and a man came to her house and bashed DT with a baseball bat, Ms Howsan was telling the truth as she knew it to be at that time.
At 8:12 am on 19 January 2019, Ms Howsan sent a text message to an unknown person (not her father) saying “[h]ey sorry About yesterday I had Sharon Stott have a guy bashed in my home yesterday had police here til 3am this morning”. The “guy” referred to in this text is clearly DT. The fact which Ms Howsan asserted in this text is that Ms Stott had DT bashed in her house on 18 January 2019. The contents of this text are admissible as evidence of the truth of this assertion. There was no reason suggested why Ms Howsan would seek to lie to or mislead the recipient of this text.
In her evidence, Ms Howsan agreed that when she spoke to police on 18 January 2019, she did her best to tell the truth. Constable Pruckner gave evidence that just prior to 7:50 pm on 18 January 2019 she had a conversation with Ms Howsan, who said “[o]ne bloke I didn’t even know grabbed my baseball bat before I could, someone must have told him where it was hidden because he came straight in and grabbed it to use it”. In the context in which this statement occurred the “bloke” referred to can only be the male person who came to Ms Howsan’s house with Ms Stott on 18 January 2019. The fact which Ms Howsan asserted in this text was that the male grabbed the baseball bat straight after he entered her home. The contents of this statement are admissible as evidence of the truth of this assertion.
I am satisfied that Ms Howsan was telling the truth as she perceived to be at the time in the text messages to which I have referred and in the statements which she made to police on the evening of 18 January 2019. The text messages and the statements were made contemporaneously with the relevant events and before Ms Howsan had any real opportunity to speak to others about the events. Ms Howsan’s evidence, given 16 months after the events, clearly differed in significant aspects from the contents of the text messages and the statements that she made on or about 18 January 2019. By the time she gave evidence, Ms Howsan had been in prison with Ms Stott for a period, and there had been ample opportunity for Ms Howsan to reconsider the nature of her evidence. I am satisfied that Ms Howsan’s evidence was tailored to support Ms Stott. I am satisfied that the statements made by Ms Howsan to police on the evening of 18 January 2019 and the statements made by her in the text messages to which I have referred are admissible as proof of the truth of the statements asserted.
Ms Howsan’s evidence concerning the male who attended with Ms Stott on 18 January 2019 that she had never seen him before is to be believed. There is no reason why she would lie about that matter. Her evidence that she did not know the accused Mr Evans may also be believed for the same reason. It was notable in cross‑examination that Ms Howsan agreed with virtually every suggestion put to her by counsel for Ms Stott, but she took a very different approach to cross-examination by counsel for Mr Evans. Despite it being suggested to her by counsel for Mr Evans that Mr Evans had been to Ms Howsan’s home prior to 18 January 2019 to purchase heroin, Ms Howsan was adamant that was not the case. I am satisfied that in this aspect of her evidence she was telling the truth.
The police investigation
No criticism was levelled at any individual police officer, but some criticism was made of the police investigation generally. I will address these criticisms compendiously.
Much of the criticism surrounded the location of the red pillowcase in the boot of the white Commodore at Ms Howsan’s property on 18 January 2019. In her evidence‑in‑chief, Constable Pruckner said that when she opened the boot of the vehicle, she saw the pillowcase “in plain view”. Photographs taken of the boot of the white Commodore by forensics officers prior to Constable Pruckner conducting her search do not show the red pillowcase in plain view. In fact, the pillowcase is not visible at all. When this was pointed out to Constable Pruckner she said that she could not recall whether she could see the red pillowcase when she first opened the boot, and that she had moved items around in the boot during her search. It was not clear to me whether the cross-examination of Constable Pruckner, and other police officers, was directed towards the proposition that police had placed the red pillowcase in the rear of the vehicle, although no such direct allegation was made. This is, in any event, a highly improbable suggestion. It was not disputed that the items which were located during the police search were placed in sealed evidence bags. It may readily be inferred that the bags were not tampered with between the time that they were sealed and the time that they were opened to enable examination of the contents. It may also be readily inferred that the DNA which was identified by Ms Lala from a tape lift taken from the outside of the pillowcase was present on the pillowcase when the pillowcase was taken from the boot and placed in an evidence bag. At that time, there had been no mention of Mr Evans. Ms Stott had not mentioned Mr Evans’ name, and the male person who accompanied Ms Stott on 18 January 2019 was unknown to DT and Ms Howsan. It is implausible that police would have brought a pillowcase to Ms Howsan’s property on the evening of 18 January 2019 which coincidentally had DNA on it highly consistent with being that of Mr Evans, or had DNA highly consistent with that of Mr Evans transferred onto it. One may also ask why the police would act in this manner given that Ms Stott had already told them there were cable ties in the car, and these were found in full view on the driver’s seat. Whatever criticisms may be made of the investigation, I am left in no doubt that the red pillowcase was in the boot of the white Commodore when it arrived at Ms Howsan’s property on the afternoon of 18 January 2019. It is probable that the pillowcase was obscured by other items in the boot when photographs were taken by forensics officers, and it was then revealed when Constable Pruckner moved items in the boot around during her search.
