R v Howell
[2022] SASC 150
•15 December 2022
Supreme Court of South Australia
(Criminal)
R v HOWELL
Criminal Trial by Judge Alone
[2022] SASC 150
Reasons for the Verdicts of the Honourable Justice Bampton
15 December 2022
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - ACTS ENDANGERING LIFE OR PERSON
Accused charged with attempted murder (count 1); in the alternative, aggravated endangering life (count 2); discharging a firearm intending to injure, annoy, or frighten (count 3); and aggravated possessing a firearm without a licence (count 5) – where nolle prosequi entered against count 4 – where accused pleaded not guilty to count 1 and count 2 – where accused pleaded guilty to count 3 and count 5 – where accused elected to be tried by Judge alone – where it is alleged accused held a gun to the head of the complainant and pulled the trigger – where accused and complainant were formerly in a relationship – whether prosecution has proved the accused guilty of count 1 or count 2 beyond reasonable doubt.
HELD: The prosecution has not proved the accused guilty of count 1 or count 2 beyond reasonable doubt – accused found not guilty of count 1 and count 2.
Criminal Law Consolidation Act 1935 (SA) ss 11, 270A, 29(1), 32AA(1); Firearms Act 2015 (SA) s 9(1), referred to.
The Nominal Defendant v Clements (1960) 104 CLR 476; The Queen v Szach (1980) 23 SASR 504; Ducaj v The Queen (2019) 135 SASR 127; R v Spencer [2019] SASCFC 70; R v Grills (1910) 11 CLR 400; R v Bucca; R v Castle [2018] SASCFC 42, considered.
R v HOWELL
[2022] SASC 150Criminal: Trial by Judge Alone
BAMPTON J.
Introduction
Presumption of innocence
The elements of attempted murder
The elements of aggravated endangering life
The issues for determination
The prosecution evidenceEvidence of Ms A
The relationship before the Mariah scuffle on 23 November 2019
Police attendances
The Mariah scuffleThe three weeks following the Mariah scuffle
The sushi and the Chanel handbag
Ms A trains in the garage gym
The Casablabla interactions
The final strawThe text messages
12 December 2019
13 December 2019
Cross-examination
The 000 call and the body-worn camera recording
The bruise to Ms A’s head
Re-examination
Craig Stewart
Jayne Matthews
John Danese
Savvas Stouppos
Samuel Boyd
Susan Boyd – the mother of Sam Boyd
Kacey Hutchinson
Senior Constable Anthony Petraccaro
Constable Dylan Weaver
Brevet Sergeant Gary Goodwin
Detective Brevet Sergeant Emma Woodhouse
Detective Brevet Sergeant Nicola Woods
Detective Brevet Sergeant Katy WatkinsBrevet Sergeant Michael Tobiasen
The complete cartridge located in the hallway at of Ms A’s premises
The casing on the couch
The complete cartridge located under the pergola roof hole at 37 Glen Eira Street
Professor Jason White
The prison calls/admissions by silence
Assessment of Ms A
Prior inconsistent statements
Concerns regarding Ms A’s evidence
Matters Ms A gave evidence about suggest she is inclined to exaggeration
The retrieval of the phoneMs A’s use of Instagram
Conclusion
Verdict
Introduction
Alexander Howell and Ms A had a brief yet tumultuous, dysfunctional, volatile, and mutually abusive relationship. Following the ending of the relationship on or about 23 November 2019, Mr Howell behaved in a jealous and controlling way towards Ms A. In the early hours of 13 December 2019, Mr Howell attended Ms A’s premises at Woodville South high on cocaine. An argument ensued between Mr Howell and Ms A, during which Mr Howell produced a loaded firearm and deliberately discharged a bullet into the seat cushion of a couch. Ms A asserts that following the discharge, Mr Howell held the firearm to her head, pulled the trigger and it jammed. She asserts she managed to get away through a back door and scream “call the police”, while Mr Howell tried to unjam the firearm. Ms A’s screams caused her neighbour to exit his home and knock on Ms A’s front door while his wife called 000. Mr Howell left Ms A’s premises through the back door, climbed onto the roof of a pergola at 37 Glen Eira Street, fell through the pergola, and broke his arm. Mr Howell tussled with a Glen Eira Street resident, then fled in possession of the firearm. He threw the firearm onto a shed roof at 24 Glen Eira Street and left the keys to the white Mazda he had driven to Ms A’s street with the resident of 24 Glen Eira Street. Shortly thereafter on 13 December 2019, Mr Howell was arrested in Glen Eira Street. The firearm was found on 24 May 2021 by a neighbour to the rear of 24 Glen Eira Street while cutting back a bush covering the roof of the shed at 24 Glen Eira Street.
Mr Howell is charged with the attempted murder[1] of Ms A alleged to have been committed at Woodville South on 13 December 2019 (Count 1 on the Information dated 21 December 2020). In the alternative, Mr Howell is charged with aggravated endangering life[2] at Woodville South on 13 December 2019 when he allegedly held a loaded firearm to Ms A’s head and pulled the trigger, knowing that act was likely to endanger and intending to endanger Ms A’s life or being recklessly indifferent as to whether her life was endangered. The circumstances of aggravation alleged are that Mr Howell used an offensive weapon, namely a firearm, to commit the offence and that he committed the offence knowing that Ms A was a person with whom he was or was formerly in a relationship (Count 2).
[1] Count 1, contrary to sections 11 and 270A of the Criminal Law Consolidation Act1935 (SA).
[2] Count 2, contrary to s 29(1) of the Criminal Law Consolidation Act1935 (SA).
Mr Howell was also charged with the offence of discharging a firearm on 13 December 2019, intending to injure, annoy, or frighten Ms A (Count 3)[3] and aggravated possessing a firearm without a licence. The firearm was a Category H firearm, namely a JP Sauer & Sohn 1913 single action self-loading pistol (“the firearm”). The circumstance of aggravation was that the firearm was loaded (Count 5).[4]
[3] Count 3, contrary to s 32AA(1) of the Criminal Law Consolidation Act1935 (SA).
[4] Count 5, contrary to s 9(1) of the Firearms Act2015 (SA). NB: A nolle prosequi was entered in respect of Count 4 charged on the Information dated 21 December 2020.
Mr Howell elected for trial by Judge alone.
At the commencement of trial, Mr Howell pleaded not guilty to Counts 1 and 2 and guilty to Counts 3 and 5.
Presumption of innocence
Mr Howell comes into this Court with the presumption of innocence in his favour. He is innocent on the charge of attempted murder or the alternative charge of aggravated endangering life unless and until the prosecution has proved his guilt on the charge of murder or the alternative charge beyond reasonable doubt. The burden of proving the charges lies wholly on the prosecution.
Mr Howell elected not to give evidence, as is his right, nor did he call evidence. I do not draw any inference adverse to him or the case he puts forward because of his exercise this right.
The fact that Mr Howell has not given evidence or called evidence does not mean he has not put forward a case in defence. He has done so through the cross‑examination of the prosecution witnesses, the exhibits tendered by his counsel, and his counsel’s submissions by reference to aspects of the evidence led by the prosecution.
The elements of attempted murder
To prove attempted murder, the prosecution must prove the following four elements beyond reasonable doubt:
(1)Mr Howell attempted to cause the death of Ms A;
(2)Mr Howell’s act or acts were voluntary and deliberate;
(3)Mr Howell acted with the intention to kill. For this element, I must consider Mr Howell’s state of mind at the time he committed the relevant act or acts. To prove Mr Howell’s intention, the prosecution asks me to draw an inference. I must look at the surrounding circumstances and decide whether I am satisfied beyond reasonable doubt that the prosecution has proved that at the time he held the gun to Ms A’s head (if I find he did), Mr Howell intended to kill Ms A. In making this assessment, I should take into account any evidence of words spoken by Mr Howell. I can also take account of Mr Howell’s acts, and what inferences I can draw about his state of mind from those acts; and
(4)Mr Howell acted unlawfully.
The elements of aggravated endangering life
To prove the offence endangering life, the prosecution must prove five elements beyond reasonable doubt:
(1)Mr Howell performed an act or acts that were likely to endanger the life of Ms A;
(2)Mr Howell’s act or acts were voluntary and deliberate;
(3)Mr Howell knew that the act or acts were likely to endanger the life of Ms A;
(4)Mr Howell:
(a) intended to endanger the life of Ms A; or
(b) was recklessly indifferent as to whether the life of Ms A was endangered; and
(5)Mr Howell acted unlawfully.
The first and second elements of this offence require I must be satisfied that Mr Howell consciously and deliberately performed an act or acts which were likely to endanger the life Ms A. On this charge, the prosecution does not need to prove that the act or acts caused any actual injury, it is sufficient if the act or acts were likely to endanger the life of Ms A. The act relied upon by the prosecution is the alleged holding of the loaded firearm to Ms A’s head and pulling the trigger.
The third element requires I must be satisfied that at the time of the alleged holding of the loaded firearm to Ms A’s head and pulling the trigger, Mr Howell knew the acts were likely to endanger the life of Ms A.
The fourth element requires I must be satisfied that Mr Howell either positively intended to endanger the life of Ms A or, at the very least, was recklessly indifferent as to whether the relevant acts relied on endangered the life of Ms A. For the purposes of the law, reckless indifference means that although Mr Howell may not have intended to endanger the life of Ms A, he nevertheless performed acts knowing those acts were likely to endanger life. In other words, the prosecution must show Mr Howell knew the conduct was likely to endanger life and engaged in the conduct without having any good reason or adequate justification for the conduct.[5]
[5] Ducaj v The Queen (2019) 135 SASR 127 at [22], [50].
The fifth element the prosecution must prove is that the act carried out by Mr Howell must be without any lawful excuse.
If the prosecution proves each of these elements, Mr Howell must be found guilty of endangering life.
Finally, the prosecution must prove either or both circumstances of aggravation alleged before Mr Howell could be found guilty of aggravated endangering life.
The issues for determination
The voluntary and unlawful nature of the actus reus is common to the offence of attempted murder and the offence of endangering life. In the case of endangering life, the acts must be capable of endangering Ms A’s life. The difference between attempted murder and endangering life is the requisite state of intention in performing the acts alleged.
Proof of the charges depends on my acceptance of Ms A’s account beyond reasonable doubt as to the performance by Mr Howell of the actus reus, that is, whether Mr Howell held a loaded firearm to Ms A’s head and pulled the trigger. If I am satisfied Mr Howell performed those acts, I must determine his intention in performing those acts.
There is no dispute that:
(1)Mr Howell and Ms A had a tumultuous, dysfunctional, and mutually abusive relationship;
(2)in the early hours of 13 December 2019, Mr Howell arrived at Ms A’s house (“the premises”), where they had previously lived together;
(3)Mr Howell was under the influence of cocaine;
(4)during the course of an argument, Mr Howell produced a firearm;
(5)Mr Howell discharged the firearm into a couch in the premises;
(6)the firearm jammed;
(7)Ms A screamed for help;
(8)a neighbour, banged on the front door of the premises;
(9)Mr Howell decamped out of the back of the premises and ended up on the rooftop immediately behind at 37 Glen Eira Street;
(10)Mr Howell fell through the roof onto brick pavers at 37 Glen Eira Street;
(11)Mr Howell discarded the firearm; and
(12)the firearm was later found on the roof of the shed at 24 Glen Eira Street.
I must make findings of fact concerning the events which transpired at the premises between the time Mr Howell deliberately discharged the firearm into the couch and the time he decamped via the back door. The prosecution submitted that a significant informative matter in determining what took place is that Mr Howell had brought a loaded firearm to an inevitably confrontational domestic situation and used it (by firing into the couch). It was contended that conclusion stands on an evaluation of the objective evidence, is reiterated by Mr Howell’s guilty pleas and stands independently of the evidence of Ms A as to what transpired during the confrontation.
The prosecution evidence
The prosecution called: Ms A; her next-door neighbours, Craig Stewart and Jayne Matthews; neighbour, John Danese; four residents of Glen Eira Street; the pharmacologist, Professor Jason White; and 16 police officers, including the investigating officer Detective Brevet Sergeant Katy Watkins, the crime scene investigator Brevet Sergeant Gary Goodwin, Detective Brevet Sergeant Nicola Woods and the ballistician Brevet Sergeant Michael Tobiasen.
