R v ML
[2013] ACTSC 32
•1 March 2013
R v ML
[2013] ACTSC 32 (1 March 2013)
CRIMINAL LAW – Offences against the Person – Use an offensive weapon likely to endanger human life or cause grievous bodily harm
CRIMINAL LAW – Offences against the person – Threat to kill another person
CRIMINAL LAW – Offences against the person – Assault occasioning actual bodily harm
CRIMINAL LAW – Specific offences – Trespass with intent to commit an offence
CRIMINAL LAW – Specific offences – Breach of protection order
Crimes Act 1900 (ACT), ss 27, 30
Criminal Code 2002 (ACT), s 311
Queensland Criminal Code Act 1899
Domestic Violence and Protection Orders Act 2008 (ACT)
R v Dudley & Stephens(1884) 14 QBD 273 DC
Johnson v Phillips [1975] 3 AllER 682
No. SCC 121 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 March 2013
IN THE SUPREME COURT OF THE )
) No. SCC 121 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
ML
ORDER
Judge: Higgins CJ
Date: 1 March 2013
Place: Canberra
THE COURT ORDERS THAT:
ML is not guilty of the charge that he on 17 June 2010 intentionally and unlawfully used against [complainant] an offensive weapon likely to endanger human life or cause grievous bodily harm.
ML is not guilty of the charge that he on 17 June 2010 made a threat to kill another person namely [complainant] and was reckless whether or not [complainant] would fear that the threat would be carried out and the threat was made without lawful excuse and in circumstances in which a reasonable person would have feared that the threat would be carried out.
ML is not guilty of the charge that he on 17 June 2010 entered a building namely [address suppressed] as a trespasser with intent to commit an offence that involved causing harm to a person in the building.
ML is not guilty of the charge that he on 17 June 2010 assaulted [complainant] occasioning to her actual bodily harm.
ML is guilty of the charge that he being a person subject to a protection order made under the Domestic Violence and Protection Orders Act 2008, and who was present in court when the protection order was made, engaged in conduct that contravened the protection order.
This has been a bizarre and perplexing case. The accused, whose name cannot be published for fear of identifying the complainant, stood trial on 26 November 2012 on five counts:
FIRST COUNT ... THAT on 17 June 2010 at Canberra ... intentionally and unlawfully used against [complainant] an offensive weapon likely to endanger human life or cause grievous bodily harm.
SECOND COUNT ... IN THE ALTERNATIVE ... made a threat to kill another person namely [complainant] and was reckless whether or not [complainant] would fear that the threat would be carried out and the threat was made without lawful excuse and in circumstances in which a reasonable person would have feared that the threat would be carried out.
THIRD COUNT ... entered a building namely [address suppressed] as a trespasser with intent to commit an offence that involved causing harm to a person in the building.
FOURTH COUNT ... assaulted [complainant] occasioning to her actual bodily harm.
FIFTH COUNT ... being a person subject to a protection order made under the Domestic Violence and Protection Orders Act 2008, and who was present in court when the protection order was made engaged in conduct that contravened the protection order.
The accused pleaded “not guilty” in respect of each count.
It was alleged that the complainant and the accused, having known each other since 1994, were married in 1997. They separated in 2009. The complainant continued to reside at the former matrimonial home, [address]. She had the locks changed. The accused had no key to the premises.
The order effectively forbade the accused, amongst other things from being within 100 metres of the complainant and/or contacting the complainant and/or being on the premises known as [address].
The first count alleged an offence against s 27 of the Crimes Act 1900 (ACT) (‘the Crimes Act’):
27(3) A person who intentionally and unlawfully –
...
(c)uses against another person any offensive weapon likely to endanger human life or cause a person grievous bodily harm;
...
Is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
The second count alleged an offence, in the alternative, that the accused, contrary to s 30 of the Crimes Act made a threat to kill the complainant and was reckless whether or not she would fear that the threat would be carried out and that threat was made without lawful excuse and in circumstances in which a reasonable person would have feared that the threat would be carried out.
These charges were supported by evidence from the complainant that the accused approached her from behind in the former matrimonial home wearing large rubber gloves and bearing an extension lead with two wires ending in points wrapped around a piece of metal which appeared intended to deliver an electric shock which he dug into her hand whilst uttering a threat to kill her.
If the wires were live that device would be an offensive weapon and hence likely to endanger life or cause serious bodily harm.
If they were not that conduct would, with the uttered threat, support the charge under s 30. It is punishable by a maximum of 10 years of imprisonment.
The third count alleged an offence contrary to s 311 of the Criminal Code 2002 (ACT) (‘the Criminal Code’), in that he entered the premises at [address] as a trespasser, that is, without lawful right or excuse. He was prohibited by the protection order from being on the premises and would therefore, unless invited or permitted to enter by the complainant, be a trespasser. That trespass would have been intentional had he been aware of that lack of invitation or permission. The intent referred to may be constituted by any intention to assault the complainant or to cause her to fear death or bodily harm. That offence is punishable by 14 years of imprisonment.
The fourth count alleges that the accused assaulted the complainant by unlawfully using physical force against her and inflicting thereby some minor but appreciable physical injury with the wires attached to the electrical lead. That offence was punishable, on conviction, by a maximum of five years of imprisonment.
The offence is constituted the application (or the threat of it) of unlawful force against the complainant. That is, force not justified by a reasonably perceived threat of force, that is, self-defence, or otherwise excused by law.
