R v Goldner-Shepp - [2021] SADC 144

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GOLDNER-SHEPP
Criminal Trial by Judge Alone
[2021] SADC 144
Reasons for the Verdicts of his Honour Judge Heffernan
10 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Accused charged with two counts of aggravated assault, one count of unlawfully choking, suffocating or strangling another and one count of aggravated causing harm with intent to cause harm. Accused acquitted of counts 2 and 3 at trial.
Held: Not Guilty of counts 1 and 4.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 21; Family Relationships Act 1975 (SA) s 11, referred to.
Johnson v Miller (1937) 59 CLR 467; R v MAS (2013) 18 SASR 160; R v S [2001] 1 Qd R 445, considered.

R v GOLDNER-SHEPP
[2021] SADC 144

Skye Ward Howard Goldner-Shepp is charged on Information dated 19 June 2020 with the following offences;
First Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Skye Ward Howard Goldner-Shepp on the 18th day of June 2019 at Seacombe Gardens, assaulted Claire Lewis.
It is further alleged that Skye Ward Howard Goldner-Shepp committed the offence knowing that Claire Lewis was his domestic partner.
Second Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Skye Ward Howard Goldner-Shepp on the 18th day of June 2019 at Seacombe Gardens, being or having been in a relationship with Claire Lewis, unlawfully choked, suffocated or strangled Claire Lewis, without her consent.
Third Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Skye Ward Howard Goldner-Shepp on the 18th day of June 2019 at Seacombe Gardens, assaulted Claire Lewis.
It is further alleged that Skye Ward Howard Goldner-Shepp committed the offence knowing that Claire Lewis was his domestic partner.
(Count 3 is laid in the alternative to Count 2).
Fourth Count
Statement of Offence
Aggravated Causing Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Skye Ward Howard Goldner-Shepp on the 18th day of June 2019 at Seacombe Gardens, caused harm Claire Lewis, intending to cause her harm.
It is further alleged that Skye Ward Howard Goldner-Shepp committed the offence knowing that Claire Lewis was his domestic partner.
This matter proceeded before me as a trial by judge alone, the accused having elected for a trial without a jury.
Count 3 was charged in the alternative to count 2. At the end of the prosecution case, the prosecutor conceded that there was no case to answer on counts 2 and 3 and I acquitted the accused on those counts. There was simply no evidence of the alleged incident with respect to which counts 2 and 3 were laid.
I now publish my reasons for the verdicts I deliver with respect to counts 1 and 4 on the information.
Overview
At the time of the alleged offences, the accused and Ms Lewis had been in a relationship for approximately eight months. They did not live together. Ms Lewis resided in a house at 2B Sutton Avenue, Seacombe Gardens. Mr Goldner-Shepp would stay overnight at her premises three to four nights per week. He otherwise lived with his sister in a house owned by his brother in Hallett Cove. On the evening of the alleged offences, Ms Lewis had invited two friends to her house to celebrate the birthday of one of the friends. The accused was present. They were all consuming alcohol. The friends departed prior to the alleged events the subject of counts 1 to 4 for reasons which were the subject of dispute at trial. On the prosecution case, Ms Lewis and the accused argued and Ms Lewis told him to leave the house. It is alleged that he became violent and pinned her to the wall in the hallway by placing his hand around her throat and pushing her into the wall. Sometime after that, it is alleged that he threw her to the floor in the lounge room and punched her repeatedly in the head and left side of the face and stomped on her face with his foot, causing swelling and bruising. It was not disputed that Ms Lewis went to her next-door neighbour’s house to seek assistance. Both police and an ambulance attended and Ms Lewis was taken to the Flinders Medical Centre for treatment. She was treated there as an out-patient and returned home the following morning after having been discharged at about 10:30am.
Elements of the offences
The prosecution must prove beyond reasonable doubt the following elements with respect to count 1, the offence of aggravated assault;
·that the accused assaulted Ms Lewis
·that the assault was voluntary
·that the assault was unlawful
·that the assault was committed in circumstances of aggravation as particularised.
In this matter, the prosecution alleged a circumstance of aggravation namely that the alleged victim Ms Lewis was his domestic partner at the time of the offence. For the purposes of the Criminal Law Consolidation Act (1935), the term ‘domestic partner’ takes its meaning from the definition of that term in section 11A of the Family Relationships Act (1975). That section provides as follows;
A person is, on a certain date, the domestic partner of another if—
(a)the person is, on that date, in a registered relationship with the other; or
(b)the person is, on that date, living with the other in a close personal relationship and—
(i) the person—
(A) has so lived with the other continuously for the period of 3 years immediately preceding that date; or
(B) has during the period of 4 years immediately preceding that date so lived with the other for periods aggregating not less than 3 years; or
(ii) a child, of whom the 2 persons are the parents, has been born (whether or not the child is still living at that date).
For count 4, the offence of aggravated assault causing harm with intent to cause harm as particularised, I must be satisfied beyond reasonable doubt that:
·the accused performed a voluntary and deliberate act;
·that Ms Lewis suffered harm;
·that the accused’s voluntary and deliberate act caused the harm to Ms Lewis;
·that at the time of the accused’s act he intended to cause Ms Lewis harm;
·that the accused’s act was unlawful; and
·that the assault was committed in circumstances of aggravation as particularised.
A person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm.[1] Harm means physical or mental harm, whether temporary or permanent.[2]
[1] S 21 Criminal Law Consolidation Act, 1935 (SA).
[2] Ibid.
Legal directions
It is not necessary that I direct myself as to the law in the same way a jury would be directed.
I have applied the following principles in reaching my verdict.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly upon the prosecution. Before the accused is convicted of the offence, the prosecution is required to have proved beyond reasonable doubt each element of the charge. In these reasons, if the words ‘proved’, ‘established’ or ‘satisfied’ are used, this means to a standard of beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty.
The accused elected to give evidence. He was not obliged to do so. As the accused has given evidence in his defence, and called witnesses as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, I have assessed his evidence like the evidence of any other witness in this trial.
Without objection, special arrangements were put in place for Ms Lewis in giving her evidence. Ms Lewis gave evidence with the aid of a screen placed between her and the accused and was accompanied by a court companion.
I have not drawn any adverse inference against the accused because of those arrangements, nor have those arrangements caused me to place any extra or undue weight on Ms Lewis’ evidence.
I have reminded myself of the need to give separate consideration to each count, the limited use which can be made of distress and demeanour evidence, the need to carefully consider whether any inconsistencies in the evidence of a witness affects my assessment of their honesty and reliability and of the need to scrutinise the evidence of Ms Lewis with great care, the prosecution case being almost wholly dependent on her evidence.
The contentious issue at trial was whether the accused had assaulted Ms Lewis with respect to either count in the manner alleged.
Prosecution Case
A significant absence in the prosecution case was any photographs of the scene inside Ms Lewis’ house. The summary of evidence below should be read with that in mind.
Ms Clare Lewis
Ms Lewis is 28 years old. She met the accused whilst working at Woolworths Marion where he also worked. In about mid-September 2018 they started seeing each other outside of work and commenced a relationship. At the time they commenced their relationship Ms Lewis was living alone in her house in Secombe Gardens. She told me that once they had commenced their relationship the accused started to spend most of his time staying at her house but that he lived elsewhere with his sister.
On the day of the alleged offending, Ms Lewis worked at Woolworths Marion between 7:30am and 12:30pm. She walked home from work. There was no one else at home when she arrived. She told me that on that day she had been feeling a little bit upset about the death of her mother. Ms Lewis told me that since she was about 13 years of age, she had been in the habit of self-harming from time to time. She told me that she only ever self-harmed with a razor blade.[3] Her practice was to cut herself on her arm. She told me that she had scars which had been there for years and that this was the only place she had ever self-harmed.[4] She self-harmed when she returned from work that afternoon.[5] No one else was home at the time she did this.[6] There was some initial confusion in her evidence as to which of her arms she had cut that afternoon. Initially she stated that “I would have cut my arm, my right arm, I would have used my left hand with a razor blade to cut my left - right arm.”[7] She indicated that her forearm was where she would cut herself. She said that she was right-handed and then said that she had used her right hand to cut her left forearm making maybe two or three small incisions and indicated the approximate position on her left forearm.[8] Those cuts had caused her to bleed a small amount but she had not put any band-aids or other dressing on them. When shown photographs taken of her by police on Wednesday 19 June[9] she agreed that they depicted a tape dressing on her forearm and said that she could not remember having placed the tape there herself. The effect of her evidence was that the tape in the photograph was in the position that she had cut herself.[10] Her evidence was that apart from those self-inflicted cuts, she had no other injuries on her body before the alleged incident with the accused.[11] She denied having inflicted cuts to any other part of her body on that day.[12]
[3]     T37.36-37.
[4]     T37.38 – T38.1-3.
[5]     T13.7, 32.
[6]     T13.16-18.
[7]     T13.20-22.
[8]     T13.32-36.
[9]     Exhibit P1, photograph 25.
[10]   T40.14.
[11]   T36.21-24.
[12] T14.33.