Evidence of Ms A
The relationship before the Mariah scuffle on 23 November 2019
Ms A met Mr Howell in April 2018. They commenced an intimate relationship within a week or so of meeting. Seven weeks into the relationship they started living together in Ms A’s house at Albert Park. In August 2018, following the sale of the Albert Park house, Ms A rented the premises.
Ms A discovered she was pregnant whilst they were living at the premises. She had not planned to become pregnant. Ms A said they became engaged on a holiday in Thailand. At that time, they were still trying to learn to live together as a new couple and they were happy. After the engagement, the relationship changed. Ms A said the pressure of and the reality of becoming parents became apparent and the financial situation started to become a concern.
Ms A said, when they returned from Thailand, she was not sure whether she wanted to continue with the pregnancy. This put a lot of pressure on their relationship, which became quite a rollercoaster. Ms A discussed with Mr Howell that he needed to start working for her to continue with the pregnancy. Ms A worked in a commercial field managing role, Monday to Friday between 7:30 am and 3:00 pm. Mr Howell did not work other than for about a month when Ms A was 17 weeks pregnant.
Ms A said there were good days and bad days in the relationship and when it was bad it was really, really bad. She said they had arguments which would end up being fights, screaming matches between the two of them, with a lot of emotion from both sides. She said she would scream at Mr Howell, call him names, tell him he needed to get a job, or that needed to go back to his mum’s house. There were also times when they would kiss and make up and agree to make their relationship work.
Ms A said she became sick of paying for everything and doing everything on her own, so she decided to kick Mr Howell out of the premises. After she kicked him out, he returned to live at his mother’s house. However, he came back to live with her at the premises from time to time. Ms A said there was a pattern by which Mr Howell would return to live at the premises. He would promise he would start paying for things, help with the baby, and start working. Ms A said the pattern of arguing with Mr Howell leaving and returning persisted from about the time she was about 21 weeks pregnant until December 2019. Ms A remained in contact with Mr Howell when he was not living at the premises by phone, text message or in person. Following the birth of their child on 30 April 2019, they continued to live together for about two and a half months.
Ms A said when they were together, and times were good, it was amazing to watch them developing as parents. In the times that were not so good, they would argue. Mr Howell would smash things in the house. They were verbally abusive to one another and “it was pushing and shoving”.[6] Ms A said she would verbally abuse Mr Howell a lot and she had nothing nice to say when things were bad. He would be verbally abusive to her calling her a slut, a cumrag, and a whore who no‑one wants anymore. He would tell her she was a mum and her job was to be at home.
[6] T109.31.
Police attendances
Ms A said that whilst they were living at the premises, the police attended their home on the day of her birthday on 20 July 2019. Ms A woke up on her birthday wanting some validation that she was doing a good job, maybe a bunch of flowers or a thank you. She said Mr Howell did not even organise a card for their child to give her, he made no effort, and she was paying for everything. They ended up in an extremely loud argument and she believes a neighbour contacted the police. Ms A said when the police attended, she was the only person at home, so she gave police her ex‑husband’s details in order to protect Mr Howell.
Ms A said there was one other occasion when the police attended her home. She did not remember the date, but it was after her birthday in 2019. She had kicked Mr Howell out and he turned up at the premises unannounced. She was wearing a crop‑top and shorts. Mr Howell told her it was inappropriate for her to wear crop‑tops and shorts to the gym. He called her a slut and a whore and smashed a vase in the living room, screaming and yelling in rage. Ms A screamed back. She said they were screaming so much the only way she could get Mr Howell to leave the house was to say, “I’m calling the police”. She dialled 000 but hung up before speaking to someone. The police still turned up. She was the only one home and did not proceed with a complaint arising out of that incident.
The Mariah scuffle
Ms A said her relationship with Mr Howell came to an end on 23 November 2019, when she found him with another woman.
Ms A had tracked one of her phones (she had four phones on a plan and a work phone) that was in a car being driven by Mr Howell to Childers Street, North Adelaide. Ms A drove to Childers Street and came upon Mr Howell holding hands with a woman named Mariah. She screamed out “Alex”. Mr Howell put Mariah in the car, whereupon Ms A (who I assume had got out of her car) opened the back door of the car Mariah got into, called Mariah a slut, and ended up in a “scuffle” with her. Ms A said the scuffle was “really just wrestling with each other. There was a slap, a pull of hair and then it got broken up by Alex and his friend”.[7] Ms A confirmed there was a male friend of Mr Howell’s present. Ms A said Mr Howell then drove off and she got back into her car. She tracked the phone in the car driven by Mr Howell to the location of Mariah’s address and contacted a couple of friends to find out Mariah’s precise address. Ms A went to Mariah’s home and apologised for her behaviour.
[7] T115.1-4.
The three weeks following the Mariah scuffle
Ms A said following the Mariah incident, she told Mr Howell she knew what was going on and their relationship was over. She gave evidence that Mr Howell told her it was all her fault and he accepted that the relationship was over. She said at this time Mr Howell had very few things at the premises, just a few pairs of underwear.
Ms A confirmed she was a user of social media in 2019. She used Instagram, Facebook, and Snapchat, but most of the time she used Instagram to post photographs. Ms A said on the afternoon she found out Alex was cheating she received tags on her Instagram account, notifying her she had being tagged in two images posted on fake public Instagram account she did not recognise. One post was a video of her and Mr Howell having sex and the other one was a photograph of her baby’s head crowning while she was giving birth. Ms A said she gave consent to Mr Howell to take the sex video but did not give him consent to distribute it more widely. She had also asked him to take photographs whilst she was giving birth. Ms A took screenshots of both posts with her phone and went to the police within about 30 or 40 minutes of seeing them.
Ms A said a day or two after these events, Mr Howell turned up at her home when she was not expecting him. She let him in. He tried to say he was sorry and wanted to work things out. He told her he had depression and anxiety and wanted to kill himself. Ms A was aware he had depression and anxiety previously. Mr Howell wanted to get back together with her and when she said no, he was very sad. Ms A was firm they were not getting back together. Ms A said she thought Mr Howell handed back all the keys to the premises when the relationship ended.
Ms A said after the breakup, she was prepared for Mr Howell to see their child in a supervised situation. However, he would visit unannounced. He would turn up at night‑time, see their child for about 10 minutes and then leave. Ms A said when they spoke, they would discuss the Mariah incident, cheating, child support, and things to do with the baby. Sometimes the conversations were civil, sometimes they were not.
Ms A recounted an occasion following the breakup when she was sleeping in bed with their child, who was about six or seven months old, when she awoke to Mr Howell kicking on her door really loudly. She opened the door to him. She said he had a knife and proceeded to go through every room of the house saying, “where is he, where is he”. Ms A told him to, “get out, get out of my home” and he left after about 10 minutes. She described Mr Howell being extremely aggressive on this occasion. I asked Ms A why she opened the door to him, and she said she had had trouble with her neighbours who would constantly call the police because of their domestic situation. She said she did not want the police called and she was already on her last warning with her landlord. Ms A said she was trying to bring it inside so that the neighbours did not call the police and she did not get kicked out of her home.
The sushi and the Chanel handbag
Ms A gave evidence about another occasion where she assumed Mr Howell had seen a photograph on Instagram posted by a male friend. She said the male was her best friend prior to Mr Howell, and he was “a friend or an acquaintance during the time I was with Alex”.[8] The Instagram photograph depicted sushi and a Chanel handbag similar to a handbag owned by Ms A. Ms A said in early hours one morning she received a phone call from Mr Howell asking if the Chanel handbag photographed was her bag. She told him it was. Mr Howell turned up at the premises not long after that and was really angry. Whilst he was at the premises, he called the friend who had posted the photograph. The friend told Mr Howell during the phone call he was not with Ms A when the photograph was taken. Ms A said she turned around and told Mr Howell, “It wasn’t me. I just wanted you to feel how I felt”. Ms A said they were both aggravated. She told Mr Howell she would call the police and he left unwillingly.
Ms A trains in the garage gym
[8] T127.9-10.
Ms A detailed how she trains in her gym at four o’clock in the morning. She described a door that provides entry from the house into the garage where her gym equipment is located. The other entry into the garage is through a roller door from the driveway opened by a remote control. Ms A said after Mr Howell left following the Chanel bag interaction, she tried to sleep for a few hours and then got up to train on her treadmill in the garage. At about 4:30 am, Mr Howell opened the door from the house to the garage screaming. He wanted to talk, and she refused to talk to him. She asserted he grabbed the emergency stop button on the treadmill and broke it off so that she had no choice but to talk to him. She got off the treadmill, went to snatch the key from Mr Howell whereupon he slapped her face. She told him to “get the fuck out of my home” very loudly. She thinks she called him a cunt and an arsehole and threatened to call the police. He left quickly. Ms A said following this slap incident she went to the police station at Port Adelaide. She called Mr Howell and told him she had had enough, “I’m reporting it to the police”. He turned up a short time later and met her outside the police station. He agreed to leave her alone, pay child support, and do the right thing. He gave her money for child support that day outside the police station and she did not report the slap to the police.
Ms A said that after the breakup she started to look after herself again. Mr Howell was always referring to her appearance, saying she dressed like a slut, and the topic of her being involved with other men came up several times.
The Casablabla interactions
Ms A said between 23 November and 13 December 2019 she was in contact with Mr Howell a lot by telephone. She described being out to dinner at Casablabla with a girlfriend. Mr Howell turned up, paid for dinner, and said “funny running into you here”.[9] She said after she dropped her girlfriend home Mr Howell turned up at her home with food about 1:30 am or 2:00 am and stayed the night on the couch. Ms A said there was another occasion when she posted a photograph on Instagram of herself on the dance floor at Casablabla. Mr Howell then turned up at Casablabla with his friends. Ms A said he was quite aggravated, grabbed her off the dance floor, yanked her outside, and said “what are you wearing? You look like a fucking slut. You should be home with our daughter”.[10] She told Mr Howell there was nothing wrong with what she was wearing, she was single, and she could wear what she likes.
[9] T132.19.
[10] T252.28-29.
Ms A said she left Casablabla, went home, and Mr Howell arrived at her door again with food and slept the night. The following day there was an argument and at that point Ms A said she cut all communication with Mr Howell. She messaged him and told him that any further communication was to be done by text or email and it was only to be regarding the baby. Ms A said this occurred in the second week of the three-week period between 23 November and 13 December 2019.
The final straw
Ms A gave evidence she went to the Port Adelaide police station with her mother during the second week of the breakup to report another incident where Mr Howell had turned up at the premises unannounced. During this attendance, Ms A said they were arguing about a range of things and Mr Howell said he had informed the wife of Ms A’s work colleague that her husband was cheating on her with Ms A.
Ms A said after this incident she did not see Mr Howell again (I assume she meant before 13 December 2019). She was asked whether she communicated with him again after that incident. Ms A said she “reinstated to him” they would only discuss things to do with their child and at that point her communication with him “became very, very minimal”.[11]
The text messages
[11] T147.1-2.
Exhibit P4 is a table of text messages sent between Ms A and Mr Howell commencing 11 December 2019 at 7:48 pm.
Ms A recalled that on 11 December 2019 she had gone for a walk with a friend at about 4:30 pm to 5:00 pm. She posted a photograph of two coffees, her face, “and a gentleman’s shirt just in the background going for walk” on Instagram.[12] At 7:48 pm, she sent the message, “And on a side note [name of baby] just sat up for the first time on her own” to Mr Howell and noted three missed calls from Mr Howell’s phone number.
[12] T151.4-5.
Ms A said later that evening she received a photograph on her phone of Mr Howell naked in bed with Mariah in her lingerie. This was followed by a text message from Mr Howell sent at 9:04 pm which reads “Omg I’m so sorry that was meant for Mariah not you”. The next text message from Mr Howell’s phone sent at 9:56 pm reads, “Glad to see you have moved on and found someone you’re interested in [Ms A]. I’m happy for you”. Ms A replied at 10:31 pm:
Alex just relax and clam down, I am allowed to go on a walk with a friend thank you for the photo she looks beautiful and just like me. I’m glade [sic] we are both happy moving on I’ve wished you nothing but good wishes.