The fifth count alleged the breach of the protection order of 11 May 2010. Contravention of such an order is punishable by a maximum of five years of imprisonment. In this case, the accused admits that he was present when the order was made and had been personally served with it. He also, admitted that, even if invited or permitted to be on the premises, he was, in contravention of the order, present on the premises of [address].
He claims a defence of necessity. I will consider that claim in due course.
I must direct myself that the Crown bears the onus of proving each and every element of an offence, beyond a reasonable doubt, before a verdict of guilt can be arrived at. That burden never shifts to the accused, whether or not he gives evidence. The accused has no obligation to explain anything or of persuasion. That includes the question as to whether any relevant act or omission was done deliberately or recklessly. The latter implies an advertence to a risk and of the real likelihood that the risk is present but proceeding nevertheless.
The complainant gave evidence that before the behaviour complained of she had no contact with the accused directly on 17 June 2010 or on the day preceeding it. The accused had spoken to the children of the marriage, then aged 12, 10, 8 and 5, on the evening of 16 June 2010 by telephone. She was present at that time but did not speak with the accused.
The complainant was not rostered to work on 17 June 2010. On that day she took the children to school, went shopping and returned to the home around 12.30 pm.
She began work at her computer. Hearing a noise behind her she turned and was surprised to see the accused standing behind her. He was close to the laundry door, four or five metres away. He was dressed in work overalls. She had already phoned her then partner, [G].
Significantly, she stated that the accused then had a yellow cord in his hands. That could only have been one of the yellow extension leads found in the dwelling after the incident. One such cord was in that room. He had big rubber gloves on. She said, “What are you doing here? You’re not meant to be here”. He said, “I’m going to kill you”.
The cord had exposed wires at the end. The drawing of it which she made would indicate the male part of a power cord attached to a female end with exposed wires protruding. He pushed it towards her hand. The blinds were down and the doors shut. She shouted “no” and “help” and “stop” but could not get away. There was a piece of metal, she said, attached to the wires. They were wrapped around this piece of metal which resembled the prong of a power plug. [T page 15 & 16]
He jabbed it at her hand. It hurt but delivered no electric shock. It caused bleeding. They then grappled. She was attempting to get away. She ended up being pushed backwards onto the couch. It was L-shaped with part of it being an ottoman. He was, she said, then behind her and put the power cord around her neck as if to strangle her. She did have a thick scarf around her neck so that, though it was alarming it did not cause injury.
She then, she said, ended up on the floor. In context, that could only refer to the floor area between the couch and the computer.
The accused, she said, also had his hands about her neck, exerting pressure. They ended up under the computer table. He said he was doing this because of her lies and deceptions, he loved her and was going to kill her and then himself. He then put his hand over her nose and mouth. She lost her glasses and, she said, “never got them back”. In photographs, her glasses were clearly visible under the couch. I cannot accept that she “never got them back”.
She bit the accused’s hand. It came somehow out of the large glove, revealing a blue latex glove beneath. She said, she then stated, “Please [M], please stop. The kids, the kids”. He did so. She escaped then, she said, and rang [G] telling him to call police. She got to her bedroom, locked the door and called 000.
The recording of that call is certainly consistent with her allegations. Though it is not recorded, she says that whilst she was on the phone she heard him then say “It’s alright [complainant], I’m going”. It does seem that the accused appeared to have vacated the premises hurriedly, as he left the front door open behind him. Police and a neighbour were soon thereafter in attendance.
The complainant was interviewed by police and attended a medical examination.
She also said that, before her return home, she had locked all the doors. They were still locked at her return and she locked the front door behind her when she entered. The locks had been changed after separation from the accused who, therefore, had no key. There was no sign of forced entry.
She expressly denied any conversation before 17 June 2010 in which she had asked the accused to attend at the house to do electrical work. Indeed, she said that she had, before this event, ordered the services of an electrician.
She denied that she saw a voltmeter in the accused’s hands before the attack upon her. She denied that she yelled at the accused “Why don’t you hit me – why don’t you just kill me”. She agreed she struck at him and at his mouth, though she said it was in self defence. She was then, she said, under the computer desk. She did not recall her hair being pulled, nor screaming at the accused “now you’ll never see the kids again”. She denied seizing the end of the extension cord and flipping or whipping the accused with it.
She complained of soreness to the neck following the incident.
A series of photographs was taken by investigating police. They confirmed the presence near the scene of the alleged conflict of the red rubber and blue latex gloves. There was, significantly, a yellow extension cord in the room. It extended from the hallway which led through a laundry area into a corridor near the old bathroom. There was a considerable length of bunched or coiled cord in the laundry. The male end of the cord was on the floor near the entrance to the old bathroom unconnected to any power source although there was one in a wall nearby. There was also a considerable length of the cord between the brown L shaped couch with a matching brown ottoman in front of it. The ottoman was positioned so that a space behind it enclosed on two sides, a small occasional table. The cord ran from the rear of the couch, along the side of it next to that table, next to and behind a bag of dog food. A pair of glasses apparently belonging to the complainant can be seen partially underneath the rear side of the couch. The cord then ran under but beside the table and then under the ottoman to its point of termination between the ottoman and the computer desk. The chair and glasses are positioned consistently with the complainant having got up suddenly and some detachment of her glasses, though the mechanism for that to have happened was not explained. It could have been in the course of a physical grappling between the complainant and the accused. There is what appears to be blood staining the female end of the cord. No other device was located which resembled the sketch made by the complainant, that is, a male plug with a length of cord protruding from it.