Ms Lewis said that the accused had finished work at about 3.30pm that day[13] and that she believed he had come straight home from work. Whilst she could not remember the exact time of the accused’s work shift on the day, she said that there were only a few hours in the afternoon that she was home by herself before he arrived.[14] It was common ground between the parties that two of Ms Lewis’ female friends Taylin and Bec attended at the house that evening. She did not believe that her friends had arrived before the accused got back to her house. Her evidence as to what the accused did when he returned home was somewhat equivocal. She spoke in terms of it being his usual practice to watch television whilst having a cigarette and a beer.[15] She said that he always had a beer when he came home from work but that she was not counting his drinks on this day. She told me that she probably started drinking at around the time the accused arrived at her house and that she believed she would have been drinking cider.[16] It was her friend Taylins’ 23^rd birthday and Ms Lewis had invited her over for a celebration. Bec was not well-known to Ms Lewis. After the women arrived, all of them including the accused consumed alcohol.[17] She believed that in between arriving home from work and up to approximately 5pm she would have consumed 3 to 4 ciders.[18] She could not recall the amount of alcohol that she or the accused consumed during the period that her friends were present.[19] She estimated that she had had approximately six to eight cans of cider before going to Ms Kidane’s house.[20] She said that her usual drinking pattern at that time was about 10 cans of cider at night after work until she went to bed. She then increased her estimate and told me that it was possible she had consumed up to 10 cans of cider on the evening of the alleged offences before she ran to the neighbours.[21] She agreed that she had also consumed cannabis that night and said that at about that time it was her normal practice to have up to 10 cones of cannabis each night because it helped her sleep.[22]
[13] T52.28-29.
[14] T55.14-25.
[15] T15-4-21.
[16] T15.22-30.
[17] T15-16.
[18] T16.17-20.
[19] T16.31-32.
[20] T52.36.
[21] T53.
[22] T54.7-18.
During the time that her friends were at the house she said that the accused was angry and quite aggressive.[23] She described the accused as having been drunk and slurring and that he became forceful in his manner of speaking and aggressive. She could not recall exactly what he had been drinking but believed it was either beer or bourbon or both.
[23] T17.4-5; T56.38-T57.15.
Ms Lewis told me that the accused spoke over any person who tried to say anything and repeatedly played music loudly over those trying to talk. She said that he would cut people off and tell them that whatever he was saying needed to be said as opposed to what they were saying. Her friends left because Mr Goldner-Shepp was being rude.[24] He had called one of her friends “a bitch”[25] and rudely and repeatedly asked Taylin to roll him a cigarette.[26] She and the accused had bickered throughout the evening when her friends were there. Ms Lewis said that her friends arrived at approximately 5.30pm and that they left at around six or seven-ish, close to dinner time but early enough to meet up with other friends for dinner.[27] She herself did not have dinner on the evening.[28] The bickering between them continued after the women departed. In cross examination, it was put to Ms Lewis that one of the women, Bec, had produced an ice pipe whilst at the house and started smoking methylamphetamine inside which had led to an argument between herself and the accused after the women had left. Ms Lewis denied this, saying she did not know if Bec was a ‘meth’ user.[29]
[24] T17.9-14.
[25] T17.32-33.
[26] T56.25-29.
[27] T54.26; Ms Lewis later stated she was not 100% sure of the time her friends left, but doubted it could have been as late as 8pm – T55.4-5.
[28] T55.7-9.
[29] T51-52.
Ms Lewis remonstrated with the accused after her friends had left saying, “That was disgusting, my friends have left, that’s not fair”.[30] She told me that he did not appear to be bothered by her criticism of his behaviour and had responded to her with words to the effect that her friends had left of their own accord and that it had nothing to do with him.[31] Such bickering was commonplace in their relationship.[32] On this evening, the bickering escalated whilst the accused was preparing himself some food. She could not recall specifically what the bickering was about.[33] She said they bickered about everything and that she came to the conclusion she wanted the relationship to end because she was unhappy.[34] She walked over to the kitchen and angrily swept a bowl of gravy he was preparing onto the floor.[35] On her account, she told him to leave her property.[36] He was angry that she had spilt the gravy and said insulting and belittling things to her. She continued to ask him to leave and he agreed to do so, saying that he would start packing his things. He entered the spare room where he kept his belongings, locked the door from the inside and started packing. There was no conversation between them as he did this. She picked up his belongings from other parts of the house and put them into plastic bags.[37]
[30] T17.17-18.
[31] T17.20-25.
[32] T18.9-14.
[33] T60.7-12.
[34] T60.27-35.
[35] T19.1-2; T61.19-21.
[36] T19.1-2.
[37] T19-20.
Count 1
The door to the spare room opens onto the hallway. Ms Lewis told me that when the accused came out of the room she was standing in the hallway, right near the door. After he opened the door he grabbed her by the throat, forcefully pushing her across the hallway and up against the wall. Whilst she was unclear on which hand he used to grab her throat, she believed it was his right hand. She could not get away from being against the wall. She had her back to the wall and her face towards him. He was facing her. She told me that he continued to have his hand around her throat for the entire time she was against the wall. He was swearing at her, saying horrible, hurtful things. She described him as being in a rage. He spat in her face. She couldn’t say anything to him. She told me that his hand was across the front of her throat but that he was also holding her throat from either side and indicated what she meant by demonstrating a flat palm across the front of her throat, the hand encircling the throat area, with a thumb on one side and the fingers on the other. She said that the accused was pressing down with his hand. She could not recall if she was unable to breath properly. She remembered being able to move around somewhat but she could not leave his grip. His hand was on her windpipe and he held it there for approximately 30 seconds after which he moved away, releasing his grip on her throat. He screamed and threw his hands in the air. She believes she said, “What the fuck” but cannot recall if he responded.[38] Later in her evidence she said that after he released his grip, he turned and walked outside.[39] In cross examination, Ms Lewis gave an account of the events in the hallway the subject of count 1 which was essentially consistent with her evidence in chief. She told me that she might have tried to push the accused off her but that she was not able to get her back away from the wall. She estimated that this assault had occurred for approximately 30 seconds. She told me that she was unable to breathe and speak properly because the accused’s hand was pressing against her windpipe. She was not fighting him. Her evidence on this count does not allow for the possibility that she caused any of the injuries sustained by the accused, to which I will refer later in these reasons. She could not really recall what he was doing and she just wanted to be released. She said when the accused let go of her throat he turned around and walked outside.[40] She believed he was packing up his items from the spare room which is at the front of the house and may have packed things into plastic bags, but her evidence on this aspect of events was somewhat vague.
[38] T21-25.
[39] T34.13-14.
[40] T33-34.
Count 4

Ms Lewis said that after the grabbing on the throat, she went down the hall to the lounge room, which was at the rear of the house. She heard the front screen door close and inferred that the accused had walked outside to the front of the house. He later returned inside and came into the lounge room. Her evidence was that he forcefully grabbed her by both shoulders[41] and he threw her to the ground, resulting in her smacking the back of her head and her coccyx when she hit the floor.[42] She was stuck lying on her back on the ground. Ms Lewis said that the accused stood over her with one hand on her chest,[43] pressing down on her[44] so that she was unable to get away and he repeatedly punched her in the eye nose and face area. He stomped on her eye and her face and spat on her.[45] She was not sure if the spitting was a deliberate attempt to spit or if it was an incident of the way in which he was speaking.[46] She said that he was using the heel of his shoe to repeatedly stomp into her eye socket.[47] She did not fight him, but tried to protect her face and body with her hands.[48] She estimated that the accused had punched her to the eye and face about three to four times.[49] In cross-examination, she estimated it could have been almost four to five times.[50] She told me she had no idea how many times he had stomped on her left eye area but said that it might have been anywhere up to ten times.[51] He was wearing Nike sneakers which she believed were white. Her nose was bleeding as a result of this assault “and there was blood all over, like I couldn’t see properly, that was then when I really started panicking because I didn’t know – all I know was that there was blood pouring, like I couldn’t see properly and that had me very scared.”[52] It was apparent from her evidence that the prolific bleeding she described was central to her experience of the assault. When asked whether he was saying anything when he first started punching her, Ms Lewis told me that she could not recall what was said between either of them during the assault but that the accused was “spitting anger”[53] and she was yelling.[54] She was not sure how long this incident took but to her it seemed like a long time.[55] Ms Lewis said she scrambled to escape and ran next door to her neighbours’ house;
“I ran to the front door. My front wooden door at the time if you locked it from the inside you could not get back in, even with a key you could not get through that wooden door, it was a stupid lock, and so I knew if I locked that from the inside he would then not be able to get back into the house. I was worried about him breaking my possessions, on setting fire to the house [sic], or anything, he was in such a rage. So I locked the door and I ran straight next-door and banged, banged on their wooden door and said please help me.”[56]
[41] In cross-examination Ms Lewis said the accused grabbed her by both arms - T68.9.
[42] T26.27-36.
[43] T27.4.
[44] T27.21; T69.24-26.
[45] T26.1-7.
[46] T26-9-16.
[47] T27.7-8.
[48] T69.10-20; T69.36-T70.7.
[49] T27.33.
[50] T70.2-3.
[51] T28.5-6; T70.5-9.
[52] T28.33-37.
[53] T29.2-12.
[54] T70.11.
[55] T30.3-7.