Between 10:31 pm and 11:05 pm, there are 49 text messages between Ms A and Mr Howell. At 11:05 pm, Ms A sent a text to Mr Howell which reads, “Alex I am not your concern anymore. His [sic] a good person and he is okay with me having a baby”.
Mr Howell questions in a text at 11:32 pm whether a male is at Ms A’s home and the following texts are exchanged:[13]
[13] Exhibit P4.
Mr Howell:Oh he’s there. Ok I’ll come meet him now then. See you guys soon
Ms A:No Alec (sic) don’t come to my home
Mr Howell:See you soon
Ms A:No I mean it.
Mr Howell:Tell him I’m looking forward to seeing him
Mr Howell:He’s there with my daughter there?!
Ms A:No Alex I just want my privacy
Ms A:This is my home enough
Mr Howell:Is he there with my daughter there? Are you fucking serious!!
Ms A:No.
Mr Howell:Bullshit
Ms A:Good night Alex
Mr Howell:No
Mr Howell:I’m checking to make sure no man is in the same place as my daughter
Ms A:I said bob
Ms A:No
Ms A:Yoh have no need to come to my house [name of baby] is safe and asleep
Mr Howell:Ok I’d like to see myself
Ms A:Don’t make me Alex call the police
Mr Howell:I don’t trust you. You’d let him there today he’s probably still there
Ms A:Enough
Mr Howell:I though you ma was looking forward to meeting me
Ms A:Alex no one is at my home I’m going to bed
Your fighting on what pride Alex you cheated you made your bed
Mr Howell:[thumbs up emoji, stamp emoji]
I thought your man was looking forward to meeting me
Ms A:His (sic) not my man enough his (sic) a friend and I’m sleeping
Dont come here
12 December 2019
The following are the text messages sent by Mr Howell to Ms A from 10:51 am to 7:47 pm on 12 December:
Mr Howell:Why wasn’t your man there?
Mr Howell:Hope you enjoyed your day with your new girlfriend
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
Mr Howell:And hope she’s worth it
Mr Howell:Hello?
Mr Howell:Bit desperate love. Trying to chase attention
Mr Howell:Chasing guys interstate looool
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
Mr Howell:I see what you’re trying to do miss haha
Mr Howell:Nice plan but you can’t take my daughter interstate [Ms A]. Even for you that’s terrible
Ms A said that she went out to dinner with friends at the Red Door in Hindley Street on 12 December 2019 and posted a photograph of Hindley Street on Instagram with the words “take me home”. While she was out, Ms A said she received phone calls and text messages from Mr Howell.
On her way home she picked up their daughter, who was with her mother in Findon about a five-minute drive from her home, drove home, and went to bed.
13 December 2019
At 4:00 am on 13 December 2019, Ms A got up, had a smoke, had “some pre‑workout” and went to work out in her garage gym.
Ms A had a missed call from a number she did not recognise so she sent a text to that number saying, “sorry I missed this call who is this”. She then received a text reply, “Is Alex there”. She said at that point she called Mr Howell and asked, “do you know this person”. She said she then had several phone conversations with Mr Howell. During the first conversation, Mr Howell dismissed her query about the phone number saying, “I don’t know don’t worry about it. Send me the number”.[14] He then asked her “where were you last night and who were you with” and asked whether she was taking their daughter intestate. Ms A replied that it did not matter who she was with, it was none of his business. Mr Howell then hung up. She said he sounded extremely aggravated. He rang back about 10 minutes later and was just rambling, was furious, was not making sense and kept asking “who were you with, tell me who you were with”. He rang her several times that morning and in a further conversation said, “I’m coming there, I want to see you, we need to talk”.[15] She told him not to come. She received the following text messages from Mr Howell between 4:39 am and 4:52 am:
[14] T157.16-17.
[15] T158.24-25.
Mr Howell:Was he a enemy
Mr Howell:Or someone I don’t like
Mr Howell:Can you please be honest with that
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
Mr Howell:And he’s just a friend that doesn’t want more intentions
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
Mr Howell:See you soon
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
Mr Howell:You have a missed call from [number]. Missed Call Service is free. Call 159 to opt out.
At 5:12 am, Ms A sent the message “This number called me last night and this morning asking for you”.
The next thing Ms A recalled was, while she was working out on her treadmill, Mr Howell came through the garage door and said, “we need to talk”.[16] She said he was quite calm. She told him she had 10 minutes left on her workout and then she would talk to him, but he had to be calm. He walked into the kitchen. She said the front door was locked and she asked Mr Howell how he got in. He replied she must have left the door unlocked. When she finished her workout, she went into the house, told him she was going for a smoke and asked him whether he wanted to come out. He said no. She said that was unusual because he would always come outside and have a smoke with her. She said Mr Howell was fiddling in her fridge while she was outside smoking.
[16] T160.31.
Ms A came back inside, sat down on the couch, Mr Howell walked over to the couch, and she said to him “I will talk to you but don’t scream. The baby is sleeping”. He said, “I’m going to ask you once and once only, can we get back together?”. She said, “Fuck no, you just sent me photos of you and another girl in bed”.[17]
[17] T165.12-16.
Ms A described at that point Mr Howell reached around and “it was like in the waist band of his pants and he turned slightly to the side and then pulled a gun on me”.[18] He held the gun directly to her head and they were arguing. He said, “give me the name of the guy you were with last night, …give me the name” and “it is worth fucking dying for, not to give the name of someone”.[19] Ms A thought the gun was fake and every time he put the gun directly at her forehead, she would push it away out of her face. She said he kept saying, “do you want to fucken die for the sake of someone’s name” and “does [name of baby] deserve not to have a mother for the sake of someone’s name … tell me who the fuck his name is”.[20] Ms A said she kept pushing the gun away and he continued pushing the gun point blank on her head.
[18] T165.17-19.
[19] T165.22-25.
[20] T165.31-33.
She said when she first saw the gun she was sitting in the centre of the couch and Mr Howell was slightly to the right of her. She said she went to pick up her phone, which was beside her, the minute he pulled the gun out, but he picked it up and ditched it over to her Christmas tree. He went for her throat and pinned her against the back of the couch. She said he was so angry, his eyes were black, and he just kept strangling and pushing her against the back of the couch and holding the gun to her head and saying, “tell me his fucking name”. She said he covered her mouth at one stage, and she bit his hand. She said that they were that close that she managed to knee him in the “balls”. She told him “I’m not giving you the name”.[21] She described the gun going from her temple to the centre of her head the whole time. He put it on her forehead because she kept fighting him, so every time he put it at her head, she would push it away. He hit her on the head with the gun. He did not slam the gun against her head, but he hit her with enough force for her to notice the gun had weight causing a bruise on the top left side of her temple. She said biting him and kneeing him only made things worse. She thinks she worked him up by holding the gun and “at that point he decided to then torture me with putting it into my stomach and then my kneecap and then discharging it…”.[22] He said, “do you think this gun isn’t fucking real, do you want me to prove this gun isn’t fucking real”.[23] She said when he put it at her kneecap she said, “what are you doing, you don’t do this to the mother of your child”.[24] He looked directly at her, and he shot the gun to her left into the couch. She said there was a loud bang and smoke coming out of the couch. At that point their child woke up.
[21] T167.12-16.
[22] T169.36-38.
[23] T167.33-35.
[24] T167.36-37.
Ms A said to Mr Howell “what are you doing, you are nine days out your parole period”. She said “go, the neighbours would have called the cops, go”. He would not leave. She then said, “I will go with you, let me call my mum, she can come and get the baby” and he said no. She told him “‘I’ll go anywhere with you. We’ll just leave her. We’ll leave her. Don’t even worry about calling mum. I’ll go with you anywhere, just let’s go”.[25] As their baby was very upset, Ms A said, “please just let me put the dummy in her mouth, just let me settle her”.[26] She said she put her hands up like she was not fighting anymore and went into the baby’s room and gave her the dummy while he stayed in the lounge room. She stood for a moment beside the cupboard in the baby’s room and slid along the wall before she came out into hallway. Mr Howell was standing outside of the door next to the baby bouncer, seen in photograph 13 of exhibit P2, and had the gun pointing directly at her. She pleaded for her life, “I will be with you, I forgive you, we can fix this”.[27] She said at this point she was standing in between the doorway. She did not want him anywhere near the baby. She put her hands on either side of the door depicted in photograph 13 of exhibit P2. Mr Howell said, “go and pick her up. Go and say goodbye to her. Go kiss your daughter goodbye”.[28] She held onto the door and said, “I’m not doing it, shoot me, … I’m not picking her up”.[29] She said she held on to the side of the doors as he tried to push past. He stepped back, pointed the gun directly at her and he said “go and get her”. She told him, “I am not doing it”. She said, “he realised I would fight for her. So at that point he kissed me on the lips”,[30] threw her at the back wall and she fell.
[25] T168.13-15.
[26] T168.19-20.
[27] T170.37-38.
[28] T171.13-14.
[29] T171.15-17.
[30] T171.22-24.
Ms A said Mr Howell then grabbed her tightly by her hoodie, led her out to the lounge room and pushed her head down on the couch. Her head was to the side facing the Christmas tree and she was pinned half on and half off the couch with her knees on the floor. She said she could not move as he held tightly. She said he took the gun and pointed it just above her ear and said, “close your eyes … you’re going to fucking die”.[31] Then all she heard was the click. At that point she “was like I am not fucking dead, I am not dead”.[32]
[31] T173.9-10.
[32] T173.11.
Ms A said Mr Howell loosened his grip on her and she sprinted. She pushed the back glass sliding door open and ran through the back screen taking it off its tracks. She said she stood outside but could not run as her daughter was still inside and just screamed at the top of her lungs “someone call the police, call the police”.[33]
[33] T174.1-2.
She described Mr Howell coming to the back door furious, “he was like ‘fuck’ and he kept trying to unjam the top of the gun and he was screaming”. Every time she screamed “call the police, call the police” he just kept going “fuck, fuck”.[34] She said he raised the gun to her again as she was standing outside and just kept trying to shoot the gun at her head and it would not work so he would go back to “fuck, fuck”.[35] She saw him run into the kitchen and she could hear cutlery being moved in the kitchen. She said he just kept fiddling around and he was trying to use, she did not know what, to unjam the top of his gun. Ms A said she suddenly heard a loud knock at the door, and she thought it was the police. She was not sure how Mr Howell would react, and the person just kept banging. She said she stepped into the house to bolt to the front door. Mr Howell went to bolt out the back door and then for some reason he bolted into the kitchen. She said they crossed paths, he ran out the back door, she ran and opened the front door.
[34] T174.3-7.
[35] T174.8-11.
Ms A was asked what she observed Mr Howell doing with the gun. She said he was holding the gun and there was some slide thing at the top and he just kept trying to get the slide to work. I asked her how she knew it was a slide. She said she did not:[36]
… initially it doesn’t look like – that’s why I thought the gun was fake because it doesn’t look like the gun in a movie or what I know police officers have. I originally described it as a – I didn’t describe it as a slide, I didn’t know what the top – it was just something at the top. It was only later when I watched the news and things like that where it was referred to as a slide, I never referred to it as a slide.
[36] T175.33-176.3.
Ms A described Mr Howell wearing black shorts, black Nike shoes, and a Nike grey long sleeve jumper. She said he had a brand-new Louis Vuitton satchel, seen on the kitchen bench in photograph 30 of exhibit P2.
Ms A said when she opened the front door to her neighbour, she told him to “take my baby, he’s got a gun, take my baby”.[37] The man told her to get her baby. She ran into the baby’s room, grabbed her, handed her to the man, and said “take her, take her”. The man said, “you need to come with me” and she said, “I need to get my phone”. She ran back inside grabbed her phone and went to her next‑door neighbour’s home.[38] Whilst at her neighbour’s home, the female neighbour handed her the phone to speak to police. Her parents arrived, followed by the police. When she was allowed back to her house, she noticed a bent fork on the kitchen counter which she indicated to police.