The complainant remained in her bedroom with the door locked until her neighbour and then police arrived. It seems that the front door was already open bespeaking a hasty exit, undoubtedly by the accused, as the complainant had neither opened it or left it open behind her. It was so observed by the neighbour before police arrived and before the complainant exited from her bedroom.
The complainant said she had not had a yellow power cord in the house but had seen cords like it before. In what was referred to as the old bathroom there was another yellow power cord as well as a number of boxes and other items. It was largely used for storage. All fittings had been removed. The cord in that room was partly concealed under cardboard boxes. She said it was not something she had seen there before.
It is apparent that it is not consistent with any hypothesis that that cord had been connected with the other. Nor is there any likelihood that, if the cord in the lounge area had been connected to a power source, it could have been pulled free in the struggle. There was too much loose cord in the laundry area for that hypothesis to be supportable.
Similarly, there is no explanation as to how the cord could have passed under the ottoman without having been placed there deliberately. It was not possible for a person coming from the laundry area carrying the end of the cord, approaching the computer table as the complainant recounted it to have passed the cord under the ottoman either before or during the attack of which the complainant complained.
The complainant did identify, in the old bathroom, a jacket and shoes as apparently belonging to the accused. They had not been there before the 17th. Their presence was also consistent with the accused exiting hurriedly.
They were near the yellow cord in that room which seemed to pass through a hole in the floor. There was at the female end of that cord a reddish light (Photo 103) indicating it was connected to a power source. There was also a switch towards that same end on the power cord itself.
Photographs were tendered showing injuries to the complainant’s hands and mouth. Those injuries are consistent with the struggle the complainant deposed to but not inconsistent with the struggle described by the accused.
The complainant denied, however, that the object she saw in the accused’s hands, when he approached her was like a “volt finger” which she was shown. That is a voltmeter device as shown in exhibit 8. There is no doubt that the injuries so recorded would constitute actual bodily harm.
The “000” call made by the complainant was played. It is consistent both in content and the manner of its delivery with the kind of incident to which the complainant referred in evidence.
In cross-examination she agreed that each of herself and the accused had, on 26 October 2009, applied for a restraining order against the other.
The matter was, apparently, heard by Magistrate Doogan on 11 May 2010.
The complainant denied that there had been any conversation by her with the accused between then and 17 June 2010. In particular, she denied asking the accused to do work in the house or on her car. Relevantly, she denied a suggestion that she had asked him, the previous night, to come and fix the wiring in the old bathroom as it was dangerous. Nor that she had told him she would be at work and would leave one of the sliding doors unlocked for him to enter. She rejected a suggestion that she had asked him also to bring with him an asthma puffer belonging to one of the children.
It was suggested to her that she had been rostered on duty on 17 June. It seems to me, however, the documentation when tendered indicated that she was in fact on leave but re-credited for sick leave. I do not think she told the accused she was not on duty though it is possible he jumped to that conclusion as a result of talking to the children. She agreed that the accused had made allegations against her in respect of her treatment of the children. She agreed that she had put chilli sauce and soap in their son’s mouth. She also agreed that when they were together, she had said to the accused on occasions, “Just kill me” and that she had signed his name to an insurance proposal for accidental death without his authority. It was in truth a forgery. She agreed that on the evening of the 16th she heard one of the children say over the phone to the accused “Mummy is not working tonight”. That could explain the accused’s conclusion that she would be on day shift the following day.
It was suggested to her that on 17 June 2010 the accused emerged from the area of the old bathroom into the kitchen saying, apparently in surprise, “Is that you Kate?” She denied that. She further denied asking him to clear the drain in the laundry though she acknowledged that there was a blue latex glove near it in police photographs taken on 17 June which was consistent with him having done so. She denied any knowledge of hair being removed from it and placed in a plastic bag hanging in the laundry also seen in police photographs. However, that bag was not examined by police and it cannot be assumed that the contents were inconsistent with that suggestion.
She did acknowledge that on some occasions she may have sat at the lounge and, with a low ironing board, ironed clothes whilst watching the TV. She denied, however, that the yellow extension cord had been used for any such purpose. She could not explain how the yellow cord came to be under the ottoman as seen in the police photographs.
She denied that after the drain was cleared and the accused turned to go back towards the old bathroom she, without warning, yelled at him hysterically “Why don’t you hit me? Why don’t you just kill me?” Further, she rejected a suggestion that she then struck at the accused and in doing so, punctured and scratched her hands on the prongs of the voltmeter he was then holding.
She was shown photographs, taken by Dr Sansum of her left hand which clearly showed, at the base of the thumb, two puncture wounds, similar to a snake bite. Other similar marks, though not puncture wounds appeared on the complainant’s forearm, again on the left. Those are consistent with scratches from a pronged object such as the voltmeter tendered by the accused.
It therefore seems to me that the wounds depicted in exhibit 7 are consistent with contact with the prongs of an object such as the voltmeter, and inconsistent with the kind of object the witness described as attached to the power cord.
She did, she said, point out to either Senior Constable Boyce or another officer the power cord in the old bathroom. She particularly noticed it because, she said, it indicated that the accused had been under the house and threaded the cord up into the old bathroom. Furthermore, it was glowing at the female end indicating that it was connected to a live power source. She knew there was a high voltage power point under the house that she believed the accused had previously installed.
