R v Piotrowski - [2012] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PIOTROWSKI
Criminal Trial by Judge Alone
[2012] SADC 39
Reasons for the Verdicts of His Honour Judge Lovell
4 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
Trial by judge alone - accused charged with one count of aggravated assault causing harm and one count of aggravated threatening harm.
Verdict: Not Guilty of Counts 1 and 2.
Criminal Law Consolidation Act 1935 (SA) ss 19(2), 20(4), referred to.

R v PIOTROWSKI
[2012] SADC 39
Background

Mr Piotrowski and the alleged victim in the matter Ms Campbell, prior to the events in question, had been friends for many years. Sometime around Christmas 2010, what had been a friendship became an intimate relationship. Ms Campbell became pregnant.
Shortly prior to 31 March 2011 she had the pregnancy terminated. The precise date of termination of the pregnancy was an issue at the trial.
The prosecution alleges that on 31 March 2011 Ms Campbell attended the property of Mr Piotrowski. There was a heated discussion relating to the termination of the pregnancy and Mr Piotrowski was alleged to have grabbed a knife and held it to the throat of Ms Campbell. He was then alleged to have punched Ms Campbell a number of times to the side of her face and that was the subject of count one, namely aggravated assault causing harm.
Ms Campbell allegedly lost consciousness as a result of being hit to the face and when she came to she saw the accused standing near her 12-month-old daughter with a knife in his hand. She got up and grabbed the knife and in doing so cut herself on the hand. Mr Piotrowski allegedly grabbed an angle grinder, turned it on and swung it towards her. That incident relates to count two on the information, namely aggravated threatening harm. Ms Campbell fled the property and eventually sought help at a nearby property. An ambulance and the police were called. Mr Piotrowski denied the offending.
I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies in respect of the charges, then it necessarily means that the one or both of the offences as charged have not been proved beyond a reasonable doubt.
The Evidence
My finding in relation to the matter is one of not guilty in relation to both counts. As I have a reasonable doubt about the facts that go to make up the allegations, it is not necessary for me to go through the elements of the offences. Obviously the Crown must prove beyond reasonable doubt the acts alleged to make up the offences. For the reasons set out, I find they have not done so.
Evidence of Ms Campbell
I have no doubt that Ms Campbell was doing her best to tell me what she believed to be the truth in the matter. She was clearly upset about what she had perceived to be the events that occurred on that particular evening.
Ms Campbell told me that she had known Mr Piotrowski for many years and that a few months before 31 March 2011 their relationship became a sexual one. As a result of this she became pregnant.
Ms Campbell told me that she had the pregnancy terminated on 31 March 2011. While she admitted that she had discussed the possibility of terminating the pregnancy with Mr Piotrowski, she denied that she had in fact told him before the evening of 31 March 2011.
Ms Campbell told me that she had invited Mr Piotrowski around to her house at Kilburn on 31 March 2011 for dinner. It was decided to return to Mr Piotrowski’s Myponga address during the course of the evening as he had to be home by 10.00 pm as he was on a curfew. Mr Piotrowski lived in a caravan on a property about 15 minutes from the centre of Myponga. Ms Campbell told me that she had her one-year-old daughter with her. She said that things were fine until they got back to the caravan at Myponga and the question of her having aborted the pregnancy came up. She told me that Mr Piotrowski lost it and attacked her.
Ms Campbell told me she had been drinking prior to arriving at the Myponga property. She said: “I’d had a couple of drinks, but I wasn’t intoxicated and I wasn’t drunk. I was happy at that time.”[1] She thought the accused appeared okay at that stage. Ms Campbell said that Mr Piotrowski grabbed her by the throat and as a result of that she passed out. When she came to, Mr Piotrowski punched her in the face. The punch landed on the left side of her jaw. She thought that he had punched her a couple of times. She passed out again. When she regained consciousness she saw Mr Piotrowski standing there with a knife over her daughter. She jumped up and grabbed the knife and received an injury to her left little finger as a result of that. Ms Campbell said she got the blade away from her baby but did not get the knife from Mr Piotrowski. She said Mr Piotrowski must have put the knife down because he then grabbed an angle grinder, turned it on, and “came at me with the grinder”.[2]
[1] T 16.
[2] T 25.