[56] T29.26-35.
Ms Lewis said she had blood all over her face and that she was only wearing a T-shirt with no underwear. On her account, the accused had exited through the front door as well and whilst he had tried to stop her from pulling the door open, she believed he must have been the first to exit because it was she who pulled it closed when she exited.[57]
[57] T30.34 – T31.9.
In cross-examination Ms Lewis gave a slightly different account of the immediate aftermath of the events the subject of count 4. Ms Lewis said attack stopped after he had stomped on her but she did not know where he was when she got off the floor. She described running down the hallway to the front door, intending to lock the wooden door so that the accused could not be in the house. She was aware of him being behind her in the hallway and when she came out of the front door he was still behind her. As she left she activated the latch. She thought that they ended up at the door at the same time.
Ms Lewis said that as she was knocking on the neighbours’ front door, the accused was standing in front of her unit screaming and yelling. Her neighbour John opened the door and let her in, locking the door behind them. John’s wife, Lelti Kidane was there as well as their daughter Sharwule. She said that John called the police. Ms Lewis said that she was reluctant to go to hospital and was concerned about the cost of the ambulance. When told by police that they would arrest the accused she said that she was still shaking and scared and said; “Don’t do that”. She told me that when she was at the Flinders Medical Centre she was still in shock and had little recollection of being there. She stayed overnight and returned home the following day. With the exception of the self-inflicted wounds which she described, Ms Lewis said that she had no other injuries prior to being assaulted by the accused.
Ms Lewis was taken through the photographs of her injuries.[58] She told me that the swelling and bruising to her left eye were caused when the accused punched her and stomped on her. A series of scratches to the right and left side of her neck and near her collarbone were not as a result of self-harm. Photograph 28 depicts a blackened middle toenail on her right foot, together with some bruising to the foot seen at the top left corner of that photograph. Ms Lewis told me that the accused stomped on her foot and she was bleeding from beneath the affected toenail when she went to hospital. She told me that she did not recall exactly how that injury has been sustained and that during the assault she felt pain in many different places. Photographs 20 and 21 depict dark bruises to Ms Lewis’s inner upper left arm, the only explanation for which she could proffer being that they were sustained when the accused grabbed her by both arms. She was not able to recall getting the grazing to the rear of her upper right thigh depicted in photographs 29 and 30 but said that she did not have it there before the alleged assaults. Similarly, she was not able to recall how she got the scratches to the bottom of her left leg and the side of her left foot depicted in photographs 32 to 34 and only became aware of them after the alleged assault. Photograph 31 depicts at least three prominent long thin scratches to the rear of the left leg extending from just below the knee and down to a point below the ankle. Ms Lewis did not know how she came to have those scratches but said they were not self-inflicted with a razor blade. She told me that her self-inflicted cuts were typically deeper, never on her legs and never as long. She had not noticed the scratches prior to the alleged assaults. There was nothing in her account of the alleged assaults which could have explained how these scratches were caused. The photographs also depict numerous bruises to her arms and legs and her evidence was that she did not have these injuries prior to the alleged assaults.
[58] Exhibit P1, photographs of Ms Lewis taken 19 June 2019 at 3:51pm.
The evidence of Ms Lewis as to the photographs of her injuries illustrated a significant aspect of her version of events as a whole. Not all of the injuries can be readily explained on her version of the accused’s conduct on the evening in question.
Later in cross examination she agreed that sometimes she would have a can of cider in the morning before she went to work and that sometimes in the past when she drank too much she would fall over but said she had not necessarily done so leading up to this incident.
Later in her evidence she told me that she could not remember the exact time of the accused’s work shift on the day, she said that his usual shift would be 10am to 3:30pm and that there were only a few hours in the afternoon that she was home by herself before he arrived.[59] She could not recall if the accused was in her bedroom watching television when her friends were over.
[59] T55.14-25.
Mr Cole, for the accused, showed Ms Lewis a series of photographs[60] depicting red marks to the accused’s face including a prominent laceration to the bridge of his nose, scratches to the side and back of his neck, and red marks or scratches at various spots on his torso. She said that she did not think that she had caused any injuries to the accused but that if she had, it was because she was trying to push him off. In particular, she denied causing the red marks on the right side of his neck under his beard line, to the side of his left eye and on his chest as depicted in the photographs. She also denied making the marks on the back of the accused’s neck and denied having attacked him from behind. She conceded that she could not recall seeing any of the marks depicted in the photographs on the accused prior to this incident. She was not able to recall if the shoes the accused was wearing in the photographs were the shoes he wore on the night of the alleged assaults.
[60] T75.
Ms Lewis denied self-inflicting the injury to her left eye. She denied scratching herself to cause the injuries depicted in the photographs taken of her by police. She conceded that the accused was not scratching at her neck or digging his fingernails into her. Her answers in this part of cross examination demonstrated the observation I have made above, namely, that the complainant was unable to explain how it was that many of the scratches, abrasions and bruises had been caused. With respect to the injury to the toenail on her left foot, Ms Lewis repeated that she did not know during what part of the assaults that injury was inflicted.
With respect to a number of matters put to her in cross-examination, Ms Lewis did not answer with outright denials but responded that she could not recall. She said that she could not recall kicking a gyprock wall with her right foot on the night of the alleged events but agreed that she had kicked a hole in her wall on a previous occasion.
When asked, she said that she could not recall picking up a glass and throwing it onto the lounge room floor smashing it at about the time when she knocked the accused’s gravy to the ground.
Mr Cole put to the witness that she had gone outside her house and started throwing bottles around the accused’s car and onto the driveway. Ms Lewis said that she could not recall doing that but did not believe that she did. When put to her that she deliberately smashed bottles on the driveway in the vicinity of the accused’s car in an effort to prevent him from leaving, Ms Lewis denied it. Ms Lewis reiterated that she had asked him to leave.
Ms Lewis denied that she positioned herself by sitting on the driveway with her legs under the drivers’ door of the accused’s car so that he could not move it. It was clear from cross examination that this was being put to Ms Lewis as a possible explanation for the scratches on the back of her left leg.[61] Ms Lewis reiterated that with the exception of the self-inflicted cuts which she had described, she had sustained none of the injuries depicted in the photographs prior to the assaults.
[61] T93-94.
Ms Lewis was asked about her habit of self-harming. She acknowledged that it was common for her to cut herself with a Stanley knife blade during the eight months of her relationship with the accused. Sometimes she would do it more than once a week but there would be periods where she did not self-harm. She did not know how the accused felt about this and could not recall him ever having taken the blades away from her. She denied self-harming in the lounge room in the presence of the accused on the night in question and said that she had done it earlier in the day. Ms Lewis conceded inconsistently with her evidence in chief, that she might have self-harmed by cutting her right thigh on that day. That was inconsistent both with her evidence that she only cut herself on the forearm on this day and her evidence that her forearm was the only place she would ever cut herself.
She denied hitting herself on the sides of her head with her fists, stating that she has never hit herself on the head. She denied ever having hit herself on the head with a rock. Ms Lewis told me that both she and the accused were intoxicated at the time of the incident. She denied that she had any difficulty with her balance on the evening and said that she only had difficulty in that regard after the assault. She said that her memory was not affected by the amount of alcohol or cannabis she had consumed on that night and told me that any gaps in her memory could be attributed to the efflux of time and shock on the evening arising from the incident itself.
Ms Lewis denied attacking the accused from behind, grabbing at his neck and face. She told me that she was not begging for him not to leave and did not smear blood over his tracksuit with her arm. She said that at some point when he was in front of the house, he said that he had called the police, although she did not see him with his phone.
Lelti Kidane
Ms Kidane is Ms Lewis’s next-door neighbour and has known her for 10 years. Ms Kidane was at home on the evening of 18 June 2019 and heard the sound of people at Ms Lewis’ house. The nature of the sounds caused her to believe that Ms Lewis was having a happy time with her friends. She did not know what time it was that she heard them. She took a sleeping tablet that night and slept in the lounge room, which is at the rear of her house. At about midnight her daughter woke her up telling her that Ms Lewis was at the door. Ms Kidane noticed that the complainant’s eye was black and saw that the accused was standing outside Ms Lewis’ house. She noticed that Ms Lewis’ leg was bleeding but later clarified that she thought it was in the area of her thigh. Her recollection was that Ms Lewis had two very bruised black eyes.[62] She described Ms Lewis as appearing to be scared and terrified, shaking and horrified.[63] She stood in front of her house for a moment with Ms Lewis. When she saw the accused she asked him why he had hit Ms Lewis and told him that she was going to call the police. Her evidence was that the accused then said to Ms Lewis “Great, now your fault, I’m going to go, she is going to call the police”. She told me that her husband called the police but that Ms Lewis did not want him to. After the exchange with the accused, she went back into the house and Ms Lewis came with her. She said that Ms Lewis had a lot of blood on her legs and she thought it was near her thighs. At no stage during the evening had she heard any yelling, banging or smashing of glass coming from next door because she was asleep.
[62] T126.
[63] T127.
