R v RT - [2024] NSWDC 267

District Court

New South Wales

Medium Neutral Citation: R v Holman (No 1) [2024] NSWDC 267
Hearing dates: 19 – 23 February 2024, 26 February 2024, 15 March 2024
Date of orders: 15 March 2024
Decision date: 15 March 2024
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Verdict of Guilty with respect to Counts 1, 2, 3, 4, 6, verdict of Not Guilty with respect to Count 5, at [395] – [396].

Catchwords:
CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge — Verdict — Guilty on 5 counts, Not Guilty on 1 count
CRIME — Domestic violence offences — Intimidation, use offensive weapon with intent to commit serious offence, common assault, choking — Six alleged offences across three incidents alleged by complainant — Crown submission complainant behaviour consistent with cycle of domestic violence — Volatile nature of relationship — Tendency evidence — Complaint evidence — Corroboration of complainant's evidence — Defence case that complainant not a witness of truth and influenced by high level of methamphetamine use

Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438
Fleming v R (1998) 197 CLR 250
Texts Cited:
Nil

Category: Principal judgment
Parties: Rex (Crown)
Jeremy Holman (Offender)
Representation:
Counsel:

B Queenan (Crown)
P Cranney (Offender)

Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Tony Cox Lawyers & Conveyancers (Offender)

File Number(s): 2022/00080854
Publication restriction: Nil

JUDGMENT and reasons on verdict

OVERVIEW

Jeremy Holman pleaded not guilty on his arraignment in Taree District Court on 19 February 2024 with respect to an indictment which contained six counts. The six counts in the indictment related to allegations of conduct on three separate occasions.
Counts 1 and 2 in the indictment alleged conduct said to have occurred at Wingham in the course of a relationship between the accused and a woman named Brearn Morris.
Count 1 alleged the use of an offensive weapon, with intent to commit an indictable offence, namely assault, contrary to s 33B(1)(a) of the Crimes Act 1900. The offence was alleged to have occurred between 26 December 2021 and 7 January 2022.
On the same occasion, the accused was alleged to have intimidated Brearn Morris with the intention of causing her to fear physical or mental harm. This was Count 2 in the indictment and alleged a contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
Counts 3 and 4 related to an incident described during the trial as having occurred ‘in the forest’. In circumstances to which I will make reference in due course, the accused was charged in Count 3 with intimidating Brearn Morris at Cedar Party with the intention of causing her physical or mental harm on 8 January 2022. This similarly alleged a contravention of s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007.
Count 4 alleged an assault by the accused of Brearn Morris on the same occasion. This was an alleged contravention of s 61 of the Crimes Act 1900.
Counts 5 and 6 in the indictment related to an alleged incident on 18 January 2022 at Taree.
Count 5 was an allegation of assault against Brearn Morris occasioning actual bodily harm contrary to the provisions of s 59(1) of the Crimes Act 1900.
Count 6 was a further allegation of intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, on the same occasion.
A pre-trial objection to the Crown introducing evidence of tendency was the subject of a judgment on 20 February 2024 which permitted the adducing of some of the tendency evidence sought to be relied upon by the Crown.

TRIAL BY JUDGE ALONE

Application had been made for the trial to proceed as a judge-alone trial, which application had been consented to by the Crown. As such the Court had no discretion and the matter proceeded as a judge-alone trial (see s 132 of the Criminal Procedure Act 1986). The trial thereafter proceeded as a judge-alone trial on 21 February and continued until the evidence and submissions were completed on 27 February 2024.
Section 133 of the Criminal Procedure Act 1986 sets out the provisions which are applicable to a verdict by a single judge on the question of the guilt of an accused person. Subsection (2) requires that the judge must include in his or her judgment the principles of law that the judge has applied and the findings of fact on which the judge relies.
The requirements of a trial judge sitting alone as to the giving of reasons were considered by the High Court in AK v Western Australia(2008) HCA 8; (2008) 232 CLR 438. A trial judge is required to summarise the crucial arguments of the parties, to formulate the issues for decision, and to resolve any issues of law and fact that need to be determined. To comply with ss 133(2) and 133(3) of the Criminal Procedure Act and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250 I remind myself of the following principles of law.

FUNCTION

As the accused has pleaded not guilty and elected to proceed to a trial by judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of each of the charges and return my verdict according to the evidence. As the tribunal of fact I am required to make findings of fact from the evidence that has been presented and then apply the relevant legal principles to those findings of fact. The findings of fact must be drawn only from the evidence that has been presented. There can be no intrusion into that finding by considerations of sympathy, bias, prejudice or any other emotion.

