R v Karpany - [2022] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KARPANY
[2022] SADC 39
Reasons for the Verdict of her Honour Judge McIntyre
29 March 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
The accused as charged with one count of unlawfully choking, suffocating, or strangling another contrary to s.20A of the Criminal Law Consolidation Act 1935 (CLCA) or in the alternative aggravated assault.
The accused was further charged with aggravated threatening life contrary to s.19(1) of the CLCA and a further count of aggravated assault contrary to s.20 ss3 of the CLCA.
Held: Not guilty all four counts.
Criminal Law Consolidation Act 1935 (SA) s 20A, s 19(1), s 20 ss 3; Evidence Act 1929 (SA) 34P(2)(a), referred to.
Carter v R (1994) 176 LSJS 112; R v Meek [1981] 1 NZLR 499, considered.

R v KARPANY
[2022] SADC 39

The accused was charged on Information dated 28 August 2020 with one count of unlawfully choking, suffocating, or strangling another contrary to s.20A of the Criminal Law Consolidation Act 1935 (the CLCA), or in the alternative aggravated assault. The accused was further charged with aggravated threatening life contrary to s.19(1) of the CLCA and a further count of aggravated assault contrary to s.20 ss3 of the CLCA.
All counts are particularised as having occurred at Largs North on 14 October 2019. The complainant in respect of each count is AP and the circumstance of aggravation in each case is that the accused committed the offence knowing that AP was a person with whom he was formerly in a relationship with.
The accused entered pleas of not guilty and elected to be tried by a Judge without a jury.
For the reasons that follow I find the accused not guilty of all four counts.
Legal considerations and general directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
An accused person is presumed to be innocent of a charge unless and until his guilt has been proven beyond reasonable doubt.
The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
In making findings of fact, I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
I have reminded myself of the normal directions given to juries in this State concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
The accused elected not to give evidence in this court. I remind myself that he was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case.
Elements of Offences
Unlawfully choking, suffocating, or strangling another
In order to prove that an accused person committed the offence of unlawfully choking, suffocating, or strangling another, the prosecution must prove four elements beyond reasonable doubt.
·First it must be proven that the accused is or has been in a relationship with the complainant.
·Second, that the accused applied force by choking, suffocating, or strangling the complainant with the result that the complainant’s respiration was stopped, hindered or restricted.
·Third, that the accused applied the force intending to stop hinder or restrict the complainant’s respiration; and
·The final element is that the complainant did not consent to being choked, suffocated, or strangled.
There is no dispute about elements one and four. It is uncontentious that the accused and AP were former domestic partners and that there was no consent to the alleged actions of the accused. The issue in respect of the choking charge is whether the prosecution has proven elements two and three.
Aggravated Assault
Aggravated assault is charged as an alternative to count 1 and is also charged in respect of a further incident as count 3. The elements of this offence are:
·That the accused applied force to the complainant.
·Second, that the application of force was intentional or deliberate.
·Third, that the application of force was without the consent of the complainant.
·Fourth, that the act was unlawful; and
·Finally, the prosecution must establish the alleged circumstance of aggravation that the accused and complainant are former domestic partners.
There is no dispute concerning elements three, four and five. It is uncontentious that the accused and AP were former domestic partners; that there was no consent to the alleged actions of the accused and that the alleged actions were unlawful. The issue in respect of the assault charges is whether the accused applied force to AP and, if so, whether this application of force was intentional or deliberate.
Aggravated Threatening Life
The final offence charged is that of aggravated threatening life. In order to prove that offence the prosecution must prove 5 elements beyond reasonable doubt:
·First, that the accused made a threat to the complainant.
·Second, that the accused threatened the life of the complainant.
·Third, that at the time the threat was made the accused intended to arouse a fear that the threat would be, or was likely to be carried out, or was recklessly indifferent about whether such a fear was aroused.
·Fourth, that the act was unlawful; and
·Finally, that the circumstance of aggravation alleged that the accused and complainant are former domestic partners.
The only element of this offence in dispute is the third element specifically whether the accused intended to arouse a fear that the threat would be carried out or was likely to be carried out or was recklessly indifferent about whether such a fear was aroused.
