R v Ross

[2025] NSWDC 330

District Court

New South Wales

Medium Neutral Citation:

R v Ross [2025] NSWDC 330

Hearing dates:

Trial – 7, 8, 11, 14, 15, 18 July 2025
Judgment – 20 August 2025

Date of orders:

20 August 2025

Decision date:

20 August 2025

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

At [348]

Catchwords:

CRIME – Judge alone trial – Serious domestic violence offences charged – Intimidation – Firearms offences

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Knight v R (1992) 175 CLR 495

Fleming v The Queen (1998) 197 CLR 250

R v Markuleski (2001) 52 NSWLR 82

Jovanovic v R (1997) 42 NSWLR 520

Fox v Percy [2003] HCA 22

AR v R [2025] NSWCCA 22

JS v R [2022] NSWCCA 145

W v The Queen [2014] NSWCCA 110

Category:

Principal judgment

Parties:

Rex (The King)
Daniel Ross

Representation:

Counsel:
Mr Whitaker (Crown)
Mr Evers (Accused)

Solicitors:
Ms Creary (solicitor advocate for the Crown)
Mr Daoud (Accused)

File Number(s):

2023/00282466

Publication restriction:

Suppression and non-publication order regarding the name of the complainant or anything that might identify her.

JUDGMENT

Procedural History

1. Indictment (53.2) contains 12 counts (including one alternative – count 10) in respect of domestic violence offending which allegedly took place between 1 January 2013 and 22 February 2014.

2. The allegations were made known to police following a telephone call between the accused and the complainant on 17 April 2023 when the accused was in custody for unrelated matters.

3. This caused the complainant to report the alleged offending to police on 26 April 2023. The proceedings commenced on 5 September 2023. The trial ran over 6 non-consecutive days between 7 and 18 July 2025 at which time I reserved judgment to consider the matter. The delay in judgment was caused due to the fact that I have been sitting in Gosford which is a very busy criminal Court. I have been presiding over other trials and many short matters. I intend to summarise my judgment, identifying key findings and reasons for them. The Court’s listings prevent me from reading the entirety of the judgment in Court. Before adjourning, the parties will be provided a copy of the complete judgment. Both parties have agreed to this approach.

Issues at trial

4. There were many issues at trial. The accused attacked the honesty, credibility and reliability of the complainant in respect of all facts relating to each count.

Legal directions

5. I will give myself all necessary legal directions after I have summarised the evidence, so that the directions can be crafted by reference to the evidence. I direct myself from the outset that the Crown must prove the elements of all offences beyond reasonable doubt, the accused carries no onus and is presumed innocent.

CHARGES AND ELEMENTS OF OFFENCES

Intimidation, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Counts 2, 3, 5, 8 and 12

6. The Crown must prove beyond reasonable doubt two elements:

1. that the accused intimidated the complainant; and

2. that the accused intended to cause the complainant to fear physical or mental harm

7. Intimidation includes conduct which causes a person to fear for his or her safety, or any conduct that would cause a reasonable apprehension of injury or violence to a person (s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). In considering these counts the Court can have regard to any pattern of violence in the accused’s behaviour (especially violence constituting a domestic violence offence).

8. The Crown must also prove that the accused intended to cause the complainant fear of physical or mental harm. The law says that a person intends this if they know that their conduct is likely to cause fear in the other person. The Crown does not have to prove that the person actually did fear physical or mental harm (s 13(3) Crimes (Domestic and Personal Violence) Act 2007 (NSW)).

9. When considering elements that require the Crown to prove what someone knew or foresaw, those are matters that can be inferred from the way a person acted or behaved, or from things that they said.

Use offensive weapon with intent to commit an indictable offence (intimidation), contrary to s 33B Crimes Act 1900 (NSW)

Counts 1, 6, 10 (in the alternative to Count 9) and 11

10. The Crown must prove beyond reasonable doubt two elements:

1. that the accused used an offensive weapon; and

2. that the accused intended to commit an indictable offence, namely, intimidation.

11. An offensive weapon can be anything, however innocent its ordinary use is, when it is used in an offensive manner (s 4 of the Crimes Act 1900 (NSW)). The Crown in this case relies on the use of a flick knife, a meat cleaver, and a firearm in respect of these charges.

12. Intimidation is an indictable offence (ss 3 and 5 and Table 2 of the Criminal Procedure Act 1986 (NSW)).

Threaten to use an offensive weapon with intent to commit and indictable offence (intimidation), contrary to s 33B Crimes Act 1900 (NSW)

Count 7

13. The Crown must prove beyond reasonable doubt two elements:

1. that the accused threatened to use an offensive weapon; and

2. that the accused intended to commit an indictable offence, namely, intimidation.

14. For this charge, the Crown relies on the verbal threat made by the accused to the complainant that he was going to shoot her dog.

Common assault, contrary to s 61 Crimes Act 1900 (NSW)

Count 4

15. The Crown must prove beyond reasonable doubt one element; that the accused assaulted the complainant.

16. An assault is the deliberate and unlawful touching of someone without their consent.

17. The Crown relies on the accused dragging the complainant by the hood of her jumper into the bathroom.

Attempt to discharge loaded arms with intent to murder, contrary to s 29 Crimes Act 1900 (NSW)

Count 9

18. The Crown must prove beyond reasonable doubt two elements:

1. the accused in any manner attempted to discharge loaded arms at a person; and

2. the accused intended to murder the complainant.

19. Loaded arms means any gun, pistol, or other arms, loaded in the barrel or chamber or magazine with gunpowder or other explosive substance, and with ball, shot, slug, or other destructive material, although the attempt to discharge may fail from want of proper priming, or from any other cause; and every gun, pistol, or other arms, unlawfully presented at any person, shall be deemed to be loaded unless the contrary is shown (s 4 Crimes Act 1900 (NSW)). I note that the deeming provision goes to establishing that a firearm is loaded for the purpose of satisfying element 1, but does not go to intent, required under element 2.

20. In this case the Crown relies on the accused holding a firearm to the head of the complainant, and pulling the trigger twice, and in turn the presumption that the firearm is deemed to be loaded while being unlawfully presented at the complainant in that manner, notwithstanding that the discharge failed due to an unknown cause. The Crown also relies upon what the accused said to the complainant during the alleged incident, being that he was going to kill her, and when the firearm failed to discharge, that “Someone’s watching over you.”

21. The Crown must prove that the accused did this act with intent to murder the complainant. This requires proof of an intention to kill. An intent to cause grievous bodily harm is not sufficient (Knight v R (1992) 175 CLR 495).

22. Again, the accused’s intention at the time can be inferred from the nature of his actions and what he said at the time.

CHRONOLOGY

23. The parties agreed to the following chronology (MFI 11):

24 November 2005: Firearm possession in Queensland

1 January 2011: Romantic relationship between accused and complainant commenced.

2013: Living at [Residence A], Wyee

1 January 2013-3 August 2013: Counts 1-6

Around middle of 2013: Moved to [Residence B], Watanobbi

4 August 2013: Count 7

xx August 2013: first child born

Late 2013 or early 2014: Moved to [Residence C], Watanobbi

22 February 2014: Counts 8-12

3 February 2014: Police attend [Residence C] and talk to John Houston and complainant

28 May 2014: Police begin intercepting accused mobile phone

3 June 2014-11 August 2014: Intercepted phone calls (Exhibit K)

13 August 2014: Search warrant executed at [Residence C], Watanobbi, and Airsoft pistol found in bedroom

xx November 2014: second child born

11 May 2018: Search warrant at [Residence D], Watanobbi. Ammunition found in shed

xx October 2018: Lillian McDarra died

13 June 2019: Search warrant at [Residence D], Watanobbi. 2 x baseball bats seized.

xx February 2021: Marlene Ross died

17 April 2023: Jail telephone call (Exhibit C)

26 April 2023: Complainant made an initial report at Wyong Police Station

5 September 2023: Proceedings commenced.

AGREED FACTS

24. The parties provided an Agreed Facts document (Exhibit U). The facts, largely, do not go towards any elements of the alleged offending, but rather contribute to the context and tendency evidence relied upon by the Crown.

25. In November 2005, the accused was located with an air rifle in the boot of a car, which was owned by the accused. He was convicted of possession of a shortened firearm, failure to securely store such a weapon, and unlawful possession of a weapon. In August 2014, police executed a search warrant at the accused’s [Residence C] property and located an airsoft pistol. He pleaded guilty to possession of the pistol and not keeping the firearm safely. The offending was dealt with on a Form 1.

26. In March 2015, the accused pleaded guilty to use carriage service to threaten to kill, with a further offence of use carriage service to threaten to kill and use carriage service to threaten serious harm on a Form 1. The convictions related to telephone calls which form part of the context evidence in this trial.

27. In May 2018, police executed a search warrant at the accused’s [Residence B], Watanobbi property, locating a zip-lock bag containing seven rounds of .22-250 Remington calibre cartridges. He later pleaded guilty to possession of ammunition without holding a licence.

28. In June 2019, police executed a further search warrant at the accused’s [Residence B], Watanobbi property, where they located a number of baseball bats. Both baseball bats were forensically examined and DNA was recovered which was found to be of the same profile as the accused’s.

29. In February 2021, the accused’s mother, Marlene Ross, died.

30. In September 2023, the accused was arrested at Wagga Wagga Police Station and was interviewed by police in relation to these charges. He listened to the allegations and declined to make any comment.