It does seem to me highly improbable that police would have ignored the power cord if pointed out to them, given the allegations made by the complainant concerning the approach made by the accused. That does raise some doubt in my mind as to the credibility of the complainant at least as to the accuracy of her recollections.
The complainant’s recollection of previous court proceedings between herself and the accused was in one respect demonstrably faulty. She claimed that Magistrate Cush had ordered the accused to return the children to her on 26 October 2009. The transcript of that hearing clearly contradicts that claim.
She also agreed that, had he wished to do so, the accused could have broken the bedroom door. It was not solid wood. Obviously, he did not do so. That raises some doubt as to whether he was attempting to again attack her, though she did seem to suggest that he had already broken off the attack.
It also emerged that she found spyware on her computer and found documents missing that related to Family Court proceedings. That allegation was substantiated by the admissions of the accused.
Constable Reynolds next gave evidence.
About 1.40 pm he was directed to [address]. He found the complainant in the house with Ms Raymond. He did a sweep of the residence to confirm no other person was present. The complainant had blood on her hands and around her mouth. She was clearly upset.
Constable Chapman was next. She accompanied then Acting Sergeant Reynolds. They entered [address]. She saw slight reddening of the neck area when the complainant raised her scarf. The reported statement of the complainant to Constable Chapman was consistent with her complaint. She confirmed that nothing at the crime scene was moved by police or, indeed anybody else after police arrived.
Next was Constable Lawler. He was with those police who were the first responders. He and Constable Uren took the complainant to Woden Police Station. Later she attended the house with her father to gather some belongings. That was about 8.30 pm the same day. He was aware that the yellow extension cord in the lounge area was relevant to the police investigation. Indeed, that cord was seized and forensically examined.
Constable Uren also attended at the premises. Her observations were consistent with those of other attending police.
Sergeant Mothersole, about 4.05 pm on 17 June 2010 attended at Mawson and found the accused’s Saab motor vehicle. It had been there more recently than others as indicated by rain on the ground. For other vehicles, they were dry underneath. The vehicle was seized.
Constable Maguire was present on 19 June 2010 at 8.00 pm at the complainant’s home. He met the complainant and [G] there. He was present when the old bathroom was further photographed. He observed the yellow extension cord coming up from the hole in the floor. He said that the complainant directed no attention to the yellow cord in that room. He did not notice it glowing at the visible end.
[G] was the next witness. [G] recalled a telephone call from the complainant 1.30 – 1.40 pm on 17 June 2010. She said, “[M] has hurt me. Call the police.” He did so and then rang Ms Raymond, the back neighbour to get her to check the complainant’s well-being. He attended and observed, by the time he arrived, that the complainant was extremely distressed. He also noted the injuries more particularly detailed by Dr Sansum.
Ms Raymond was a neighbour. Her home abutted the rear of [address]. She was a friend of the complainant. Indeed, they had a ladder in place to enable easy access between the two properties. She recalled receiving a call from [G] about 1.49 pm on 17 June 2010. He relayed to her that the accused was said to be in the house and that the complainant was apparently very upset. She noticed the blinds were drawn when she attended the house from the rear fence. She first knocked on the glass doors leading to the lounge and kitchen area. That door was locked. She called on her mobile phone and saw the complainant, who answered her phone from her bedroom. The latter unlocked the door leading to the back yard and let Ms Raymond in. She noticed that the complainant was upset and dishevelled. She complained that the accused had tried to kill her. She did not know, she said, if he had left the house. Ms Raymond did a brief examination of the house. The accused did not seem to be there. She saw the yellow cord near the brown couch. The front door was open. She closed it. They then sat on the couch. The complainant’s account given to Ms Raymond was similar to her evidence save that Ms Raymond recalled the complainant referred to two prongs attached to the cord and that the accused had attempted to stick it into her neck. He had then attempted to put his hands around her neck. He did put his hands over her mouth so that she had difficulty breathing. She said that she had said “What about the kids, don’t do this”, whereupon, “he stopped and got up and left”. Ms Raymond noticed a red mark on the complainant’s neck when she lifted her scarf.
Police then arrived. Ms Raymond stated that nothing was moved by her or by the complainant before police arrived. She denied, however, that photograph 80 accurately depicted the position of the male end of the yellow power cord. That is not the end that passed under the ottoman but the other end in the corridor. She recalled that the cord went into the old bathroom so that she could not see the plug end of it. I have to say I think Ms Raymond must have been mistaken about the position of the far end of the cord. No-one could or would have moved it after the accused left the premises. The accused clearly left hurriedly even leaving his shoes behind. Indeed it was Ms Raymond who observed that the front door was open. In any event, there is no evidence that the cord was at any time connected to any power source nor does Ms Raymond’s evidence in any way contradict that conclusion.
The complainant’s mother had spoken to the accused on the evening of 16 June 2010. He was concerned, he said, that the children had been left alone at home. The next day she told the complainant of that call. Later, at about 2 pm, she received a further phone call from the complainant. She was distressed and complained that the accused had tried to kill her. She asked [Ms A] to collect the children. On 18 June 2010 she received a text message from the accused. He asked her to tell the children that he loved them and would see them soon.