[37] T179.35-36.
[38] T179.38-180.5.
Ms A said that she had a sore head and a bruise that popped up on her head, but no physical injuries from the incident. She had a sore throat from Mr Howell grabbing her around her throat, but it was not a huge concern.[39] Ms A said the photographs of her[40] were not taken for some time after the incident and the red marks “had started to come down” in photograph 5 and “they were not very visible by the time the photographer got to me”.[41] She said that her statement had been given when police photographed her a couple of hours after the incident.
[39] Exhibit P6, the photographs taken of Ms A.
[40] Exhibit P6.
[41] T184.17-19.
Ms A did not ever observe Mr Howell using illicit drugs.
Ms A said she would not have been able to hear another “click” sound that morning, because she was screaming so loudly.
I asked Ms A why she ran back into the house. She said she needed to call her mum. As she did not have her mum’s phone number, she ran back to grab the phone. I asked her whether she was frightened about going back to the house. She said she had seen Mr Howell run out the back door when she had gone in to get the baby, so she knew he was not in the house. She was frightened but she wanted to get her phone.
Cross-examination
In cross-examination, Ms A was asked about her evidence to the effect neighbours would constantly call the police about her arguments with Mr Howell. She did not know exactly which neighbours called police. When asked what she meant by constantly, she said she was only aware of the phone calls that ended up with police turning up at her house. She agreed that she had given evidence about those occasions.
Ms A agreed that after she and Mr Howell broke up, he said he wanted to kill himself. It was put to her that he said he wanted to kill himself on the morning of 13 December 2019. Ms A said he said that he would kill her and then kill himself. She agreed she was aware he had previous issues with depression. She said during their relationship he had never said he wanted to kill himself. It was only after the relationship was over that he said he wanted to kill himself.
Ms A agreed she had posted on her Instagram the background of Mr Howell’s profile with the words “just to clear the air, I had post-natal depression when he’s the one who claims he lied and ran away to Bali because his depression was so bad, pops antidepressants and tried to kill himself”.[42] When asked whether it was correct that he tried to kill himself with antidepressants, she said “He had – actually, I’m not sure. I wouldn’t be able to answer that. I didn’t know that he tried to kill himself previously”.[43] She said she wrote those words on Instagram to annoy him. She said Mr Howell would write things on Instagram about her and she would retaliate.
[42] T190.14-20.
[43] T190.23-25
In re-examination, Ms A said Mr Howell’s trip to Bali when their daughter was about three or four months old was a source of tension between them. Ms A said Mr Howell blackmailed her when he called her in the middle of the night telling her she either takes counselling for their arguing or he was going to Bali. She said their relationship broke down significantly when he returned.
It was put to Ms A that Mr Howell did not ever point the gun at her. She maintained he did. It was put to her the only person Mr Howell pointed the gun at on the morning of 13 December was himself. Ms A disagreed. She was asked how she was able to say that the gun was jammed. Her answer was:[44]
The gun clicked on my head. I heard it click. After that, what indicated that the gun had jammed was Alex’s reaction to the situation and him constantly trying to push this gun down. It was his reaction. I don’t know anything about guns. It was the fact that I heard the click and I was still alive and it was by his reaction and him constantly screaming and trying to force something at the top of this gun down, that I didn’t even know it had jammed, it just didn’t work, as far as I was concerned (INDICATES).
[44] T191.38-192.9.
Ms A said when Mr Howell tried to kill her, she was to the side, face down on the couch. She was asked whether she actually saw Mr Howell pull the trigger. She said, “The gun was placed to the top of my head and I heard the click”.[45] When asked again whether she did not see him pull the trigger, her answer was:[46]
I saw him try to attempt to pull the trigger outside when I was standing outside, he continually tried to pull the trigger then, but when it was attached to my head, I did not see it then.
She agreed she had concluded he must have pulled the trigger because she heard a click and, as best she could tell, the moment she heard the click was the moment the gun jammed.
[45] T192.19-20.
[46] T192.24-27.
In relation to the Mariah scuffle, Ms A agreed she had tracked a phone she left in the car Mr Howell was driving with a phone in her possession. She confirmed the phone in the car was tracked to Mariah’s street and her friends were able to give her Mariah’s house number. She said she and Mr Howell shared cars during the period of their relationship. Ms A said she had four phones on her plan, and she had a work phone. She said that she did not tell the police about all the phones she had. She said one phone was with her mother, one with her father, one with her (her permanent phone), and one with Mr Howell. She said she had taken the phone off Mr Howell prior to the Mariah incident but agreed she had used the phone in the car to track him. She denied using the phone in Mr Howell’s car as a tracking device and denied putting it in a tissue box under the seat.
Ms A described her interaction with Mariah as a scuffle, not an attack. She agreed she opened the door to the car Mariah was seated in and said, “the lady also can reach outside the car as well”.[47] She said Mariah reached for her as she reached for Mariah, it was mutual.
[47] T205.21-22.
Ms A was asked about the statements she had given police in a 000 call, a body‑worn camera recording, the affidavits of 13 December 2019, 18 December 2019, 3 March 2022 and 17 March 2022.
The 000 call and the body-worn camera recording
Two 000 calls were made by Ms A’s neighbour, Jayne Matthews. The first was made at 5:59:14 am on 13 December 2019 as her husband, Craig Stewart, left their home to go to Ms A’s premises in response to Ms A’s screams. The second call was made at 6:01:09 am in the presence of Ms A. The duration of the second call was 12 minutes and 27 seconds, during which Ms A was handed the phone by Jayne Matthews to speak to the operator.[48]
[48] Exhibit D8; Exhibit P30, Agreed Facts.
Ms A’s communication with one the first police officers to attend following her interaction with Mr Howell was recorded on the officer’s body‑worn camera (“the body-worn camera recording”) within an hour or so of her conversation with the 000 operator.
Ms A confirmed in cross-examination that she had recently listened to the recording of the 000 call and had an opportunity to watch the body‑worn camera recording of her first contact with police.[49] Ms A was asked whether she agreed that in the 000 call she did not specifically mention a gun being put to her head and the trigger being pulled. Her answer was “I didn’t lead the conversation. The gentleman on the phone did and they were asking questions about the gun more”.[50] She then said that she did mention it, but not explicitly. She was further asked whether she agreed that in the body‑worn camera recording she did not explicitly mention a gun being put to her head and the trigger being pulled. Her answer was, “I did mention it, but not explicitly”.[51]
[49] T210.30-36.
[50] T211.3-5.
[51] T211.15.
Ms A asserted the 000 operator was more interested in asking questions about the gun, Mr Howell’s clothing and “things like that”.[52] She said the operator was “asking his location and what he was wearing, where he could potentially be and that was the topic of discussion at the point of the conversation on the phone”.[53] In answer to a question about whether it was her evidence she was answering questions asked by the operator, she said:[54]
I was actually put on the phone, the gentleman on the phone asked to speak to me because he wanted more information, not my story, but more information in regards to Alex’s clothing, you know, the location that he could be. That was why I was put on the phone, not to report the incident, but to be given more information.
[52] T211.18.
[53] T211.22-25.
[54] T211.32-38.
The audio recording of the 000 call was played to Ms A during cross‑examination. Ms A was asked about her answer “He shot my couch at the moment” to the operator asking her whether Mr Howell had been drinking. Ms A asked for the transcript of the 000 call, whereupon the audio recording was played again. It was put to her that her telling the operator, “He shot the couch at the moment” was not in response to anything the operator had asked. Ms A answered, “No, it was in relation to when the actual firearm discharged”.[55] Ms A agreed her conversation with the 000 operator was the first occasion she told anyone associated with the police what had happened inside her home that morning. She was asked:[56]
Q.Why did you not say ‘He put the gun to my head and he tried to kill me’.
A.Because I thought the phone call was in relation to the actual shot that had been put into my couch, like when the firearm was used and discharged.
Q.So you were thinking that at the time, were you.
A.Yes, I was, because I thought that the actual police had been called because of the firearm actually going off. It made a loud bang. I thought the neighbours called the police in relation to the bang.
[55] T215.30-31.
[56] T216.1-10.
Ms A was asked whether she thought it was an important thing for the police to know that her ex-partner had tried to kill her. Ms A said:[57]
A.I did later on say it in the conversation where I said ‘He tried to kill me’. I put that in there as well.
[57] T216.14-15.
It was put to her that when she told the police “He shot my couch”, she could have said at that point “He put a gun to my head and pulled the trigger”. Ms A said she could have given the whole detail of the story. She maintained that the operator was asking about the firearm, and she was “talking about in relation to when the firearm was discharged”.[58] She was asked about saying to the operator that she did not understand why police were taking so long and that there was a gunman on the loose. It was suggested to Ms A that she was concerned the police were not giving the matter the urgency it needed, and she agreed. She was asked:[59]
Q.Did you think at that stage it might be a good idea to tell them ‘He put the gun to my head and he pulled the trigger. He tried to kill me’.
A.I wanted to know – my concern was them not being at my house. My daughter was there. What my concern was when I was on the phone was finding out where they were and finding Alex and where he was and all the things that will identify him, that was my concern when I was taking that phone call. I did state he tried – he tried to kill me in the phone call. It’s later on down there I stated it. But when I spoke in relation to the firearm being discharged, I told them he shot it in the couch. That phone call, my concern was finding out where the police were and the information that was asked of me to identify Alex and find him.
[58] T216.25-26.
[59] T216.34-217.10.
Ms A was taken again to her exchange with the operator where she told the operator “He shot my couch at the moment” and the operator said, “and this is just before he threatened you and ran off”, to which she said “Yep”. Mr Howell’s counsel asked Ms A why she did not then say, “He didn’t just threaten me, he actually tried to shoot me”.[60] Ms A replied:[61]
A.Again, the only evidence I was trying to give and what my whole purpose of the phone call was to locate this man that was running around with the gun. My story could come later. My story was a huge story. That information was not what was pivotal at that moment when my daughter’s safety, my safety and the safety of everyone else in that household was at jeopardy. That is all I was trying to do. My story could have come later. At that point, I was giving the direct information that was required of me as the operator asked.
(Emphasis added)
[60] T217.31-32.
[61] T217.33-218.5.
It was put to Ms A the operator did not ever ask about shooting the couch. In response, Ms A said, “I let them know the firearm had been used. That was me letting them know the firearm had been used. It had been discharged”.[62]
[62] T218.8-10.
The audio recording was played again in court and Ms A was asked whether she heard the operator say, “Is there anything else you can remember about what happened”. She agreed she did. Ms A was reminded that in answer to that question she told the operator what Mr Howell was wearing. She agreed. She was asked whether she could have, at that point, said “Another thing that happened is that he tried to kill me”. Ms A maintained that she did say it later and asserted that at that point she was only trying to “identify Alex, was identify him and find where he was”.[63] She was asked whether, as she had stated earlier in her evidence, she maintained that she was answering the questions being asked of her. She agreed. She was asked whether she agreed that the operator did not initiate the discussion about what Mr Howell was wearing. Ms A maintained the operator “had given me all the cues that what they were trying to do was find him, this information was really helpful. I was just trying to give as much information at that point to locate him”.[64] She was asked:[65]
Q.What was the cue in the question ‘Is there anything else you can remember about what happened?’, what was the cue in that that caused you to tell the operator what clothes Alex was wearing.
A.The cue was my daughter’s safety and trying to find Alex. As I said, that was my only concern. The whole phone call was not about what had happened, it was locating him.
[63] T219.1-2.
[64] T219.15-18.
[65] T219.19-26.
Ms A was then taken to the portion of the 000 recording where the operator said, “And that’s the only firearm that he had and did he – did he do it to scare you or was it –”. Ms A maintained she said in response, “No he legit tried to kill me”.[66] The 000 recording of the following was played again in court:[67]
Operator:And is it just the 1 shot?