THE CROWN CASE

31. The Crown tendered intercepted telephone calls between the accused and the complainant (Exhibit K). The recordings were relied upon for a number of purposes:

1. to illustrate the nature of the relationship between the accused and the complainant in the period between 3 June 2014 and 11 August 2014 including extremely violent threats by the accused to the complainant, some examples of which are:

1. on 3 June, the accused told the complainant he’s going to “fucking tear your cunt up”;

2. on 4 June, the accused told the complainant, “I’m going to smash you”, “I’m going to snap your fucking jaw off cunt”, “I’m coming there to fuck you up anyway, cunt”, “Fucking bullshit, cunt, is on”, “I’m going to smack you so hard, you turn white, cunt”, “Yeah, you cocksucker, you put fucking shit in your fucking dog breath fucking mega head and you fucking believe this shit, I just want to slit your throat gently because I don’t want to be rough.”;

3. on 10 June, the accused said to the complainant, “I’ll fuck you up, cunt, I’ll smack you in the fucking face with the steak. Cunt, pull up, don’t fucking start me, I’ll kick your fucking head in”;

4. on 12 June, the accused told the complainant, “Well, you keep fucking going, I’ll come down and kick you through to the fucking wall”;

5. on 13 June, the accused said to the complainant, “You’re fucking dead when I get home, do you remember the cleaver, cunt?”;

6. on 14 June, the accused said to the complainant, “What, you’re going to bridge up, are you? I’ll come around and kick your fucking head in”, and “As soon as I get home, I’m going to punch your fucking head in”. Later, on the same day, he said, “You’ve been a fucking gronk motherfucker, cunt, I’m not far from fucking being there, I’m going to kick your fucking head in. I told you I’m not at fucking Glen’s, you fucking mutt”, “Why don’t you ring up the boys and ask what happened again last night, you fucking Gronk motherfucker”, “Why don’t you use your fucking head, you dog”, “You’re just some fucking pussy cunt, you don’t know shit, you don’t give a fuck about nothing except yourself, I’ll fucking smash your head in, cunt.”, and “You dead dog”;

7. on 20 June, “Fuck you, dog, don’t call me, I’ll fucking hurt you”;

8. on 28 June, “I’m going to beat you so fucking bad, cunt”;

9. on 30 June, the accused said, “I’ll fucking snap your jaw, cunt” and went on to say, “I’ll come back and kick your cunt in”;

10. on 11 July, he said to the complainant, “If you try and backchat me, I warn you, I’ll come out and I’ll kick the fuck out of you” and referred to the complainant as “whinging cunt”, “dog”, “maggot”. In another call on the same day, “I’m going to kick the fuck out of you, you bitch, you’re dead”. And in a further call on the same day, “I’m going to give you the fucking best hiding when I get home”;

11. on 31 July, the accused said, “Well, just watch your mouth before I kick it in”. In another call later that day, the complainant called the accused a “cunt”, “fuckwit”, “slut” and throughout the call, and said, “I’m going to clip ya.”;

12. on 11 August, the accused said to the complainant, “Yeah, I’ll knock you the fuck out, you lying scumbag dog”. The complainant said, “What?” and the accused said, “You fucking heard me, slut”. Later in the call, the accused said, “Keep going, cunt, I’ll fucking come down and skull drag cunt you out”;

13. in the final intercepted call, dated 17 April 2023, the complainant was telling the accused their relationship was over and said to him, “What do you fucking want from me?”. The accused said, “You’ll see”. The complainant said, “I’m not with you, Dan, and I don’t want to be”. The accused said, “Yeah, I don’t want to be with you”. The complainant said, “Good”. Then the accused said, “You’re not going to be fucking no one else either”. The complainant said, “I want to be left alone”. The accused said, “Pardon”. The complainant repeated, “I want to be left alone” and the accused said, “Oh, you will be, six foot, mate, that alone by yourself.”

2. as admissions as to the following:

1. the threat of using a meat cleaver in a phone call dated 13 June 2014: “do you remember the cleaver, cunt?”. The Crown relies upon that to support Count 6;

2. that firearms had been discharged at or around the premises, in a phone call dated 3 July 2014; “the other ones are complaining about the guns going off and shit”. This is relied upon by the Crown to support what is said by the complainant to have occurred on 22 February 2014, that is, that a firearm was discharged.

32. The Crown called ten witnesses in the trial, whose evidence is summarised below:

1. the complainant;

2. John Houston, neighbour;

3. Moreen Houston, neighbour;

4. Aaron Jackson, friend of the complainant’s brother;

5. the complainant’s brother;

6. Sean Ellard, ex-NSW Police Force officer;

7. Kevin Ross, the accused’s father;

8. Kelly Townsend, the complainant witness

9. Inspector Paul Roper, expert ballistics investigator;

10. Senior Constable Mitchell Way, officer in charge.

33. The Crown, without objection, tendered 20 documents, namely:

1. map of Watanobbi with 6 locations marked (Exhibit A);

2. 5 photographs of baseball bat (Exhibit B);

3. recording of phone call from gaol dated 17/04/2023 (Exhibit C);

4. photograph of replica firearm (Exhibit D);

5. photograph of purple Ford Falcon NSW BH43MR (Exhibit E);

6. 8 photographs of property at [Residence C] (Exhibit F);

7. 2 photographs of pool table (Exhibit G);

8. map of Watanobbi marked with route taken by accused and complainant (Exhibit H);

9. photograph of bullets, licence and diary (Exhibit J);

10. recordings of 18 phone calls (USB) (Exhibit K);

11. 4 photographs of property at [Residence C] including from witness’ balcony (Exhibit L);

12. photograph 2 from Exhibit L, as marked by witness John Houston (Exhibit M);

13. drawing of properties at [Residence C] Rd (Exhibit N);

14. map from Exhibit A as marked by the complainant’s brother (Exhibit O);

15. police notebook entry of Sean Ellard dated 23/02/2014 (Exhibit P);

16. report of Inspector Paul Roper dated 15/09/2014 (Exhibit Q);

17. statement of SC Mitchell Way setting out sunset information (Exhibit R);

18. inmate trust account statement of Daniel Ross (Exhibit S);

19. statement of Lillian McDarra, limited to paras 2-4 and 7-9 (Exhibit T);

20. agreed facts (Exhibit U).

34. The accused, without objection, tendered 11 documents, namely:

1. 3 photographs of a dog (Exhibit 1);

2. 3 photographs of property at [Residence C] (Exhibit 2);

3. single page transaction history document (formerly MFI 7) (Exhibit 3);

4. 7 page transaction history document commencing 18 October 2021 (Exhibit 4);

5. 2 page transaction history document commencing 18 October 2021 (Exhibit 5);

6. photograph of the front of [Residence E] Watanobbi, from Google Maps (Exhibit 6);

7. photograph of the front of [Residence E] Watanobbi showing the boundary fence, from Google Maps (Exhibit 7);

8. photograph of the front of [Residence E] Watanobbi showing a roundabout, from Google Maps (Exhibit 8);

9. 2 photographs of accused and the complainant’s brother (Exhibit 9);

10. photograph of purple Ford Falcon displaying red P1 plates (Exhibit 10);

11. 2 photographs from pages 2 and 3 of Exhibit 2, enlarged (Exhibit 11).

THE EVIDENCE

The evidence of the complainant

35. The complainant gave extensive evidence of a number of alleged assaults and offences committed against her, by the accused. She recounted that she first met the accused when she was 16 years old, in 2005. Their relationship commenced in 2011 and continued happily for a number of years, before the accused became aggressive and “toxic” around the time she fell pregnant with their first child at the start of 2013. The accused would often spend nights away from home, drinking, and out with his friends. He became both verbally and physically aggressive towards the complainant, initially grabbing her and slapping her on her face. This violence then escalated to include the use of weapons including a meat cleaver, knives and a baseball bat. The complainant indicated that her relationship with the accused ultimately came to an end when he threatened to put her “six feet under” during a recorded telephone conversation from prison in 2023 just prior to his expected release date.

Counts 1-6

36. The first set of incidents took place in early 2013. Following a night out with his friends, the accused returned home to [Residence A], Wyee, where the complainant was in bed. The accused was accompanied by a friend and the friend’s partner. They were banging on the front of the house. The complainant remained in bed as she didn’t want to get up. The accused found his way inside. The complainant gave evidence that the accused scraped a knife along her pregnant belly, straddled her, and told her he would cut out the baby, kill her, and keep the baby. This caused the complainant to become upset and to cry (count 1 – use offensive weapon with intent to intimidate and count 2 – intimidation). Later, when the complainant was crying in the lounge room, the accused kept coming out of the bedroom and threw a pillow at her, telling her to cry into it. She could tell from his body language and his tone of voice that he was angry (count 3 – intimidation). He then dragged her into the bathroom by her hoodie and made her get on all fours (count 4 – common assault). Once the complainant was in the bathroom, the accused made her sit on all fours, instead of on her backside. She continued crying. The accused threw a snake on her back and shoulder and told her not to move. The complainant was fearful of snakes, and the accused was aware of this. The complainant was scared. She flicked the snake off, and the accused put it back on her again (count 5 – intimidation). The accused threatened her with a meat cleaver and made the complainant crawl on all fours and apologise to the accused’s friends. The complainant gave evidence that the accused referred to her as “scrappy” during this incident, whistled at her like a dog, and said that if she didn’t comply with his commands, he would cut off her fingers with the meat cleaver. He hit the ground with the meat cleaver, near the complainant’s hand (count 6 – use offensive weapon with intent to intimidate).

Count 7

37. The second incident took place when the complainant and the accused were living at [Residence B], and involved the accused abusing and assaulting the complainant. The complainant was waiting to go to hospital to be induced for the birth of their first child. The complainant gave evidence that the accused threatened to shoot their dog with a rifle and pointed the rifle at the dog. He then threw a washing basket at the dog (count 7 – threaten to use offensive weapon with intent to intimidate).

Counts 8-12

38. The next set of incidents took place on 22 February 2014 at [Residence C], and around Watanobbi. The accused called the complainant and asked her to put together a bag of drugs for him. She said she couldn’t, as she had just gotten out of the shower. The accused got angry at her. Shortly afterwards, he arrived at the home. The accused grabbed the complainant by the hair and held her head against the pool table, whilst abusing her. He told her she shouldn’t say no to him and that he wished she was dead. The complainant was scared and upset (count 8 – intimidation). The accused held what the complainant described as a sawn-off rifle to the complainant’s head, telling her he was going to kill her. The accused pulled the trigger of the rifle twice, but it did not discharge. The accused told the complainant that someone was looking over her (count 9 – attempt to discharge loaded arms with intent to murder and alternative count 10 – use offensive weapon with intent to intimidate). The complainant then fled through the front door. The accused went into the bedroom as the complainant ran out of the house. The accused was next seen by the complainant standing at the front door with a firearm in his right hand. He discharged it at her several times. He went back inside the house, before again, discharging a firearm at her a few more times (count 11 – use offensive weapon with intent to intimidate). The complainant fled up the driveway and hid behind a car. The accused placed ammunition on the seat of the complainant’s car, telling her there was something in the car with her name on it (count 12 – intimidation).

39. The complainant drove from the scene and was followed by the accused, where she said that he shot towards her vehicle a number of times as he pursued her. She drove to the accused’s parents’ house where she locked herself in a room with the accused’s mother. The accused attended the property but eventually left. The incidents described were not reported to police at the time.

40. In the course of her evidence, the complainant described a number of exhibits, depicting photographs of the property involved (Exhibits F and G), photographs of a number of weapons (Exhibits B and D), and maps of the areas where the offending is alleged to have taken place (Exhibits A and H).