The police were criticised for not asking Ms Stott for her consent to search the white Commodore. The suggestion appears to be that by insisting upon seeking a search warrant from a magistrate, the police delayed the search of the vehicle until after Ms Stott had left the premises at [redacted] in Kambah. In my opinion, no criticism can reasonably be made of the police in that regard. Ms Stott was always aware that police were going to search the vehicle. She could have remained at Ms Howsan’s property until the warrant was obtained had she wanted to. In addition, police understandably wanted to search the house at [redacted] in Kambah and could not obtain informed consent from Ms Howsan. In order to search the house, they had to obtain a search warrant from a magistrate. It is hardly surprising that police delayed the search of the vehicle, which was in the driveway of the house, until such time as they had a search warrant to search the house.
There was also some criticism of police giving the keys to the white Commodore to Ms Howsan as they left the premises at [redacted] in Kambah after conducting the search. The purpose of this criticism, and that relating to the seizure of money found in Ms Stott’s wallet, appears to be that police treated Ms Stott not as a victim of an offence (as she claimed), but as the perpetrator. In other words, it was suggested that these actions indicated a bias by police against Ms Stott in their investigation. With regard to leaving the keys to the car with Ms Howsan, there was evidence that police unsuccessfully attempted to contact Ms Stott by telephone before leaving the keys with Ms Howsan. The white Commodore was parked in the driveway of [redacted] in Kambah, and Ms Howsan was a person who had known Ms Stott for about 20 years. I am not willing to be critical of the police, or to draw some inference contrary to the prosecution, based upon the evidence in the state in which it is.
Similarly, no reasonable criticism can be levelled at police for having retained the sum of $1170 in cash found in Ms Stott’s wallet. The police were confronted with a situation where drugs were found on the premises at [redacted] in Kambah. There was also an allegation made by Ms Stott that drugs were being sold at that location. Police had differing accounts of what had occurred at Ms Howsan’s property on 18 January 2019, and they could not be certain that they had been told the whole truth or, indeed, any of the truth. It is understandable that police would hold onto the relatively large sum of cash found in Ms Stott’s wallet pending evidence in the current proceeding.
I am satisfied that none of the criticisms made by the accused regarding the police investigation are made out. I am satisfied that there is nothing in the way the investigation was conducted which would affect my ability to properly determine the facts relating to these charges.
Findings of fact
I am satisfied beyond reasonable doubt of the following facts:
a)on the afternoon of 18 January 2019 DT arrived at [redacted] in Kambah on a bicycle. The precise time at which he arrived is not clear, but it is highly improbable that he arrived before 4:00 pm that afternoon;
b)as DT arrived Ms Stott and a male person also arrived at [redacted] in Kambah in a white Commodore motor vehicle. Ms Stott was the driver;
c)DT sat on a single seater lounge immediately in front of the entry door, Ms Stott sat opposite him on a single seater lounge, and Ms Howsan sat to DT’s right on another lounge;
d)the male person who arrived with Ms Stott did not sit down, but picked up a baseball bat that was leaning against the side of the lounge where Ms Howsan was seated;
e)the male person was unknown to Ms Howsan and DT and had not previously visited Ms Howsan’s house;
f)Ms Stott asserted to DT that he owed her $20,000 from 10 years ago;
g)DT did not owe Ms Stott any money;
h)the male person with the baseball bat restricted DT’s movements, and effectively restrained him in the seat, by threatening to hit him with the baseball bat;
i)the male person with the baseball bat made multiple threats to cause physical injury to DT;
j)at no point did Ms Stott tell the male with the baseball bat to stop making threats;
k)during the time DT, Ms Stott, the male and Ms Howsan were in the house there were no other persons present;
l)at some point shortly before 5:00 pm Ms Stott threatened to restrain DT with cable ties and take him back to her house in the white Commodore, at the same time making it clear to him by a veiled threat about her dogs that he would not be free to leave her premises;
m)Ms Stott directed DT to stand up and come over to where she was seated so that she could check his pockets;
n)DT approached Ms Stott and was told to put his hands on the right armrest of the single seater;
o)DT pushed Ms Stott, at which time the male person started hitting DT with the baseball bat. It is not clear how many blows were struck, but I am satisfied that multiple blows struck DT. DT suffered physical injury in this attack as set out in the evidence of Dr Barry;