Ms A:Yeah the 1 shot but he had bullets on him
Operator:And that’s the only firearm that he had and did he, did he do it to scare you or was it a …
Ms A:Yes he … what no he did it, he said I’m not joking with you, I want to kill you.
Having heard that excerpt from the 000 recording,[68] Ms A maintained she said, “No he legit tried to kill me” in response to the question “Was he doing it to scare you”. The excerpt was played again and it was put to Ms A that what she told the operator was Mr Howell said, “I want to kill you”. Ms A maintained that between 9:20 and 9:46 in the 000 recording, “that is where I’m saying I told them ‘He tried to shoot me’”[69] and “that’s where exactly where I’m identifying the fact”.[70] She then said it was “something along those lines and I’m saying that is when he tried to kill me”.[71]
[66] T221.25-26.
[67] Exhibit D8.
[68] Exhibit D8, between 9:20 and 9:46.
[69] T222.4-5.
[70] T222.11-12.
[71] T221.28-29.
It was put to Ms A she did not say Mr Howell tried to shoot her:[72]
[72] T223-17.225.25
Q.So you agree, don’t you, that when the operator said to you ‘And this is just before he threatened you and ran off?’, you didn’t say anything about Alex trying to shoot you.
A.He said ‘threaten before he ran off’.
Q.In response to that, you didn’t say Alex tried to shoot you.
A.‘Threaten’ to me was acknowledgement there was an incident.
Q.Would you agree with this: there’s a difference between a threat and actually trying to kill somebody.
A.Absolutely, but in that moment – if I wanted to sit here and explain this story, it goes for hours. In that moment, we’re talking about a 10-minute phone call. I didn’t have time to go into exact detail of what happened.
Q.The operator never cut you off, did he.
A.Several times he’s cut me off in that conversation.
Q.He never told you that you couldn’t tell him any more details.
A.I have a daughter there, might I remind you, that has no-one to look after her. I’ve got that, my child, I just had someone trying to shoot me in the head and you want me at this point to be literate, word for word?
Q.My question to you was the operator never told you that you couldn’t tell him any more details, did he.
A.He didn’t encourage any further details either in detail.
Q.So when he asked you ‘Is there anything else you can remember about what happened?’, he was not encouraging you to share any more detail, was he.
A.He was encouraging – like I said, it was about finding him. Yes, there was times and I did say it in the end of the conversation where I highlighted it. Just because I didn’t say it at exact points –
Q.To come back to where I was going with this, I’m just trying to step through them one by one, you agree that you did not say that Mr Howell had tried to shoot you at the time when you said he shot the couch.
A.No.
Q.You agree you did not say Mr Howell tried to shoot you at the point where the operator said ‘And this is just before he threatened you and ran off?’.
A.No.
Q.You agree that you didn’t say that Mr Howell tried to shoot you at the point where the operator said ‘Is there anything else you can remember what happened?’.
A.No.
Q.I’m sorry, you agree that you did not.
A.No, I didn’t add anything.
Q.I just wanted to make sure that when we read it later we know what ‘No’ means.
A.Sure.
Q.In that passage that we just listened to a few times over, you heard the operator say ‘And is it just the one shot?’.
A.Yes.
Q.And you said ‘Yeah, the one shot, but he had bullets on him’.
A.Yes.
Q.I know there’s a question that follows straight after that, I will ask you about that in a minute, but do you agree that in that answer, ‘Yeah, the one shot, but he had bullets on him’, you didn’t say anything about Mr Howell trying to shoot you in the head.
A.The question was directly ‘Just one shot?’. He didn’t ask me if Alex - any more detail in that question, he asked me ‘Was it one shot?’ and I answered that with ‘Yes, one shot’, so I was responding to his direct question.
Q.You did a bit more than that, didn’t you. You said ‘But he had bullets on him’.
A.Yes, in regards to the firearm. How much ammunition and the gun being discharged.
Q.So you felt quite free to add more detail than the direct question you were being asked, didn’t you.
A.More direct information in relation to the direct question that had been asked of me.
Q.But do you agree that, at least in relation to that question, at that moment, you didn’t say anything about Alex trying to shoot you in the head.
A.The question was never asked. The question was ‘Just the one shot?’, the question wasn’t ‘Was there anything else that happened?’, the question was ‘The one shot?’ and I answered that.
When it was put to Ms A that she did not say anything about Mr Howell putting the gun to her head and pulling the trigger because it did not happen, she maintained it did happen.
The bruise to Ms A’s head
Ms A was asked whether there was any link between her kneeing Mr Howell in the groin and him hitting her in the head with gun. She said she would not be able to say.
Ms A agreed she said in her affidavit affirmed on 13 December 2019:[73]
I was squirming and he would squeeze tighter around my throat if I moved which restricted my breathing at times but I didn’t pass out. I managed to get my legs up in front of me and I kicked him in his nuts which made him really mad. At one stage he put his left hand over my mouth because I was screaming at him and I bit his hand and he hit me across the left temple/eye with the barrel of the gun.
[73] T227.3-11.
She was asked whether being hit with gun hurt and where she would place the pain on a scale of one to 10. She said about three or four. Ms A said she is not a person who bruises easily. She marked a circle on photograph 3 in exhibit P6 to indicate where she maintained the bruise from the gun strike was located on her forehead. It was put to her that it was not true that Mr Howell hit her with the gun or that he put his hands around her neck. She disagreed.
It was also put to Ms A that she had said to Mr Howell she thought the gun was fake and he said words to the effect “It’s not fake” whereupon he shot the couch. Ms A said that was not the sequence of events.
It was put to Ms A that in none of her out of court statements had she said anything about Mr Howell telling her to go and say goodbye to the baby. Ms A said she did list it in one of the recent affidavits. Ms A was asked to review all her statements and identify where she recently referred to it. She identified paragraph 9 in her statement of 17 March 2022, where she said:
Alex told me to pick [name of child] up but I refused, Alex was trying to use [name of baby] as a tool. I was interacting with Alex trying to appease him, I was saying stuff like “I’ll be with you, we’ll go, we can leave here’ it was at this point Alex leaned in and kissed me. I remember pleading with Alex and saying ‘you’ve only got 9 days left on parole, what are you doing?’
She said her wording “Alex was using [name of baby] as a tool” was a reference to him saying “Go and pick her up and say goodbye”.[74]
[74] T262.32-34.
Ms A was asked how it was that she ended up getting away from Mr Howell after he pinned her down on the couch. She said she managed to get away when he had shot the gun in her head, released his hold and started to unjam the gun. It was put to her that a bullet had become jammed, and Mr Howell’s sole focus was on unjamming the gun. She said it was not his sole focus as he was trying to shoot her when she was outside, as well as trying to unjam the gun.
Ms A agreed she said in her affidavit 13 December 2019:
He pulled the trigger, I know he did because I heard it click but the gun didn’t go off. I thought I was fucked either way and knew that I had to try and get away. I managed to get away from him and I ran to the back sliding door and it wasn’t locked. I threw the door open and ran outside and screamed as loud as I could, “someone get the police”. Alex stood at the sliding door and was pointing the gun at my head and I could kept hearing the gun go “click, click” but it didn’t go off.
She was asked which was correct: she could hear the gun going “click, click, click” as stated in her affidavit or her evidence-in-chief that her screaming would have drowned out any sound of clicking. She said from what she could recall she could not hear the clicking because she was screaming.
Ms A agreed she also said in the 13 December 2019 affidavit:
I kept screaming for help and Alex ran into the kitchen and it looked like he was trying to get the gun to work. Then he was opening my kitchen drawers like he was looking for something. I heard someone banging on my front door. I ran into the house and opened the front door and said to the male who was at my door to call the police.
It was put to her that she did not say anything in that statement about Mr Howell coming back after being in the kitchen trying to unjam the gun or anything about him continuing to try and fire the gun at her. Her answer was that he was trying to unjam it and get it to work. It was put to her that she did not say to the police in December 2019 that Mr Howell came back after being in the kitchen and was pointing the gun at her pulling the trigger. She agreed she did not because it was two and a half years later that she was giving her evidence:[75]
I remember the critical points of this, but the little details, they go a little bit blurry after two-and-a-half years.
[75] T241.28-30.
Ms A agreed that she said in her affidavit of 13 December 2019:
I then heard someone banging on my front door. I ran into the house and opened the front door and said to the male who was at my door to call the police. Alex then ran from my kitchen straight out of my back door but I did not see where he went after that. I now know that the male at the front door is my neighbour from number 12 and his name is Craig.
Craig told me he had already called the police. Craig told me to get my daughter.
Ms A was asked about her evidence‑in‑chief to the effect that the man knocking at her front door just kept banging. It was put to her that he only knocked four times and that she came to the door within about 10 seconds. Having watched the CCTV footage exhibit P3, Ms A said that she counted five or six knocks and she did not count the seconds it took her to get to answer the door.
Ms A was asked about going back into the house to get her phone. She said she was certain that Mr Howell was not in the house when she went in to get her daughter, but she was not 100 per cent sure of his location. She said she did not know if he was in the back yard, but she knew he was not in the house. She denied she felt comfortable enough to go back and get her phone because it is not true that he tried to hurt her that morning.
Ms A denied she was the one who smashed the vase in an earlier incident before the events of 13 December 2019 because she was angry with Mr Howell about money.
In relation to the sex video on Instagram, Ms A said even though her face was not shown in it, she was identifiable by her nails and her ring as she is holding the sex bullet that she and Mr Howell had used just prior to taking the video. When it was put to Ms A that the sex video and birth photograph were not posted at all, she maintained that they were posted and she took screenshots of them.
Ms A was asked about the incident where she alleged Mr Howell came to the house with a knife. It was put to her that on 3 March 2022 she said in an affidavit:
On the 24 November 2019 I woke up to find Alex in my house holding a knife asking “where is he” there was no one in my house.
It was put to her that the incident with the knife, the day after she caught Mr Howell with Mariah, did not occur. Ms A maintained it did occur.
Ms A was cross-examined about her evidence to the effect Mr Howell was kicking at the door so she let him in, and in her affidavit of 3 March 2022, she said that she awoke to find him in her house holding the knife. Ms A’s response was that Mr Howell was kicking her door in and she let him in. When asked why she said that she woke to find him in her house and that her answer was:[76]
There were several times I woke up to Alex kicking at my door. It’s an error. It’s an error, it’s not right.
[76] T251.7-8.
It was put to Ms A that Mr Howell did not slap her in the treadmill incident. She maintained he did. It was suggested to her that he ripped the stop key off the treadmill, and she tried to get it back. She screamed at him to get out of the house, and he left. She disagreed.
Ms A said in relation to the second Casablabla incident that she was wearing “green cargo pants, a red semi see-through lace body suit, high heels and a handbag”.[77] It was put to her that Mr Howell did not yank her off the dance floor but tapped her on the shoulder. She disagreed. It was put to her he asked her to come outside to speak because the music was loud, she strongly disagreed. It was put to her he did not say she looked like a slut, nor did he say that she should be home with the baby. Rather, he asked if there was anything she needed for the baby. Ms A strongly disagreed.
[77] T252.16-17.
Ms A was asked about the statement in her 13 December 2019 affidavit:
I was sitting on the couch in my lounge area and he was standing in front of me to the side of the couch. All of a sudden I saw a gun in his right hand and he was pointing it towards me. I thought it was fake and I asked him what the fuck he was doing.
Ms A was asked why she gave evidence about the gun appearing from his waistband. She said she could add more information. She felt it was not explained in as much detail as she would like in her original statement, so she added to it.[78]
[78] T254.27-29.
It was put to Ms A that when Mr Howell pulled the gun it was after a discussion about asking whether they could get back together. He then put it to his own head and said words like “Is this what you fucking want?”. She said she strongly disagreed. It was put to her she said words to the effect “What the fuck are you doing? That’s not a real gun”. She disagreed. It was put to her that he pointed the gun away from his head at the couch and shot the gun into the couch. She agreed he shot the couch but not in the manner put to her. She agreed he said words to the effect immediately before he shot the couch “I’ll show you it’s a real gun”. She denied that, after he shot the couch, Mr Howell pulled the slide on the top of the gun. It was put to her at that point the bullet became jammed in the side. She said she could not comment. Ms A disagreed that at no time after Mr Howell shot the couch did he pull the trigger again. She also disagreed that at no time that morning did he point the gun at her. She denied she was mistaken about the click she said she heard.