41. During cross-examination, counsel for the accused challenged the complainant on a number of elements of her evidence. It was put to her that the incidents, as described by her in evidence in-chief, never took place. Namely, the incidents pertaining to scraping the knife against her stomach, threatening her with the meat cleaver, and the threatening to shoot the dog. It was asserted that the dog in question belonged to the accused, not the complainant. The complainant rejected these assertions. The complainant was reminded that she had organised a reptile show for her child’s first birthday party, and that she had been pictured posing for a photograph with a python. It was put to her that she was never afraid of snakes. She agreed that this event took place but maintained that she has a fear of snakes. It was clarified during re-examination that she was scared at the time, but was taking part in the photo shoot for her son.

42. The complainant was questioned in relation to the incidents alleged to take place at [Residence C]. She was cross-examined about what she heard when the accused allegedly shot towards her and described the sound to be like a firecracker. The complainant was questioned as to why, upon leaving the property, she didn’t call police for assistance or travel to the local police station. It was put to her that there were a number of opportunities to attract police attention, including when driving from the property (at which time she was initially travelling near the speed limit as to not draw the attention of police), and upon arriving at the accused’s parents’ house. The complainant was questioned as to why, when taking refuge in the accused’s parents’ house, she delayed telling the accused’s parents that the accused was in possession of a firearm. She did not provide a reason. It was ultimately put to the complainant that her evidence of the incidents that took place on 22 February 2014 was fabricated. She denied this.

43. The complainant was questioned further as to her lies to police when they attended the property investigating reports of shots fired, the day after the 22 February 2014 incidents. She had told them that her brother must have been watching a movie with surround sound to explain the sound of shots being fired. She was questioned regarding inconsistences in her various recounts to police, both around the time of the alleged incidents, and in April 2023 when she provided a DVEC.

44. The complainant was also questioned in cross-examination about an instance where she provided evidence of an alibi, as a defence witness for the accused, in 2018. It was put to the complainant that she knew the evidence was false, when she gave it. She rejected this. Nothing more was made of it.

45. It was put to the complainant that at some stage in her relationship with the accused, during a physical confrontation between the complainant and another woman, part of the accused’s arm came into contact with the face of the complainant. It was suggested to the complainant that that was the only instance that the accused ever physically struck the complainant. The complainant rejected this assertion and again, this topic was not further advanced.

46. The complainant was also questioned about her dealing with funds between accounts belonging to the accused, whilst he was in custody, particularly those funds left to the accused by his mother when she passed away. The complainant agreed that she had transferred amounts of money from the accused’s account into her own. It was put to her that this was done without the consent of the accused. The complainant rejected this. No evidence was called to contradict the complainant on this.

47. It was also put to her that in 2023, the complainant had decided she no longer wanted to be in a relationship with the accused, as she no longer derived any benefit from him, monetary or otherwise. It was for this reason, it was put to the complainant, that she had made the complaint to police which constitute the basis for the charges in this trial. She denied this. It was also put to the complainant that she was concerned that given the accused’s imminent release from custody, he would take custody of her children. She freely accepted that she had concerns regarding the accused taking custody of their children but rejected the assertion that the complaints to police were made for the purpose of avoiding a custody dispute with the accused.

48. Further, in relation to the movement of funds, the complainant accepted that money was transferred from the accused’s account to an account in her name. She said that this was done with the knowledge and consent of the accused to meet day to day living expenses, and also to facilitate the payment of money into the accused’s prison account for “buy-ups”. The inmate trust account statement was produced (exhibit S) which showed regular payments into the accused’s account usually in the amount of $100, during the period between 1 January 2021 and 20 December 2023. This captures the period in question (exhibits 3, 4 and 5).

49. In re-examination, the accused clarified various parts of her evidence. This included that she could clearly identify that the accused was holding a firearm against her head in the incident that took place at [Residence C] on 22 February 2014. She also said that when the accused was pushing the firearm into her head, she felt pressure from the firearm being pushed against her head, but didn’t feel air coming from the barrel of the firearm.

50. The complainant said that she didn’t contact the police initially because the accused had threatened to kill her brother and father on numerous occasions, and she was scared of the repercussions of making a complaint. She also said that she was scared that the accused would get into trouble if police came to their house, due to the presence of weapons and drugs. She didn’t want to get him in trouble.

51. The complainant also gave evidence of an arrangement with the accused to allow for transfers of money between the accused’s account and the complainant’s account, to finance expenses relating to their children, and other matters.

52. The complainant was very emotional during her evidence and asked for breaks when she was upset. I will make a finding about her demeanour, honesty and reliability later in this judgment.

John Houston, a neighbour at [RC] Road

53. The next witness called by the Crown was John Houston, the neighbour of the accused and the complainant at the time of the [Residence C] incident. He lived at 61 [RC] Rd, a property that he built. He gave evidence of living next to the accused and the complainant but never spending time with them socially. The witness was shown photographs of the view of the complainant’s and accused’s residence, as seen from his balcony (Exhibit L) and gave evidence that at the time of the incident, the view was clearer due to trees having grown since the time in question. He said that the distance between the balcony at 61 [RC] Rd, and the front door of [Residence C] was approximately 15 metres.

54. The witness gave evidence that on 22 February 2014 around 5:30pm-6:00pm, he heard a female running up the driveway of the property of at [Residence C], towards the road, screaming. He could not see the female but believed it to be the complainant. He then said that he saw a hand come out of the front door of the property holding a firearm, which he described as black and a gun. It was being held in one hand and was fired once. The witness saw a flame come out of the end of the firearm and heard a gunshot. The witness went inside his home and told his wife about what he had seen. He called another neighbour, Lilian McDarra, and asked if she also heard the gunshot. She responded that she had, stating that it was definitely a gunshot, and qualifying her answer with the fact that she had grown up on a farm and knew what a gunshot sounded like. He later spoke with his daughter and her husband to obtain advice as to what to do next. He decided not to take any further action that evening and expressed a hesitancy to get involved in the incidents.

55. The next day, Sunday 23 February 2014, the witness heard arguing coming from [Residence C] again, around lunchtime. This prompted him and his wife to decide to ring the police. Police attended his property to speak with him, before attending [Residence C]. He did not hear anything more from the police until detectives attended his property several months later to request a statement.

56. In cross-examination, the witness was questioned about the incidents described. He was challenged on inconsistencies between his evidence in-chief, and the information he provided to police in his statement. It was put to him that he told police he had never seen a handgun discharged and would not know what one would look like or sound like, if it was to be fired. The witness wasn’t sure if he had said that to police. It was also put to the witness that he had told police that the firearm was discharged at 8:30pm, and that it was dark. He said he didn’t think it was that late, and that it definitely wasn’t dark when he saw the firearm discharged. There was no re-examination of the witness.

57. Mr Houston was a very impressive witness whose evidence I accept because he was consistent and credible.

Moreen Houston, a neighbour at [RC] Road

58. The next witness called by the Crown was Moreen Houston who is married to John Houston and was also living at their [RC] Road property in 2014. The witness gave evidence that she often heard arguments coming from [Residence C]. She had never spoken to the complainant or the accused.

59. The witness was questioned about the incidents alleged on 22 February 2014. She described hearing a loud bang and said that she had never heard a noise like that before. She said it was not a familiar noise. When she heard the bang, it made her jump, and it was very loud. She spoke to Mr Houston and asked if he had heard the noise. He told her that it was a gunshot. Her evidence was consistent with that of Mr Houston that he had seen a firearm fired, and that he had called Lilian to confirm that it was a gunshot they had heard. The witness could hear Mr Houston speaking to Lilian on the phone shortly afterwards, asking if she had heard a gunshot.

60. The witness said that she had called the police at some later time and remembers speaking to them on the phone. She recalled uniformed police officers attending her property in relation to the incident.

61. In cross-examination, the witness conceded that she had some difficulty remembering the events that took place in February 2014. She confirmed she had not made a statement regarding the incident until December 2024. She was questioned as to the time of day that the incident took place and said that she had no recollection other than the fact that there was daylight outside.

62. There was no re-examination of the witness.

63. Mrs Houston was also an impressive witness whose evidence I accept, because she was consistent and credible.

Aaron Jackson, a friend of the complainant’s brother

64. The next Crown witness was Mr Jackson who gave evidence via AVL. He was friends with the brother of the complainant in 2014, and knew of both the complainant and the accused, but didn’t know them personally. In 2014, he was living at [Residence E], Watanobbi.

65. Mr Jackson gave evidence that on 22 February 2014, he was at his property with the brother of the complainant, working on a car. It was daylight, at the time. While on the driveway at the front of his property, he saw a car driving down Casey Drive. He couldn’t remember the make and model of the car but remembers that it was dark blue or purple in colour and remembers the complainant’s brother telling him that it was his sister’s car. The witness said that he saw another car close behind the first car but couldn’t remember what it looked like. He heard someone shout, from the first car, words to the effect of he’s got a gun or he’s trying to shoot me.

66. The witness said that after the incident, he went about his evening as if it was a usual evening. He didn’t make a police report as this sort of thing was fairly common in the area, and he didn’t want to get involved.

67. In cross-examination, the witness was asked about the statement he provided to police. He was asked if he had ever spoken to the complainant’s brother about giving a statement to police, to which he responded that he had not. He was surprised that police had asked him for a statement about the incident, ten years after the incident.

68. It was put to the witness hat it would have been difficult to hear anything being said by an occupant of the vehicle, due to the engine and tyre noises. He agreed that it might be difficult but said that he was close to the vehicle, which assisted his hearing. The witness reiterated that he didn’t pay much attention to the events. There was no re-examination of the witness.

69. I consider Mr Jackson to be an honest and credible witness who did his best to recall events of more than a decade ago. In my opinion, the fact that there are differences in his evidence when compared with some other witnesses only adds to the believability of his account.

The complainant’s brother

70. The next witness called by the Crown was the complainant’s brother. He gave evidence that the relationship between the complainant and the accused was generally good but noted that the accused would at times have outbursts towards the complainant. The complainant and the accused allowed the witness to live with them for a period of time. The witness recounted seeing the accused grab the arm of the complainant and be physical towards her over 10-20 times during the course of their relationship. The witness recounted the accused calling the complainant a slut and a dog, and threatening to kill her. The witness gave evidence that he didn’t do anything about the violence at the time, due to his precarious living circumstances and young age (he was 19 years old at this time). The witness gave evidence that while living at [Residence B] with the complainant and accused, he remembered possibly seeing a black, replica firearm at their property.