BURDEN AND STANDARD OF PROOF

It is convenient to start with some general principles.
The burden of proof of the guilt of the accused rests upon the Crown. That onus rests upon the Crown in respect of every element of each of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence, but it is for the Crown to prove his guilt and to prove it beyond reasonable doubt. The Crown does not have to prove, however, every single fact in the case beyond reasonable doubt.
The onus which rests upon the Crown is to prove the elements of the charge beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before I can convict the accused of any of the separate counts in the indictment. It is vitally important to remind myself that the accused must not be found guilty if any one of the essential ingredients or elements of the charges has not been proved to my satisfaction beyond reasonable doubt. It follows that if I am left unable to decide whether the Crown has proved its case beyond reasonable doubt in relation to any such element or ingredient, even though I might suspect the accused of that matter, the accused is entitled to the benefit of that doubt and I must in such circumstance find him not guilty.
The accused is being tried jointly with respect to six separate offences in the indictment. The joinder of these six counts is a matter of convenience. There are six identified incidents of alleged misconduct in respect of which the trials are being held jointly. The evidence with respect to an individual count must be considered separately notwithstanding that there is a substantial amount of commonality required to be considered with respect to the evidence.
In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused with respect to an individual count beyond reasonable doubt? If the answer is “Yes” the appropriate verdict is guilty; if the answer is “No” the verdict must be not guilty.
Although an accused person is entitled to give or to call evidence in a criminal trial there is no obligation upon him to do so. The Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences which have been charged. The accused bears no onus of proof in respect of any fact that is in dispute.
The accused is presumed to be innocent until and unless I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of a particular offence charged. Therefore it follows that the accused is entitled to say nothing and to make the Crown prove his guilt to the high standard which is required.
In the present trial the accused did not give evidence. The decision of the accused not to give evidence cannot be used against him in any way at all in my determination of the verdict. The decision not to give evidence cannot be used as amounting to an admission of guilt. I cannot draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. That fact cannot be used to fill any gaps that I might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
In the present matter there is no evidence regarding the circumstance of the accused being arrested nor of any caution or conversation with him. There is, however, a copy of a letter which was admitted into evidence over objection, which the accused sent to the Supreme Court in support of an application for bail. That handwritten letter was admitted as Exhibit 10A in the Crown case. The contents of it are responses by the accused to assertions of fact in the Crown Case Statement. In order to make intelligible and understandable those responses the Crown Case Statement was admitted as Exhibit 10B. The contents were not admitted as proof of the truth of the statements contained in it but on the clearly limited basis of making intelligible the contents of the accused’s letter.
A consideration of the contents of that letter form part of the totality of the evidence in the trial. However, those contents will be the subject of a Liberato direction which I will now remind myself of.

LIBERATO DIRECTION

If I find that I accept the exculpatory statements in the accused’s letter to the Supreme Court I must acquit him. The proper verdict must be a verdict of not guilty.
If I find that the exculpatory statements by the accused in that letter provide a possible version of what occurred I must similarly return a verdict of not guilty.
However if I reject the account given by the accused and am not satisfied that it provides a reasonably possible version of the events or any of them, I must, to the extent that I so find, put it to one side and consider whether the Crown evidence has established proof of the guilt of the accused beyond reasonable doubt.

INFERENCES AND CIRCUMSTANTIAL EVIDENCE

I may in my role as the judge of the facts draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can properly be drawn from those facts. The present case is fundamentally a direct evidence case relying principally as it does upon the evidence of the complainant.
There are however some surrounding circumstances in the present matter from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence, I remind myself of some fundamental principles.
How convincing and reliable a circumstantial inference may be depends upon the number and nature of the basic facts relied upon by the Crown when considered as a whole. The question as to whether all of the evidence in a particular respect leads to an unavoidable conclusion requires careful consideration.
In the present matter, with respect to some incidents, the Crown relies upon circumstances relating to the existence of facts which support the allegation. This is particularly so with respect to Count 6. I remind myself of the need to be satisfied beyond reasonable doubt of the existence of any fact or circumstance which is critical to a finding of guilt.

WITNESSES

It is for me to assess the witnesses called in the trial and to decide whether they are reliable. Reliability depends upon two different but sometimes overlapping considerations. One is the witness’s honesty and the other is the witness’s accuracy. The honesty of a witness involves considering not only what the witness said or perhaps did not say, but also the impression the witness has made on me in my capacity as the tribunal of fact.
In the present matter the Crown case largely depends on an acceptance of the reliability of the complainant. That being so, unless I am satisfied ultimately beyond reasonable doubt that she is both an honest and accurate witness with respect to the elements of the individual counts in the indictment about which she has given evidence, I cannot find the accused guilty. With respect to each such count it will be necessary to examine the evidence of the complainant very carefully in order to satisfy myself that it is both honest and reliable with respect to the particular counts in the indictment.

COMPLAINT

The Crown seeks to rely upon evidence of complaint to others with respect to particular counts in the indictment. If I find that the complaint in a particular matter was made in the way alleged by the Crown, I can use evidence of what was said in the complaint as some evidence that the incident, the subject of the particular charge being considered, did occur. That is, I can use it as some evidence independent of the evidence given by the complainant.
A tribunal of fact is entitled to consider whether a complaint is made at a time and in a manner that would indicate that the allegation was reliable. That is, that the allegation is less likely to have been fabricated by a complainant and is more likely to be accurate.
Ultimately, it is a matter for me as to whether I draw that conclusion in this trial with respect to any particular allegation. If complaint evidence is used as some evidence in relation to a specific count, what weight is to be given to the evidence is a matter for me as the tribunal of fact.