It was put to Ms A she did not explicitly mention a gun being put to her head and the trigger being pulled in her conversation recorded in the body‑worn camera recording by police when they first attended on 13 December 2019. She agreed that she did not explicitly refer to it. She was asked whether there was a portion of the recording where she was referring to that incident. She said it was the portion where she referred to Mr Howell pinning her head to the couch and the gun jamming. She was taken to the statement at paragraph 2 of her affidavit dated 17 March 2022, where she stated:[79]
Whilst I was talking to Police on the BWV [body‑worn video] and describing what had happened I described that Alex had pinned my head to the couch and the gun had jammed, I believe this is me describing the gun being put to my head.
[79] T265.36-T266.3.
Ms A, having watched the body-worn camera recording in court, agreed the footage of her saying:[80]
And then he grabbed my throat and he pinned me against the couch and he’s like “Just tell me his fucking name”. He’s like “Tell me the guy’s name” and I told him, like a name, but it’s just like he said – he’s just like “You think I’m joking”, he’s like “You’re fucking dead”, he’s like “Close your eyes”, and he pinned my head down on the couch and he grabbed the gun and I said to him “Stop, like stop”, and then I got up and I don’t know how I got up. I got up and then he – I just took the chance, I just ran through the back door and I just screamed “Call the cops, call the cops” and then the gun had jammed, that’s what happened and he shot the couch and it was just – I don’t know what he was doing, it jammed, it did something, I don’t know.
is a reference to Mr Howell trying to shoot her in the head. Ms A agreed immediately after that statement she said:
And then that’s when I took the shot to run out the door and then I screamed and then he was bouncing around my house the whole time like a crazy man.
[80] T266.20-T267.3.
Ms A was asked whether she agreed there is a difference between someone grabbing a gun and trying to shoot a gun. Her answer was that it depends on their intent and how they use a gun.
Re-examination
In re‑examination, the prosecutor sought to introduce Ms A’s statement in her 13 December 2019 affidavit regarding the holding of the gun to her head and the pulling of the trigger allegation. It was contended that cross-examination of Ms A on this topic and the alleged failure to mention the allegation to the 000 operator or the police officer wearing the body-worn camera involved a clear imputation that the gun to the head allegation was an invention.
Counsel for Mr Howell maintained he did not put to Ms A her evidence of the allegation was recent invention. He said he deliberately proceeded with caution in questioning on the topic. He submitted the evidence sought to be adduced in re-examination was inadmissible as it was evidence of a prior consistent statement and was not admissible under the strictures set out in The Nominal Defendant v Clements.[81]
[81] (1960) 104 CLR 476 at 495.
It was submitted Ms A was cross-examined on the omissions in two accounts she provided to police in the immediate aftermath of the alleged offending. It was further submitted if Mr Howell really did put the gun to her head and pull the trigger, it would suspend belief if she omitted to say so on the occasions of the 000 call and the body-worn camera recording.
I heard evidence in re-examination on the prior consistent statement over objection and ultimately determined to receive it de bene esse and hear further argument in closing submissions.
As the Court stated in R v Bucca; R v Castle, there is an exception to the general proposition that a prior consistent statement cannot be admitted in order to “aid in the assessment of, that is to bolster, the witness’ credit”:[82]
[82] [2018] SASCFC 42 at [129]-[130].
However, there is an exception to this general position, as explained by Dixon CJ in The Nominal Defendant v Clements.[83]
[83] [1960] HCA 39, (1960) 104 CLR 476 at 479.
If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction.
Dixon CJ continued with the following further observations as to the great care to be exercised when considering an application of the exception.
But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness’s account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge’s opinion has a peculiar importance.
Why it is that great weight is to be given to the trial Judge’s opinion was explained by Windeyer J in Clements.[84]
It is for the trial judge to decide whether there has been an attack on the evidence of a witness of such a character as to let in his earlier consistent statements. The trial judge not only hears counsel’s questions. He hears the tone of them and is conscious of the suggestion they would convey to the jury.
(Footnotes in original)
[84] The Nominal Defendant v Clements [1960] HCA 39, (1960) 104 CLR 476 at 495.
After carefully considering the cross-examination of Ms A on the omission of the gun to head allegation, I have determined that a foundation was being laid for impugning that allegation “as a recently invented, devised, or reconstructed story”.[85] The only permissible purpose of permitting the prosecution to re-examine regarding the statement in the 13 December 2019 affidavit was as an aid to address the subtle attack on Ms A’s credit during cross-examination regarding the omission of the gun to head allegation in the first two accounts to police.
[85] The Nominal Defendant v Clements (1960) 104 CLR 476 at 480.
Accordingly, the statement in the 13 December 2019 affidavit is admissible for the purpose of undertaking a proper evaluation of the significance of her alleged earlier failures to mention the gun to her head and the pulling of the trigger.
Ms A stated in re-examination that she explicitly reported the gun to the head allegation to Detective Nicola Woods at the time of providing a formal statement at 8:23 am on 13 December 2019 as follows:[86]
Q.In the course of providing this statement, did you tell the police that Mr Howell pinned you face first into the couch and said ‘Close your eyes, you’re about to die’ and pulled the trigger.
A.Yes.
Q.Did you further tell the police that you heard it click, but the gun didn’t go off.
A.Yes
[86] T277.30-37.
It was submitted by the prosecution the evidence of Detective Woods confirms she undertook the process of taking a formal statement from Ms A between 8:23 am and 10:18 am on 13 December 2019 supporting the conclusion that neither of the 000 or body‑worn camera conversations were intended to elicit her complete, considered, chronological account of events. It was further submitted the timing and circumstances of the body-worn camera recording must be considered in evaluating the significance of Ms A’s failure to specifically and clearly articulate that Mr Howell put the gun to her head and tried to pull the trigger. It was pointed out that in giving the statement to Detective Woods, Ms A was sitting down and “given the time to talk fully about what had happened”.[87] In contrast, it was submitted the body-worn camera recording took place in circumstances described by Ms A in re-examination, while her daughter was around and:[88]
… the police would ask me a question and then they would ask me something else as well, it wasn’t flowing, it was just, you know, at the time my mum had turned up, it wasn’t a flowing conversation between them. They would ask me something, then they would not, and then they would ask me something and then they would let me continue with the conversation. Where this one here I was sat down in the lounge room and given the time to talk fully about what had happened.
[87] T612.5-6.
[88] T277.19-27.
The re-examination explained the circumstances in which the 000 and body‑worn camera conversations took place compared with the circumstances in which the statement was given to Detective Woods. It also put before me the first utterance of the gun to head allegation within an hour and a half or so of the body‑worn camera conversation. It is a statement consistent with Ms A’s sworn evidence made after the two accounts to police in the immediate aftermath of the incident.
I agree with the contention that these matters in combination mean that the firearm was inoperable in a manner that would be apparent to the user at the time. As such, they raise a serious doubt as to whether the actus reus happened at all.
Professor Jason White
Analysis of a blood sample taken from Mr Howell at 11:15 am on 13 December 2019 revealed the presence of 0.03 mg per litre of cocaine and other drugs. Having regard to this analysis, the pharmacologist Prof Jason White gave evidence he back‑calculated the likely concentration of cocaine between 5:00 am and 6:00 am on 13 December 2019 being:
(1)between 0.8 to 0.10 mg per litre if Mr Howell had been a frequent user of the drug at the time; and
(2)1.7 to 3.7 mg per litre if he was not a frequent user but had consumed the drug in a binge-type situation.
Prof White stated a concentration of 1.7 to 3.7 mg per litre is a very high concentration range and the effects on the user depend on the user’s tolerance, but very pronounced effects would be expected. He said cocaine can cause aggressive or violent behaviour:[127]
… in two ways. One is that through the person being over-confident, engaging in impulsive or risky or reckless behaviour, in certain circumstances that may be manifested as aggressive behaviour, depending on what is happening around the person. The other is as a result of the psychotic effects, so if the person experiences paranoia, so they have some degree of fear or suspicion, they may act on that and that may be the person feeling that they are acting in a defensive manner because they think someone is out to get them but in fact they are acting aggressively. That belief of the person going to harm them in some way is a delusional belief brought about by the psychotic effects of the drug.
[127] T567.37-T568.12.
I accept Prof White’s evidence.
Ms A gave evidence she had not observed Mr Howell use illicit drugs during their relationship. The prosecution submitted it was open to find Mr Howell had taken a significant quantity of cocaine and it was in his system at the higher range referred to by Prof White, such that the known effects of taking cocaine, including overconfidence, risky, reckless or impulsive behaviours would be very pronounced, and could have included feelings of paranoia as well as aggressive and violent behaviours.
Mr Howell’s comments to Officer Weaver suggest he was familiar with the use of cocaine. The evidence does not permit me to find cocaine was his system at the higher range referred to by Prof White, namely 1.7 to 3.7 mg per litre, such that he had consumed the drug in a binge-type situation. I find he was under the influence of cocaine and “behaving jealously, erratically and appallingly”[128] when he attended Ms A’s premises, handled the loaded firearm, fired a shot into the couch, and fled over the neighbouring pergola roof. This finding is supported by the fact of Mr Howell’s plea to Count 3 and Count 5.
[128] T637.14-15.
The prison calls/admissions by silence
The prosecution argued that in four separate calls by Mr Howell to Ms A from prison, Ms A clearly and unequivocally charges him with the allegation that he attempted to kill her. The passages relied on by the prosecution are:[129]
[129] Exhibit P32 and transcript aide memoires.
(a)Call 7466068 (16 July 2020 at 2.50pm) at p.6:
Ms A
What business the fact that you tried to kill me?
Mr Howell
What is wrong with you? Like do you understand how bad that looks? That you’ve told the childcare centre this.
Ms A
That’s the truth. That’s what you did.
Mr Howell
Did you just have a bitching session this morning about me …
(b)Call 9486632 (24 February 2021 at 10.14am) at pp.4-6:
Ms A
The only trouble I have ever had in my life is you.
Mr Howell
Oh that’s shit.
Ms A
Sorry?
Mr Howell
No it’s not.
Ms A
Really? Because I don’t know the other last cunt that tried to fucking kill me. Push me cunt. Push me.
Mr Howell
How am I trying to push you? Listen to how fucking psychotic you sound, just fucking relax.
Ms A
No Alex, This is exactly the fucking truth and you don’t like it.
Mr Howell
All I am trying to do is trying to fucking make things better
…
Ms A
No she wouldn’t want the cunt that tried to murder her mother…
…
Mr Howell
What child does not want to know the parents?
Ms A
One that fucking tries to kill her mother.
Mr Howell
Ok.
Ms A
But do you mentally get that?
Mr Howell
Yes all I am trying to fucking do, all I am trying to fucking do … is fucking be at least able to talk to you without you fucking screaming every fucking day …
(c)Call 9495530 (25 February 2021 at 10.25am) at p.5:
Ms A
Right here we go, you fuckin murdered me Alex, you pointed a gun at my fuckin head and you shot it, fuck you.
Mr Howell
No I fuckin didn’t.
Ms A
Yes you fuckin did it jammed and that’s the only reason why I’m still fuckin here.
Mr Howell
Why can’t I fuckin, why can’t I fuckin see her
(d)Call 9499009 (25 February 2021 at 2.42pm) at pp.8-9:
Ms A
I can scream at you every day because you know what Alex, when you try to fucking kill someone that’s what you get.
Mr Howell
No, I’m asking you, how are you meant to see change when all you’re doing is fighting …
…
Ms A
I can fight you. What you did was wrong.
Mr Howell
Yeah that’s fair enough but what I’m saying is.
Ms A
What you did was unforgiveable and I don’t need to accept it.
Mr Howell
No but what I’m saying is you cant see change cause you’re so consumed with the fighting.
Ms A
You can’t even get on the phone and understand the gravity of what you’ve fucking done.
Mr Howell
What do you think I do every day seriously.