Background
There is little controversy about the background facts. The accused and the complainant were in a relationship from late 2012 until 2015. They had one child together: a son born in November 2014. In October 2019, the complainant lived at Largs North with her son. As a result of a request from the accused, the complainant permitted him to stay at her home from 11 October 2019 until 14 October 2019. The events that gave rise to the charges occurred at the complainant’s home on the morning of 14 October 2019.
It is an agreed fact that at 11:02.24 am on 14 October 2019 a 000 zero call was made to police from a mobile telephone linked to the complainant. That 000 zero call is on a disc that was played in court; exhibit P4. As a result of that call the police subsequently attended at the complainant’s house.
De bene esse material
The prosecution sought to lead evidence of incidents that occurred in the relationship between the complainant and the accused from 2013 to 2019. The prosecution say that the evidence is relationship evidence and admissible under s.34P(2)(a) of the Evidence Act 1929. It was contended that it was relevant and admissible evidence because it puts the charged offences into context and demonstrates that the charged offending and surrounding circumstances did not occur within a vacuum. It is further said to provide an explanation for the complainant’s reaction because the accused has behaved violently towards her on the charged occasion and on previous occasions.
The defence objected to the evidence on the basis that the evidence has to have more than simply relevance, it needs to have probative value that substantially outweighs any prejudicial effect. Whilst it wasn’t the contention of the defence that the parties had a perfect relationship it was said that leading evidence of historical domestic violence alleged to have been scattered throughout the period from 2013 to 2019 is less probative than prejudicial.
I admitted the evidence de bene esse. The evidence comprised evidence given by the complainant, exhibit P7 a copy of a certified intervention order. Exhibit P14 a certificate of record, exhibit P1 a photograph of a knife and an agreed fact concerning the certificate of record.
Having considered the matters put to me I will admit this evidence on the basis advanced by the prosecution. Ultimately however the evidence was of little assistance beyond establishing that the relationship between the complainant and the accused was not a happy one and involved prior allegations of domestic violence. This is because of the unsatisfactory nature of the complainant’s evidence. Matters referred to in the prosecution opening were either not covered in the evidence of the complainant or the complainant explained them differently. For example, the complainant’s evidence about the incident that resulted in the plea of guilty referenced in exhibit P14 was unclear and it is not possible to ascertain what the circumstances of that incident were given this lack of clarity.
Prosecution case
The prosecution case consisted of evidence from the complainant, a neighbour, Ms Clark, and the investigating officer Constable Suridge. There were some agreed facts. Several exhibits were tendered including affidavits of Constable Thorpe who attended the complainant’s address with Constable Suridge and an affidavit of an Ambulance officer, Karl Kreuzer, who examined the complainant shortly after the charged events. These were admitted on the basis that they outlined the evidence that these witnesses would have given had they been called to give evidence.
Investigating Officer
Constable Suridge gave uncontroversial evidence primarily directed to his attendance, in company with Constable Thorpe, at the complainant’s home on 14 October 2019 and his subsequent investigation including taking a further witness statement from the complainant in January 2020. He was not asked what time they arrived at the complainant’s house, but said it was about half an hour after they received the tasking. The statement of Constable Thorpe was tendered in evidence (Exhibit P11) by consent. She said they were tasked with this job around 11.05am and first went to AP’s former address at Taperoo. They were told she no longer lived there. They then checked police systems and found the Largs North address. From this I infer that police arrived at AP’s home around 11.35 am.
Constable Suridge said that they were at AP’s house for about one hour during which time Constable Thorpe took a statement from AP and he undertook other investigations including taking photographs of the house and AP (Exhibit P3). He was not directed to a knife block in the kitchen and had no cause to photograph it. He did obtain a photograph of a knife, exhibit P1, that he understood to be associated with a 2018 incident involving the accused and AP. He was not involved in the investigation of that matter and did not know how that matter was resolved. No screenshots were mentioned at the time and he did not view AP’s mobile phone. Constable Suridge said he called an ambulance and that a paramedic, Karl Kreuezer, examined AP. It was agreed that AP did not need medical treatment. Constable Suridge later took Mr Kreutzer’s affidavit; that was tendered by consent as exhibit P12.
Constable Suridge said that when he took AP’s statement on 2 January 2020, he did so on the basis of information provided by her and that his practice was to as faithfully as possible follow what a witness said to him. He said that if a witness told him they had sought medical treatment for injuries sustained in an incident, he would not have left this out of their statement.