71. The witness was asked about the time he was at the property of Mr Jackson on 22 February 2014. While in the front of the property, the witness said he heard cars revving and speeding down the street, towards the roundabout. He saw a white Ford Mondeo and a purple Ford FG Falcon, which appeared to be chasing each other, coming from De L’isle Drive. The vehicles turned left at the roundabout and travelled up Casey Drive until they were out of view. The witness said that the windows were down on both vehicles, and he could see his sister, the complainant, was driving the white Ford Mondeo. A few minutes later, both vehicles again appeared coming down De L’isle Drive, before again, travelling up Casey Drive. The witness, this time, observed the accused to be driving the purple Ford. The witness said that he then saw a hand emerge from the driver’s window of the purple Ford, before hearing a sound that he described as a crack, or a firecracker going off. He said the crack sounded like a .22 calibre pistol being fired, but was unable to see any object being held by the driver, due to the distance from the vehicle. At the time, the vehicles were 100-200 metres from the roundabout at the corner of De L’isle Drive and Casey Drive, and had travelled up Casey Drive. Both vehicles turned around in Casey Drive before driving back past the witness, at which stage the complainant called something out which the witness did not hear. When they drove past again, both vehicles travelled on the wrong side of the road around the roundabout. The witness said that once the vehicles were out of sight, he did not see them again that afternoon. He spoke to Mr Jackson briefly about the incident. The witness remembered being a bit worried about what he had seen, and didn’t know what to do. He didn’t end up doing anything. He travelled to his home, the property at 49B [RC] Road, and didn’t speak to the complainant or the accused about what had happened.

72. When questioned about why he didn’t go to the police about the incident, the witness said he was scared. He said that, until recently, he had not spoken to police about the incident.

73. In cross-examination, the witness was shown Exhibit 1, depicting a dog, and asked if it looked like the complainant’s dog, Ozzy. He said he thought that it did, but that it had been a while since he knew the dog, so was not sure.

74. The witness was asked about the parking space at the front of [Residence C]. He was asked if it’s possible to move a vehicle out of the driveway, when a second vehicle is parked at the bottom of it. He said it was possible, but that it would be a tight squeeze.

75. It was put to the witness that around 2019, police attended his property as a result of a report made by the accused. He rejected this proposition, but confirmed he was arrested at the time. It was put to him that because of the events that unfolded, the witness held a grudge against the accused. He rejected this proposition.

70. The witness confirmed that he did not make a statement in relation to the 22 February 2014 incident until some point in 2024. Counsel for the accused questioned the witness about why he volunteered to provide a statement in this matter. The witness said that he was aware that the complainant had been abused in her relationship with the accused and that he wanted to support her. When asked if the complainant had shared her full version of events to him, the witness said that she had not.

71. The witness was then cross-examined in relation to his evidence about the incident on 22 February 2014, while he was at Mr Jackson’s house. He was questioned in relation to various elements of his evidence in-chief pertaining to the pursuit between the vehicles. He was asked about why, when under the impression that the complainant’s life was in danger, he didn’t take any action. He reiterated that he did not know what to do. He conceded he should have called the police but did not. It was ultimately put to the witness that the incident described never happened, and that his evidence was constructed to assist the complainant’s case. He rejected this assertion.

72. The witness was asked about his movements following the incident, and confirmed he went back to [Residence C] later that night and went to sleep. He did not see the complainant until the next day. He was questioned about whether he ever discussed the incident with the complainant. The witness said that the complainant and accused would never speak about incidents that occurred between them, so he didn’t attempt to ask her.

73. On re-examination, the witness was asked about whether it was dark when he returned home on 22 February 2014. He said that it was, and that upon returning home, he went directly to his bedroom to go to sleep.

74. I consider the complainant’s brother to be an honest and credible witness whose account was reliable and consistent with that of other witnesses.

Sean Ellard, ex-NSW Police Force officer

81. The next Crown witness was Sean Ellard, who was an ex-NSW Police Force officer. He responded to [Residence C] to check bona fides on 23 February 2014 and was a Probationary Constable at the time. He agreed he would have been classified as an inexperienced officer at the time. The witness had no independent recollection of attending the property but used a police notebook (Exhibit P) and COPS entry (MFI 10) to aid his memory in giving evidence. He described his attendance at that address by reference to these documents. He arrived at 3.17pm and left at 3.42pm. He spoke to Mrs Houston before attending the complainant’s house where they had a conversation. He could not recall what was said. He marked the matter “no further action”.

82. In cross-examination, the witness confirmed that he was in the company of a more senior police officer, when attending the properties at [RC] Road. He was taken to various parts of the COPS entry, including where it was recorded that police had been told that a firearm may have been fired. It was recorded at the time that Mr and Mrs Houston told police they were unsure if a firearm had been fired, and that Mr Houston had told police he had never seen a firearm being fired before and would have been guessing if he said that is what he saw. The witness confirmed that police would have taken reports of a firearm being fired seriously.

83. The witness was also asked about whether there were any other calls from around the same time as the reported incidents, indicating that shots had been fired in the area. He confirmed that there were no other calls or complaints recorded at the time. He was also taken to an area of the COPS report where the reported incident of shots being heard was recorded to have taken place at 8:30pm. This is contrary to the preponderance of all other evidence.

84. He said it was possible that the COPS report may have been shown to his senior officer to be checked, but he couldn’t recall if that was done on this occasion.

85. In re-examination, it was put to the witness that the police did not take the reports of the firearm being fired seriously. The witness disagreed, but conceded that detectives were not called, a firearm was not searched for, statements were not taken from witnesses, informants were not separated, and firearm cartridges were not searched for.

86. Whilst I do regard the initial police investigation relating to these reports as limited, I have no reason to doubt the credibility and reliability of Mr Ellard’s evidence, particularly as it was based on contemporaneous records created in the course of his duties as a police officer.

Kevin Ross, the accused’s father

87. The next Crown witness was Kevin Ross, the accused’s father. He gave evidence via AVL from Wagga Wagga Police Station. The witness said that shortly after the death of his wife, the accused’s mother (which it was agreed was in February 2021), he no longer had contact with the complainant or her children.

88. In speaking of the relationship between the complainant and the accused, the witness said that it was a good relationship, but they also had some downs and would argue at times. He said that he never saw any physical violence between them.

89. The witness was asked if he has any recollection of an incident in February 2014 where the complainant arrived at his home. He could not remember the events of 22 February 2014, but did recall a police raid at his property around the same time. He could also recall that the accused drove a purple Ford at the time, and that he had lent a white Ford Mondeo to the complainant.

90. Mr Ross (senior) was asked about an encephalitis diagnosis which he explained impacts his memory and inhibits his ability to answer questions. He did appear quite vague in giving his evidence; although I have no reason to doubt that he was doing his best to give evidence honestly.

91. In cross-examination, the witness was asked about the money that was left for the accused when the witness’ wife passed away. He confirmed that approximately $30,000 was left for the accused.

92. The witness was questioned about whether he remembered any incident where the complainant and the accused arrived at his house on 22 February 2014. He could not. He was also asked if he ever received any complaints from the complainant about the incidents and said he did not.

93. In re-examination, the witness was asked to clarify his answers in relation to his lack of memory of the incidents in question. He said he would remember if someone came to his house with a gun. He said that, if there was no gun involved, he would not have remembered the incident. The evidence is silent as to whether the accused took a gun into his parent’s house. Common sense might suggest it unlikely.

Kelly Townsend, the complaint witness

94. Kelly Townsend knew the complainant when she was in school. She had met the accused in social settings. She was aware that the accused went into custody shortly after she met him.

95. The witness’s interpretation of the relationship between the complainant and the accused was that it was that of a normal couple. She had never witnessed any violence between them, however had heard the accused yelling and swearing at the complainant over the phone a number of times and received reports from the complainant about an instance of violence carried out by the accused. She recalled that the complainant was always straight-faced and wouldn’t show emotion when receiving abusive phone calls from the accused, in her presence.

96. The witness gave evidence of a time when she saw the complainant with a bruise to her face, under her eye, after an incident of reported violence by the accused. The witness also remembered seeing marks on the complainant’s arms at various times. The witness advised the complainant to leave her relationship with the accused a number of times, but the complainant would refuse.

97. In 2014, the complainant told the witness about an argument that took place between the complainant and the accused. The complainant told her that the accused had pushed the complainant’s head against a pool table and hit her with the butt of a gun. He had tried to pull the trigger, but the gun didn’t fire. The complainant then ran up the driveway and the accused fired a shot towards her. A pursuit around Watanobbi ensued. A shot was fired towards the complainant’s vehicle during the pursuit. The witness said that while the complainant was recounting these events, she seemed upset and traumatised. Learning of the story from the complainant caused the witness shock. The witness could recall that this conversation took place before the complainant’s son’s first birthday (which it was agreed was in August 2014).

98. In cross-examination, the witness was asked about her friendship with the complainant. She was asked about her knowledge of the accused’s time in custody and confirmed that she was aware he went into custody around 2019. Around 2023, the witness was informed by the complainant that the complainant had provided a statement to police and was seeking an AVO against the accused. The witness denied having seen the statement.

99. The witness was asked if her evidence was fabricated for the purpose of showing loyalty to her friend. She rejected this assertion.

100. The witness was also asked about her statement to police made in January of 2025. She said that police had contacted her, requesting a statement, and that she was aware it was regarding an incident between the complainant and the accused. There was no re-examination of this witness.

101. Ms Townsend was an impressive witness who gave her evidence in a straightforward, matter-of-fact way. She provides support for the 2014 offending and also of violence by the accused to the complainant within the context of their relationship. I found Ms Townsend to be honest, reliable and accurate, in providing her evidence.

Inspector Paul Roper, ballistics investigator

102. The next witness called by the Crown was Inspector Paul Roper, a ballistics investigator with the NSW Police Force Forensic Ballistics Investigation Service. A report was tendered, relating to an investigation of a 6mm Airsoft calibre GALAXY model G6 repeating airsoft pistol (Exhibit Q).

103. The officer confirmed that the firearm in question fires small pellets. The firearm does not discharge cartridges upon being fired. The firearm is spring-powered and must be cocked each time it is fired. There are a number of differences between this firearm, and a pistol which used a standard cartridge, including that there is no flame or discharge from this firearm. He described the sound that the firearm makes as a loud crack, but not a bang. The witness said that the sound is audible, but not as loud as a standard, explosives-powered firearm.

104. In cross-examination, the witness was asked about the velocity at which pellets travel after being fired from the firearm in question. He confirmed that they travel at a slower speed than a typical bullet, fired from an explosives-powered firearm. He was asked whether pellets fired from the firearm in question could pierce human skin but was unsure.