The complainant’s father [Mr A] deposed that the accused and complainant had separated around August 2009. The accused had lived with them for a week and a half immediately following the separation. The accused told him that he had recorded conversations between his parents-in-law.
[Mr G] went to the house at Farrer after the incident on 17 June 2010 at about 2 – 2.15 pm. Police were in attendance. He saw the complainant who was clearly upset. He thought her neck appeared reddened and her hands and wrists had marks on them. After the complainant was taken for medical attention he located the accused’s vehicle near an apartment block at Mawson, about one kilometre from [address]. He was aware that the accused had done welding and electrical work though he was not a qualified electrician. He did point out to police a grated door in the roof area that could have been used to gain access from outside the house.
Mr Tolson, an electrician, had been engaged to do some electrical work. He had divided a circuit that had been tripping power off. He did not do any other work.
An ambulance officer, Mr Crossley, attended about 2.05 pm on 17 June 2010 at [address]. Police were already in attendance. The complainant told him that the accused had placed electrical wires in her hands to electrocute her. He did observe some wounds on her hands but no sign of any electrical injury.
Then Constable, now Federal Agent, Marsden, took part in a taped record of interview with the accused on 18 June 2010 commencing 7.41 pm. The accused told him that, on 19 June 2010, he had at the complainant’s request attended at the premises at [address]. His attention was drawn to the bag in the old bathroom which had been left by the accused and he observed the electrical cord coming out of the drain hole in the floor. The bag was seized and its contents photographed (exhibits 15 and 16). Surprisingly, the power cord was neither examined nor seized. It was not pointed out by the complainant as an item that might be of interest to the inquiry nor did any other officer say that it had been so noted.
A second electrician, Mr Hinds, had been requested in September 2010 to examine the electric installation at [address]. He observed that, though the main switchboard was off, the extension cord which was still in place in the old bathroom was live. He found the power source for it was a power point that by-passed the circuit board so that it had no safety switch. He deactivated it. The request to examine the electrical installation had in fact come from the accused. The inspection was carried out with police also in attendance.
It was suggested to Mr Hinds that the extension lead plug in the old bathroom, though live, could not be attached to anything due to a broken pin being imbedded in it. He had not noticed any such defect. He would have expected, if it was so, to have been unable to test the plug but he could not say for certain that there was no pin obstructing one of the connection slots. He did say that if such a pin had broken off in the earth socket it would not have obstructed the test. The fact remained that it was, in his opinion, unlikely that the particular plug tested was incapable of normal activation. Mr Hinds said it was possible, but not likely, that there was a broken pin in one of the other slots.
Dr Sansum, who next gave evidence, reported the complainant as telling her, “He tried to electrocute me with the cut ends of an electrical cord jabbing into me on my hands”. And, she said, “her hands felt tingly”. That is not consistent with the complainant’s evidence. She denied any “tingly” feeling. Dr Sansum said the complainant then described a strangulation attempt by the accused with a cord and then a smothering of her with his hands on her face. But for the tingling, which I think was an error on Dr Sansum’s part, that is consistent with the complainant’s account in her evidence. She did express the opinion that the marks I have referred to as like snake bites were caused by a sharp object.
DNA analysis was undertaken by Ms Gita Lala, a forensic biologist, of various samples that had been seized by police. The various blood samples she tested all came from the complainant. That was unsurprising.
The informant, Detective Senior Constable Boyce, rounded off the prosecution case. Significantly, she did not seize the yellow extension cord which had power connected to it. If she had done so, it might have yielded an answer to the question as to whether there was a broken piece of an electrical plug embedded in it. It may also have yielded evidence of recent handling of it by the accused. She denied, however, that the complainant had drawn her attention to the power cord in the old bathroom. Nor did any other police officer report to her that that cord might be of interest or that the complainant had made any such suggestion. It was also apparent that the cord which had been connected at the time of the inspection by Mr Hinds had thereafter gone missing. It could not have been hidden by the accused. He was in custody. What happened to it is not explained.
At the conclusion of the prosecution case, I pointed out that there was no evidence to support a conclusion that the power cord, allegedly wielded by the accused, was an offensive weapon capable of endangering life or causing grievous bodily harm. It could, of course, support a conclusion that there was a credible threat to kill.
I therefore formally dismissed count one, acquitting the accused in respect thereof.
The accused then gave evidence. I note that he was not obliged to give evidence or offer any riposte or response to the prosecution case. Nor did he assume any onus of proof or persuasion by so doing. Subject to that, I approach his evidence as with any other witness.
Such evidence may be accepted or rejected in whole or in part. I bear in mind any particular interest a witness may have in respect of the matter and, of course, the different perspectives that any witness may have in contrast to another.
The accused deposed that he had been a police officer. He retired in June 2004 as a result of stab wounds inflicted on him in the course of his duties. The marriage between himself and the complainant was dissolved in August 2009. He denied that he had agreed to take out the insurance policy which the complainant had proposed to which proposal his signature had been subscribed by the complainant. He agreed that he had installed spyware on her computer. That course he took he said, he now regrets. He had, by those means, learned that his former wife had a new partner, Mr [G].
He claimed, contrary to the complainant’s evidence, that he spoke to her on the evening of 16 June 2010. She requested, he said, that he attend to fix the wiring hanging down in the old bathroom.