In cross examination Ms Kidane said that she thought the happy noises from next door started about 5pm. She said there was music playing. She thought the sound probably went on for a few hours. Ms Kidane told me that Ms Lewis did not have any blood on her face, it was simply very swollen and looked black and blue. When cross examined on the matter, Ms Kidane gave two further and slightly different accounts of what the accused said after she confronted him. The first was that he had said; “Great, now what have you done? You’re going to put me in trouble”. She then expanded on this and said that the accused had said to Ms Lewis; “Great, what you done is your fault, she is going to call the police”.
Shawule Needs
Ms Needs is Ms Kidane’s daughter. She was familiar with both Ms Lewis and to a lesser extent, the accused. Ms Needs went to bed at about 8pm that night. At about that time she heard loud music and the sound of people having fun.[64] She only heard the voices of the accused and Ms Lewis at that time. She was woken by the sounds of yelling, screaming and the banging of doors coming from Ms Lewis’s house. Her evidence was that she heard the accused say; “Just let me leave. Please, just let me grab my stuff and leave”[65] and Ms Lewis saying “No. You can’t leave. Don’t go.”[66] It sounded like they were having a fight, which was something she had heard them do before. This occurred for a couple of minutes, until she heard a knock at the front door. She got out of bed, opened the door and saw Ms Lewis, shaky, limp and crying. That is contrary to the evidence of Ms Lewis, who said that it was Ms Needs’ father John who answered the door. Ms Needs woke her mother, who attended to Ms Lewis. Ms Needs returned to her room and did not see the complainant until she was leaving the house with the ambulance officers. She said that at that time, Ms Lewis put her head through the doorway of her bedroom to say goodbye and she observed Ms Lewis to have a swollen face but appeared to be in a pretty good mood, “laughing and joking, like nothing really happened…”[67]
[64] T138-139.
[65] T139.28-29.
[66] T139.35.
[67] T151.14-15.
Medical evidence – Dr Phoebe Cliff
Ms Lewis was examined by Dr Phoebe Cliff in the emergency Department of the Flinders Medical Centre. The complainant had swelling around her left eye and bruising with a sub-conjunctival haemorrhage to the left eye. She was observed to have abrasions and scratches around her neck, bruising to the left arm and an abrasion to the left buttock. In addition there were lacerations or cuts to both forearms and to both thighs. Ms Lewis’ left eye was closed as a result of swelling. The swelling observed to the left eye was greater than that depicted in exhibit P1. Dr Cliff noted that Ms Lewis was quite distressed and quite tearful. Her lacerations were superficial and there was no follow-up treatment recommended. She regarded the injuries sustained as being consistent with the history provided by the patient. A blood test was performed at about 2am on 19 June which showed that Ms Lewis had a blood alcohol concentration of 0.26. She appeared to be under the influence of alcohol. Dr Cliff regarded the injury to the left eye as being compatible with force from a blunt object and opined that a significant amount of force would have been required to cause the injury. The doctor was not able to offer any opinion as to how the various scratches on Ms Lewis’ neck might have been caused. The doctor had no recollection of seeing the Band-Aids on the arm of the complainant as depicted in the photographs but they were not the same kind as used by the hospital. The complainant volunteered that she had caused the injuries to her forearms and thighs with a Stanley knife. The injuries to the thighs were on the front above the line of the complainant’s shorts and accordingly, not depicted in the photographs.[68] The doctor made a note that Ms Lewis had an abrasion to her left buttock.
[68] T175.1-3.
Senior Constable Sandra Highet
Senior Constable Highet arrived at Ms Kidane’s premises at approximately 12:40am. It was an agreed fact that the first police officers attended at the scene prior to Senior Constable Highet, at about 12:30am on 19 June 2019. Officer Highet spoke with Ms Lewis and noted very obvious facial injuries. She also observed injuries to Ms Lewis’ forearms. She took two photographs of the injuries within 20 minutes of her arrival.[69] These photographs depict bruising to the left side of Ms Lewis’ forehead above the left eye, bruising and swelling to the left eye which appears to be swollen shut and scratching to the right side of the neck, face and collarbone area. In all, Senior Constable Highet spent about 45 minutes with the complainant.[70] At the time she first saw the complainant there were Band-Aids covering the lacerations on her left arm. She described Ms Lewis’ demeanour as being very upset and difficult to speak with,[71] panicked and emotionally charged.[72] Officer Highet could smell alcohol on Ms Lewis who was slurring her speech and rambling. When Ms Lewis stood the officer observed that she was stumbling and appeared wobbly.[73] Officer Highet did not recall seeing any blood around Ms Lewis’ nose or face and neck. There were occasions during their conversation where Ms Lewis either refused to answer officer Highet’s questions or went off on a different tangent.[74] The officer observed a change in Ms Lewis’ demeanour when she was speaking with the paramedics. She appeared at one point to be happy and flirtatious towards the paramedics. She laughed at times, seemingly over the fact that she was not wearing any underwear beneath her T-shirt.[75] It was an agreed fact that the ambulance arrived at 1:04am and departed at 1:30am, arriving at Flinders Medical Centre at 1:45am on 19 June 2019.
[69] Exhibit P2.
[70] T194.22.
[71] T188.3-4.
[72] T197.1.
[73] T189.1-5.
[74] T195.8-14.
[75] T197-198.
Senior Constable Stefan Rudevics

Senior Constable Rudevics arrived at Sutton Avenue in company with Constable Highet. He saw the accused sitting on the driveway in front of the house at 2B Sutton Avenue,[76] in between the car and the roller door.[77] There was a black BMW parked in the driveway and he did not notice any broken glass on the driveway but it was quite dark and the only light came from a police torch held by Constable Morris.[78] He spoke with the accused but could not recall their conversation. The accused was wearing tracksuit pants and a jumper. There was blood on the front of the accused’s tracksuit pants, which appeared to be like droplets.[79] He saw a number of bags containing clothing, but he could not recall if they were inside the vehicle or with the accused. Police attempted to gain entry to 2B but it was securely locked. The accused made some comment to him about the fact that his car keys were locked inside the house.
[76] T199.29.
[77] T203.13.
[78] T203-204.
[79] T201.35-36, T209.36-37, T210.5-6.
Officer Rudevics entered 2A Sutton Avenue, Ms Kidane’s house, and as he made his way down the hallway he noticed several droplets of quite fresh blood on the floor.[80] With respect to the scratches on Ms Lewis’ forearms, he said that they appeared to be red with blood but was not sure if they were bleeding. Beyond observing that the accused was wearing a pair of street shoes similar to Nikes, he made no observation of the shoes.
[80] T200.4-12.
Constable Jeffrey Morris
Constable Morris was one of the first officers on the scene. He made observations consistent with the evidence of other witnesses as to the injury to Ms Lewis’ face and her emotional state.[81] He was involved with the arrest of the accused and when at Christies Beach police station, observed blood smearing on his clothing, although he could not say where. To his observation, the accused had no cuts or other injury to his hands.[82] He told me that the accused was not photographed at the time of his arrest.
[81] T217.
[82] T226.6-9.
Constable Jodie Chapman
Constable Chapman attended at the scene with Constable Morris. When arriving at 2A Sutton Avenue, Ms Kidane’s house, she activated her body-worn camera. Her observations of Ms Lewis were consistent with the descriptions given by other witnesses. It was officer Chapman who arrested the accused and seized his tracksuit pants. Photographs were taken of the pants.[83] Photograph 1 depicts two areas of staining, which were believed to be blood, on one of the legs of the pants but it is not possible to say on which leg the stains were. They are more consistent with being smears rather than droplets. The body-worn camera footage taken by Chapman was tendered.[84] Much of the footage simply confirms the observations and evidence of the police witnesses. The video shows that there were bags of items in the vicinity of the accused on the ground in front of 2B Sutton Avenue. This is inconsistent with the evidence of the accused that he was preparing to leave.
[83] Exhibit P13, photographs taken on 30 January 2020.
[84] Exhibit P15.
Constable Chapman told me that a blood alcohol concentration test conducted on the accused at 2:06am at the police station showed that he had a reading of .074. She said that at one point during the record of interview the accused appeared to be trying to rub small amounts of blood off his hands.[85] As far as the witness could recall, there was nothing of note about the top that the accused was wearing and she told me that she would have seized it, had it shown obvious signs of blood.[86]
[85] T248.27-28.
[86] T250.30-33.
Officer Chapman told me that she “would have” inspected the accused’s shoes and she had no recollection of there being blood on them. The shoes were not seized. Constable Chapman did not see any glass on the driveway in front of 2B Sutton Avenue.
Record of Interview
The video taken of the arrest, conveyance and subsequent record of interview with the accused were tendered through Constable Chapman.[87]
[87] Exhibit P14, MFI P16.