p)while DT was being struck with the baseball bat he moved into the kitchen and grabbed a kitchen knife from a drawer and threatened the man with the knife. It was suggested that there was no blood found in the lounge room while blood was found in the kitchen, and that this supported the proposition that the attack with the baseball bat did not commence until after DT obtained the knife. I do not accept this because on any version of events DT chased Ms Stott and the male through the lounge room after he was hit and had commenced bleeding. The absence of blood in the lounge room therefore tells us nothing;
q)while the male was striking DT with the baseball bat in the kitchen, Ms Stott attempted to stop the male;
r)after grabbing the knife from the kitchen DT chased the male and Ms Stott out into the front yard;
s)at this point DT was bleeding from a wound to his head and was highly agitated and emotional;
t)DT telephoned his mother on two occasions and had conversations with her in the terms she stated in her evidence;
u)DT telephoned police and complained of being held against his will, and assaulted with a baseball bat;
v)DT was concerned that Ms Stott was going to leave in the white Commodore before police arrived and stabbed the tyre of her car with the knife causing the tyre to deflate;
w)the male with the baseball bat left the scene in another vehicle before police arrived, taking the baseball bat with him;
x)the baseball bat was located a short distance from Ms Howsan’s property by HH later that afternoon and given to police;
y)police located cable ties on the front seat of the white Commodore;
z)police located a red pillowcase containing cable ties in the boot of the white Commodore;
aa)a DNA analysis of a tape lift taken from the exterior of the red pillowcase and the front passenger seat area of the white Commodore revealed DNA highly consistent with it being Mr Evans’ DNA;
bb)DNA highly consistent with Mr Evans’ DNA was located on the handle and shaft of the baseball bat used by the male to attack DT;
cc)Ms Stott told police before they searched the white Commodore that it contained “zip ties”;
dd)DNA highly consistent with Ms Stott’s DNA was located on the cable ties found on the front seat of the white Commodore.
It will be apparent from the above that I have accepted the evidence of DT relating to the essential aspects of the events of 18 January 2019. I have given careful consideration to his evidence for the reasons given above, but I have nevertheless determined to accept his evidence for the following reasons:
a)DT made a complaint to police at the earliest opportunity in terms consistent with his evidence;
b)the circumstances in which the complaint to police was made, being immediately after the event and having suffered at least one blow to the head with the baseball bat, make it highly unlikely that he had the opportunity to concoct his complaint. The terms of his complaint and its timing strongly support his evidence;
c)DT made a complaint to his mother at the earliest opportunity in terms consistent with his evidence;
d)the circumstances in which that complaint was made make it highly unlikely that he had the opportunity to concoct his complaint;
e)the version of events given by Ms Howsan is inherently improbable;
f)the version of events given by Ms Stott to Detective Senior Constable Humphrey was just as improbable in that it provides no logical reason for DT grabbing the knife. Ms Stott merely asserted that DT “went crazy”. It was not suggested in cross-examination of Detective Senior Constable Humphrey that Ms Stott had proffered any information which may have provided background to DT’s conduct. It is not, of course, incumbent on the accused to provide an explanation for DT’s conduct. It is not impossible that a person will, without warning, become violent. But in assessing the probabilities of events having occurred as described by DT as against the description provided by Ms Howsan and Ms Stott, I am entitled to take into account that DT’s version provides a plausible and logical reason for his conduct while that given by Ms Howsan and Ms Stott does not;
g)it is implausible if events occurred as now suggested by Ms Stott that she made no mention of being attacked with a knife by DT in her call to police at 4:59 pm on 18 January 2019, instead only complaining of damage to her “very expensive car”;
h)those text messages sent by Ms Howsan and her conversations with police which I have identified as being evidence of the truth of the assertions made by Ms Howsan strongly support DT’s evidence. The suggestion that Ms Howsan may have heard what NT told police in front of [redacted] in Kambah on the evening of 18 January 2019 is not supported by the evidence. The evidence was that they were physically separated. No suggestion was made to Ms Howsan that she had overheard conversations between DT and the police;
i)DT’s demeanour at the scene as described by police adds some slight support to his evidence;
j)there was no evidence of collusion between DT and Ms Howsan before each spoke to police at the scene on 18 January 2019, or before DT telephoned his mother or before Ms Howsan sent the text messages to which I have referred. The extent to which they coincide on factual matters strongly supports DT’s evidence; and
k)the location of cable ties (or zip ties) in the white Commodore supports DT’s evidence that he was threatened with restraint using cable ties. It is improbable that DT saw the cable ties in the white Commodore while he was in the front yard and, in the condition he was then in, decided to weave them into a concocted version of events.