105. He was asked whether, if an airsoft gun was dry fired against the skin, some air would be felt. He said he believed it would. Conversely, he was asked whether, if a rifle was dry fired against the skin, there would be some discharge felt. The witness said that he believed there would not be any discharge from the end of the firearm, in such a case.

106. I have no reason not to fully accept the expert’s evidence, as he seemed competent, knowledgeable and accurate.

107. In re-examination, the witness was asked about whether air rifles function using a spring. He said that generally, air rifles are air-powered, and this is contrasted to air pistols which are often spring operated as the slides can be racked.

108. The witness was also asked about whether there are reasons that a firearm might not discharge a projectile, despite the trigger being pulled. He said that there were several reasons possible, including faulty ammunition, misfeeds, or the chamber being empty.

Senior Constable Mitchell Way, officer in charge

109. The final Crown witness was Senior Constable Mitchell Way, the officer in charge of the investigation. He gave evidence regarding Mr Cheyne Morley and efforts which were made by police to have Mr Morley give evidence in this trial. The result of police inquiries was that Mr Morley refused to provide a statement in relation to the matter.

110. The witness also gave evidence regarding police efforts to have Ms Rachel Groben give evidence in relation to this trial. He referred to a phone call with Ms Groben in February 2025, when she said that she had stayed at the complainant and accused’s house in 2014. On the phone, Ms Groben told Senior Constable Way that the complainant was crying hysterically at the property during their visit. The witness gave evidence which I understood to convey that he was told by Ms Groben that the accused made the complainant crawl in and apologise to her. Ms Groben agreed, on the phone, to provide a signed statement to police, however, was not able to be reached by the witness again after this call, despite numerous attempts to contact her.

111. The police witness, Senior Constable Way, was shown a statement he had made in relation to research carried out to demonstrate that on 22 February 2014, the time of sunset was 7:39pm (Exhibit R).

112. The witness was shown the document from Corrective Services NSW showing a number of BPAY transactions into a buy-up account belonging to the accused (Exhibit S), the majority of which were in the amount of $100.

113. In cross-examination, the witness was asked about a Commonwealth Bank account belonging to the complainant. The account did not include various transfers into another account in the complainant’s name. He could not recall seeing any transfers into the buy-up account but agreed that sounded correct.

114. The witness was questioned about a search carried out at the accused’s house in 2014. He confirmed that the only item of interest to this matter, which was recovered, was a black air pistol. He confirmed that in 2018, further searches were carried out at the accused’s property, resulting in some rounds of ammunition being recovered. Nothing else of interest was recovered. This witness was not re-examined.

115. I accept the evidence of Senior Constable Way who appeared to be an honest and accurate witness.

Rachel Groben and Cheyne Morley, friends of the accused (initially on a Basha inquiry but later admitted as evidence in the trial)

116. Both witnesses Rachel Groben and Cheyne Morley were uncooperative, evasive and unimpressive witnesses. They failed to comply with subpoenas to attend Court, leading to their arrests on the execution of a Bench Warrant. Then, both gave evidence on a Basha which became evidence in the trial.

117. Ms Groben was evasive and claimed to have poor memory due to drug use and the passage of time. She recalled staying at the accused’s house with her partner, Mr Morley, and newborn son, and vaguely remembered an argument between the accused and the complainant. She denied witnessing any violence and did not provide any specific details. She also denied the statements attributed to her in the telephone call with Senior Constable Way, including claims that the complainant was made to crawl on the floor and apologise.

118. Mr Morley also claimed poor memory and was vague about dates and events. He confirmed visiting the accused’s house with his partner, Ms Groben, and their newborn son. He recalled social events but denied any memory of a 3.00am return from the pub, or any argument. He also denied seeing the complainant upset, crying, or being mistreated by the accused. He rejected the suggestion that he was withholding information due to loyalty to the accused.

119. Both Ms Groben and Mr Morley were extremely unimpressive witnesses. The evidence of Ms Groben denying the representations she made to Senior Constable Way over the telephone in 2025 was blatantly untruthful. I accept that when she spoke with Senior Constable Way, she told him what he recorded contemporaneously. This out of court statement provides some broad support for the 2013 Wyee offending.

DIRECTIONS WITH REFERENCE TO THE EVIDENCE

General Directions

120. In accordance with s 133 of the Criminal Procedure Act 1986 (NSW), and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law:

1. a Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury;

2. a judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relies;

3. if any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

121. I remind myself of the requirement to state findings on the main grounds critical to the contest between the parties and on which the verdict rests. In this trial, the critical issue is whether the complainant was an accurate, reliable and truthful witness and whether the events alleged took place.

Inferences

122. In my role as the judge of facts, I can draw inferences from the direct evidence from experiences had in my own life. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. Noting the requirement to be satisfied beyond reasonable doubt of the guilt of the accused, there is an additional requirement, among other things, to be extremely careful about drawing any inference. Any possible inference will be examined to ensure that it is a justifiable and rational inference in the circumstances.

Burden of proof

123. I direct myself to the burden of proof of the guilt of the accused. To prove the accused guilty of each count, the Crown must prove beyond reasonable doubt each element of the offence in each count. That burden is placed squarely on the Crown and is in respect of every element that makes up the offence charged. There is no stage where that burden is shifted to the accused to prove any fact or issue that is in dispute. The Crown does not have to prove all of the facts beyond reasonable doubt.

The standard and onus of proof

124. Beyond reasonable doubt are ordinary words that carry their everyday meaning, and that is how I understand them. If, at the end of my deliberations, after considering the evidence and submissions made by the parties, I am not satisfied beyond reasonable doubt as to any one or more of the elements for a particular count, a verdict of not guilty must be returned.

125. I direct myself as to the presumption of innocence. The accused is presumed innocent unless and until the Crown satisfies me that the accused is guilty beyond reasonable doubt.

126. The prosecution must prove each element of each offence beyond reasonable doubt. The accused has no onus to prove anything. I must not act on suspicion. I must not act on what I believe might probably be the case. I can only return a guilty verdict if I am satisfied the Crown has proved each critical element of the offence charged beyond reasonable doubt. If the Crown fails to meet that high onus, if I have doubts about their case on a count, the accused must have the benefit of any reasonable doubt, and I must return a verdict of not guilty on that count.

127. The accused did not give evidence in the Trial. I direct myself that he bears no onus to do so, and I must not draw any adverse inference from the fact that he did not give evidence. He has an absolute right to silence. The Crown must prove the necessary elements of each offence and prove them beyond reasonable doubt.

The accused is charged with multiple counts (direction in accordance with R v Markuleski (2001) 52 NSWLR 82)

128. The accused is charged with 12 counts, relating to a number of incidents and one complainant. I must give separate consideration to each count. I must consider the evidence in respect of each count separately. I am entitled to return different verdicts on different counts if there is a logical reason doing so.

129. However, I note that if I am to find the accused not guilty on any count, particularly if that is because I have doubts about the reliability of the complainant’s evidence, I must consider how that conclusion affects my consideration of the remaining counts.

130. The availability of an alternative count is not an invitation to compromise any verdict.

People lie for all sorts of reasons (direction in accordance with Jovanovic v R (1997) 42 NSWLR 520)

131. It would be wrong of me to conclude that the complainant is telling the truth merely because there is no apparent reason for her to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. I cannot be satisfied that the complainant is telling the truth merely because there is no reason for her to have made up these allegations.

132. During the Trial, motives for the complainant to lie were put forward by the accused, including that the complainant no longer derived any financial benefit from the accused, and that the complaint was made to avoid a custody conflict in respect of their two children. Whilst the complainant did have concerns for her children, she denied that this was the sole reason for reporting the matters [T274.19]. She was also fearful that the accused would hurt her. She denied the lack of ongoing financial support was a motive to lie [T273.22].

How I am to assess evidence given by alternative means, including that given via CCTV and AVL

133. I must consider the evidence as a whole. Some of the evidence is direct, and some circumstantial as it involves drawing inferences from proved facts. I may not, as a matter of law, find the accused guilty on a count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation, or conclusion, other than the guilt of the accused.

134. In evaluating the evidence in this hearing, I can use my life experiences, my experience of others and human affairs, and my common sense. As part of the fact-finding process, I can make value judgments.

135. I note that for most people, giving evidence in a trial is not common, and may be a stressful experience. I must not jump to conclusions based solely on how a witness gives evidence. I am aware that people have different reactions and appearances when they give evidence. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables that may affect their presentation. I must take care, as the manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. Rather, I am to assess the evidence “as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy [2003] HCA 22.

136. Some of the witnesses, including the complainant, did not give evidence in the Court room. The complainant in this case gave evidence by CCTV from a room in the Court complex. This is standard procedure in cases of this type. Some other witnesses gave live evidence before me via AVL from a remote location. I direct myself that I should not draw any inference against the accused or give the evidence any greater or lesser weight because it was given by alternative means. I am to assess the evidence in the same way as I would assess the evidence of any other witness in this case.

Delay in complaint in the case of domestic violence offending (s 306ZR)

137. I remind myself that absence of a complaint, or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false. There may be good reasons why a victim of domestic violence may hesitate in making or even refrain from making a complaint about a domestic violence offence.

138. On this question, the complainant gave evidence she was too scared to go to police at the time and that the accused used to threaten to kill her, her brother and father “all the time” [T279]. She did however complaint to a friend a few days after the 2014 offending.

Complaint evidence

139. The Crown relies on complaint evidence from Kelly Townsend in this case. Ms Townsend gave evidence relating to the nature of the relationship between the complainant and the accused, as well as specific evidence of a complaint made to her regarding the incidents alleged by the complainant to have taken place on 22 February 2014, in Watanobbi.

140. The complaint referred to an argument that took place between the complainant and the accused. The complainant told Ms Townsend that the accused had pushed the complainant’s head against a pool table and hit her with the butt of a gun. He had tried to pull the trigger, but the gun didn’t fire. The complainant then ran up the driveway and the accused fired a shot towards her. A pursuit around Watanobbi ensued. A shot was fired towards the complainant’s vehicle during the pursuit. Ms Townsend said that while the complainant was recounting these events, she seemed upset and traumatised.

141. I must however also consider that just because a person says something on more than one occasion, it does not mean that what was said is necessarily true or reliable. A false or inaccurate statement does not become more reliable just because it is repeated.