Neighbour
Ms Clark gave evidence about hearing two voices apparently coming from the direction of AP’s house. A male voice and a female voice. She could not hear what the male voice was saying but she could hear the female voice screaming and shouting words such as ‘help”, “stop” and “get out”. There were two distinct episodes of shouting. Ms Clark remembered the morning as she had come home from hospital at about 10 – 10:30 am. She was sitting on the couch with her front door open. She had been home for one to two hours before the shouting started. The first shouting lasted for about 5 to 10 minutes. It then stopped for about 5 to 10 minutes and the second time she thought it was louder and slightly shorter than the first. She thought that the police arrived not long after the second episode of shouting maybe within 10 to 15 minutes. Ms Clark’s evidence as to the time of this incident is congruent with the timing of the 000 call at 11.02.24 am and my finding that police arrived at AP’s home around 11.35 am.
AP’s evidence in chief
The complainant, AP, gave evidence about her relationship with the accused. Plainly it was not a happy one. They had one child together, but she also suffered a miscarriage in 2013 and a stillbirth in 2015. Their relationship ended shortly after the stillbirth. She described several incidents of past violence, threats, and coercive behaviour by the accused towards her both during and after the relationship. She maintained contact with the accused and his family for the sake of their son. This included varying an intervention order in place to protect her to enable the accused to have contact with her.
On 11 October 2019, the accused rang her saying that he needed a place to stay as his partner had kicked him out. She agreed that he could stay at her house. He did not know where she lived. She was at work, so she met him in the city, and they went back to her house on the train. AP was prepared to let him stay over until he figured out where to go. She said that she thought it would be good for him to spend time with their son and help her set up a go-cart that she had bought for her son for his birthday coming up on 1 November.
For the first two days the accused was okay. He was demanding a lot and controlling the household. They had some small disagreements mostly about keeping their son’s room nice. She said he didn’t understand that her son is messy, and she couldn’t be going around picking up after him all the time.
AP had spoken to the accused’s girlfriend. She was pregnant with his child. Their children would be siblings. AP thought it was important to know a bit about her. AP contacted her to let her know that the accused was staying with her because she didn’t want any dramas. They had a brief conversation about why his girlfriend had kicked the accused out and in the course of that conversation the accused’s girlfriend mentioned that the accused was running AP down saying nasty things about her being a mum. She sent AP some screen shots of Facebook messages from the accused on that topic.
The next day, her son got picked up to go to childcare around 8:00 – 8:30 am. Shortly after this AP had a conversation with the accused in which she raised what his girlfriend had told her. Initially he denied it saying his girlfriend was lying but then AP showed him the screenshots. He then agreed that he did do that. She got upset and told him to leave. He didn’t leave but rather he kicked the coffee table over with her coffee on it saying he did not want to go back to jail, that he would kill her, and he wasn’t going to go to jail. She was on the couch and he jumped on her and started choking her. It was hard to describe but she was laying down flat on her back and he was on top of her holding her down. He grabbed her with one hand on her throat. She did not know where his other hand was. He squeezed and he choked her where she couldn’t breathe. She started to feel lightheaded like she was going to faint. She felt scared for her life. This is the incident charged as count 1 or, in the alternative, count 2.
At some point before the choking started, perhaps around the time the table was kicked over, AP dialled 000 on her mobile because she could tell he was going to do something. The phone was in her pocket. She didn’t ring the number, but it was ready and waiting. She could not call the number as he was choking her and he was holding her down with his body.
She was asked what happened next.[1]
A.I'm not sure how but suddenly I gotten free and ran for the door.
Q.Come back. You said that you dialled 000 and put the phone in your pocket.
A.I haven't dialled it yet, I still had it in my pocket - I hadn't rang it. I dialled it, 0000 but I never pressed ring. I put it in my pocket. As he was growling and shit - sorry, as he was going off and started getting violent I wasn't too sure if he was going to hit me or just walk out the door so I didn't obviously start ringing the cops straightaway but, yeah. After all of that happened and he choked me and I realised yes, I need to ring the cops, I pressed ring and run to the door. I escaped off the couch and ran to the door.
Q.When you say you've escaped, where was Cory when you've managed to get off the couch.
A.I am not sure. I just slipped out of here (INDICATES) so I am guessing he was still on the couch and I just ran straight down the hallway to the front door.