I have not taken into account the tendency evidence led by the Crown in reaching the above conclusions. I also do not accept the Crown submission that the fact that Ms Stott rang police on 18 January 2019 using the general police contact telephone number rather than the 000 emergency number is indicative of a consciousness of guilt on the part of Ms Stott, or is in some other way indicative of her guilt.
The identity of the male person with Ms Stott
I am satisfied beyond reasonable doubt that the male person who accompanied Ms Stott to Ms Howsan’s property on 18 January 2019 was the accused Mr Evans. The suggestion that more than one male arrived with Ms Stott is not supported by the evidence of DT or Ms Howsan, or by the content of the text messages sent by Ms Howsan. I have reached the conclusion that the only rational or reasonable inference to be drawn from the circumstantial evidence is that it was Mr Evans who accompanied Ms Stott, threatened DT and then struck DT with the baseball bat. The likelihood of Mr Evans being a contributor to the DNA found on the baseball bat, the front passenger seat area of the white Commodore and the red pillowcase located in the boot of that car is so high that the only reasonable inference which can be drawn is that the DNA is Mr Evans’ DNA. There is no evidence that Mr Evans was ever in the white Commodore before 18 January 2019. It may be inferred that Mr Evans knew Ms Stott as at 18 January 2019, but it would be pure speculation to conjecture that Mr Evans was in the white Commodore prior to 18 January 2019 and left behind traces of his DNA, which was then transferred to another person who was a passenger in the car with Ms Stott on 18 January 2019, and who then transferred some of that DNA to the baseball bat.
I have already informed myself of the special need for caution in accepting the evidence of DT’s identification of Mr Evans from a photoboard. This is not the best or most reliable method of obtaining identification evidence, the best method is an identification parade. The photographs presented for DT’s consideration on the photoboard were all of male persons of similar appearance. I am satisfied that on 18 January 2019 DT was in the presence of the male who attended with Ms Stott for a reasonably lengthy period, although it is impossible to be exact. The evidence of Ms Howsan’s text messages would suggest at least 40 minutes. I am satisfied that DT had a good opportunity to observe the physical characteristics of that male person. In addition, I bear in mind that the identification of Mr Evans by photoboard occurred about six weeks after the relevant events, at a time one would expect his memory to be relatively intact.
The location of club membership cards in names other than that of Mr Evans in the Louis Vuitton wallet found in the glove box of the white Commodore does not raise a reasonable possibility that it was someone other than Mr Evans in the car with Ms Stott on 18 January 2019. The evidence establishes that one of the persons whose name appears on one of the cards was a female. Another (ON) is a female name and the third (ES) was a male but not of a similar appearance to the description of the offender. There was also evidence that a mobile phone number associated with ES was being used in North Canberra on the afternoon of 18 January 2019. In any event, the most significant document located in the wallet in terms of identification, and therefore most likely to belong to the owner of the wallet, was the driver’s licence in Mr Evans’ name.
It was submitted by counsel for Mr Evans that the identification process was tainted because some unidentified person told DT before he saw the photoboard that the person who attacked him was Mr Evans. I do not accept that submission. Knowledge of the supposed name of the male who attacked him would not assist DT in visually identifying that person from a group of photographs of males of similar appearance to which no names were attached.
There was also evidence that calls from a phone number associated with Mr Evans was made to Ms Stott’s phone on 18 January 2019, the last being made at 3:47 pm.
The charges
Count 1 on the indictment alleges that on 18 January 2019 Ms Stott and Mr Evans unlawfully confined DT. I am satisfied beyond reasonable doubt that Mr Evans confined DT in the premises at [redacted] in Kambah on 18 January 2019 by threatening to bash him with a baseball bat if he moved from the seat in which he was seated. I am satisfied beyond a reasonable doubt that in acting as he did, Mr Evans intended to confine DT. There can be no suggestion that this confinement was lawful. I find Mr Evans guilty of Count 1.