MURRAY DIRECTION

I remind myself of the appropriate direction where there is one witness essential to a Crown case. Accordingly, I give myself a so-called “Murray” direction and remind myself that unless I am satisfied beyond reasonable doubt that the complainant is both an honest and accurate witness with respect to the elements of a particular offence, in the account she has given, I cannot find the accused guilty.
I must examine her evidence very carefully to satisfy myself that I can safely act upon that evidence to the high standard that is required in a criminal trial. The need for particular caution arises because of the onus and standard of proof placed upon the Crown. I am of course clearly entitled to convict the accused based on the evidence of the complainant provided I have carefully examined and satisfied myself that it is reliable beyond reasonable doubt. In considering whether the complainant’s evidence does satisfy me to the requisite standard I should, of course, look to see if it is supported by other evidence.

MARKULESKI DIRECTION

Given that there are multiple counts in the indictment, I remind myself that I must give separate consideration to the individual counts. However, I am entitled to bring in a verdict or verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that decision.
However, if I were to find the accused not guilty on any individual count, particularly if that was because I had doubts about the reliability of the complainant’s evidence regarding that count, I would have to consider how that conclusion affected my consideration of the remaining counts.

ELEMENTS OF CHARGES

After reminding myself of the relevant directions which I would have given to a jury, and accordingly have given to myself, I turn now to the elements of the charges brought against the accused.
As I have indicated, Count 1 is brought under s 33B(1)(a) of the Crimes Act 1900. The elements of that offence are that the accused used an offensive weapon and that he did so in circumstances where he had an intent to commit an indictable offence, namely common assault.
The Crown must prove that he used an offensive weapon, in the present matter, a gun, and in so doing he intended to cause fear or apprehension in the complainant such as to amount to a common assault.
I remind myself that an assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence.
Counts 2, 3 and 6 each allege an act of intimidation with the intention of causing the complainant to fear physical or mental harm contrary to the provisions of s 13(1) of the Crimes (Domestic and Personal Violence) Act.
‘Intimidation’ is defined in s 7 of the Act itself and includes conduct amounting to harassment or molestation of a person; an approach made to the person by any means that causes the person to fear for his or her safety; or any conduct that causes a reasonable apprehension of injury to a person with whom they have a domestic relationship or of violence or damage to any person.
I also direct myself that for the purpose of determining whether a person’s conduct amounts to intimidation the Court may have regard to any pattern of violence, especially violence constituting a domestic violence offence, in the person’s behaviour.
Count 4 in the indictment is an allegation of indictable assault. The definition of assault to which I have earlier referred is the single element required to be proved beyond reasonable doubt.
Count 5 in the indictment alleges assault thereby occasioning actual bodily harm to the complainant. I must be satisfied beyond reasonable doubt that the action alleged to constitute the assault occurred and that such an assault caused actual bodily harm. The term “bodily harm” is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent, but must be more than merely transient and trifling.
I turn now to the evidence in the trial.

EVIDENCE IN THE TRIAL

Brearn Morris

Brean Morris, the complainant in these proceedings, was the first witness called. She was born on 17 November 1997 and had turned 26 years of age at the time of the trial.
She had known Jeremy Holman most of her life as he had been friends with her two older brothers.
The nature of their relationship changed around the time of her birthday in 2021. Ms Morris was staying at the time in a granny flat which was downstairs in the premises at 4 East Combined Street in Wingham. Ms Morris said that she gave Jeremy Holman a place to stay because “he made me believe that he didn’t have anywhere else to stay, so I allowed him to stay at mine.”
Ms Morris said that they had commenced being intimate shortly after he moved in with her at the granny flat. She said that the intimate relationship lasted for roughly 2 to 3 months. She said that the reason it did not last was because he became very aggressive and controlling towards her.
She described his behaviour as follows:

“… He would try and control me in ways that I wasn’t allowed to go to my friends or even see family, and if I would try and do these things he would physically stop me by either raising his fist in my face, threatening me, and – or, like, getting me to get in a car and saying that he’s going to take me and I would end up somewhere completely else.”

Ms Morris gave evidence that there were external video surveillance cameras installed on the outside of the house. They had been installed by Cody Chapman who also resided at the house together with his mother and his grandmother. Mr Chapman’s mother, Leissa Worth, and his grandmother, Mrs Beverly Worth lived upstairs in the premises.