[1] TX p58 [36]- p59 [17]
She accessed her phone to ring 000 at the same time as she ran for the front door. She got to the front door and tried to open it. She was turning the handle, but the accused locked the deadlock on top of the handle. He grabbed her by her mouth and pulled her back. They both fell to the ground and had what she described as “a scruffle”. She was trying to fight but eventually she curled up into a ball with her face down and stopped fighting. The scruffle occurred between her son’s bedroom and her bedroom in the hallway. This is the second charged aggravated assault.
Whilst this was going on the accused was saying ‘I’ll kill you, I’m not going back to jail, I’m not going to jail, I will kill you’. The 000 call was played. AP said that she recalled him saying the things that can be heard including “calm down or I’ll kill you. I’m not going to jail”. She was scared because she thought he was going to kill her. This was happening while they were in their ‘scruffle’ as she was trying to break free. This is the charge of aggravated threatening life. After the ‘scruffle’ he walked off saying he would kill her and didn’t care what would happen. He went down to the kitchen. She looked into the kitchen and saw him grabbing a knife out of a knife block. She identified the knife as the one in exhibit P1. Seeing this, she ran through the laundry door to the front of the house to her neighbour. She knocked on the door and was shouting ‘help, can you please help me’. The neighbour was not home. She saw the accused outside her front door and running off. She shouted to him to stay away from her, not to come near her. He just ran. As he did so, he said she was a ‘dead bitch, that she was dead’. AP realised at this point her phone was not on her. She found it again when she went back inside her house on the table in the hallway.
Discussion of AP’s evidence

Much of the prosecution case rests upon AP’s evidence. If I accept her evidence-in-chief, it is evidence upon which the accused could lawfully be convicted. However, I am not satisfied beyond reasonable doubt of the reliability of AP’s evidence. I will not set out all of the matters that give rise to that doubt, but I will highlight a number of the issues by way of illustration.
In chief, AP was very discursive frequently including extraneous detail which was of little assistance in understanding the case brought by the prosecution. In cross-examination she was argumentative and unhelpful. AP appeared to have considerable difficulties with the chronology or sequence of various events; both as to the history of her relationship with the accused and the events that are the subject of the charge and subsequently. There were several prior inconsistent statements and inconsistencies in her evidence.
The prosecution opened with the following chronology of events:
·Following AP’s miscarriage late in 2013 the accused became physically abusive.
·On one occasion the accused pushed AP’s head into a bowl full of dog food saying words to the effect of “you should eat dog food like the dog you are”.
·Whilst AP was pregnant with their son in 2014 the accused stayed with friends for a few days. AP visited the accused, they had an argument which resulted in him punching her to the face, to her body and then throwing her to the ground.
·AP became pregnant for a third time in 2015 resulting in a stillbirth in November 2015. The accused’s behaviour deteriorated. There was an occasion several days before the stillbirth where an argument with the accused about the paternity of the child resulted in the accused kicking AP to the stomach.
·In August 2018, following their separation, AP allowed the accused to stay over for a few days to spend time with their son. They had arguments. AP asked the accused to leave at which point the accused pulled out a knife from the knife block holding the knife to AP’s throat with his right hand while his left hand squeezed it tightly around her throat. This was said to be the incident that gave rise to the certificate of record exhibit P14.
AP’s evidence on these topics was somewhat different. She confirmed that their relationship was good at first but deteriorated following her miscarriage. She was not however clear when the dog food incident occurred. When she was cross-examined on this topic, she became somewhat belligerent, and it is true to say that neither the timing nor the location of this incident was clarified.
AP described the incident that occurred when she was pregnant with her son. The accused went to Elizabeth to stay with a mate. She went to see him to talk to him and saw he was with another girl. He told her that he did not want to be in a relationship with her and that the baby wasn’t his. They had an argument which turned physical. He hit her in the face, threw her on the ground and kicked her in the stomach. This occurred a month before her son was born.
AP described what she described as a verbal argument occurring about two weeks before her stillbirth in 2015. The accused grabbed his bags and was trying to leave. As he did this, AP said he hit her in face and pushed her before taking off to see his family. AP was asked about being kicked in the stomach and she was very clear that this occurred whilst she was pregnant with her son.