She managed to get out of the caravan with her daughter. She was bleeding from her hand injury. She ran outside and headed for the driveway. She saw a light from a nearby house and headed for it. She wasn’t sure how long it took but “it seemed like forever”.[3] When she got to the house a lady came out and took her and her baby inside. An ambulance and the police were called and Ms Campbell eventually was taken to the Noarlunga Hospital.
[3] T 26.
As I said, I have no doubt that Ms Campbell believes that is what occurred. However, cross-examination by Mr Richards revealed that Ms Campbell had presented an inconsistent account of events on a number of other occasions.
I do not intend to go through all of the inconsistencies demonstrated by Mr Richards. There were a number of important ones however.
When admitted to the Noarlunga Hospital and questioned by a member of the medical staff, Ms Campbell denied losing consciousness. This is inconsistent with what she told me.
Ms Campbell was inconsistent with how much she had had to drink before the events unfolded at Myponga. When admitted to the Noarlunga Hospital some hours after the alleged events, and not having had any alcohol since she left the caravan, when breath tested she returned a reading of 0.21. This is a substantial reading and inconsistent with her assertion that she was not intoxicated.
Further, Mr Richards demonstrated that Ms Campbell had given inconsistent versions of events as to how the attack unfolded in the caravan. As Mr Richards said during the course of his address, there were at least six other versions of events that Ms Campbell had given over the period of time which were inconsistent with her evidence-in-chief.
An example of inconsistency is demonstrated by the version of events provided to Senior Constable Fredericks in the early hours of the morning following the incident. Senior Constable Fredericks stated in her evidence that Ms Campbell described sitting on the couch, calling the accused an arsehole, him grabbing her hair and ripping her to the ground. She also describes the accused smashing her head on the ground at least 10 times and then into the side of the couch. The accused then threatened to put her baby’s foot in the heater, threatened her with an angle grinder, which he had turned on, and then said that he was going to cut off her legs. After Ms Campbell picked up her baby and yelled at him, he threatened her with a white handled butcher’s knife, which he held to her throat. When the accused went to the bathroom or his room, she fled. This is inconsistent with her evidence on major issues.
I find that the inconsistencies surrounding the events that took place within the caravan concern important issues in the case. Whilst I acknowledge that she may have provided the Court with what she believed to be an honest recollection, I cannot accept her evidence beyond a reasonable doubt.
Evidence of Detective McLean
Detective McLean was briefed in relation to the arrest of the accused on 1 April 2011, the day following the incident. He then attended at Mr Piotrowski’s home and executed the arrest. At the property, a purse containing documents of Ms Campbell was located in a vehicle owned by the accused’s mother. The accused was searched and a black Nokia mobile phone was found on him. The accused admitted that the phone belonged to him. I discuss the text messages contained on the phone later.
The accused was conveyed to the Victor Harbor Police Station for processing and charging. No injuries were seen on the accused.
Detective McLean was involved in the taking of statements from Ms Campbell on 18 October 2010 and 2 March 2012 and Mr Richards highlighted in his cross-examination some of the said inconsistencies with Ms Campbell’s evidence and those prior statements.
I accept Detective McLean’s evidence.
Text messages
Detective McLean used a video camera to record text messages that were located on the accused’s phone. The messages were sent to a contact listed as ‘Gesty’. No message information detailing the time or date that the messages were sent could be located. However, under cross-examination, Mr Piotrowski admitted to sending the two text messages the day after the incident with Ms Campbell. The messages read:
Hi mate, e hay, I won’t be down as I fucked up an she walked home. I never want 2 c the cunt again but I feel like shit 4 what I’ve done, Bi.[4]
and
I’m just 1 fuck-up an I wish I could rub last night out an I’m drinking what I have left then no mor.[5]
[4] T 101.
[5] T 101, T 102.
In cross-examination the accused denied the text messages expressed his regret for choking her and threatening her with the angle grinder. The accused stated that saying that “I feel like shit 4 what I’ve done” was likely referring to “calling her a slut and not chasing her down and making her a coffee and diffusing the situation”.[6] In addition, the accused stated that he had “fucked up” a few times on the previous night, including an argument he had had with his friend ‘Gesty’, who he says he and Ms Campbell had visited on the way to the accused’s property prior to the incident.[7]
[6] T 161.
[7] T 162.