On the ground floor there were two bedrooms in addition to the granny flat. Cody Chapman lived in one and the second was used by his sister Jenna Chapman when she came back home from university.
There were two external video cameras. One was at the front of the house pointing towards the driveway, and the second one was above the bedroom window of the granny flat pointing towards the side of the house. Ms Morris said that the footage from the video cameras was able to be accessed from Cody Chapman’s mobile phone and also Jeremy Holman’s phone.
The complainant gave evidence of a particular incident which occurred at approximately 5am early one morning some time before New Year’s eve. She said that she woke up to hear a clicking sound and the accused, Jeremy Holman, was standing beside the bed making a clicking sound which she saw was the clicking sound of him pulling the trigger of a gun which was held towards her head.
She said that she had seen the firearm once before and that she had told the accused to get rid of it. She described it quite specifically in the trial: “it was a massive shot gun. It had 2 big barrels, a wooden handle, and it came in a brown bag.” Ms Morris said that it was held about 2 to 3 cm away from her head while she was lying face up on the bed. She said that the accused was standing next to the bed but over the top of her ‘in a way’.
The complainant said that Mr Morris accused her of cheating because she had messaged someone in a group chat. He was also wondering where the bullets for the gun were. She described having been in a group chat with her friend Rachel Clauscen and a male friend whose name she could not remember. He had been with Rachel Clauscen on an occasion when she had come over to the house to pick the complainant up. Rachel and the male friend had attended some four or five days earlier.
She then said that the accused was looking around the granny flat for the bullets. Ms Morris told him he had to leave and to pack up his stuff. The accused kept saying: “Where are the bullets? Where are the bullets?”
The accused then then packed his things, including the gun, and left the premises.
Ms Morris then said she ran upstairs and informed ‘Nan’, “not entirely what was going on, but I told her that I did kick him out and that I was scared, and I hid upstairs.” She explained that by ‘Nan’ she meant Leissa Worth’s mother.
Later that morning, while she was still upstairs, Cody Chapman came back with Jeremy Holman and let him back into the granny flat. While she couldn’t see what they were doing she said that she heard them searching throughout the granny flat. In due course Cody Chapman came upstairs and Ms Morris said that she told Cody Chapman that Jeremy had held a gun to her head and was pulling the trigger and going crazy.
She asked Cody not to let Jeremy know that she was upstairs and sometime later she thought Cody Chapman had helped Jeremy to get his clothes and they left to go back to wherever he was staying.
The incident with the gun is relied upon by the Crown with respect to Count 1 in the indictment: namely using an offensive weapon with intent to commit an indictable offence, namely common assault.
The Crown relies upon the entire incident as described by the complainant, including the gun held to the complainant’s head, the accused’s threats and his attempts to locate the bullets as constituting the completed offence of intimidation. This is Count 2 in the indictment.
The complainant next gave evidence that over the next couple of nights “or that same night”, the accused was outside her window and she could see him peeking through a section where the curtains did not cover the bottom corner of the window. She said that he was sneaking around and trying to listen to see who she was talking to, whether it was on the phone or in person, or to see if she was alone “or anything like that”. She said that he asked her to let him in and she recognised his voice.
Ms Morris said that it happened on a number of occasions and she could hear him sneaking around on the grass. She said that she would be either on the phone or talking to Leissa or Jenna and saying “I can hear him out there, I know he’s hovering.” She said that they thought that she was kind of crazy. She said that she would then get phone calls from him saying that he could hear what she was saying.
She said that on other occasions he said that he was sorry and to let him in. He told her to get over it and he didn’t mean any of it.
She said that on one occasion she was staying upstairs in the spare room because she felt safer upstairs and she could see him from the veranda walking from the Ag Farm at the back of the premises to the side paddock. She said he was saying how he was going to kill himself and trying to make her feel bad. She said that he said he would kill himself either by crashing into a tree or taking pills.
She said that on one occasion he was streaming the feed from the surveillance camera from his phone through Google Chromecast onto the TV. She recorded the images on the TV with her phone and captured an image of him walking back towards the house and going to go in between the garage and the house gate. She recognised it as Jeremy outside the premises. She said that she stopped recording when he was about to come back in.
The video recording was tendered as Exhibit #1.
Ms Morris was next asked questions about an occasion when she had come home and found that Cody Chapman had invited Jeremy Morris into the granny flat. She said that she come back from going to Coles in Wingham and when she entered the granny flat she found that Jeremy was sitting there talking with Cody Chapman. Ms Morris said that Leissa Worth came downstairs and after noticing that Jeremy was there she asked Ms Morris if she was okay with this. The complainant said that she said “yes” because she was standing in front of Jeremy at the time. She explained that she in fact was not okay with his presence but effectively felt constrained to say “yes”.
Ms Morris said that at that point the relationship was over so far as she was concerned, although she said: “It was ongoing on his behalf, if that makes sense.”
The complainant next gave evidence about a number of trips that she made with the accused from Wingham to Newcastle. She said that she was made to undertake those trips and if she didn’t want to go with him there would be a massive argument. She said: “he would literally threaten me, like with his fist in my face, if I didn’t go.” Ms Morris said that the trips to Newcastle were undertaken more than once but she could not remember how many times they went.
The complainant was then taken in her evidence to a specific incident which occurred while driving back from Newcastle towards Wingham. She described an incident which occurred while they were driving through the Yarrack Forest towards Taree. The reference in the trial transcript reads “Yarrack (as said) Forest”. Whilst not clarified in the course of the trial I suspect that the area through which they were said to be driving was most likely the ‘Yarratt’ Forest.
Just why they were driving through the Yarratt Forest, which is some distance to the north of both Taree and Wingham, when they were said to be driving to Taree or Wingham from Newcastle, was not explored at all during the trial. (Although I do note that the recollection of Rachel Clauscen was that they had been visiting a friend’s place and were on their way back from there).
At all events the complainant described her brother, Anthony Morris, as being in the car with her and Jeremy Holman as they drove back towards Taree from Newcastle. She said that the day before a particular incident, the accused crashed the car which she thought was a silver BMW. She was in the front passenger seat and the accused was speeding up to drift around a corner when he suddenly went too fast and went off the side of the road. The vehicle collided with a tree. The damage to the passenger side was such that she was not able to open the door and had to climb out of the driver’s side.
Ms Morris said that Jeremy Holman called up a mate to come out and collect Anthony Morris to give him a lift back to Taree. The complainant said that she and Jeremy Holman went with the vehicle while it was taken to Coopernook to be repaired. She was unable to recall how the car was taken from the site of the crash to a farm at Coopernook where, as she described, it was repaired “to the best of what Jeremy could do.”
They left the next day to apparently continue their journey home.
At some point in the journey, at a location not otherwise described, Ms Morris said that Jeremy started screaming at her again for cheating, and he threw his own phone out of the car window. The accused went off the road and stopped the vehicle and told her to get out and look for his phone because it was her fault. She said that Jeremy had to meet up with “a friend who was coming out to see him or help with the car or something.”
The complainant then described a vehicle with a male and female in it which arrived and they stopped and got out “to help Jeremy.” Ms Morris had walked some distance up the road and had sent a location pin indicating where she was to a friend of hers, Rachel Claucsen.
Ms Morris described the female who had arrived as ‘Amy’ although she could not remember the name of Amy’s male partner. She said they had arrived to help Jeremy look for his phone and “whatever else was planned to do”, she was not sure. She said that she had started walking off and had got some distance away when she noticed that Amy and her partner had started to drive off. They were driving towards where she was walking, and she said that she made eye contact with Amy in the front and tried waving them down to help. She said: “they didn’t – she eventually messaged me, but my phone had died.”.
She said they saw her but did not stop. Ms Morris continued:

“I just watched them drive off, and then I knew Jeremy wouldn’t be far behind from here, so I started running, and he had gotten the car back onto the road and was following me, threatening to skull drag me.”

She described Jeremy screaming at her to get in the car and then having got out of the car and started chasing her. She wasn’t sure where they were but it was still on a dirt road “heading towards Taree.”
The next thing she described was seeing Rachel Clauscen’s mother’s car arriving at the scene. She recognised the car which she was familiar with and Rachel’s mother who was driving the car. She said: “I didn’t see Rachel but she informed me later on that she did duck as she didn’t want him to see her.” She said as the car got closer Jeremy got hold of her and she said she “collapsed”. She said: “I had no more energy in me to run or to try fight back to get away. I just collapsed.” She said that as the car went past he was cuddling her and hugging her. She said Jeremy then walked her back over to the car and put her in the car.
With respect to the overall circumstances of what was said to have taken place on the dirt road and, what by implication, was still the forest gives rise to two counts in the indictment. The Crown relies on the alleged intimidation whilst driving and after they stopped and the threats attributed by the complainant to the accused in support of Count 3, a charge of intimidation.
With respect to the ‘hugging’ or ‘cuddling’ while the vehicle driven by Rachel Clauscen’s mother drove past, the Crown relies upon that circumstance in support of Count 4, namely common assault.
Ms Morris then described that after getting back into the car she was driven home.
She was taken to communications that she had with Rachel Clauscen after the incident. A screenshot of messages on the complainant’s mobile phone, which she said she had sent to Rachel Clauscen, was tendered without objection as Exhibit #2. The messages, at 11:40am on 10 January read as follows:

“Yeah I wasn’t cuddling him. He kept following me in the car and then got out to skull drag me but because you were driving pass he cuddled me
He went to pick me up few moments before you went pass and I was that scared I almost fainted and dropped trying to run away but he kept grabbing hold of me or would go to run me over. Fucking his mate and girlfriend didn’t even stop the gronks just before all that shit started.” (sic)

A second message sent and in the same screenshot read:

“He came out mine that night and was begging for me to let him in and I went upstairs to hide from him.”