He demurred, he said, being aware that it would be a breach of the Domestic Violence Order then in place so to do. She said, he claimed, that she was going to drop the order. He agreed to do the work if she was not there at the house. She said she would not be at the house and for him to remember to bring the asthma puffer left with him by their daughter, [M].
His description of the wiring in the old bathroom and the work he said he did with respect to it is certainly consistent with its appearance in photographs.
On the evening of 16 June 2010, the accused said, he had intended to watch the State of Origin game. For various reasons he did not but he stopped his car in Mawson and rested. He found that the vehicle would not re-start. He slept the night in it. Next morning, he grabbed his tools and walked to [address].
After gaining entry, he took his boots off and put them in the old bathroom. He took his jumper off as well. He proceeded then to secure and remove from easy reach the wiring and light switch in the room. He checked the light fitting with his voltmeter to check the current. He explained that the previous owner of the house, an electrician, had installed a number of power points under the house. He was unaware of the irregular power point that by-passed the safety switches. The accused denied, and there is no evidence to the contrary, that he brought a wig with him to the house. It was, he said, not uncommon for the children to have “dress-up” items in that room.
Whilst he was working there, he heard the front door open and close. He went to investigate and saw and spoke to the complainant. There was a conversation about a cup of tea. He resumed work in the old bathroom. He was asked then by the complainant to look at the drain in the laundry. He put plumber’s gloves on and used the probe tip of the voltmeter to raise the drain and cleaned out a partial blockage.
He then wrapped the voltmeter around its contact element and walked towards the complainant. He asked, “Is there anything else that you want me to do?”
Then, he says, the complainant snapped. She said, “Yes, I want you to kill me, why don’t you kill me?” She then started hitting at him. He raised his hands in self-defence. She contacted the prongs of the voltmeter and its cable. He dropped it thereafter. The complainant continued hysterically to assault him. He tried to restrain her and, as he dropped the voltmeter, was bitten on the left forearm. That site was identified by photographs. It was, of course, not inconsistent with the complainant’s evidence that she had done so, save that she did say she bit his hand. He agreed that he grabbed the complainant and squeezed her about the shoulders and by her hair attempting to subdue her. They struggled ended up on the floor. He was rapped by her with the end of the power cord.
An examination of the accused by Dr Sturgess showed a mark, following the incident, consistent with such a blow, though it is not, of course, proof that such a blow was struck.
He said he left as soon as he could, hurriedly. He attended the house, despite the domestic violence order, because of the need to fix the dangerous wiring. He also feared, he said, that the complainant would chastise the children unreasonably if he did not cooperate with her. Finally, he referred to two matters. One was that he was unaware that one of the electrical power points under the house was unsafe. He also deposed that, as a police officer, he had never been the subject of disciplinary proceedings. He also deposed that, apart from these matters, he had never been charged with any offence.
That is, of course, evidence of good character. It was not contradicted by the Crown. It is to be taken into account as warranting an inference that such a person is unlikely to commit the criminal acts complained of and is less likely to be giving knowingly false evidence. It does not, of course, debar the drawing of either adverse inference if, on all the evidence, such an inference is warranted.
The accused did admit to not only installing the spyware on the complainant’s computer but also to searching and removing some of her papers to gain an advantage in Family Court proceedings. He acknowledged that it was theft on his part to have done so.
A number of text messages between the parties was also produced. Some, indeed most, were quite reasonable communications concerning access to the children.
The accused agreed that he had, before the parties separated, connected the extension cord seen in the bathroom to power tools in the old bathroom. There was no other source of power in that room save for the light fitting.
Mr Lundy, for the Crown, very properly subjected the accused to searching cross-examination.
As at 17 June 2010, the accused agreed, he had been prescribed dexamphetamine but had not taken it for 12 to 16 hours before the incident. He was also then prescribed an anti-depressant, though he had not taken any of it for a couple of days.
When taken into custody on 18 June 2010, the accused was medically examined to review his fitness for custody and his mental health status. Some injuries were noted and photographed. So far as his neck was concerned 2 x 1 cm abrasions to the front of neck were observed and photographed. There was a bite mark on his left forearm. It appears to be half way between the base of the thumb and the elbow (exhibit 21).
The incident was reported by the accused to his psychologist on 18 June 2010. Although Dr Sturgess recorded no complaint of it, Mr Marshall reported the accused as saying to him, “He was remorseful about his argument with [complainant] today in which he attempted to make her listen to him about wishes to have more access to the children by grabbing her, to which she responded by biting him and hit him with an electrical cord”. That is consistent in part with the accused’s account. However, the accused said nothing about a conversation concerning access to children. Indeed, his evidence is not consistent with that part of it. However, one must be cautious about using hearsay statements to contradict sworn evidence. There can be, even assuming good will, some misinterpretation. The accused disputed the accuracy of that quotation.
Another difficulty is that the plastic bag seen and photographed in the laundry was not examined to see if it contained the contents that would be consistent the accused’s version of events.
The other feature is the puffer and spacer in his bag. That could only have belonged to [M] the accused’s daughter. Her asthma required one. The accused had no such condition. The presence of it was, therefore, consistent with the accused’s evidence that he had been asked to bring it with him. Surprisingly, police failed to examine the ventolin puffer to see if it was prescribed to one of the children. One has to assume, therefore, that it was.