After their separation, AP said she started trying to be friends with the accused because her son kept asking about his father. They had disagreements about the accused not being there for her son, but they were not fights or him hitting her. He was not abusive. AP was shown a photograph of a knife, exhibit P1. She said that this was a knife from her knife block, and it was taken by the police on 14 October 2019. AP was asked whether the photograph was taken at an earlier time after another incident, and she said not that she could recall. She was asked if there had been any other incident prior to 2019 involving knives. She then described an incident in which the accused got into a fight with his cousin because his cousin was sticking up for her. She described the accused pulling a knife out and swinging it around at his cousin. She called the police. Her involvement in the incident was limited to arguing. Accordingly, in her evidence in chief, AP did not describe an incident such as that described in the opening of the accused holding a kitchen knife to her neck with his right hand whilst squeezing his left hand around her neck.
A certificate of record was tendered (exhibit P14) relating to the accused pleading guilty to an aggravated assault on 16 July 2019 arising out of an incident in 2018. There was an agreed fact in relation to P14. It was agreed that prior to a guilty plea being entered the Information was amended to remove the aggravating feature of use of an offensive weapon.
In cross-examination AP said that the only incident that she could remember from 2018 concerning knives was the incident that she had described between the accused and his cousin. AP was then asked about the incident that gave rise to exhibit P14 the conviction referred to in the certificate of record. This was put to her as follows:[2]
[2] TX p104 [7] – 105 [9]
Q.What I suggest to you is that, on 27 August 2018, you made an allegation that Cory had gone over to the knife block and pulled out a knife, it was serrated and had a black handle, and the blade was about the size of a 30 cm ruler. He then held the knife in his right hand to your throat and pinned you against the kitchen sink with his left hand. Did you make that allegation?
A.Yes.
Q.Did you make it about this date on 14 October or did you make it in August of 2018.
A.I didn't mention that part yesterday. Now that you've just said that, it's just refreshing my memory. Like I said, I'm not obviously remembering all the things that I do - as you said that, I guess it's bringing back the memories. I do remember Cory actually grabbing me a bit before he started fighting with Ethan, and Ethan, he was pulling him off and things, and he was saying that I was starting all this trouble with his cousin.
Q.That didn't happen. That wasn't the situation involving -
A.I could get Ethan and Jenaya, Jenaya Karpany - I could get Jenaya Munroe and Ethan Karpany, because they were there, to even come in and be witnesses because they were at the place at the time.
Q.You never told the police that Ethan and Jenaya were there on 27 August.
A.The police were there and saw them themselves. Ethan told - everyone told the police everything themselves - Jenaya and them, they can speak for themselves. They don't need to tell the -
Q.I'm suggesting to you that you get confused between events because -
A.Yes I get confused because I've been through a lot of traumatising things. I may not remember them because they are traumatising and my brain is blocking that out, as I've told you that, you can speak to my counsellor about that.
Q.You also make things up and you exaggerate, don't you.
A.No.
AP was asked about her first statement to police on 14 October 2019 concerning the present incident. In that statement she described the accused squeezing both hands around her neck when she was sitting on the couch. She told police that the accused let go of her and went into the kitchen saying, “I am going to get a knife now and I will kill you properly”. She got up and ran towards the front door. She was then cross-examined as follows:[3]
[3] TX p105 [5-32]
Q.What you said to the police was that he said to you he was going to get a knife to kill you properly and you got up and ran towards the front door. That's what you told the police, wasn't it, on 14 October.
A.Yeah, when I was confused, yeah, and after just coming from that traumatising, yeah, event and upset.
Q.And you -
A.That's what I told the police when I obviously wasn't in a clear state of mind.
Q.You actually didn't tell them that you ever saw him with a knife on that day, on 14 October, did you.
A.I told them because they took the picture.
Q.Well, they took a picture, I suggest, a year before on a different occasion when, I suggest, you also made up a story about a knife.
A.Matt took the picture, you can ask the police officer yourself. He was there with his colleague, you can ask them. He even told me. It's been two years, yes, I'm not going to remember every little detail.
Q.You also agree, don't you -
A.On top of that it's been a traumatising thing.
Q.You told the police also, didn't you, that the knife was introduced while you were still in the living room.
A.I guess.
Q.Do you say that's right or wrong or the truth or a lie. What do you say about that original statement.
A.I say what I told you yesterday and today has been the truth and that in that statement, yes, I was confused.
In other words, AP maintained the version of events that the accused went into the kitchen after the incident in the hall, not after the incident on the couch.