The video recording which had previously been played and tendered as Exhibit 1 was then replayed after the vision was able to be rotated and viewed in its correct perspective. The replayed video was substituted as Exhibit #1.
The complainant identified the accused as the person whose image can be recognised as walking outside the house. When asked what the accused was holding she responded: “a gun”. It should be noted in passing that a replaying of Exhibit 1 on a computer screen rather than the large screens which were displayed in Court, clearly shows the man in the video holding what appears to be a rifle.
Ms Morris was next taken to an incident at a motel. She identified the relevant motel as the ‘Taree Motor Lodge’ which was located next to another motel called the Marco Polo.
The complainant gave no real explanation as to why they were at a motel room in Taree. She described having been there with the accused Holman and another male person by the nickname ‘Gabby’ (as transcribed). This was established in evidence to be Mr Andrew Cadogan.
She described that the accused was playing pokies on her mobile phone. She asked for her phone back on numerous occasions and the accused just ignored her and told her to go away. She said she had finally had enough after an hour or two hours and demanded the phone back.
Ms Morris said the accused then put his hand around her neck and lifted her off the ground with his hand squeezing the sides of her neck. She demonstrated how he placed his hand and said that she was still able to yell and scream and breathe and that he did not cut off her airway. She demonstrated part of her hand between the first finger and her thumb effectively being wrapped around her neck as he lifted her up. She said that he then placed her down and barged out of the motel room. She said that he walked towards where they had previously parked his vehicle which was a black Mustang, which she said was a newish model.
She said that he still had her phone and she ‘took off’ down the main street towards Cundletown and took the back footpath behind all of the motels and went to the carpark at the riverbank.
The complainant said that she could hear the Mustang before it actually arrived in the carpark. She met somebody who she knew as Jack Debbo (Jack Debreceny) who she saw talking with his mates in the carpark. She said that she ran up to him and asked if she could sit and hide in his car because her ex was chasing her, and she feared he would find her. Jack said she could jump in his car which she did.
She said she actually “tucked up” under the dashboard because she didn’t want to place the car seat down or anything, because it would show that someone was lying down in the car hiding.
Not long after she hid in Jack’s car the Mustang showed up with Jeremy in it. She said he asked Jack if he had seen a girl running down the street. She said she recognised the voice of the person talking to Jack and that it was Jeremy. In due course she asked Jack if the coast was clear and then Jack drove off with the complainant in his car.
She said the first place they drove to was her friend Rachel’s and she ran up and knocked on the window and got no response. They then drove from Taree to Wingham and went to somebody called Dean Butts’ house where again she knocked on the door and did not get a response. She said at that point they went to the ATM at the service centre at Purfleet. She said that she did that because she knew she still had money in her account and Jeremy still had hold of her phone “which meant that he could have gambled it all away”.
She said that she withdrew the $590 which was the balance in her account at the time and took it with her. She thought that left the account with no money in it but she couldn’t tell fully because she didn’t have her phone. She confirmed that her evidence was that Jeremy still had her phone at that stage. She subsequently took a screenshot from her mobile phone after it had been returned to her which showed the transaction at the ATM and the withdrawal of $590.
There was no evidence as to when the screenshot was taken. It became Exhibit #3.
After leaving the ATM at the service centre at Purfleet she said they then went back to Bushland (presumably Bushland Drive, Taree) where she went and knocked on the door of her younger brother’s house. She said that his girlfriend opened the door and they allowed her to stay at their home until the following day.
The next morning, she got in contact with Rachel Clauscen and went to her place. She described the Mustang arriving outside Rachel’s house. Her older brother Anthony was with Jeremy Holman in the Mustang. Anthony Morris ran up and knocked on the screen door just as the complainant locked it. She gave evidence that she told her brother that she didn’t want to have anything to do with Jeremy and she went and hid behind the door in Rachel’s room.
She then asked Rachel to message one of her neighbours to get them to call the Police. Shortly afterwards Police did arrive. She described that Jeremy left just in time. She said: “… everytime, it was like the Police doing a lap Jeremy would just leave, like, it was cat and mouse.”
She said that Jeremy came to the house more than once that day. On each occasion he was in the same Mustang. She thought that she continued to stay with Rachel for some time but said that she didn’t really remember. She said that after a week or a couple of days had gone by she went back and saw Dean Butts before ultimately leaving the Taree area.
Before closing her evidence-in-chief the learned Crown Prosecutor led from her that she had subsequently gone back to the granny flat after she had stopped living there and had retrieved two cartridge cases from .308 bullets which she had found in the granny flat. Photographs of those objects were tendered without objection as Exhibit #4.
In cross-examination Ms Morris agreed that the accused Jeremy Holman had grown up in the Taree area and that he had lots of friends in the area. A series of names were put to her as people who were good friends with the accused. They included Cody Chapman, Ms Morris’ brother Anthony, Holman’s sister Stevie at Old Bar, Leslie and Dale in Upper Lansdowne, and Dylan Spicer and his girlfriend Amy, who was also friends with the complainant. She agreed with all of those names though she qualified her response saying that he became friends with Cody Chapman as a result of her.
It was suggested that the accused could stay with each of those people, other than Anthony Morris, if need be. The complainant said she did not know.
She agreed that he was good with cars and could fix cars and in one of her statements she had said that she always knew him to be in different cars. Questions in cross-examination referred to a white Kia as well as an Audi and the BMW which she had described in chief.
Cross-examination focused on the layout of the granny flat and the adjacent bedrooms and established that Cody Chapman had access to the granny flat area. The complainant agreed that Amy had been in a relationship with Cody Chapman and that she subsequently went out with Dylan Spicer. During the time that the complainant was living in the granny flat Amy would sometimes come over with Dylan Spicer. On occasion the four of them, namely Amy, Dylan Spicer, Jeremy Holman and the complainant would go on a trip to Sydney.