The defence then called Ms Elizabeth Day. She had been in a relationship with the accused between December 2009 until 17 June 2010. She recalled a conversation after December 2009, between the accused and the complainant, over the telephone. The complainant asked him to fix her car and he refused. This, clearly enough, was before the incident. The accused told her that if he did not do so he feared that the complainant would hurt the children.
The prosecution sought to call evidence in reply. First, in relation to the ventolin puffer. As Mr Lundy conceded, if police had seized and examined it, there would be evidence as to whether or not it was prescribed for one of the children. I refused leave as there had been no such seizure or examination and nothing useful or relevant was in contemplation.
I did grant leave to produce evidence concerning the servicing of the complainant’s vehicle as well as the photograph of the old bathroom. By leave, Mr [A], the complainant’s father deposed that he had not seen the accused using blue latex gloves on any previous occasion. However, he was far from unequivocal about that.
The Crown then addressed the Court. Mr Lundy pointed to the apparently genuine state of perturbation of the complainant. She had marks on her neck, consistent with the allegation of attempted strangulation. Mr Lundy referred to the accused’s admissions of spying on the home computer and secretly recording conversations. There was no evidence of observation by the complainant or otherwise of the yellow extension leads before 17 June 2010. He pointed out that Mr Hinds considered it unlikely that the live end of the yellow cord in the bathroom was not useable as the accused claimed. He acknowledged that conclusion was necessarily qualified as a result of police failure to seize the item.
It was noted that such forensic evidence as there was was inconclusive in terms of supporting either account of the event. It was common ground that the parties physically struggled and that injuries were likely to have been sustained by each of them in the course of that struggle.
He submitted that it was open to accept the complainant’s evidence, as indeed it is.
Mr Lundy then turned to the accused’s evidence. He pointed to the unlikelihood of the complainant seeking his help with her car given the payments she made for its service and repair, though I do note that the most recent service prior to the incident was dated 15 September 2009. The next service was 23 September 2010, well after the incident.
Further, there was a witness, Ms Day, who, it may be inferred, heard the complainant make that request.
Mr Lundy noted that to find the accused guilty his account would need to be rejected without a residual reasonable doubt.
He pointed out that there was no medical support for a “welt” on the accused’s neck. The abrasion observed seems related to friction from the neck button on the accused’s shirt. Further, he submitted, the account the accused put forward for his bail application was not consistent with his account of the incident. However, as I suggested to Mr Lundy, the real mystery when considering the allegation against the accused, was how it was consistent with the position of the yellow extension cord under the ottoman. Mr Lundy could offer no explanation for that. He did note that the plug end had the complainant’s blood on it, indicating she had grasped it after she had received the wounds to her hands. However, that is not inconsistent with the accused’s account of being struck with the cord.
He did point to the discrepancy between the accused’s statement to Mr O’Brien, about grabbing the complainant and his account of the confrontation. I have to say that such an action as described to Mr O’Brien, particularly if it occurred whilst the accused was holding the voltmeter and in proximity to the yellow cord, might well have caused the complainant to become alarmed and, perhaps wrongly, perceive that the cord was connected to the voltmeter so that she might fear electrocution.
He did accept that the light switch and wiring in the old bathroom appeared to have been tied up out of reach so that the wires did not dangle. He acknowledged that would tend to support that part of the accused’s evidence.
I did accept Mr Lundy’s submission that the actus reus of breach of the protection order, on either account of it, was made out. It was clearly accepted, on all sides, that the request by the complainant for him to attend, even if she was not present in the house, was no excuse for the breach.
The burglary charge, Mr Lundy contended, would be supported, assuming the entry was trespassory, by an intention to commit assault or even to make a threat to kill.
I have no doubt that had the accused approached the complainant wielding something apparently live electrically, threatening to kill her, the offence in the second count would be made out. If he had dug into her hand with the sharp ends of the voltmeter, as I am sure occurred, albeit it is in issue as to the context in which it occurred, then, if it was done deliberately with intent to cause pain or alarm it would be an assault and it occasioned actual bodily harm.
The offence would not be made out if the injuries were suffered in the course of the kind of struggle the accused contended occurred. In that struggle, of course, it was possible, even as the accused described it, pulling and/or pushing the complainant’s head away from him for red marks to be left on the complainant’s neck.
Mr Lundy agreed that the complainant’s version of events was not consistent with the position of the power cord. It could only be so positioned if, after the accused had fled the scene, someone rearranged the cord under the ottoman before the police arrived. That is a fanciful hypothesis. Mr Lundy did not contend for it.
Mr Collaery, for the accused, pointed to the unhappy background of marital disharmony that preceded the events complained of. He pointed to the tool bag in the old bathroom containing as it did items consistent with the accused’s account of his purpose in attending.
The complainant’s apparent distress was consistent, Mr Collaery submitted, with the complainant taking fright at the approach from behind her of the accused with the voltmeter in his hand, his hands encased in the large red gloves. That could be so whether or not she expected him to be there attending to the wiring in the old bathroom and then having cleaned the drain hole in the laundry. I have to say that I do not know what triggered the complainant’s distress. On the accused’s account of it, though his approach was in appearance as the complainant described it, there was no reasonable cause for her to be alarmed. There would have been if he had grabbed her as the alleged account to Mr O’Brien suggested.
The key is whether the accused was or may have been requested to attend the house or, at the least, interpreted a complaint about the wiring as an invitation to attend, irrespective of whether the complainant so intended.