142. In this instance, I find without a doubt that the complaint was made to Ms Townsend.

143. I consider the complaint evidence very compelling for the following reasons:

1. the complaint was made just a few days after the events occurred, when fresh in the memory of the complainant, especially given the time which elapses between the alleged offending and giving evidence at trial. As will be explored later, I give preference to her contemporaneous or fresh account where it conflicts with her evidence in Court;

2. the detail provided by the complaint witness was consistent with other evidence, including the complainant (generally as to the events of 22 February 2014), Mr and Mrs Housten and Mrs McDarra (as to the number of shots fired), the complainant’s brother (as to the driving of the vehicles around Watanobbi and the discharge of the weapon whist driving) and Mr Jackson (generally, as to the driving of the vehicles);

3. Ms Townsend gave evidence that the complainant seemed “quite upset”, was crying, and “quite traumatised” [T403.04] when talking to Ms Townsend; and,

4. Ms Townsend was a very impressive witness whose evidence I unreservedly accept.

144. The evidence of Ms Townsend both supports the complainant’s credibility (credibility use of complaint evidence) and is additional proof that the offending to which it relates occurred.

145. I find the fact that the complainant made a complaint to Ms Townsend when she did (a few days after the event) and in the circumstances in which she did (traumatised and crying) makes it more likely the complainant is telling the truth.

146. It was submitted for the accused that the complainant and Ms Townsend had colluded before the latter gave a statement to the police. I reject this submission and accept her evidence of complaint for the following reasons:

1. Ms Townsend was an impressive witness who presented as being honest, reliable and accurate;

2. there were differences in the evidence given by the complainant and Ms Townsend (for example, as to the number of shots fired at the house, and the accused hitting the complainant with “the butt of a gun”);

3. she made frank concessions about the nature of her relationship with the complainant and their “bond” and being “a faithful and loyal friend”;

4. she said that she was aware that the complainant had made a statement to the police [T408.31] and that she had supported the complainant “in making that decision” to report the matter [T408.35];

5. she convincingly denied that the complainant told her what the complainant said to police [T408.41];

6. she convincingly denied that she ever got access to and looked at the complainant’s police statement [T408.44];

7. she frankly agreed that she formed the opinion that the complainant would be better off without the accused [T409.10];

8. she convincingly rejected the proposition that her evidence was “a story (she) was told by (the complainant) more recently” [T409.21];

9. not only did she strongly deny that she gave evidence “to try and show loyalty” to the complainant, but I recall she seemed offended by the suggestion that she would be untruthful in her evidence;

10. she agreed that she told the complainant that police asked her to give a statement regarding the complainant and the accused [T410.01];

11. she rejected the proposition that she contacted or spoke to the complainant about being asked to make a statement before the statement was made, saying convincingly that it was after [T410.08].

Context/ background evidence

147. Various witnesses, including the complainant, gave evidence that the accused abused the complainant on occasions other than the offences charged. These acts are uncharged. It is context evidence. It has been placed before me for a limited purpose, only to place the complainant’s evidence in what the Crown says is the realistic context. I remind myself my task is confined to considering whether the Crown can prove beyond reasonable doubt that the accused did commit one or more of the offences on the indictment.

148. Even if I accept that these uncharged acts occurred, I cannot substitute that evidence for evidence of the charged acts (and convict the accused on this basis). Nor can I use the context evidence as a general disparagement of his character. The context or background evidence cannot be used to reason that the accused is the type of person to behave in a particular way, other than to the extent that the evidence is admitted for a tendency purpose.

149. I find that the events the subject of the context evidence occurred which assists in understanding that the alleged offending took place within the context of a highly dysfunctional, abusive and violent relationship. The evidence of the complainant, Ms Townsend and the complainant’s brother was broadly consistent.

Tendency evidence

150. A Tendency Notice dated 11 February 2025 was served on the accused. The question of the admissibility of the tendency evidence was determined prior to trial by another judge (judgment 18 June 2025).

Evidence regarding the first tendency

151. The first tendency contended for was “a tendency on the part of the accused to commit acts of violence on the complainant whilst she was in a domestic relationship with the accused”.

152. In respect of that tendency, the following evidence was given:

1. the evidence of the complainant regarding uncharged acts of violence carried out against her by the accused [T79.36]:

“Q. When you say he was aggressive physically, can you tell us what you mean by that?

A. He’d just grab me physically, like, grab my arm, hold me, slap me, just

Q. Whereabouts did he slap you?

A. On my face.

Q. How often did that happen?

A. Quite often.

Q. When you say he grabbed your arm.

A. Yeah.

Q. How often would that happen?

A. All the time.

Q. Did he ever use anything other than his hands?

A. Yeah.

Q. What did he use?

A. Weapons.

Q. Can you tell us specifically what weapons?

A. Meat meat cleaver, knives, bats, just, yeah.

Q. When you say meat cleaver, is that something you had in the house?

A. Yeah.

Q. How often were you threatened with the meat cleaver?

A. A lot.

Q. Sorry, I’ve put that word in your mouth. You didn’t use the word threaten. How often did the accused the meat cleaver?

A. All all the time.”

2. the evidence of Mr Houston [T291.32]:

“Q. I just want to take you now specifically to a Saturday in February 2014. What happened that day?

A. What day? Saturday? Yeah, Saturday in the evening, well, to start with, if we go to Friday, which is more pertinent, on the Friday I could hear a row going on, and I mean a lot of shouting and a lot of screaming, right, and I would have told my wife, “There’s a big row going on there”, you know, and on the Saturday the row would go on for a while and then it would stop. You might hear her crying for a time.

Q. Can I interrupt you just very briefly. When you say a row, where was the row coming from?

A. In the house.

Q. Which one?

A. In their house.

Q. When you say “her”, who are you talking about?

A. A female.

Q. Continue.

A. I can’t see them, but I can hear this row going on, I can hear her screaming and I can hear the shouting and whatnot.

Q. Continue on.

A. Yeah. So that was on the Friday. On the Saturday - on the Saturday it - I don’t know was it before this or afterwards, I spoke to Lilian and I said, you know, there’s a row going on and she said—”

And at [T292.18]:

Q. Continue on from there. We don’t need to talk about the conversation with Lilian.

A. Okay. Anyway, the - on the Saturday the row started again. I could hear screaming and fighting, and I stepped out on the verandah, or I was on the verandah, but I was - I was on the verandah and I looked down and I missed - I could hear her screaming, but I didn’t see her. She’d gone up the pathway, out of my view, and all of a sudden I just saw a hand come out, bang, a shot fired and whoever it was went in again. They didn’t come out the front or they didn’t follow her.

3. the evidence of Mrs Houston [T307.50]:

“Q. What if anything did you regularly hear coming from the bottom house?

A. Arguments. We heard a lot of arguments coming from the bottom house.

And that was it. But yeah, it happened a lot around that area, so. Yeah, there was shouting and - a male and a female shouting and screaming.”

4. the evidence of Ms McDarra that the complainant “was always hysterical and upset” [Exhibit T, para 9];

5. the complainant’s brother was asked about his observation of the relationship generally between the accused and the complainant when he was living with them. He replied as follows [T328.38-44]:

“I try not to get too involved. They were pretty good together. Daniel would have his outbursts. I’ve seen him like grab (the complainant) on the arm and speak down to her. But never – I was never around when he physically, like, did anything. But, I’ve definitely seen him like grab her by the arm and, you know, speak to her in not nice ways”

Further, when asked the types of things he would say to her, the complainant’s brother replied “he would call her a slut, a dog, I’ll fucking kill you. Just these types of things, yeah” [T329.10];

6. Ms Townsend gave evidence that around the time of the birth of their first child (xx 2013), “she’d come around and she’d had a bruise, like, a black eye type thing… You could see just like a mark and makeup. She used to cover her face in makeup” [T401.41-45];

7. the evidence of each count with the exception of count 5 as intra-count tendency use;

8. the telephone intercept evidence. The recordings were also allowed into evidence as relationship evidence.

Evidence regarding the second tendency

153. The second tendency sought to be established by evidence was a tendency to unlawfully possess firearms, in particular, shortened rifles. This tendency related only to Counts 7, 9 and 10. The evidence which was permitted was of unlawful possession by the accused of a firearm in 2005 and 2014. At the conclusion of the trial, Counsel for the accused sought to revisit the ruling in relation to the second tendency, as it related to shortened rifles. By agreement between the parties, the tendency was changed to be one of unlawfully possessing firearms.

Directions regarding the use of tendency evidence

154. In respect of the tendency evidence, I direct myself as follows.

155. Determining whether the asserted tendency is established involves the drawing of an inference. I acknowledge that care needs to be applied to the drawing of inferences. I need to consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. I have borne in mind those directions when considering this part of the evidence.

156. If I am not satisfied that the asserted tendency could be inferred, I must put whole issue of tendency completely to one side and not have any regard to it all. However, if I find the accused did have the asserted tendency, then I can use that in considering whether it is more likely he committed the specific offences with which he is charged. It is essential I consider in relation to each charge, whether the accused acted in conformity with that tendency on the specific occasions alleged in each separate charge on the indictment.

157. Finding the accused did have the tendency the Crown asserts is not enough to prove guilt for any charged offence. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on any of the specific occasions that are the subject of the charges. It is just one part of the evidence the Crown relies upon in proof of the relevant specific charged offence. That is the only way the asserted tendency may be used.

158. Ultimately, I have to decide whether the specific offence with which the accused has been charged has been proved.

159. When considering whether a specific charge has been proved, I will have to decide whether the Crown has proved the essential elements of that charge.

160. Part of the Crown case is that the accused had a tendency to, firstly, commit acts of physical violence on the complainant whilst she was in a domestic relationship with the accused, which makes it more likely that the accused committed the offences charged in all counts, save for count 5 which involved placing a snake on the complainant’s back. The second tendency is to unlawfully possess firearms, and relates only to counts 7, 9 and 10.

161. The Crown addressed on tendency in its closing submissions (MFI 12). The tendency evidence was also relied upon as context and relationship evidence. It was submitted that I would have no difficulty in finding that the accused had the tendency to threaten to commit acts of physical violence and to commit acts of physical violence on the complainant. It was submitted that this finding could be made based solely upon the phone calls, including the telephone intercepts in 2014 and the phone call in 2023. It was submitted that the telephone calls demonstrate how the accused routinely spoke to the complainant, how he frequently threatened her, and how he’d become extremely angry and enraged with her at the slightest frustration “accelerating his aggression to the point of threatening to assault her or to kill her.”

162. In addition to the telephone calls, the Crown relied upon evidence of the complainant that the accused would “habitually belittle and threaten her”, such evidence supported by the evidence of the complainant’s brother.

163. The complainant’s brother gave evidence of how the accused would call the complainant insulting and derogatory names, such as “slut” and how he would threaten to kill her. This abuse was consistent with what was captured during the intercepted telephone calls. The complainant’s brother also saw the accused grab the complainant on the arm “more than like ten to 20 times” and speak down to her.