AP gave another declaration on 2 January 2020 in which she says the accused got up off the couch after the first choking incident and went to grab the knife. She agreed that it was a different version to her evidence because the retrieval of the knife happened between the two incidents of strangulation rather than after. AP was asked whether her evidence was correct or whether both her statements were wrong about this. AP was unable to clarify what her position was. She was confused by attempts to do so.
A similar inconsistency was put to AP relating to the incident on the couch. AP gave evidence that only one hand was used around her throat whereas to police she said two hands.
I remind myself in this context about the usual directions given concerning prior inconsistent statements. AP’s prior inconsistent statements as to the obtaining of the knife or the manner of choking could be excused as mistakes given the traumatic events that AP was describing were it not for the other deficiencies in her evidence.
AP gave evidence of having an injury to her neck because of this incident. She said that she told the police her neck was hurting, and they took pictures and looked at her neck. The police insisted on calling an ambulance and that the ambulance officer checked her out the front of her house. She denied telling the ambulance officer that she did not have any pain. She and the ambulance officer discussed going to hospital. She thought that she did need to go to the hospital, but she was upset, and she didn’t think the ambulance officer was doing the right thing. AP insisted that her mother took her for medical treatment at the Nunga Health Centre the day after the incident. AP was asked why she did not tell the police about this when she made her next statement on 2 January 2020. That statement was put to her as follows:[4]
[4] TX p92 [4-36]
Q.You told the police, in that statement, didn't you, that 'I did not seek any medical treatment after Cory assaulted and choked me because I did not think I required any'.
A.Because the doctor told me that I didn't require any. Well he said she should stay home so I wasn't too sure what to do and then my mum told me you know you should. So I had these people in my ear telling me what and what I shouldn't do and I was confused and I really didn't know what was right the thing or what I was to do and not what to do.
Q.I'm not talking about two days after, I'm talking about a statement that you made.
A.Yes, I know that, and I told in that statement that I didn't seek medical help.
Q.On 2 January 2020, you signed to this 'I did not seek any medical treatment after Cory assaulted and choked me as I did not think I required any. I have started seeing a counsellor as I felt my mental health was deteriorating'. That's what you told the police on 2 January, wasn't it.
A.Yes.
Q.So had you forgotten about the Nunga Health Centre and getting prescribed medication when you said that to them.
A.I just mentioned to Matt how I felt, that that cop confused me.
Q.That's not right, is it.
A.The detail.
Q.It's the fact is that you didn't need any medical treatment afterwards because Cory had not strangled you on 14 October; isn't that right.
A.No.
AP was cross-examined further on this topic, but her answer became less clear. AP became distressed, and it was necessary to adjourn court for the day.
The body worn footage from Constable Thorpe was played to AP. It was put to her that she did not tell police that her throat was hurting in that lengthy conversation. Her explanation was that the police did not ask her where she was feeling pain. It can however be seen in the footage that AP volunteered that she had pain at the back of her head. The ambulance officer’s affidavit (Exhibit P12) describes a thorough assessment and says that AP complained of no pain and displayed no obvious injuries. When this was put to AP, she maintained that she told him she had pain and referenced the photographs of her neck in exhibit P3 to demonstrate that there was an injury to her neck:[5]
A.Not that they weren't noticeable obviously. I didn't have any damage that you could see see. My skin is very dark so I'm guessing you couldn't see the strangulation because of my skin colour but you could still see it was dented in, you can see in this picture you can see I've got a dent in my neck there; you can see it.
[5] TX p85 [14-19]
The photographs are not optimal but, having studied them carefully, I am unable to discern any signs of injury. The ‘dent’ highlighted by AP appears to be no more than a lighting issue. Her identification of it appeared to be an effort to bolster her evidence.
The ambulance officer further said that together they decided that she did not require transport to hospital but that he advised her to seek medical assistance if she had any concerns later. Insofar as AP appears to suggest in her evidence that she told Constable Suridge about visiting the Nunga Health Centre in Port Adelaide the day after this, I prefer his evidence that had something of that nature been conveyed to him he would have included it in AP’s addendum statement.