Ms Morris agreed that she had given three statements to Police, the first being in February 2022. She was asked some questions about what she had told Police. She agreed that she had told a support agency that had assisted her to leave Taree about an incident with a weapon. She was asked whether she had described the weapon as a .308 shotgun. She said she didn’t know. She didn’t recall having said that he broke the window before entering the flat.
Ms Morris was asked how many people she had told about the gun being pointed at her. She remembered telling Cody Chapman and also his mother. She told Rachel Clauscen on the same day that it had occurred.
Cross-examination continued during which it was suggested that the disagreements between the complainant and the accused related to money and allegations of money having been taken and were not related to intimidation or threats.
A series of screenshots of phone messages between Ms Morris and Leissa Worth (Cody Chapman’s mother) were shown to the complainant and tendered as Exhibit #5.
The first screenshot was of a conversation via SMS on 16 December 2021 at 10:04pm. Mrs Worth had asked Brearn Morris if she was ok. A short while later Ms Morris responded “yes” and said that Jeremy did not realise how much his actions had caused her reaction.
She agreed that she had sent a message saying: “I pretty much made it clear how it is and I’m not going to be walked all over by his childish selfish acts atm… pretty much laid it down and said stop with the bullshit or leave.”
A further screenshot of a conversation on 26 December at 9:33pm was again initiated by Leissa Worth who asked the complainant if she was ok. In her reply Ms Morris said that Jeremy would not give her the money she won because she did not want to go down to Sydney with him. She said: “and all I asked for out of it was 100.”
Ms Morris went on to say that he was not going to give her the money. She said “I’ve told him to get out and take all his shit or I will throw it out.” She went on in that message stream to say “I just want him gone after him (putting) his fist up towards me in my face.” Mrs Worth asked “Is he going”. She said “I hope so” and that he was “packing now”.
After being invited to read through the messages Ms Morris said there were multiple times that the accused would take money that she had won on the pokies. She agreed that she had asked him to leave on multiple occasions and ultimately agreed that the messages were probably the night before the gun was pulled on her.
She was asked about whether there had been an argument about $2,000 which had been said to be missing from Jeremy Holman’s jacket. She said he had accused her of taking money but he had never said the amount. She agreed that she had told Police in her most recent statement, done earlier that week, that Jeremy had accused her of hiding his cash and drugs on the morning that he left.
It was put to her that money was the cause of him leaving and not allegations about cheating. She agreed that she had said that he saw some chat logs on her phone and became jealous. She agreed that she did not provide evidence of the chat log to Police because Jeremy had deleted a lot of things from her phone. In further cross-examination Ms Morris said she had not let him back into the granny flat because she was scared of him.
She was then taken to a paragraph in her original Police statement where she described an incident where Jeremy had come back to the flat and wanted to talk to her. She described having opened the door to him and he told her that he wanted to apologise and also to look in the flat for more things he had left behind. She told Police that he had offered her cash and goods and had offered to buy a nice handbag to make up for his behaviour. He sat at the end of her bed in tears and said he was sorry.
She told Police that she had thanked him for his apology but still asked him to leave. In cross-examination she said that she was still uncertain about the time. In the course of her cross-examination she was not sure if it was after the time Cody had the accused back at the flat and that she said that she had subsequently changed the timeline in later statements.
It was put to her that on the occasion she came back from Coles she was laughing and having a good time. She disagreed. It was also put to her that Leissa did not ask her in front of Jeremy if she was ok with him being there but that Leissa had taken her upstairs and asked her in private. Ms Morris rejected that proposition and said that she had been asked in front of him. She denied that she was quite happy to be in Jeremy’s company.
It was put to her that she was not afraid of him because he had never threatened her with a gun. She rejected that proposition. It was suggested to her in cross-examination that the accused had not been sneaking around the flat after she had kicked him out. She similarly disagreed with that suggestion.
She agreed that she had said he was calling and texting her a lot and that she did not give such text messages or logs to Police. She said that his number was blocked and that they would have come up under ‘private’. She said that they came up as a private number and that she hadn’t provided them to Police because she wasn’t in Taree very often after she had left.
She agreed that she had said that both Jenna Chapman and Leissa Worth had said that she was crazy when she said Jeremy was outside her room and had been sneaking around.
She was asked how much methamphetamine she was consuming in December 2021 and she initially said not much. When the month was placed in context about the time she had asked Jeremy to leave she said she was taking none around that time. She agreed that she had used methamphetamine before that time but that she was not using it then.
She was unable to say the date she had last used methamphetamine. She accepted that she was given an ‘infringement notice’ for using methamphetamine this year. It was suggested to her that she was using a lot of methamphetamine in December 2021 and January 2022 with the accused and that it was a big part of their relationship.
With respect to the incident in the forest where Ms Morris said the accused had thrown his own phone out of the car, it was put to her that in fact she had thrown a bum bag out of the window that had his phone in it. Ms Morris denied that suggestion.
It was put to her that she was under the effects of methamphetamine at the time which she similarly denied.
It was put to her that the accused never threatened to ‘skull drag’ her back to the car and she responded that he did. It was put to her that when he hugged her he was not about to assault her and he was not being malicious. She responded that he was. She said that he carried her back to the car. She agreed that after she was put back into the car Mr Holman drove her home and dropped her off.
It was put to her that there had not been any car accident and that she had exaggerated the entire event. She did not accept that.
She was next asked questions about the attendance at Taree Lodge Motel and her subsequent meeting up with Jack Debrenecy in the carpark. She was asked if she remembered telling him that she did not want to stay in the same place for too long because she was worried Jeremy might be tracking the mobile phone’s location. She said she had not said such a thing because the accused had her phone. She was asked how she contacted Rachel the next day and she said it was though her little brother’s Facebook account, using his phone.
It was put to her in terms that Mr Holman was never at a motel with her on this occasion. She denied that suggestion. It was put to her that he never took her mobile phone because he wasn’t there. She said she had no phone because the accused had it.
In the course of an extensive cross-examination she continued to refute the suggestion that she had retained possession of her mobile phone.
With respect to the allegation of an assault and a squeezing or choking of her neck or throat area she said that she had bruises which became obvious as time went by. She was cross-examined about why no photos were taken of the bruises.
The following day she had gone to Rachel Clauscen’s house, this being the occasion that Jeremy Holman and her brother Anthony Morris came to the house. She said that she could not recall having told a female police officer that Jeremy had tried to break into Rachel’s house.
She repeatedly said she could not remember the conversation with the Police officer so could not answer the question. She agreed that Anthony and Jeremy were at Rachel’s and were not leaving and reiterated that she could not remember what she had told the Police officer.
With respect to the bullet casings which she said she found in the granny flat and provided to Police she did not accept a question suggesting she had taken the bullet casings with her to Wingham. She was asked if she knew the difference between shotgun shells and rifle bullets and she said that she did not know guns at all.
There was no re-examination and that concluded her evidence.