The accused confirmed Ms Lewis was his partner of approximately eight months. In response to the allegations he said “she said she was going to get me done. She hit herself”.[88] He told police he stayed at the complainant’s house four to five nights per week but did not live with her.[89] He said that all he had done was to push Ms Lewis in the back in the hallway. He did not hit her. At the time he pushed her “all [his] stuff was getting chucked out the front”.[90] That is difficult to reconcile with his evidence at the trial that Ms Lewis was refusing to let him leave. When he pushed her, she fell into the wall and then came back at him, causing him to sustain defensive injuries including scratching to his neck, back and chest. At some point she had locked both of them out of the house. He said that when he had seen Ms Lewis cutting herself it had spun him out. He first saw the injury to her left eye when they were in front of the house and she was laughing at him. He said Ms Lewis had cut herself much earlier in the evening, before either of them was affected by alcohol.[91] He had been drinking rum and a beer. He saw the complainant drinking rum and wine. He told police he had not seen Ms Lewis on the floor in the hallway at any time but there was a smashed glass in the hallway from Ms Lewis throwing and smashing things earlier during the evening. After Ms Lewis had locked them out, she went to Ms Kidane’s house next door and as she did so, he said he insisted that she call the police. During their argument, Ms Lewis had wiped her arm on his pants. He said that a small cut on his hand which was noticed by police during his interview was unrelated to the incident.[92] That cut is barely discernible on the video and the accused’s hand did not otherwise appear to be bruised or damaged. He had held her arms at one point.[93] He did not know how he came to sustain the prominent cut to the bridge of his nose.[94]
[88] Exhibit MFI P16 page 8.
[89] Ibid.
[90] Ibid, page 9.
[91] Ibid, page 10.
[92] Ibid, page 12.
[93] Ibid.
[94] Ibid.
Constable Matthew Smith
When Constable Smith attended at Sutton Avenue he saw the accused sitting in front of Ms Lewis’ house but did not notice any glass on the driveway.
Defence case
Evidence of the accused
Mr Goldner-Shepp elected to give evidence. At the time of the trial he was 35 years of age. He met the complainant through his work at Woolworths Marion. At the time of the alleged events his set shift was 10am until 5pm and he had been working those hours for about two years. He formed a relationship with the complainant in about September 2018. He was in the habit of spending three or four nights a week at her house but did not live with her.[95] He had a black BMW which he would drive to work, which was parked in the driveway of the complainant’s house on the 18^th and 19^th of June.
[95] T269.32-33.
He told me that the complainant lived really close to the shopping centre at which they both worked and that her hours were from between 6:30 to 7am, usually finishing earlier than he did, but sometimes finishing after 5pm.[96] He stored some of his clothing and personal effects at the complainant’s house. His clothes were kept in the spare bedroom but he kept his phone charger, phone and keys in the bedroom that he shared with the complainant. The spare room contained a metal clotheshorse that he kept his clothes on and he would also keep his backpack in that room. The accused told me that he and Ms Lewis shared the cooking and would take it in turns.[97] He was not aware of Ms Lewis having an eating disorder and generally they ate together. He said that Ms Lewis was in the habit of having friends come over almost every night.[98] He described Ms Lewis as being very unpredictable at times and that she could suddenly become very angry.
[96] T271.10-16.
[97] T277.1-2.
[98] T277.9-11.
Mr Goldner-Shepp said that during the relationship he drank alcohol, usually beer, sometimes spirits and mostly on the weekends. Occasionally he would have three or four beers at Ms Lewis’ house after he had finished work. He told me that Ms Lewis’ drinking habit was usually to have cider, sometimes spirits but mostly cheap wine.[99] He said that she always had alcohol in her system and that in the lead up to 18 June she would drink every day to the point where she was drunk.[100] On occasions she would drink in the morning before she went to work and she was in the habit of having a can of alcohol on her bedside table.[101] He said that the complainant smoked cannabis constantly.[102] She smoked about 10 cones every night, but it did not seem to have any effect on her. He told me that her drinking at home lead to arguments between the two of them.[103] This would usually involve him asking her to tone down her drinking a little bit but they did not argue over any other matters. He described the arguments as being him really just trying to talk with her in a tactful way because he was mindful of the fact that her mood could switch at any second.[104] Prior to 18 June he had never been involved in a physical altercation with Ms Lewis.[105] Prior to that date, he had never hit her or pushed her but he had grabbed her wrists on occasions when she was trying to self-harm. He had seen her cutting herself during their relationship many times, always at her house and she had blades from a Stanley knife stashed around the place.[106] The accused said that it was Ms Lewis’ habit to cut her arm and her thigh and that when she did so she would be very blank faced. He found the experience quite scary.[107] He told me that when he restrained her to prevent her from cutting, it was simply because he cared for her and wanted her to stop. On occasions, he would be pleading and begging with her not to cut herself but this did not prevent her from doing so. Her response would be to laugh at him.[108]
[99] T278.25-26.
[100] T279.19-25.
[101] T279.31-34.
[102] T280.9-12.
[103] T281.15-17.
[104] T281.27-29.
[105] T282.9-12.
[106] T282-283.
[107] T283.20-22.
[108] T284.1-9.
On the evidence of the accused, there was an occasion when he saw Ms Lewis self-harm at a location other than her house. He had taken her for an appointment to a hospital and after a brief disagreement she had squatted down, picked up a fist-sized rock and started hitting herself in the head in the region of the right temple. She did this at least twice, possibly three times.[109] His response was to restrain her and she dropped the rock. Once again, her demeanour at that time was simply a blank face.[110] As far as he was aware, she did not cause any injury to herself on that occasion.[111] This evidence, if accepted, had some relevance potentially to explain what otherwise might have seemed highly unlikely on the accused’s case; that during the alleged events, Ms Lewis repeatedly and forcefully banged her head against the hallway wall.
[109] T290.
[110] T291.5-7.
[111] T291.
On the day of the alleged offences he said that Ms Lewis finished work at around midday whereas he finished at 5 o’clock. He drove from work to Ms Lewis’ house and he could tell that she had been drinking. He said that her speech was slurred and there was a strong smell of alcohol about her.[112] Ms Lewis told him that her friends Tay and Bec would be coming over because it was Tay’s birthday. He knew Tay but he did not know Bec very well. He drank some beers before the friends came over. He thought they arrived about 7 or 7:30 in the evening but whatever time it was, it was dark. Neither he nor the complainant had eaten at that time.[113]
[112] T292.35-36.
[113] T293.
When the friends came over they sat at a table to the side of the lounge room and he did not spend much time with the group. He said that he spoke to them every now and then as he was coming out to pour himself a drink in the kitchen. He spoke to Tay but not to Bec. Whilst they were there, he was in Ms Lewis’ room watching television and would come out to get himself a further drink.[114] He told me that he did not speak to Bec because he knew that she was into drugs and he didn’t like her. He believed that the friends stayed until about 9 o’clock in the evening. At one point, he went into the lounge room as he was pouring himself another drink and he saw Bec pull out a glass pipe and start smoking either ice or meth.[115] After about a minute he asked Bec to smoke her pipe outside and received an incredulous response from her. He said that Bec got into a bit of a huff, walked out the front door and got into her car. Neither Ms Lewis or Tay said anything to him about that interaction.[116] He then went back into the bedroom and sometime after that the two women left. He denied making any belittling comments to the two women or being rude to them in any way. He said that he was tactful.
[114] T294.
[115] T295.28-35.
[116] T296.1-14.
After the women left he went to make himself a meal and was preparing some gravy. At this time the complainant was sitting on the lounge room floor in front of the heater. He told Ms Lewis, with reference to Bec, that he could not be around people like that.[117] He told her that he had “had enough” and by that he meant the complainant’s drinking and Bec smoking meth. He told Ms Lewis that he could not handle much more and then he noticed that she was cutting herself to the top of her upper left arm.[118] That of course was inconsistent with what he told police about the point in time at which Ms Lewis had cut herself on that evening.[119] He told me that he could not believe what Ms Lewis was doing and he asked her why she was doing it and that she responded “who, who fucking cares, you’re leaving me anyway”.[120] He had not said anything to her up to that point about leaving and he believes that she made an assumption that this is what he meant when he said he had “had enough”. He told me that he had previously tried to leave Ms Lewis but that when he did, she would take his car keys and beg him to stay. He said that Ms Lewis then said “I’m a fuck up” and started to hit herself on both sides of the head in the area of the temples with both of her fists.[121] She did this for a few seconds and he couldn’t count how many times she struck herself but his response was to grab her wrists to stop her from doing it. She was still sitting on the floor at that time and he had to kneel in order to do so and he pleaded with her to stop. Her response was to spit in his face and grab the thin gold chain around his neck and rip it off.[122]
[117] T297.34-36.
[118] T298.1-8.
[119] See paragraph 55 above.
[120] T299.9-12.
[121]T299.32-T300.5.
[122] T301.5-9.
When this happened he said that he got up, went to the kitchen, put his hands on his head and started crying saying “I can’t believe this is happening”.[123] He was crying whilst making the gravy and he told me that the complainant walked over to the kitchen and swiped the bowl off the bench. He said that he was gobsmacked by this but he didn’t say anything.[124] She then picked up his glass and threw it into the lounge room where it smashed. His response was to say that he was leaving and he turned to walk down the hallway. He said that Ms Lewis came at him from behind, clawing at him and told him that he was not leaving. He pushed her away with his right hand;
“I don’t know if it was chest, face, she is short so I was just, just pushed her away…She was trying to grab me and I think she got me on the face a bit as well so I was just, yeah, push her away…She didn’t fall over, just stumbled back.”[125]
[123] T301.29-32.
[124] T302.3-4.
[125] T302.20-38.