The most concerning aspect of AP’s evidence is however the evidence that she gave about her son. In her evidence-in-chief, and for most of the cross-examination, AP maintained that the reason she allowed the accused to stay at her home was so that he could spend time with their son. She said that her son was at her home when the accused turned up on 11 October and that they spent time together bonding. AP used the time of her son’s departure for childcare to establish the time at which she says these events took place. The body worn camera footage indicates that AP told police on 14 October 2019 that her son was at childcare. Accordingly, AP’s son was an integral part of the narrative that she provided to police at the time of the incident and to the Court in her evidence in chief.
In cross-examination AP agreed that her son visited the accused’s mother and brother in Streaky Bay on occasion but denied that he was there at the time of these events. AP was then shown some screenshots from what she agreed was her Facebook account. First, there was a Facebook screenshot from 5 October 2019 that reads “what to do with all this freedom, kid free for two weeks”. It was suggested to her that she posted this because her son had gone to Streaky Bay. She denied this. She was then taken to a post on 17 October 2019 that reads “missing my son like cra cra, can’t wait to see him this arvo, hope he had fun with his fam”. She agreed that she posted this saying “yes I had to come and pick “T” up early because Sam had some dramas, I don’t know”. Sam is the accused’s mother who lives in Streaky Bay. AP was then cross-examined as follows: [6]
[6] TX 131 [2-23]
Q.Okay; and she lived in Streaky Bay.
A.Yes.
Q.And I suggest that's who you'd sent T to stay with.
A.Yes.
Q.To give you that two weeks of child free time that you referred to on 5 October.
A.Yes.
Q.And 17 October, I suggest, was near the end of that two week period.
A.No.
Q.Which spanned, I suggest, the period that Cory was at your house, Ms P - a child free house, I suggest.
A.No, we had T there. She had bringing him back early because of some drama and, yes, that's what I said, Cory - I love them to spend time together.
Q.You're lying, aren't you.
A.No.
AP then suggested that you can’t believe everything you see on the internet but acknowledged that she had made these posts. She was then asked as follows:[7]
[7] TX 132 [9-36]
Q.You do acknowledge how it seems, don't you.
A.I acknowledge that.
Q.That's because that's the way it was.
A.Obviously I wasn't posting the part on, yeah, she fucked up, Sam had some drama, I'm not going to write that on Facebook when I'm going on I'm kid free for two weeks, and that she's brought him back - I'd look like a dumb-arse.
Q.Did he go back again. Because, you see, Samij says 'He's missing you too, mama, he's looking forward to picking you up from the bus stop'. You agree that that's a reference or appears to be a reference to the bus stop at Streaky Bay.
A.That's what we had planned until she brought him back early.
Q.I don't understand what you're saying. If I can just clarify with you, go back to the second page of that booklet, you agree that was written on 5 October 2019, don't you - yes.
A.Yes.
Q.Okay, and then if we go to the next page, back to the next page 'Missing my son like cra cra'. That kind of suggests that he wasn't there, doesn't it.
A.If you say so.
Q.No, I'm giving you a chance to make a sensible response to this, Ms P. Something that's -
A.It is a sensible response, I'm sorry if you don't see it that way.
It was suggested to AP that she had not told the truth to the court, nor to the police, when she suggested that her son was at childcare on 14^th. She replied that her son was there, and she did not know why she was “being hassled” about this. She then refused to answer any further questions or explain the Facebook posts. The matter was adjourned to give her the opportunity to reflect overnight. When AP returned the following day, she was asked as follows:[8]
[8] TX 142 [7] -143 [23]
Q.You gave evidence that T gets picked up for childcare between 8 and 8.30; do you recall giving that evidence.
A.Yes.
Q.And you were asked when it was that the coffee table got overturned and your evidence was that that happened around 9 o'clock.
A.I'm not sure what the time was, but yeah.
Q.You were basing your evidence on when T would be picked up for day care, weren't you.
A.Yeah.
Q.Well, do you maintain now your evidence that T was in the Adelaide metropolitan area that day.
A.I had thought about it last night and I had spoken to Sam. I had spoken to Cory's mum, Sam, and rang her and I don't know really where's T, I couldn't really remember to be honest. I told the police in the statement that the only time I wasn't there, so I could remember that, that he was safe. I just knew that he was safe wherever he was. I just can't remember exactly where he was. From when we talked about it yesterday, it re-jogged my memory. When I talked about it with Sam and stuff, yeah thought it over and, yes, I realised that T was in Streaky Bay with Sam. He was there for the holidays, but then I was trying to get him back before T so that Cory could spend time, so that Cory and T could spend time together earlier and speaking about that, so I'm guessing that's why I got things confused yesterday. That's all rattled, yeah, didn't know really.