Mr Collaery did point out that the complainant, contrary to her evidence, had told Senior Constable Boyce that the confrontation with the accused ended with the accused getting up suddenly and running out through the French doors. I note that was also substantially what Ms Raymond said she was told.
Certainly, if the accused had gone to the house to help the complainant as he suggested and she had then, for whatever reason, turned hostile, he might well seek to flee hurriedly. That scenario is supported by the front door being open when Ms Reynolds first saw it. There was no sound, as Mr Collaery pointed out, of banging on the door whilst the complainant was on the 000 call nor any extraneous sounds indicating that another person was then present.
In denying she had asked the accused to look at the air-conditioning, the complainant asserted that Mr Tolson had already done so but he denied that any such request had been made to him. There was he submitted, no trace of DNA of the accused on the yellow cord plug that was seized and tested. It must, however, be accepted that the absence of such DNA is not inconsistent with the accused having handled it. He was wearing gloves at the time.
There was no information as to whether the gate to the roof space was able to be opened. That is relevant only to whether the accused gained access by an unlocked door, as he claimed, or in some other way. There is Ms Devine’s report which asserts that that “window was secured with bolts and could not be opened”. The evidence otherwise neither supported nor contradicted that assertion.
Further, Mr Collaery submitted, though the complainant said she pointed out the yellow cord in the old bathroom to police, no police officer supported, and indeed all denied, such an assertion.
I do find it difficult to believe that any competent police officer, where a complainant asserts an attempted electrocution, could fail to understand the relevance of a live power cord in the old bathroom. It was suggested that the complainant may have sought to set the accused up for breach of the protection order to advantage her in Family Court proceedings. That, I have to say, whilst possible, is certainly not proved.
Mr Collaery, rhetorically, asked why would he lie in wait in socks and without shoes on a polished wood surface. That is, I suppose, a fair question.
Finally, in respect of the breach of protection order, Mr Collaery raised the possibility of a defence of necessity.
I accept that the onus is upon the Crown to rebut such a defence. It is, perhaps, best stated in s 25 of the Queensland Criminal Code Act 1899:
... a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.
Certainly, the common law drew the line at homicide (R v Dudley & Stephens(1884) 14 QBD 273 DC). Johnson v Phillips [1975] 3 AllER 682 suggests such a defence may be circumscribed by considerations of proportionality. To order a vehicle to travel contrary to a “one way” sign and for it to do so may be excused, for example, if it is to enable emergency vehicles to reach an emergency.
I accept that necessity may be raised if, and only if, the following elements are satisfied:
1. A serious risk to the life or health of the defendant or his family. I accept that includes children.
2. The circumstances must be such that there are no other means of avoiding the threat than by breaking the law.
3. The violation must be proportionate to the threat.
4. Those circumstances must be known to the defendant.
5. The circumstances must be such that a person of ordinary fortitude in the position of the defendant would have responded in a similar fashion.
In this case the accused could have engaged an electrician to do the work with the concurrence of the complainant. He could have alerted Care and Protection to the risk supposed to exist with respect to the children. The suggestion that necessity affords a potential excuse for breach of the protection order must be rejected.
I have already noted that, on the facts, Count 1 cannot be sustained. The accused has been acquitted thereof accordingly.
The only excuse offered for the admitted breach of the protection order was necessity. That contention cannot be maintained. The accused is, therefore, guilty of that offence (Count 5).
As to the remaining three offences alleged, the threat to kill (Count 2), depends on the accused approaching the complainant with both the cord and the device, even if it be the voltmeter, so as to, by word and deed, deliberately or recklessly to convey a credible threat to kill. I am not satisfied beyond a reasonable doubt that the accused did so. He must be acquitted on that count.
The next count (burglary), depends on the absence of an invitation to attend the premises. For that purpose it matters not that the attendance was forbidden by the protection order. Given the indication that the accused did attend for the purpose of carrying out work on the premises and indeed did do so, including the clearing of the laundry drain, unrefuted by the Crown’s evidence, I cannot find beyond a reasonable doubt that the accused entered the premises as a trespasser. Further, I cannot be satisfied, beyond a reasonable doubt that when he entered he intended to assault the complainant or to threaten her life or well-being.
As to Count 4, that is more difficult. If the accused forcibly took hold of the complainant to engage her attention to the issue of access the children, that could, in the circumstances, be an assault. In the absence of a reliable record of what the accused said to Mr O’Brien, I find myself unable to conclude, beyond a reasonable doubt, that his sworn evidence, duly tested by cross-examination, should be rejected as false and the contrary evidence accepted, though I consider that it is possible that the physical struggle was so precipitated.
If the actual bodily harm occurred much as the accused said it did, it does not support the fourth count.
I cannot say with certainty that the injuries arose that way or as the complainant described it. There are significant difficulties in the way of being satisfied that her version represents the truth of what happened, as I have explained. It follows that I cannot find a verdict of guilty in respect of Count 4. The verdict is therefore:
Count 1 I find the accused not guilty
Count 2 I find the accused not guilty
Count 3 I find the accused not guilty
Count 4 I find the accused not guilty
Count 5 I find the accused guilty.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 1 March 2013
Counsel for the Crown: Mr J Lundy
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the Defendant: Mr B Collaery
Solicitor for the Defendant: Collaery Law
Date of hearing: 26, 27, 28, 29, 30 November 2012 and 3, 4 December 2013
Date of judgment: 1 March 2013
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