After this he went to the spare room to collect his clothes and belongings. He was putting them into plastic bags and he says that Ms Lewis came into the spare room, dropped to the floor and then bear hugged his legs, begging him not to leave. She then rubbed where she had cut herself on his pants saying “here’s something to remember me by”.[126] His response was to push her away, he thinks with both hands on her shoulders. She then got up and went back down the hallway and he returned to gathering up his things.
[126] T303.22-29.
He said that after Ms Lewis returned to the hallway he heard a commotion and so he looked out of the spare room and saw her kicking the wall in the hallway with her bare right foot hard enough to put two holes in the wall. The holes were about two feet high up on the wall.[127] He saw that she was in a real rage, knowing that he was leaving. She was grunting in a rage as she kicked the wall. He told me that he himself was not angry at any time.[128]
[127] T204.
[128] T305.1-11.
He said that his motivation was just to put his clothes into his car and leave, so he walked out the front door and put some of his stuff in front of the house in plastic bags. He told Ms Lewis again that he was leaving and she repeatedly told him that he was not allowed to. His car keys and his phone charger were in Ms Lewis’ bedroom. When he came back inside, having deposited some of his belongings in front of the house, she was in the spare bedroom grabbing items of his clothing that were on coat-hangers and throwing them out of the front of the house with the other items. He was still in the spare bedroom and he responded by locking himself in because she had approached him aggressively and in a rage. She responded to his locking the door to the spare bedroom by saying that she was going to “fuck” his car up and he then heard the sound of smashing glass coming from the front of the house.[129] He told me that he went outside and saw glass all over the driveway and on his car and that when he walked around his vehicle she was “sitting underneath my passenger side, like my driver’s side with her legs underneath the car”.[130] He knew that the glass was all around his car because he was stepping on it as he walked on the driveway.[131] He saw that Ms Lewis was sitting underneath the driver’s side so that the wheel was on her right side, he concluded, to prevent him from driving away. She was sitting on the glass with her legs underneath the car. At this point he told me that he again told her he was leaving, and he yelled out loudly and repeatedly for someone to call the police.[132] His yelling of this request was not mentioned by Ms Needs.
[129] T306-307.
[130] T307.25-28.
[131] T309.4-7.
[132] T309.16-27.
The accused told me that he then went inside to fetch more of his belongings from the spare room. He heard the front door banging again and Ms Lewis ran past him yelling “I’m going to grab your keys”.[133] The keys were in Ms Lewis’ bedroom. He went to the room and saw her sitting on the end of her bed holding his keys and repeatedly said to her “Can I please have my keys, I just want to leave, I want to leave”.[134] He said that he grabbed his phone and at one point he told her that he had called the police, although he had not done so. He did this to try to calm things down and get his keys. She would not give the keys to him. She rose from the bed and thinking that she was going to come at him again, he backed into the hallway, repeatedly telling her that he wanted to leave. She told him that he was not going anywhere and then said; “If you’ve called the police, if I get detained then you’re fucked.” She then started banging the left side of her head against the hallway wall repeatedly.[135] He had never seen her do this before and she used a fair amount of force, as if she was trying to “put on a show” for him. He found the experience scary. Ms Lewis still had his keys at this time, but he had his phone and he thinks that he then went back into the spare room to grab the rest of his belongings. He walked out to the front of the house with his belongings and it was at that point that Ms Lewis came up to him and slammed the door so he was outside by himself. He knocked on the door and asked if he could have his keys but he heard no sound. About 5 to 10 minutes later, Ms Lewis opened the door, slammed it shut behind her and she said that they were now both locked out.[136] Immediately after saying this she went to the neighbour’s house. His evidence was that he just sat there for a little bit and then he went over towards the neighbour’s house and he could see the front window was open a little bit and he started saying through the window “I just want to leave. Call the police. I just want my keys. I just want to leave.”[137] On his version, he was obviously trying to attract the attention of those inside Ms Kidane’s house. Neither Ms Kidane or Ms Needs mentioned hearing this and it was not put to them in cross examination that this has been said. He said that he then walked back to his belongings and a while later, Ms Kidane came out with Ms Lewis. He said that Ms Lewis approached him where he was standing with his belongings in front of the front door of her house. Ms Kidane said “look what you’ve done” and it was at this point that he first saw the injury to Ms Lewis’ eye.[138] He said that he denied having injured Ms Lewis and that Ms Kidane then said that the police were coming. He just sat down and waited for the police to arrive.
[133] T310.1-4.
[134] T310.8-11.
[135] T310-311.
[136] T312.
[137] T312.30-35.
[138] T313.19-25.

Mr Goldner-Shepp agreed that the stains on his tracksuit pants were Ms Lewis’ blood. He denied having caused any of the injuries to Ms Lewis as depicted in exhibit P1. As for the bruises on Ms Lewis’s arms and legs, he told me that she always had little bits of bruises on her, that she bruised easily and that she was always intoxicated and clumsy.[139] He told me that the only time he grabbed Ms Lewis’ wrists on this evening was when she was in the lounge room hitting herself. He said that when he pushed her in the spare room, his hand simply made contact with the front of both of her shoulders. He told me that whereas Ms Lewis had long nails, his were very short. He postulated that the injury to Ms Lewis’ foot depicted in photograph 28 of exhibit P1 must have been from when she was kicking holes in the wall. He did not observe the scratching to the back of Ms Lewis’ left lower leg as depicted in photographs 31 of exhibit P1 on the night of these alleged events. He postulated that those scratches occurred when she was sitting underneath his car, where she had spread broken glass. He was not aware of how Ms Lewis sustained the injuries depicted in photographs 32 to 34 on her left foot. I note that these injuries are also not readily explicable on Ms Lewis’ account. He repeated that he did not punch, choke or scratch Ms Lewis on that evening, nor did he do anything that could have caused the bruising depicted in the photographs.
[139] T318.21-23.
A series of photographs of injuries which the accused said he sustained in the course of the alleged events was tendered.[140] The accused said the photographs were taken by his mother at his request because the police had not photographed him on his arrest. He said that he had no marks on his body prior to these events. All of the marks depicted in the photographs were scratches or grazes caused by Ms Lewis scratching and clawing at him. He could not be precise as to when and how each of the marks were caused. With respect to the clawing at him in the hallway, he said that this had caused scratching due to her grabbing him from behind on a number of occasions.
[140] Exhibits D3-D12 inclusive.
Mr Goldner-Shepp said that on the day after the incident he attend in the vicinity of Ms Lewis’ house with his mother so that she could attempt to retrieve his personal property. He was sitting in his mother’s car a street away from Ms Lewis’ house and said that she came running around the corner, approached the car and said “look what you have done” to which he replied “you know I did not do that”. He said that Ms Lewis then turned around and went back to her house. Those matters were not put to Ms Lewis in cross examination. His car was later retrieved by his sister.
In cross examination, the accused said that he was intoxicated but wasn’t drunk on the evening. That evidence appears to be supported by his blood alcohol concentration reading. He denied that Ms Lewis was unhappy at the way he had spoken to her friends. He maintained that he was not angry during the incident and that he simply wanted to leave. When he was challenged about his evidence that he had seen Ms Lewis cut herself to her upper arm on 18 June, he was not able to identify in any of the photos in exhibit P1 where that cut was but maintained that it was on the left upper arm but could not be seen in the photographs. I note that Ms Lewis was wearing a white tank top when the photographs in exhibit P1 were taken.[141] He then stated that he thought that the cut on the upper left arm was on her shoulder but that it could still not be seen in the photographs.[142] He could not recall whether he had the small red graze or mark on his hand prior to this incident. He said that the scratching marks depicted in the photographs of his body had been caused by Ms Lewis in either the hallway or the spare room. He acknowledged that he had been wearing a T-shirt and a jumper that night and suggested that the scratches to his torso must have been caused when her hand had come up his jumper but he could not say for certain. He did not attempt to embellish his account of how he came to have the scratches. He acknowledged that he had an opportunity to call the police if he had wanted to do so but said that he didn’t want to cause problems for Ms Lewis. He said that he did not draw attention to himself or call out to police when they first arrived, because he knew that they were going to the house next door to see Ms Lewis and so he simply waited for them to come and see him because he was not in danger of being attacked at that point. He denied that he had made the comments attributed to him by Ms Kidane and said that he was fine with the idea of the police having been called. He told me that when Ms Lewis locked both of them out of the house she was almost laughing at him and had a cheeky smirk on her face. He said that he could see her well enough to see her smirking but not well enough to see the injury to her eye at that time. He said that when Ms Lewis was banging her head against the wall she was banging the left side of her head hard enough for there to be loud bangs.
[141] T340.
[142] T341.