Q.You agree that on the morning of the 14th or the early afternoon when the police arrived to talk to you, that you told them that he was at daycare, didn't you.
A.Yes.
Q.What reason do you have to give the police that information about T then.
A.I was scared of the past incidents that Cory and me had, about reporting me to welfare. I was scared that I was going to lose T.
Q.Well it would have been just as useful if, from that point of view, to tell them the truth that he was at Streaky Bay, wouldn't it.
A.I don't know what I was doing, I was just trying not to lose my son. I know I wasn't thinking right.
Q.When you were giving evidence over the last few days, and when you were arguing against my questions yesterday, you seemed pretty firm earlier about T being in daycare, being around at the time that Cory was there, weren't you.
A.Yes, I was. I was a bit stunned, I was confused, I didn't know, I just knew that T wasn't there so I couldn't recall that he was in Streaky Bay. I was trying to figure things out, so yes. I knew I had to say something so I guess I just burst out, yeah. That day the emotions got the best of me.

It was put to her that she had tried to lie her way out of the Facebook posts when giving her evidence. She said she was shocked and had things confused and she was not thinking clearly.
Conclusion
The prosecution case on the aggravated assaults and the choking charge rests entirely on AP’s evidence. AP’s evidence is unsatisfactory. Whilst I am deeply suspicious that something untoward happened and that the accused may well have applied force to AP, suspicion is not proof. Accordingly, I do not consider that the prosecution has proven charge 1 or its alternative count 2 beyond reasonable doubt. Nor am I satisfied that count 4 has been proven.
There is some corroboration of AP’s evidence for Count 3, the aggravated threatening life charge. There is the evidence of Ms Clark, the neighbour, that there was some form of verbal altercation between a man and a woman. Ms Clark could not however give any evidence about the words spoken by the man. The 000 call does contain what might be threat apparently made by the accused to AP recording, amongst other things, the male voice saying “Calm down or I’ll kill you. Calm down, I’m not going to jail. I’m not going to fucking jail cunt. Calm down”.
There is no definition of ‘threat’ in the legislation. In Carter v. R (1994) 176 LSJS 112 Olsson J considered this issue saying at p118
.....it is, indeed, inherent in the concept of the making of a threat that the words used were intended to be taken seriously by the person to whom they were being addressed; and that, if it remained a reasonable possibility that, in speaking as he did, the appellant was doing no more than merely unburden his feelings in a counselling context, the offence was not made out.
The concept of a threat spans a number of potential scenarios. It certainly takes in a situation of obtaining some positive advantage by overcoming the will of a person by intimidation. However, in my opinion, what is said need not go that far. It seems to me that, in accordance with the ordinary meaning of that word, the notion of a threat also includes a mere declaration of hostile intent, which is made and intended to be taken seriously and thus influences the mind of the recipient, by arousing in that person an apprehension that the threat is at least likely to be carried out.
Olsson J also quoted from the New Zealand Court of Appeal in R v Meek [1981] 1 NZLR 499 at 502-3:
The making of a threat involves a communication to a person himself or to other persons of an intention to do ill towards him; the declaration of a hostile intent or a menace. It is of the essence of a threat that it should be made with the intention of influencing the mind of the person to whom it is addressed.
.....
It is inherent in the making of a threat that the words should be intended to be taken seriously, not necessarily by the person whose life or safety is threatened, but by the person or persons to whom it is addressed and whose conduct may be influenced by it.
As I am not able to accept the evidence of AP as to the context of the words spoken by the accused in the 000 call beyond reasonable doubt, I cannot be satisfied about whether there was in fact a threat to kill as opposed to a hypothetical or conditional threat. I cannot be satisfied about AP’s evidence that she feared the accused intended to kill her because of my doubts as to the circumstances in which the statement was made. Further I cannot be satisfied as to the accused’s state of mind at the time any such threat was made. I do not know if the accused intended to arouse a fear or was recklessly indifferent about whether a fear was aroused that he would or was likely to carry out the threat as opposed to sounding off. Accordingly, whilst it is abundantly clear that the accused was behaving in a disgraceful manner at the time of the 000 call, the prosecution has failed to prove count 3 on the Information beyond reasonable doubt.