…
Ms A
I can fight with you what you did was wrong.
Mr Howell
Yes but what I’m saying is you can’t even see the change …
The prosecution submitted the acknowledgment of the truthfulness of an assertion may be made impliedly or by passive conduct in the form of silence or a failure to deny where “having regard to the ordinary workings of human nature” a denial would be expected “if innocence existed”.[130] Applying the principles set out in R v Spencer,[131] the prosecution submitted that Mr Howell’s prison calls, individually and collectively, reveal that he heard and understood the assertion and the assertion was within his personal knowledge. It was submitted that the circumstances existing were such that a dissent would, in ordinary experience, have been expected to be made by him if he did not acknowledge the truthfulness of the specific, extremely grave, assertion that he had tried to kill Ms A. The prosecution submitted in assessing whether this inference should be drawn, regard should be had to the fact that Mr Howell shows himself to be capable of disputing, and prepared to dispute, certain of Ms A’s allegations: for example, that his brother does not have access to his social media;[132] that the only trouble that she ever had in her life is him;[133] that she had messages to prove that he paid her not to go to police;[134] that he was “off screwing everyone”;[135] and that he distinguishes that he is a “cunt” but not a “dog”.[136]
[130] R v Grills (1910) 11 CLR 400.
[131] [2019] SASCFC 70 at [35]-[39].
[132] Exhibit P32, call 7466068 p.3.
[133] Exhibit P32, call 9486632 p.4.
[134] Exhibit P32, call 9495530 p.6.
[135] Exhibit P32, call 9495530 pp.6-7.
[136] Exhibit P32, call 9486632 p.7.
It was submitted the topics being discussed when Ms A asserts that Mr Howell tried to kill her include Mr Howell’s predicament being in custody and his future relationship with their daughter. Ms A’s assertions are responsive to matters under discussion and are clearly accusatory. It was submitted that there is no sense in which it can be said that by his silence or deflection he is attempting to placate her, for the arguments generally continue. It was contended it is also significant that Mr Howell specifically acknowledges the temporally related general assertions that what he “did” was wrong.
The prosecution further submitted that when Ms A charges Mr Howell with the allegations that he tried to kill her, the only time he makes a specific denial is in relation to her allegation that he “fucking murdered” her; that he pointed a gun to her head and shot it.[137] It was submitted it is open to conclude that Ms A misspoke in relation to that moment – obviously she was not murdered or shot – and Mr Howell said so, as one would expect. When Ms A follows up with the charge that the gun jammed and that it is the only reason she is still here, it was contended Mr Howell attempts to change the subject. It was submitted that Ms A’s assertion that “that’s the only reason why I’m still fuckin here” clearly connotes that the jam, and not restrain or inaction by Mr Howell, saved her life. It was submitted that it is open to conclude that Mr Howell admitted the truth of that matter by his failure to deny it.
[137] Exhibit P32, call 9495530.
It was submitted on behalf of Mr Howell that, despite the investigating officer having listened to – on her estimation – more than 40 hours of telephone conversations between Mr Howell and Ms A and having provided anything that she thought might assist the case against Mr Howell to the prosecution, the selection of calls relied on by the prosecution is the best it could come up with.
It was submitted that on the one occasion where Mr Howell did directly respond to the allegation that he put the gun to Ms A’s head and pulled the trigger, his response was an unequivocal denial. It was submitted that the prosecution’s argument that denial relates only to the literal allegation of murder is risible to the point of desperation. The fact that Mr Howell did not literally murder Ms A is self-evident and unnecessary for him to deny; she was alive to have the conversation with him. The only available construction of Mr Howell’s denial was that he was denying the act alleged, that he “pointed a gun at [Ms A’s] fuckin head and [he] shot it”.[138]
[138] Exhibit P32, call 9495530 p.5.
It was pointed out that during each of the prosecution’s selected phone calls when Ms A made the allegation that Mr Howell had attempted to shoot her, he did not engage in the conversation.
Mr Howell’s counsel referred to a crucial paragraph in R v Spencer as follows:[139]
The next step is whether the circumstances were such that a dissent would, in ordinary experience, have been expected by the accused. The issue concerns an assessment of human behaviour which is best made by the jury.
[139] [2019] SASCFC 70 at [38].
I agree with the defence submissions that the following circumstances counter the suggestion that dissent would have been expected by Mr Howell:
(1)The entire tenor of the calls is an attempt by Mr Howell to pacify Ms A, who is invariably shrill and the aggressor during the prison calls. Mr Howell acknowledges he “did” wrong, which is consistent with his admitted conduct.
Mr Howell referred to being surprised at Ms A’s angry demeanour during the prison calls saying he thought they had been being getting along better and her mood change was contrary to things she had said to him. Certain statements made by Mr Howell in the calls suggest he was hopeful of a reconciliation and anxious to know what he can do to make things better. It is understandable in assessing human behaviour in those circumstances Mr Howell would not inflame the situation by contradicting Ms A.
(2)Having regard to the pre-recorded message at the beginning of each call that the call is being recorded, it is understandable Mr Howell would not engage in conversation about the substance of the allegations against him.
(3)There is no evidence about the telephone setup in prison and the extent to which Mr Howell might have been overheard during the conversations. In this regard, I note background voices in at least two of the recorded prison calls. It is understandable Mr Howell would not engage in conversations about the substance of allegations against him in a custodial setting.
(4)It is patently clear from the prison calls that Mr Howell had been in receipt of legal advice and any competent advice would be to the effect that the substance of the allegations should not be discussed, particularly during recorded prison calls. The call on 19 December 2019 between Mr Howell and his brother, Sam, includes a discussion about “Craig”.[140] It is clear they are speaking about a solicitor named Craig and Craig’s phone number is conveyed by Sam to Mr Howell. The call on 16 July 2020 includes a discussion between Ms A and Mr Howell where Ms A refers to information given to her by Mr Howell’s brother regarding legal matters discussed with “Craig”.[141] Further, in the call on 25 February 2021, Ms A states to Mr Howell, “I know for a fact Craig wouldn’t be representing you unless he was getting paid”.[142]
The call on 16 July 2020 also includes a discussion regarding Mr Howell’s Instagram account and Ms A’s accusations that Mariah is still listed as one of his followers. Ms A appears to tell Mr Howell that she asked a girl, whom she asserted Mr Howell had on social media but would not name, to check Mr Howell’s Instagram account whereupon she became aware he had not deleted Mariah. Ms A said during the call:
Why would I not, I wanna see your Instagram account. If I’m gonna sign to allow you out of prison early I wanna know the fucking truth.
… the more you piss me off the longer I’ll hold out on signing.
… No if you can’t admit your faults I’ll let you stay in there.
[140] Exhibit P32, call 5538173.
[141] Exhibit P32, call 7466068.
[142] Exhibit P32, call 9499009.
I note that three of the calls referred to by the prosecution conclude with Ms A saying she is going to “testify against” or take “the stand” against Mr Howell. One call ends following Ms A’s statement. Mr Howell responds in a non-incendiary way to the other two of these statements by saying “Alright, fair enough, have a good day” and “Okay, okay cool I didn’t fucking, fuck around” (Ms A and Mr Howell appear to be accusing each other of “fucking”/“screwing” around in this conversation).
Having regard to these matters and against the background of Mr Howell’s express emphatic denial on the only occasion in which he engaged with the topic, I am not satisfied Mr Howell’s non-engagement with the accusations made by Ms A amounts to an implied admission of the correctness of those accusations.
Assessment of Ms A
I preface my assessment of Ms A by deploring Mr Howell’s admitted conduct. It was appalling and terrifying for Ms A to experience her former partner wield a gun, fire a shot into the couch in her home, and behave erratically while their infant was sleeping. The text messages in exhibit P4 disclose Mr Howell’s possessiveness and his obsession with another man being with Ms A and their child. His texts suggest he wanted an interaction with the person he believed was with Ms A. The evidence supports a finding that he attended the premises in this frame of mind and under the influence of cocaine, against a background of having expressed a desire to kill himself following the breakup of his relationship with Ms A and being “very sad” when she told him they were not getting back together.
Prior inconsistent statements
Ms A gave sworn evidence regarding the gun to head and pulling the trigger allegation which was not made to the 000 operator or the officer with the body‑worn camera. I infer having regard to the evidence given by Craig Stewart and Jayne Matthews Ms A did not mention the allegation to them.
Ms A’s prior inconsistent statements are not put for the truth of the fact which they purport to assert. Rather, they are put before me to enable me to assess whether I accept as reliable the evidence she gave on oath.
Having carefully considered Ms A’s evidence regarding her conversations with the 000 operator and police officer wearing the body-worn camera, her failure to mention a gun to head allegation is significant. Ms A persistently maintained in cross-examination she did refer to it. Her explanations of having a story to tell later and telling the 000 operator what he wanted to know are not borne out by the 000 recording.
Ms A clearly proffered the information about the shot into the couch, what Mr Howell was wearing, and the bullets (she did not give evidence about seeing bullets). She mentioned the operator wanting more information but not her “story”,[143] she could have “given him the whole story”,[144] her story could come later, it “was a huge story”,[145] and if “I wanted to sit here and explain this story, it goes for hours. In that moment, we’re talking about a 10-minute phone call. I didn’t have time to go into exact detail of what happened”.[146]
[143] T211.34.
[144] T216.24.
[145] T217.35-36.
[146] T223.28-32.
Telling the 000 operator Mr Howell put a gun to her head and pulled the trigger is, in my view, of far more importance to convey and would take no more time than saying “He shot the couch at the moment” or that “… he said I’m not joking with you. I want to kill you”. The “story” of Mr Howell putting a gun to her head and pulling the trigger would take no time to tell and would require no explanation during that 10-minute phone call with the 000 operator. Further, the 000 operator did not, as Ms A asserted, cut her off at any stage during the call.
In evidence-in-chief, Ms A said she told Craig Stewart when she answered the door, “Take my baby. He’s got a gun. Take my baby”.[147] In her affidavit of 19 December 2019, she stated she said, “to the male who was at my door to call the police”.[148]
[147] T179.35-36.
[148] T242.22-23.
It is also of note Craig Stewart did not give evidence about being told by Ms A someone had tried to kill her or that a gun had been wielded. Further, Jayne Matthews made the second 000 call once Ms A was in her home and informed the operator “… I actually phoned through a couple of minutes ago and I didn’t have any information, but I’ve got some more information about the ... that’s happened”. In response to the operator asking, “what was it in relation to”, Jayne Matthews said:
um it’s so I just heard a woman um next door screaming call the police and then she grabbed her baby and came out, so I didn’t know what had happened at that point, but he had pulled a gun on her so.
When the operator asked, “and what happened with her”, Jayne Matthews said “um her partner pulled a gun on her”. I infer Ms A told Ms Matthews her partner had pulled a gun on her. There is no evidence Ms A told Jayne Matthews that Mr Howell put a gun to her head and tried to kill her.
In the body-worn camera recording, Ms A refers to Mr Howell telling her to close her eyes, pinning her head down, and grabbing the gun. The gun to head and pulling the trigger allegation is not made in this account to police.
I infer Ms A did not tell Craig Stewart or Jayne Matthews of the gun to head and pulling the trigger allegation. I find she did not mention the gun to head and pulling the trigger allegation to the 000 operator or the police officer with the body‑worn camera before giving her statement on 13 December 2019 to Detective Woods. I find it remarkable Ms A did not mention the gun to her head allegation prior to speaking to Detective Woods. Given this and other concerns I have about her evidence detailed below, I have determined I cannot accept Ms A’s evidence unless it is supported by other evidence I accept.
Concerns regarding Ms A’s evidence
In examination-in-chief, Ms A said that when she was allowed back into her premises, she noted a fork that was bent on her kitchen counter which she brought to the attention of the police, saying “I think you’ve missed the fork”.[149] When asked in cross-examination whether she was certain that she did not touch the fork before the police seized it, Ms A said, “I’m certain I didn’t touch it but my mum was in the home so she may have”.[150] Detective Woods recounted she saw Ms A walking out of her carport holding a bent fork at 10:51 am, whereupon she instructed Ms A to take the fork back in and put it exactly where she found it.