Vicki Goldner Shepp
Vicki Goldner Shepp is the mother of the accused. She said that she attended at Ms Lewis’ home with her son on 19 June. Because of her son’s bail condition not to approach Ms Lewis they parked on a side street off Sutton Avenue. She walked to Ms Lewis’ house to retrieve her son’s belongings. She saw the accused’s car in the driveway and noticed that there was clear broken glass scattered around the vehicle on the passenger’s side but she did not look at the driver’s side. Ms Lewis answered the door. She told me that Ms Lewis asked whether Skye was there and before she had had any chance to respond, Ms Lewis ran off down the street. Anticipating that Ms Lewis was going to see her son, Ms Goldner-Shepp rang him to warn him that Ms Lewis was approaching. She followed after she got off the phone to her son. She saw that her son had gotten out of the car and saw Ms Lewis approach him. She said Ms Lewis had a conversation with her son, but she could not really hear what was said. Ms Lewis then left. Ms Goldner-Shepp got into the car with her son and they drove back to his house at Hallett Cove which is where she took the photographs of his injuries. She said her reason for taking the photographs of his injuries was that Ms Lewis had photographs taken of her injuries and she didn’t understand why photographs had not been taken of the accused. She then acknowledged that she did not know that photographs had been taken by police of Ms Lewis’ injuries. She said that she had parked her car right around and the other street which was off Sutton Avenue. She had not driven down Sutton Avenue prior to parking her vehicle. The purpose of parking on the other street away from Ms Lewis’ house was so that the accused did not breach his bail by coming into close proximity with Ms Lewis. She said that when Ms Lewis ran off, she did not tell her where she was going and Ms Goldner-Shepp had not told Ms Lewis where she had parked her vehicle. She had parked her car halfway down the side street. In re-examination she said that Ms Lewis ran to the left down Sutton Avenue and she would have looked down the side street and seen her car which she would have recognised.
Jessica Goldner-Shepp
Jessica Goldner-Shepp is the sister of the accused. Ms Goldner-Shepp told me that she and her partner drove to Ms Lewis’ house on the evening of 19 June to collect her brother’s car. Her brother gave her a dustpan and broom to clean up the glass on the driveway before reversing the car out. She saw glass scattered around the car, which she cleaned up.
Consideration
Discussion of Evidence of Ms Lewis
My assessment of Ms Lewis as a witness must start with an acknowledgement of the deficiencies in her evidence. As she readily admitted, she had consumed a considerable amount of alcohol in the hours leading up to the allegations. Her blood alcohol concentration of 0.26 confirms that. She also readily admitted to having consumed a significant amount of cannabis on the evening and that she was a habitual heavy cannabis smoker. I do not accept her own estimation that she was not affected by her consumption of alcohol and cannabis.[143] Given her blood alcohol reading 0.26 I have some difficulty accepting that she had consumed only about 10 drinks between about 3:30pm and midnight. I am satisfied that she was significantly more intoxicated than she believes herself to have been.
[143] T111.1-14.
A simple example of a gap in her version of events which I am satisfied cannot be attributed entirely to the difficulties with her memory as a result of the passage of time, is her account of what occurred after her friends left and before the first alleged assault. Putting aside for one moment whether her friends left closer to 7:30pm, as opposed to the accused’s estimation that it was at about 9pm, on either version, some hours passed before she and the accused found themselves in front of her house and she sought refuge next door. Her evidence is that she and the accused bickered after her friends left. If she is correct about their departure time and if the alleged offences occurred as part of a single sequence of events from the point at which she swept the gravy from the kitchen counter as her evidence suggests, about four hours elapsed before the first alleged assault. There is no detail of what occurred during that period beyond the assertion that they bickered. I note the same lack of detail in the evidence of the accused up to the point at which he says Ms Lewis started to cut herself, albeit over a shorter time span. Further, as I have observed already, some of the injuries sustained by Ms Lewis cannot be explained on her account, an obvious example being the long scratches down the back of her lower left leg,[144] the scratches to the back of her right upper leg[145] and the bruising to both of her arms.[146] It is also difficult to conceive, on her account as to how the scratches to the right chin, neck and breast bone area were caused.[147] Allowing for the fact that a violent assault would be frightening, distressing and potentially confusing, the lack of detail with respect to both of those topics is nonetheless significant.
[144] Exhibit P1, photograph 31.
[145] Ibid, photograph 30.
[146] Ibid, photographs 11-20 inclusive.
[147] Ibid, photographs 4 and 6.
Another matter on which Ms Lewis’ evidence was seemingly at odds with other objective evidence, was her account that having been punched repeatedly to the left eye she bled profusely from the nose, to such a degree that the blood impaired her ability to see. Apart from the drops of blood seen by Officer Rudevics in the hallway of Ms Kidane’s house, Ms Kidane’s somewhat vague evidence that she saw some blood on Ms Lewis’ leg or thigh, and the smears of blood on the accused’s tracksuit pants, there is no objective evidence of significant amounts of blood and none that would suggest that she had been bleeding from the nose. The two photographs taken by Officer Highet do not depict blood on Ms Lewis’ nose or face. The view of the T-shirt she was wearing in photograph 1 of exhibit P2 does not show drops of blood and nor can blood be seen on Ms Lewis’ T-shirt in the video footage from the body worn camera of Officer Chapman. Neither Ms Lewis, Ms Kidane or the police officers mentioned Ms Lewis’ face being wiped or cleaned up before the photographs in P2 were taken. Nor is there any evidence of blood on the shoes of the accused and given they were not seized by police, I am prepared to infer that there was no blood visible on them.
I will consider later in these reasons the evidence of Ms Lewis’ distress after the incident, but a matter on which defence placed some significance was the unusual nature of her demeanour when being attended to by the ambulance officers and at the time she left with them. Defence asks me to find that I cannot exclude as a reasonable possibility that her demeanour at that time was simply inconsistent with that of a person who had just been assaulted earlier in the evening in the manner she alleged. An implication of that would be that I could also not exclude as a reasonable possibility the version of events given by the accused and that Ms Lewis had somehow caused the injuries to herself. That, it was submitted, would be more consistent with her impugned demeanour than the version of events that she gave. That aspect of Ms Lewis’ post-incident conduct is certainly curious especially when seen in combination with other evidence as to her distress, both at Ms Kidane’s house and at the Flinders Medical Centre. It is also significant that the accused volunteered to police that when they were in front of her house, Ms Lewis was laughing at him. He proffered that information at a time when he could not possibly have known that Ms Needs and Officer Highet had made the observations of which they gave evidence.
Mr Cole placed weight on what he submitted was an inconsistency between the nature and extent of injuries sustained by Ms Lewis and her version of events. If Ms Lewis’ account is correct, there would surely be greater injuries to her left eye, her face and one would expect, a displacement of her nose. It would also be expected that it would have resulted in copious bleeding from the nose, of which there is no objective evidence. That submission must be considered in light of the evidence of Dr Cliff that the injuries observed were consistent with blunt force trauma and the significant bruising and swelling to the left eye, bruising to the upper left cheekbone and the bruising to the left side of the forehead above the eyebrow depicted in photograph 1 of exhibit P2 and photograph 3 of exhibit P1. Nonetheless, even allowing for Ms Lewis’ evidence that she could not be certain how many times she had been punched and stomped on, there is some force in that submission.
A different criticism was made by defence with respect to scratches on the neck and breastbone area depicted in photographs 4 to 10 inclusive of exhibit P1. Once again, Mr Cole postulated and I have observed, that nothing in Ms Lewis’ account explained those injuries. They could not, it was submitted, have been caused by the grabbing of the neck the subject of count 1 because the photographs of the accused’s hands showed he had short fingernails. Ms Lewis conceded that on her account, the accused was not digging his fingernails into her neck. It was submitted that it is impossible to conceive of how the scratches in photograph 4 were caused on her account of the neck grabbing.
Another aspect of the evidence which is inconsistent with Ms Lewis’ account is the comments overheard by Ms Needs when she was first wakened by the noises from next door. I will refer to these as the ‘don’t leave me’ requests attributed to Ms Lewis and the ‘let me leave’ requests attributed to the accused. Ms Lewis denied making any ‘don’t leave me’ requests during the incident. There is no reason for me to doubt the evidence of Ms Needs that she was able to recognise the voices of Ms Lewis and the accused and that each of them said the things she says she heard. I take into account that Ms Needs’ evidence on that matter is consistent with the evidence of the accused but not with that of Ms Lewis.
I have regard to the fact that there was no case to answer with respect to counts 2 and 3. I conclude the failure of the complainant to give evidence of this alleged incident is evidence inconsistent with statements made by her some time before giving evidence.[148] On the prosecution opening, that was a separate and significantly more violent assault than that alleged in count 1 and the incidents could not have been conflated. That fact is directly relevant to my consideration of Ms Lewis’ credibility and reliability.
[148] R v MAS (2013) 18 SASR 160 [72]-[77].
Another matter on which Ms Lewis was mistaken was her recollection that it was Ms Kidane’s husband John who answered the front door. I accept the evidence of Ms Needs that it was she who did so.
In assessing the evidence of Ms Lewis, I must also consider her denials of having caused any of the injuries to the accused as depicted in the photographs taken by his mother on the day after the events. The accused says that they were caused by Ms Lewis. There was no evidence to suggest that the photographs were not taken on the morning after the alleged incident and the credit of the accused’s mother was not impugned in cross examination. I accept her evidence that the photographs were taken at that time. I cannot exclude as a reasonable possibility that those injuries were caused to the accused by the actions of Ms Lewis. That is not a finding that I accept the accused’s account of how Ms Lewis came to injure him and I will deal with that matter later in these reasons. It is a finding inconsistent with her version of events.