The prosecution put to me that the text messages were admissions of the accused’s misconduct and that they were not text messages that would be sent by someone who was the victim in an assault, but rather more consistent with being sent by someone who was the aggressor in an incident.
Conversely, Mr Richards submitted that the text messages were in fact supportive of Mr Piotrowski’s version of events in what was written, but more importantly, what was not.
I am unable to find that the text messages are admissions relating to any specific act or acts. They are not inconsistent with Mr Piotrowski’s version of events.
Evidence of Senior Constable Fredericks
Senior Constable Kasha Fredericks was tasked at around 1.00 am on 1 April 2011 to a property neighbouring that of the accused. When Senior Constable Fredericks arrived at the property, Ms Campbell was present with her one-year-old daughter. Ms Campbell appeared very upset, emotional and affected by alcohol. Senior Constable Fredericks stated that it was difficult to obtain information from her as to why she was “so highly stressed”.[8]
[8] T 86.
Whilst Senior Constable Fredericks admits that it was difficult to obtain information from Ms Campbell upon her arrival, Senior Constable Fredericks was able to make notes of a version of events given to her by Ms Campbell, which I have already discussed.
Senior Constable Fredericks was a good witness and I accept her evidence.
Other witnesses
Senior Constable Rachelle Adams, Crime Scene Reliever, took photographs of Ms Campbell’s injuries. The photographs of the injuries are contained in a bundle of nine photographs[9] and showed a cut and a red mark on Ms Chapman’s neck, a bandage on her left little finger and a cut to her ring finger. Her evidence was not challenged and I have no hesitation in accepting her evidence.
[9] Exhibit P2.
Brian Lester Watkins, Crime Scene Officer, attended at the home of the accused on the day following the incident to photograph the scene. The photographs showed the interior of the accused’s caravan, an angle grinder on the floor of the caravan and a white-handled knife.[10] Mr Watkins was the only officer who gave evidence as to what they observed within the caravan. In cross-examination, Mr Watkins stated that he did not notice any blood-like stains in the caravan – although, he noted that the caravan was quite dirty and untidy. I accept Mr Watkin’s evidence.
[10] Exhibit P1.
Evidence of Mr Piotrowski
Mr Piotrowski was not an impressive witness. However, there were parts of his evidence which were more consistent with the known facts than that of Ms Campbell. Ms Campbell said that the events unfolded at around 10.30 pm. She then fled the scene immediately and although it took her some time to get to the near neighbour’s place, the police were not tasked until 1.02 am. It is most unlikely that Ms Campbell took from 10.30 pm to close to 1.00 am to walk the approximate 800 metres to the neighbour’s place, as on her evidence, she went straight there.
Mr Piotrowski’s version of events in the lead up to the incident on the night of 31 March 2011 differed in some minor ways to Ms Campbell; it was common ground that he attended at her home at Kilburn and at around 10.00 pm they returned to the accused’s Myponga address with Ms Campbell’s young daughter.
Mr Piotrowski’s account of the events that occurred in the caravan differed from that of Ms Campbell. He alleged that she was the one who “went crazy”[11] and started slapping and punching him. He then attempted to restrain her and the pair ended up on the ground and when Ms Campbell stopped fighting with him, he got off of her and she stood up and walked straight past him. The accused resumed his position on the couch and Ms Campbell then walked to the kitchen and returned with a knife. The accused then “pounced on her”[12] threw her onto the couch and pried the knife out of her hand.
[11] T 122.
[12] T 151.
He denied ever turning on and using an angle grinder. Mr Piotrowski said that after he got Ms Campbell to calm down he then went to bed and she remained in the caravan for sometime. Eventually he heard her leave saying she was scared sometime after the events had finished that night. That Ms Campbell remained in the caravan for some period of time is more consistent with her later arrival at the neighbour’s place as already discussed.
Conclusion
There were aspects of Mr Piotrowski’s evidence which I could not dismiss as a reasonably possible version of events. I have doubts as already mentioned about the reliability of Ms Campbell’s evidence.
There were no independent witnesses to what occurred in the caravan. Clearly an incident occurred in the caravan. Given the state of the evidence, I am unable to make any findings as to what occurred in the caravan and as a result, I must have a reasonable doubt about the version of events put forward by Ms Campbell. In those circumstances, Mr Piotrowski is entitled to the benefit of that doubt and accordingly, I find him not guilty of those counts.