[149] T181.6-7.
[150] T186.38-187.1.
Whilst giving evidence, Ms A was inclined to attribute states of minds to persons and make assumptions. For example, she spoke of Mr Howell “at that point decided to torture me”;[151] “he realised I would fight for her”;[152] she assumed the police had been called because of a shot being fired (it is to be noted she screamed for the police to be called); she assumed the whole purpose of the 000 call was to locate Mr Howell; and that:[153]
… the gentleman on the phone asked to speak to me because he wanted more information, not my story, but more information in regards to Alex’s clothing, you know, the location that he could be. That was why I was put on the phone, not to report the incident, but to be given more information.
[151] T169.36.
[152] T17122-23.
[153] T211.32-38.
I do not dispute Ms A’s task was to provide more information to the 000 operator. I acknowledge she would have been distressed and in shock. It is her omission of the gun to the head and pulling the trigger allegation, despite her distress, which is, in my view, significant.
Matters Ms A gave evidence about suggest she is inclined to exaggeration
I suspect Ms A is given to exaggeration. For example, she said the neighbours were constantly calling the police but only gave evidence about one such occasion prior to 13 December 2019. She gave evidence of an occasion she was woken by Mr Howell kicking her front door and she let him in. She was cross-examined about her statement in her affidavit dated 3 March 2022 where she said, “On 24 November 2019 I woke up to find Alex in my house holding a knife asking; ‘Where is he?’”. Ms A said the correct account was that he was kicking at her door and she let him in. She then alleged, “There were several times I woke up to Alex kicking at my door”.[154]
[154] T251.7-8.
In evidence-in-chief, Ms A was asked if she heard the click again after she alleged the gun was put to her head:[155]
[155] T185.21-32.
Q.You told her Honour that in the moment when the gun was in the position at the back your ear that you’ve shown us, that you heard a click.
A.Yes.
Q.After that point in time did you hear a click sound again that morning.
A.I wouldn’t have been able to, I was screaming, no.
HER HONOUR
Q.What was your answer, I missed that.
A.No, I was screaming, I wouldn’t have heard it.
Q.You were screaming.
A.I was screaming so loud I wouldn’t have heard.
In cross-examination, Ms A was taken to her statement in her 13 December 2019 affidavit where she said she “could keep hearing the gun go click click, but it didn’t go off’”. When asked about the difference between her statement in the affidavit and her evidence, she said:[156]
From what I can recall today I couldn’t hear the clicking. Today, from what I recall today two and a half years on, I don’t remember hearing the clicking. He attempted to continue to try and shoot it, but I don’t physically remember whether I did or didn’t hear the clicking. From what I remember I was screaming, so I would indicate that I don’t remember – I don’t think so, no.
[156] T239.30-37.
Ms A gave evidence Mr Howell told her to “Go and pick her [the baby] up. Go and say goodbye”.[157] When it was pointed out to her in cross-examination that she had not mentioned this in her affidavits, she asserted her statement, “Alex was using [name of baby] as a tool” in her affidavit 17 March 2022 was a reference to him saying “Go and pick her up, go say goodbye”.[158]
[157] T171.13-14.
[158] T262.32-34.
Ms A also gave evidence that the man knocking on her door “just kept banging”.[159] A review of the CCTV, exhibit P3, suggests Craig Stewart knocked four times.
[159] T174.27.
As submitted by Mr Howell’s counsel, if the incident occurred in the way Ms A described it might be thought that she would suffer some visible injuries from being hit in the head with a gun and strangled. It was submitted the photographs, exhibit P6 and exhibit P19, do not bear that out. Ms A suggested the photographs were not taken for some time after the incident, the red marks “had started to come down in that photo”[160] and they were not visible by the time the photographer got to her.
[160] T184.16-17.
It would appear the discoloration on her chest shown in the photographs is on the wrong part of her body to be consistent with strangulation. There appears to be no bruise in the area she marked on photograph 3 in exhibit P6 to indicate the bruise from being hit in the head with a gun.[161] Further, Brevet Sergeant Goodwin observed “some slight bruising, discoloration around the left eye area”,[162] not the area Ms A had indicated on photograph 3.
[161] As submitted by Mr Howell’s counsel, there was no test for gunshot residue on any part of Ms A’s body where she alleged the firearm was pressed.
[162] T402.3-4.
It was pointed out by Mr Howell’s counsel that on 16 December 2019, three days after the alleged offending, at least Detective Brevet Sergeant Joshua Quinn[163] and Detective Watkins[164] were present at a meeting where police discussed taking photographs of Ms A’s injuries. No further photographs were taken. Detective Watkins agreed that she would have taken photographs of Ms A if she saw any injuries.[165]
[163] T464.
[164] T584.
[165] T585.
The retrieval of the phone
It is notable that Ms A went back inside her premises to get her phone at a time when she did not know whether Mr Howell, who she maintained had just tried to kill her, remained armed and could have been in her back courtyard.[166] She also did not get anything for her child.[167] In this regard, it may be that Ms A’s mother who did not live far had nappies, clothing and food for the baby.
[166] T244-245.
[167] T280-281.
Once Ms A exited her front door, she stood momentarily and looked down the street on two occasions as she jogged next door. According to Ms A’s evidence, the phone was thrown in the vicinity of the Christmas tree. Ms A said she knew Mr Howell was not in the premises but could have been in the back courtyard. By reference to photo 11 in exhibit P2, the Christmas tree is in the back corner of the room next to the sliding door to the back courtyard. The fact of her re-entering the premises to get her phone suggests she had the confidence to do so because she knew she was not going to be killed, particularly having regard to the location of the phone in close proximity to the back courtyard where Ms A said Mr Howell could have been.
The following matters Ms A gave evidence about have also caused me to scrutinise her evidence:
(1)her evidence about retaliating to things she asserted Mr Howell had posted on Instagram about her;
(2)her preparedness to be untruthful to police by falsely naming her former husband to police in order to protect Mr Howell;
(3)her preparedness to lie about the Chanel bag in her friend’s Instagram post being hers as she wanted Mr Howell to feel how she felt; and
(4)her gratuitous references to Mr Howell’s criminal history; “Alex found it hard to get employment at the beginning, obviously because his previous history”[168] and “I remember pleading with Alex and saying “You’ve only got nine days left on parole””.[169]
[168] T106.4-5.
[169] T262.26-28.
Ms A’s use of Instagram
Noting Ms A was a regular user of Instagram and a user of the direct message function, I suspect there was more Instagram activity between or regarding her and Mr Howell than I heard evidence about. I only heard oral evidence about posts and photographs on Instagram.
Ms Matthews gave evidence she mainly heard arguments about cheating and things on Instagram. Ms A gave evidence:
(1)When Mr Howell went to Bali before the incident on 13 December 2019, she posted on her Instagram the background of Mr Howell’s profile with words “just to clear the air, I had post-natal depression when he’s the one who claims he lied and ran away to Bali because his depression was so bad, pops antidepressants and tried to kill himself” to annoy Mr Howell. She explained Mr Howell would write things on Instagram about her and she would retaliate.[170] When asked if that is something she did often, she said not often.
(2)After the Mariah scuffle, Mr Howell posted the sex video and the birth photos on a fake Instagram account.
(3)She found Mariah on Instagram.
(4)During the three-week period of the breakup before 13 December 2019, “a gentleman that I am quite close to”[171] posted on Instagram “a photo of a same handbag that I had and he was out to dinner. So it was a photo of a handbag and some sushi”.[172] Ms A told Mr Howell in response to his questioning that it was her handbag, whereupon he turned up at the premises really angry and called her gentleman friend who had posted the photo. The friend told him he was not with Ms A (and her Chanel handbag) in the photo.[173] Ms A said she turned around and said to Mr Howell “It wasn’t me, I just wanted you to feel how I felt”.[174] She agreed in evidence she had lied to Mr Howell when she told him said it was her Chanel handbag.
(5)She posted a photo on Instagram of herself going to dinner at Casablabla and Mr Howell turned up at dinner unannounced. On another occasion at Casablabla, she posted a photo of herself and friends on the dancefloor and Mr Howell turned up with a group of friends.
(6)She said that if she liked a male’s photograph on Instagram, Mr Howell would send her a screen shot of the image and comment either in person or via text message “You’re not moving on” or “Is this someone you want to fuck [Ms A]?”.[175]
(7)On 11 December 2019, she went for a walk with a friend at around 4:30 pm. She recorded two coffees, her face, “and a gentleman’s shirt just in the background going for a walk” and posted it on her Instagram story.[176]
The text message sent by Mr Howell with a photo of himself and Mariah in bed together followed by the text at 9:04 pm on 11 December 2019, “OMG, I’m so sorry, that was meant for Mariah, not you”, was responsive to her Instagram story about going for a coffee with a gentleman.
I note the first mobile phone record in exhibit P4 is a record of Ms A’s text at 7:48 pm on 11 December 2019, “And on a side note [name of baby] just sat up for the first time on her own”. The words “and on a side note” suggest they follows earlier communications which are not in evidence.
(8)On 12 December 2019, she went out dinner in Hindley Street for dinner and posted a photo of Hindley Street with the words “Take me home”.[177]
[170] T190.30-31.
[171] T126.28.
[172] T127.1-3.
[173] T127.21-24.
[174] T127.30-32.
[175] T135.23-27
[176] T151.4-9.
[177] T154.36-37.
Further, in one of Ms A’s shrill and histrionic exchanges with Mr Howell during a prison call, as detailed above, she remonstrated with him about his Instagram account and accused him of still having Mariah as one of his followers and said:[178]
Why would I not, I wanna see your Instagram account. If I’m gonna sign to allow you out of prison early I wanna know the fucking truth.
… the more you piss me off the longer I’ll hold out on signing.
… No if you can’t admit your faults I’ll let you stay in there.
[178] Exhibit P32.
Conclusion
I agree with the observation of defence counsel that Ms A had a flair for the dramatic. To that, I would add my concerns she may have exaggerated her evidence. These matters, together with her failure to mention the gun to head allegation to the 000 operator and the officer wearing the body-worn camera, and her admitted behaviour in retaliating and lying, are such that I cannot accept her evidence on the matters in dispute unless supported by other evidence I accept.
The prosecution submitted the wielding and discharging of the loaded firearm in an inevitably confrontational situation is a significant informative matter in determining what happened on 13 December 2019. The prosecution submission is to the effect that it is informative of an intention to shoot Ms A. Given Mr Howell expressed suicidal thoughts following the relationship break-up, it may also be informative of an intention to shoot himself. Having regard to Mr Howell’s admitted conduct, it may also be informative of an intention to intimidate Ms A. Further, the prosecution has not excluded the reasonable possibility the jamming of the firearm occurred without input by Mr Howell and was realised immediately following the discharging into the couch.
I find:
(1)Mr Howell and Ms A had a tumultuous, dysfunctional, and mutually abusive relationship;
(2)in the early hours of 13 December 2019, Mr Howell arrived at the premises;
(3)Mr Howell was under the influence of cocaine;
(4)during the course of an argument, Mr Howell produced a firearm;
(5)by his pleas, Mr Howell admits wielding a loaded firearm and deliberately discharging the firearm in the premises whilst close to Ms A;
(6)the firearm jammed;
(7)Ms A screamed for help;
(8)Craig Stewart banged on the front door of the premises;
(9)Mr Howell decamped out of the back of the premises and ended up on the pergola roof immediately behind at 37 Glen Eira Street;
(10)Mr Howell fell through the pergola roof onto brick pavers at 37 Glen Eira Street; and
(11)Mr Howell discarded the firearm, which was later found on the roof of the shed at 24 Glen Eira Street.
As there is no other evidence supporting the evidence given by Ms A regarding the matters in issue, I cannot, given the state of her evidence, accept the events unfolded or occurred as she alleged. I cannot accept her evidence beyond reasonable doubt that Mr Howell held the gun to her head and pulled the trigger.
Verdict
I find Mr Howell not guilty of attempted murder and not guilty of the alternative charge of aggravated endangering life.
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