164. In the Crown’s submissions at [26], the Crown extracted samples of what was said by the accused to the complainant during the period between 3 June 2014 to 11 August 2014.

165. Frankly, I found the recordings alarming and deeply disturbing but acknowledge the limited use to which this evidence can be put (tendency), and not to discredit or disparage the accused.

166. In relation to the second tendency regarding the possession of firearms, the Crown submitted that there was no dispute that the accused had been unlawfully in possession of firearms on separate occasions, many years apart. Namely, a shortened firearm in Queensland in 2015 and an airsoft pistol in 2014. It was submitted that this evidence, together with the eyewitness evidence from the complainant and Mr Houston supports the tendency contended for by the Crown.

295. Mrs Houston also supports the complainant. She said that she would regularly hear arguing coming from the accused’s house, “a male and female shouting and screaming” [T308.03].

296. She described the events of 22 February 2014 in the following terms:

“So I recall hearing a noise at the time. I recall hearing fighting. And I recall John seeing the flames from a gun coming out the door. But I didn’t see that. And I recall John ringing Lilian next door to say, “Did you hear that? Was that a shotgun?” And she said, “Yes, it definitely was. I’ve lived on a farm””

300. Her evidence was then interrupted by an objection as to the hearsay aspect of the evidence given the unavailability of the elderly neighbour, Ms McDarra.

301. She described the noise as a “bang”, a “sharp bang” [T309]. It was loud enough for her to hear from her location inside their house. It caused her to say “what was that?” The bang made her jump as it was really loud. She first thought maybe there had been a car crash. She went out onto the balcony to check what the noise was and had a conversation with her husband. She asked her husband whether he had heard that and he said “Yes. That was a gunshot” [T309.40]. She then described to the Court her dealings with the police the next day.

302. Mrs Houston was challenged in cross-examination, however her evidence in-chief was not diminished. Additional details were provided in cross-examination, namely as to whether it was dark at the time the event occurred. She said “it was bright, it wasn’t dark, it wasn’t evening” [T313].

303. The complainant was also supported by Lilian McDarra who had died prior to the trial but had provided a statement to the police on 8 September 2014. That statement was allowed into evidence under s 65 of the Evidence Act, being evidence of a previous representation in a criminal proceeding where the maker was not available. Whilst the statement was admitted for all purposes and is evidence of the facts contained therein, I remind myself of the caution which must be adopted when considering potentially unreliable evidence such as hearsay evidence. I am also mindful of the fact that Counsel for the accused did not have the benefit of challenging Ms McDarra in cross-examination.

304. The statement was marked Exhibit T. Paragraphs 5, 6 and 10 were not pressed. Paragraphs 7, 8 and 9 read:

“7. The other thing I remember; it was a few months ago but I can’t remember the exact date. I think it may have been February this year. I heard a large bang. It was defiantly (sic) a gunshot; I know that it was a gunshot because I grew up on a farm. My brothers would shoot guns on a regular basis. I was shocked and I remember the phone rang straight away. I went over and answered the phone. It was John my neighbour.

He said; “Lil are you okay?”

I said: “Yes I am okay”.

8. I remember having a funny argument with John because he said it was a gun and I said it was a riffle (sic).

9. That’s all I remember, all I can say is that she was always hysterical and upset. I also can’t even remember the time of day I heard the gunshot.”

305. In deciding to accept the evidence of Ms McDarra as truthful, I have had regard to the following factors:

1. the representations were made in writing;

2. the statement is signed;

3. the statement commenced with the following:

“the statement made by me accurately sets out the evidence that I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false, or do not believe to be true.”

4. the witness was a mature lady of 81 years;

5. the witness was an independent witness;

6. the representations were made in the formal setting of a police investigation; and

7. her evidence was corroborated by her discussion with Mr Houston which was overheard, at least on his side, by Mrs Houston.

306. Accordingly, there are three independent witnesses who support the evidence of the complainant that a shot was fired on 22 February 2014. This is significant independent support.

307. There are other aspects of the events of that day about which the complainant gave evidence and which find some support from other witnesses. That is, her evidence about driving a car around the streets of Watanobbi, in order to escape the accused. In that respect, some support is provided by the complainant’s brother, and his friend, Aaron Jackson. In accepting the evidence of Mr Jackson and the complainant’s brother, as providing support for the complainant’s evidence, I do acknowledge that there are differences both between what Mr Jackson and what the complainant’s brother recalled, and also differences as between both of them and the account provided by the complainant.

308. In written submission for the accused (MFI 14), Counsel for the accused identifies those differences.

309. First of all in relation to the complainant’s brother, it was suggested by Counsel that he was “very guarded” in cross-examination. I observed the witness carefully and I do not share that view. I reject that submission. His reliability was also challenged by reason of the fact that he observed his sister being involved in a car chase during which, on one occasion, a shot was fired at his sister’s car, and yet he did nothing about it. He did not call the police or inquire as to the welfare of his sister, but remained at Mr Jackson’s house, presumably working on a car, until returning home to [Residence C] that night. I agree that doing nothing in response to what he observed is curious. When asked at [T368.38] whether there was a discussion with Mr Jackson as to what they should do, the complainant’s brother replied simply “Dan’s a pretty scary guy”. He also said “I was a kid and I didn’t know what to do.” In fact, he was 22 years of age at the time but younger than the accused. He said he had no recollection of discussing with Mr Jackson what they should do, but said that he was “guessing” that they would have had that conversation. When asked whether he tried to contact his sister to see if she was alright he responded “she always came back after everything and said she was okay” [T369.29]. He rejected the proposition that he did nothing after what he witnessed because it did not happen.

310. Mr Jackson also provided some support for the complainant, notwithstanding differences in their respective accounts and differences between Mr Jackson and the complainant’s brother. His description of what he observed appears at about [T316] and following.

311. Mr Jackson was challenged in cross-examination. The detail in his recollection was limited. He made appropriate concessions in cross-examination.

312. Mr Jackson’s evidence provided some insight into the circumstances surrounding what he observed, and perhaps also the failure by him and the complainant’s brother to take any action, following what they witnessed. When asked about the second car (at [T318.17]), Mr Jackson replied:

“For the second car, no, I didn’t hear anything, like, there was no-one yelling or screaming, I don’t believe, and I don’t - like, I didn’t get a good look at who was driving or anything. Like I said, it was a pretty rough area at the time and this sort of stuff wasn’t - it was fairly common. It wasn’t out of the ordinarily (sic), unfortunately, so.”

313. When asked to expand upon that answer he gave the following evidence [T318.28]:

“Just a fairly rough area. Like, I mean, just that roundabout particularly where we live, there was - lots of cars had come around there pretty fast and doing burnouts and there was a couple of crashes and we were quite worried where we lived. We ended up moving out not too long after we moved in. We were probably there for 12 months, but, yeah, one of the reasons we did move out of there was just it was a bit rough. The house got broken into and, you know, it was a brand new house and we thought it would be good, but, yeah, anyway.”

314. And further, when asked in-chief why he didn’t report what he observed to the police, he said [T319.09]:

“Like I said, it was fairly common. I didn’t really - I didn’t really want to get involved, it wasn’t my business, I didn’t feel I needed to and, like I said to you, yelling and screaming and burnouts and stuff like that was pretty common in the area at the time, so.”

315. I note in relation to confusion as to the timing of these events caused by the police record which suggest that it was later in the evening, that Mr Jackson was clear in his recollection that it was “definitely daylight” [T319.16].

316. Mr Jackson was challenged in cross-examination but his evidence was undiminished.

317. Both Mr Jackson and the complainant’s brother provide support for the complainant’s evidence as to the car chase. The complainant’s brother provides further support in his evidence in relation to the complainant turning her vehicle around and a gunshot being fired. I do consider that failing to report the matter to the police, or at least enquire of the complainant as to her welfare curious, however, I view the evidence through the prism of the following circumstances:

1. the complainant’s brother was plainly scared of the accused;

2. the complainant’s brother had observed conflict between them in the past which had resolved without discussion, subsequently;

3. according to Mr Jackson, events such as this were very common in the area. The complainant’s brother also gave evidence that hearing cars speeding or revving was not uncommon in the area [T336.12].

318. Whilst acknowledging limitations in the evidence of these two witnesses, I do find that they provide some support for the complainant’s evidence as to the events of that day. I decline to find that their failure to report or follow up with the complainant gives rise to a reasonable doubt as to their reliability.

Support from other evidence, generally

319. The violent and abusive nature of the relationship between the accused and the complainant finds support broadly through other evidence, not the least of which were the recorded conversations between them picked up by the telephone intercepts. They have been summarised above.

320. The relationship was highly dysfunctional. The accused was very abusive. In the course of the telephone conversation, and without wishing to repeat them again in any detail, the accused would threaten to cut the complainant’s throat, threaten to kick and beat her, and also to kill her. It is an agreed fact that the accused was convicted following a guilty plea of use carriage service to threaten or kill. This evidence further supports the evidence of the complainant and makes it more likely that the accused behaved as she said he did.

321. There was also other evidence of witnesses, either observing abuse of the complainant by the accused, injuries suffered by the complainant as a result of abuse, or being told by the complainant of being abused by the accused. That evidence comes from the complainant’s brother, and also the complaint witness, Ms Townsend.

322. The complainant’s brother spoke about seeing the accused have “outbursts” [T328.41] towards the complainant, involving him grabbing her on the arm and speaking down to her, and also pushing her against the wall. He also recalled hearing the complainant call the accused a number of abusive and derogatory names and threatening to kill her. The complainant’s brother said that he had witnessed violence carried out by the accused against the complainant 10-20 times, despite them trying not to fight in front of him [T329.27].

323. Ms Townsend spoke about times she would hear, over the phone, the accused yelling at the complainant and calling her abusive names. She also saw the complainant with a black eye and marks and bruises on her face which were covered with makeup.

324. I find that the complainant is well-supported in her evidence in both a general sense and also in respect of some of the specific conduct which resulted in the matters charged.

Conclusion

325. As would be clear from the preceding observations and findings as to the demeanour of the complainant, the plausibility of her account, and the support she has from other witnesses, I find the complainant to be a reliable, honest and accurate witness.

FINDINGS

Generally

326. For the reasons outlined above, I accept the complainant as an honest and reliable witness. In making this finding, I have had regard to the complainant’s demeanour, the support which her accounts gets from other evidence, and the general plausibility of her evidence. When all of the evidence is viewed in its entirety, accepting the complainant’s evidence permits me to make the following findings in respect of each count, beyond reasonable doubt.