A prominent feature of the evidence was the descriptions of Ms Lewis’ state of distress immediately following the incident and when she was examined by Dr Cliff. I accept the accounts of the witnesses who made those observations.
Distress can obviously occur for a variety of reasons. I have excluded as a reasonable possibility that Ms Lewis’ state of distress when seen by Ms Kidane and Ms Needs can be accounted for simply by being upset at the fact that the accused was leaving her. I am satisfied that the evidence of distress is evidence consistent with the fact that there had been a violent altercation between her and the accused that evening. It is not evidence of the accused’s guilt. I have reached that conclusion keeping in mind Ms Lewis’ demeanour with the ambulance officers and Ms Needs’ observation of her as she was leaving for hospital. To my mind, the change in Ms Lewis’ demeanour, whilst unusual, can be explained by the fact that, on any version of events she was very emotionally labile at the relevant times.
Taking those matters into account, I have scrutinised Ms Lewis’ evidence with care. I am satisfied that she was an honest witness, genuinely attempting to tell me the truth that she knew it to be. I have found her to be unreliable on a number of matters and I have taken that into account when considering the weight to be given to those aspects of her evidence that I do accept. I am satisfied she was mistaken as to her capacity to accurately recall the details of what occurred. Having said that, on a number of occasions in cross examination when Ms Lewis could not answer a question and was not sure of the answer, she refrained from making a convenient and emphatic denial, saying that she could not recall. Allowing for the various inconsistencies and deficiencies in her evidence, Ms Lewis impressed me as a reliable witness on some matters central to her narrative.
Evidence of the accused
I have significant reservations about certain aspects of Mr Goldner-Shepp’s evidence. I do not accept his account of Ms Lewis having hit herself on the head with a rock on the earlier occasion described. I accept Ms Lewis’ denials that such an incident occurred. Similarly, I do not accept his evidence that the exchange in which he told her he’d ‘had enough’, Ms Lewis started repeatedly hitting herself to the sides of her head. I accept her denials that she did so. Even if I had accepted the evidence of the accused on this point, I reject as a reasonable possibility that her actions in doing so could have caused the injury to her eye. I also reject as implausible Mr Goldner Shepp’s evidence that Ms Lewis kicked the hallway wall, about two feet above the floor with her bare foot, hard enough to make two holes. To my mind that is a fabrication designed to account for the injuries to Ms Lewis’ toe and foot. I accept Ms Lewis’ evidence that she did not do so, notwithstanding her admission to having kicked a hole in the wall on a previous occasion. I am troubled by and have difficulty accepting the accused’s evidence that Ms Lewis repeatedly banged the left side of her head against the wall and I accept her denial of having done so. I cannot reject as a reasonable possibility the accused’s version about Ms Lewis smashing bottles, even though none of the police officers noticed the presence of what must have been a significant amount broken glass around the vehicle. I have taken into account the evidence of Vicki and Jessica Goldner-Shepp in reaching that conclusion. There is no basis for me not to accept their evidence of having seen the glass on the driveway. Nor can I exclude as a reasonable possibility that Ms Lewis threw a glass from the kitchen area at about the time she swept the gravy from the benchtop.

I turn to the question of the ‘don’t leave me’ requests which is central to the narrative of the accused. That involves a consideration of the accused’s version of events leading up to the point in the evening where on his account, he told Ms Lewis he had ‘had enough’. I do not accept his denials of having spoken rudely to Ms Lewis’ friends. I found the evidence of Ms Lewis about his behaviour whilst Taylin and Bec were there to be detailed, credible and consistent. In particular, her account of the accused rudely asking Taylin to roll him a cigarette and her taking exception to his manner and deciding to leave, was given in spontaneous terms and was clearly something which Ms Lewis remembered.[149] To the extent that the evidence of the accused was inconsistent with Ms Lewis on those matters and as to the nature of the argument between them after the friends had left, I accept as honest and reliable the evidence of Ms Lewis and reject the evidence of the accused. It is entirely plausible that the accused did tell Ms Lewis that he had ‘had enough’ and that in his own mind he had decided to leave. That is entirely consistent with the bags of clothing in front of the house. That is not of itself inconsistent with Ms Lewis’ own account, that she told the accused to leave her house. On the accused’s own version of events, Ms Lewis started throwing his clothes out of the house,[150] an action hardly consistent with a woman who was begging him not to leave. The evidence of Ms Needs about having heard the ‘don’t leave me’ remarks is a matter to which I have given close consideration. That is objectively inconsistent with Ms Lewis’ account and to repeat an observation, seemingly inconsistent with the behaviour of person who had demanded the accused leave and then started throwing out his clothing. Ms Needs’ evidence of Ms Lewis’ demeanour at the time she left with the ambulance officers and Officer Highet’s evidence as to Ms Lewis’ demeanour when interacting with those officers is objectively inconsistent with both the ‘don’t leave me’ comments and the actions of a person who had been violently assaulted by their partner only an hour or so earlier. That unusual behaviour might possibly be explicable on the basis of her emotional lability and intoxication.
[149] T16-17, T56-57.
[150] T306.21-23.
I am unable to reject the accused’s account of the events which took place in front of the house prior to Ms Lewis going next door. I accept Ms Lewis’ account, albeit somewhat imprecise, impressionistic and possibly incomplete, of how she and the accused came to be in front of the house and locked out.
With respect to any matters on which I have rejected the evidence of the accused, I have put that evidence to one side.
Count 1
I accept the evidence of Ms Lewis that the accused grabbed her around the throat in the manner alleged whilst pushing her against the wall in the hallway. However, after close consideration of the evidence of the accused and the photographs taken of his injuries, I cannot exclude as a reasonable possibility that some of the injuries to his back were caused by Ms Lewis grabbing and scratching at him as he walked to the spare room, as he said in his evidence. Her acting in such a way would be consistent with Ms Needs’ evidence as to the ‘don’t leave me’ comments. In that context, I am not able to exclude as a reasonable possibility that in grabbing Ms Lewis by the throat, the accused was reacting to the scratching by Ms Lewis. Whether in the circumstances that was a reasonably proportionate response to prevent the assault on him at the hands of Ms Lewis, I am not able to say. I have this concern even though the unambiguous evidence of the accused was that he did not grab her by the throat. Putting the accused’s evidence on that matter to one side, I am still left with a reasonable doubt on the Crown case on count 1, keeping in mind the unexplained injuries to the accused and Ms Lewis’ inconsistency with respect to the separately alleged incident of choking which was the subject of counts 2 and 3 on which I found no case to answer. I find the accused not guilty of count 1.
Count 4
As will be apparent from my remarks above, I am satisfied that a violent altercation occurred between the parties. Given those aspects of the prosecution case which I have found to be unreliable and/or anomalous, I am unable to reach a conclusion as to where the truth lies and am for that reason left with a reasonable doubt. Given the injuries to the accused and those aspects of his evidence which I have accepted and those aspects of the prosecution case which are inconsistent with Ms Lewis’ evidence I cannot exclude as a reasonable possibility that the injury to Ms Lewis’ left eye was sustained during an altercation or altercations in which they were both being violent toward each other. I cannot be satisfied beyond reasonable doubt that the injury was caused in the manner and circumstances alleged by the complainant. I find the accused not guilty of count 4.
It is appropriate for me to make an observation about the circumstance of aggravation alleged with respect to both counts. Had I found the accused guilty of either or both counts 1 and 4, I would not have found the alleged circumstance of aggravation proven. The particulars allege that Ms Lewis was the domestic partner of the accused. She was not.[151] For the purpose of aggravating features, it will be an aggravating feature if the accused is in a relationship with the victim. Section 5AA(4a) provides that one of the qualifying features of being in a relationship will be if the victim is the domestic partner of the accused.
[151] See definition of ‘domestic partner’ at paragraph 7.
Whilst it seems clear enough that the victim was a person who was or had been in a relationship with the accused by virtue of the definition in section 5AA(4a)(c), that was not what was alleged. Where a person is charged with an aggravated offence, the circumstance which is said to aggravate the offence must be stated in the instrument of charge.[152] That is clearly so an accused can defend him or herself with notice of the actual state of affairs said to aggravate the offence, thereby attracting a higher penalty. In that sense, the requirement of section 5AA(3) serves an additional purpose to the requirements of the common law. The prosecution must provide sufficient particulars to enable an accused to identify the case they must meet. At common law, the requirements are primarily aimed at avoiding potential duplicity[153] and to identify the occasion and the matter, act or thing alleged as the foundation of the charge.[154] Whilst it has been said that there are no pleadings in criminal matters, to my mind, when prosecutorial discretion is exercised to allege an aggravating circumstance, intended by Parliament to increase the maximum penalty applicable on conviction, matters of aggravation must be strictly identified and proven. If that were not the case it would be open to a judge sitting alone to find proven an aggravating circumstance provided for by the Act which had not been alleged. That is clearly not the case and for obvious reasons. Whilst the view I have taken of that matter may at first seem pedantic given that a relationship, and as a result, an aggravating feature, could have been established on a different basis, I am satisfied that it is correct.
[152] Section 5AA(3), CLCA 1935.
[153] R v S [2001] 1 Qd R 445, 452.
[154] Johnson v Miller (1937) 59 CL5 467.