In order to convict Ms Stott of this offence, I must be satisfied beyond reasonable doubt that Ms Stott and Mr Evans were acting together as part of a joint criminal enterprise to unlawfully confine DT: see s 45A Criminal Code. The agreement to carry out the offence need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. Where two or more persons carry out a joint criminal enterprise, that is an agreement to carry out a particular criminal activity, each is held to be criminally responsible for the acts of another participant in carrying out that enterprise or activity. I am satisfied beyond reasonable doubt that Ms Stott and Mr Evans were parties to a joint criminal enterprise constituted by an agreement to unlawfully confine DT within the premises at [redacted] in Kambah on 18 January 2019. The demands by Ms Stott that DT pay her money which was not owed to her, and the fact that she did not question or challenge Mr Evans when he threatened DT with the baseball bat satisfies me that they were acting in concert to hold DT within the premises at [redacted] in Kambah with a view to extorting money from him by threats of violence. I find Ms Stott guilty of Count 1.
Count 2 alleges that on 18 January 2019 both Ms Stott and Mr Evans intentionally inflicted actual bodily harm on DT. I am satisfied beyond reasonable doubt that Mr Evans inflicted actual bodily harm on DT on 18 January 2019 by striking him on multiple occasions with a baseball bat. The injuries inflicted on DT were those set out in the report provided by Dr Barry. I am also satisfied by the nature of the weapon used by Mr Evans and the way in which it was used that he intended to inflict actual bodily harm on DT. On the basis of the findings of fact that I have made, self-defence or defence of another does not arise. I find Mr Evans guilty on Count 2.
In order to convict Ms Stott of Count 2, I must be satisfied that she and Mr Evans were part of a joint criminal enterprise to inflict actual bodily harm on DT. The statements that I made in that regard with respect to Count 1 apply equally to Count 2. There was no evidence that Ms Stott directed Mr Evans to hit DT with the baseball bat. There is evidence that Ms Stott from time to time told Mr Evans to calm down, and tried to make him desist from hitting DT with the baseball bat. I am not satisfied beyond reasonable doubt that there was a joint criminal enterprise to inflict actual bodily harm on DT to which Ms Stott was a party. I enter a verdict of not guilty on Count 2 against Ms Stott.
Count 3 alleges that on 18 January 2019 both Ms Stott and Mr Evans made a demand of DT with threat to endanger DT’s health, safety or physical wellbeing. I am satisfied beyond a reasonable doubt that Mr Evans made threats to the physical wellbeing of DT while they were in the premises at [redacted] in Kambah on 18 January 2019. In particular, I am satisfied that Mr Evans threatened to bash DT with the baseball bat and threatened that he was going to smash his kneecaps. I am also satisfied beyond reasonable doubt that Ms Stott made a demand of DT, being a demand that he pay her $20,000. In order to convict the accused of this offence, I must be satisfied beyond reasonable doubt that Ms Stott and Mr Evans were engaged in a joint criminal enterprise consisting of an agreement to make a demand of DT with threats to his physical wellbeing. I am quite satisfied that Ms Stott and Mr Evans were acting in concert as part of an agreement to “stand over” DT. By this, I mean that they had an agreement that Ms Stott would make demands that DT pay money while Mr Evans made threats to DT with a view to encouraging him to meet the demands made by Ms Stott. I infer the existence of this agreement from their conduct. I find each of the accused guilty of Count 3.
Count 4 alleges that on 18 January 2019 Ms Stott attempted to take away or detain a person, namely DT, with the intent of holding him for an advantage. In order to convict Ms Stott of this offence, I must be satisfied beyond reasonable doubt that Ms Stott did some act which was more than merely preparatory, directed towards the commission of the substantive offence. I am satisfied beyond reasonable doubt that Ms Stott indicated an intention of restraining DT with cable ties and taking him back to her house. This statement was made in the context of continuing demands by Ms Stott that DT pay her money. I am satisfied that Ms Stott told DT to stand up from the lounge on which she was seated and to walk over towards her and put his hands on the lounge on which she was seated. I am not satisfied that Ms Stott had any cable ties or any other means of restraining DT on her at that time. It is possible of course that Mr Evans had cable ties on him, but that is merely speculation. I am not satisfied beyond reasonable doubt that Ms Stott intended taking away or detaining DT with a view of holding him for an advantage at that time. It is just as plausible that her threats to DT to cable tie him and take him back to her house in the white Commodore were part of the process of making threats to DT to get him to agree to Ms Stott’s demands whilst in the premises at [redacted] in Kambah. I will enter a verdict of not guilty on Count 4.
Conclusion
I find the accused Sharon Stott guilty of Counts 1 and 3, and not guilty on Counts 2 and 4.
I find the accused David Evans guilty on Counts 1, 2 and 3.
| I certify that the preceding one hundred seventy-seven [177] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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