Wyee incidents

Counts 1 and 2

327. In respect of Counts 1 and 2, I make the following factual findings:

1. at a time in early 2013, Cheyne Morley and Rachel Groben stayed at the Wyee residence of the accused and the complainant;

2. on a night during their stay, the accused, Mr Morley and Ms Groben left the residence (with Ms Groben’s baby) to visit a pub;

3. the complainant remained at home and was in bed when they returned;

4. the accused and his friends returned, during the night, in the early hours of the morning;

5. upon returning, somebody was banging on the front of the house, presumably in an attempt to arouse the complainant to attract her to the front door;

6. she remained in bed and the others obtained access to the premises, most likely through the unlocked front door;

7. after entering the bedroom, the accused sat on the bed before retrieving a knife from the top of the wardrobe;

8. the accused got into bed with the complainant and was aggressively mumbling abuse at her;

9. he then lifted up the complainant’s jumper and began scraping the knife up and down the complainant’s side;

10. the complainant rolled over to see what the accused was doing, and saw that it was an approximately 20 centimetre silver flip knife;

11. the accused straddled her, and began scraping the knife along her pregnant belly, tracing around her belly with the point of the knife;

12. the accused told her that he would cut the baby out of her stomach, kill her, and keep the baby alive;

13. this, understandably, caused the complainant to become upset and to cry;

14. the conduct of the accused was likely to (and in fact did) cause fear in the complainant; and

15. the accused intended to cause the complainant to fear physical or mental harm.

328. These facts make out the elements of the first two offences, Counts 1 and 2, in respect of which I find the accused guilty.

Count 3

329. In respect of count 3, I make the following factual findings:

1. the complainant left the bedroom and entered the loungeroom;

2. the accused kept moving between the two rooms;

3. the accused threw a pillow at the complainant and told her to cry into it;

4. the accused was angry and abusive;

5. the complainant was crying while this occurred;

6. the conduct of the accused was likely to cause fear in the complainant; and

7. the accused intended to cause the complainant to fear physical or mental harm.

330. These facts make out the elements in respect of count 3, in respect of which I find the accused guilty.

Count 4

331. In respect of count 4, I make the following factual findings:

1. the complainant remained in the loungeroom, crying;

2. the accused was still angry and mumbling incoherently;

3. the accused approached the complainant and grabbed her by the hoodie of her jumper; and

4. the accused then dragged her by her hoodie into the bathroom, and made her get on all fours.

332. These facts make out the elements of the offence of common assault, and I find the accused guilty of count 4.

Count 5

333. In respect of count 5, I make the following factual findings:

1. whilst in the bathroom, the accused made the complainant sit on all fours instead of her backside;

2. she continued crying and the accused told her to stop crying;

3. the accused went and retrieved his pet snake from its tank;

4. the accused placed the snake on the complainant’s back and shoulder and told her not to move;

5. the complainant was fearful of snakes and the accused was aware of this;

6. the complainant was scared, upset and crying;

7. she flicked the snake off, and the accused put it back on her again;

8. the accused told the complainant not to move and to not touch the snake;

9. the accused told the complainant that if she stopped crying, he would remove the snake;

10. the conduct of the accused was likely to (and in fact did) cause fear in the complainant; and

11. the accused intended to cause the complainant to fear physical or mental harm.

334. These facts make out the elements for count 5, in respect of which I find the accused guilty.

Count 6

335. In respect of count 6, I make the following findings:

1. whilst the complainant was still in the bathroom, Mr Morley walked past and asked the accused what he was doing;

2. the accused laughed and replied that the complainant was being loud;

3. the accused threatened the complainant with a meat cleaver and made her crawl on all fours into the bedroom occupied by the visitors, and told her to apologise to his friends;

4. the accused referred to the complainant as “Scrappy” during this incident;

5. he also whistled at her like a dog;

6. the accused told the complainant that if she did not do what he told her to do, he would cut off her fingers with the meat cleaver;

7. the complainant apologised to the accused’s friends;

8. the accused said that his friends did not hear her, and made her apologise a second time;

9. the accused then hit the ground with the meat cleaver near the complainant’s hand;

10. the complainant was upset and scared;

11. the complainant returned to the loungeroom, as she was told that she was not allowed in the bedroom;

12. the conduct of the accused was likely to (and in fact did) cause fear in the complainant; and

13. the accused intended to cause the complainant to fear physical or mental harm.

336. These factual findings make out the elements of count 6, in respect of which I find the accused guilty.

Residence B incident

Count 7

337. In respect of count 7, I make the following findings:

1. on, or about, 7 August 2014, the date of their first child’s birth, the complainant and the accused were at [Residence B];

2. the complainant was waiting to go to the hospital to be induced for the birth of their child;

3. the accused was out at the time when they were due to leave for the hospital;

4. he came home and had a shower;

5. the complainant had arranged for the accused to meet her at Gosford hospital for the procedure;

6. the accused responded angrily, mumbling and calling the complainant names, also saying how he hated her;

7. they had a short argument about arrangements for attending hospital;

8. amongst other things, the accused told the complainant that he was going to take her baby;

9. towards the end of that episode, the accused was holding a rifle standing at the back door of the premises;

10. he told the complainant that he was going to shoot her dog;

11. the dog was in the backyard;

12. the accused pointed the rifle at the dog but did not discharge it;

13. he then threw a washing basket in the direction of the dog before leaving;

14. the conduct of the accused was likely to cause fear in the complainant; and

15. the accused intended to cause the complainant to fear physical or mental harm.

338. These facts make out the elements of count 7, in respect of which I find the accused guilty.

22 February 2014 incidents

Count 8

339. In respect of count 8, I make the following findings:

1. at some stage, the family moved to [Residence C], Watanobbi;

2. the accused possessed both a replica pistol, referred to elsewhere as an airsoft pistol, and also a sawn-off rifle, which he kept in the bedroom;

3. the sawn-off rifle had a dark brown butt with a bit of metal on it;

4. the complainant had been told by the accused that it was a real firearm;

5. the complainant had seen the sawn-off rifle at [Residence C], Watanobbi maybe two or three times previously;

1. on this day, their first child was staying with the accused’s parents;

2. an argument broke out between the accused and the complainant, after he asked her to make up bags for him, which she refused;

3. the accused was not home when this conversation took place;

4. during the conversation, the accused was angry;

5. the complainant had just showered and had enough time to get dressed quickly as the accused drove down the driveway;

6. she observed the accused’s car arriving through the bedroom window;

7. when the accused entered the house he was angry and walked straight into the bedroom;

8. the complainant was in the hallway, behind the bar;

9. the complainant walked around the brick wall as he walked into the bedroom, and she grabbed her keys from the kitchen bench;

10. she went to walk out the front door, and the accused had left the bedroom, then grabbed her by the hair;

11. the accused pulled her hair, tangling it in his fist, before pushing her head down onto the pool table;

12. the accused was being abusive and saying nasty things to the complainant;

13. the front-left side of her head was in touch with the surface of the pool table;

14. the complainant was scared and upset;

15. the accused said that he wished that she was dead;

16. the conduct of the accused was likely to (and in fact did) cause fear in the complainant; and

17. the accused intended to cause the complainant to fear physical or mental harm.

340. These facts make out the elements of count 8, in respect of which I find the accused guilty.

Count 9

341. For count 9, I make the following findings:

1. the accused was holding the sawn-off rifle, which the complainant saw as he lifted it up, after he came out of the bedroom;

2. the sawn-off rifle was held up against her head, near the right temple;

3. the accused was yelling things including saying that he was going to kill her;

4. the accused butted the steel part of the sawn-off against her head;

5. the complainant heard the trigger of the sawn-off rifle being pulled and she felt the pressure of the sawn-off barrel up against her head;

6. she felt force and pressure;

7. the gun did not discharge a bullet;

8. the accused did it again and the complainant heard a click noise;

9. the accused then said “someone’s watching over you”;

10. the complainant was scared and upset;

11. the conduct of the accused was likely to (and in fact did) cause fear in the complainant; and

12. the accused intended to cause the complainant to fear physical or mental harm.

342. Although the deeming provision provides that a firearm pointed at a person is taken to be loaded, there remains the essential element that the accused intended to murder the complainant. I am not satisfied beyond reasonable doubt that the accused intended to kill the complainant. I have reached that view, having had regard to the following considerations:

1. an intention to kill the complainant is vastly different to all other conduct by the accused, which relates to bullying, intimidation, and abuse;

2. notwithstanding that he said he was going to kill her, I consider that was part of his intimidation of the complainant;

3. despite the deeming provision in s 4 of the Crimes Act 1900 (NSW) contained in the definition of “loaded arms” given that the trigger was pulled twice and a shot was not fired, I am not satisfied beyond reasonable doubt that the rifle was, in fact, loaded. In making this finding, I acknowledge the evidence of Inspector Roper that there are several reasons a firearm might not discharge a projectile when the trigger is pulled including faulty ammunition, misfeed, or the weapon not being loaded. I consider the failure of the rifle to discharge a bullet in circumstances where it did subsequently release a shot permits this finding. In terms of the definition of loaded arms, I conclude that “the contrary is shown” (s 4 Crimes Act).

Count 10

343. I do however, on the facts, find beyond reasonable doubt that the elements of the offence for the alternative count, count 10, are made out. I find the accused guilty in respect of count 10.

Count 11

344. In respect of count 11, I make the following findings:

1. the complainant then fled through the front door;

2. the accused went into the bedroom as the complainant was running out of the house;

3. the accused was next seen by the complainant standing at the front door with a firearm in his right hand;

4. he discharged the firearm in her direction;

5. the conduct of the accused was likely to cause fear in the complainant; and

6. the accused intended to cause the complainant to fear physical or mental harm.

345. I am satisfied that these facts make out the essential elements of the offence, being count 11, in respect of which I find the accused guilty.

Count 12

346. In respect of count 12, I make the following findings:

1. the complainant then attempted to flee up the driveway and hid behind her car;

2. the accused later placed ammunition on the front seat of the complainant’s car, telling her that there was something in the car with her name on it;

3. the conduct of the accused was likely to cause fear in the complainant; and

4. the accused intended to cause the complainant to fear physical or mental harm.

347. These facts make out the elements of count 12, intimidation, in respect of which I find the accused guilty.

ORDERS

348. Accordingly I make the following orders:

1. I enter verdicts of guilty in respect of counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11 and 12;

2. I enter a verdict of not guilty in respect of count 9;

3. In respect of these verdicts of guilty, you are convicted.

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I certify that this and the preceding 97 pages are a true copy of the reasons for Judgment herein of his Honour Judge Wilson SC.

Associate                      Date

Decision last updated: 22 August 2025