Corey Maher

The next witness called was Corey Maher. He was a neighbour who lived across the road from Rachel Clauscen in Rosewood Crescent in Taree.
He received a Facebook messenger call from Rachel Clauscen at 8.42 am on Wednesday, 19 January 2022. He said that she sounded “pretty panicked” and asked that he call the Police. He immediately phoned 000.
A recording of the 000 call, together with a transcript was tendered (Exhibits #6A and #6B).
In that call, he told Police that he could see two fellows who were loitering in front of Rachel’s house on the veranda. He told Police that the vehicle was a gun-metal grey Mustang. The operator at Police emergency said that Police were on their way.
Following the call to 000 Mr Maher sent a text message to Rachel Clauscen telling her “they are on their way”. The screenshot of that message was tendered as Exhibit #7.
In the course of his evidence Mr Maher gave a more detailed description of his observations. He described observing the first man, who was the driver, standing on the front porch “knocking pretty obnoxiously on the door screaming for Rachel.” He described seeing the second man get out on the passenger side of the vehicle and after they stood around “for a bit” the first man went back to the driver’s side and got into the vehicle.
Mr Maher described him, saying: “He slammed the door. He was obviously pretty angry.” He described in further detail each of the men getting back up and knocking on the door before, as he described it: “He stormed back to the car with the shits. Started the car up, and took off up the street.” He described the Mustang doing a burnout at the end of the street and then going around the block and coming back into their street.
The screenshot, Exhibit #7, also included a further message from Rachel Clauscen to Corey Maher at 9:25am. The message said: “Thankyou for this morning Corey. Breezy appreciates it!” I infer that this was a reference to Brearn Morris.

Jack Debreceny

The next witness called was Jack Debreceny. He had known Brearn Morris since High School and was a friend of hers as well as of her younger brother, Deru. He gave evidence that on an evening in January 2022 he and a mate, who was driving a second car, went to the carpark behind the KFC premises in Taree.
He said that it was 7:00pm or 7:30pm and that it was dark. Debreceny was near the boat ramp and talking with his mate from the other vehicle.
He described seeing a female pacing back and forth between each end of a building near the carpark. He described seeing a car drive down and the person disappearing on the dark side of the building on the river side. He said the car would then take off and you would again see the person pacing back and forth at the bottom side of the building. He described the vehicle as a dark coloured ford Mustang. He said that it was a newer model.
Mr Debreceny said that after this happened a couple of times, at one of the times, the car had gone, the female walked towards him and asked to get in his car. He said he had no idea who it was until she came up to him.
He said that she appeared very scared and asked to get in his car. He said he and his mate were both outside their vehicles and he was standing on the driver’s side of his car.
He said that Brearn Morris, who he knew as Bree, got into the passenger side of his vehicle. He said that he noticed that she “rolled the seat back” and was lying down hiding inside his car. He said the Mustang came back and that it appeared to be looking for someone because it was moving from side to side with the headlights looking in different places.
He said that the Mustang had come down twice before she had got into his vehicle and that it came down one more time after she got in his car. He was asked if he had any interaction with the Mustang himself and he said “No”. He asked Bree if she was ok, and she said no. He said that her demeanour was very scared and very shaken.
After a while he asked her if they should go for a drive just to keep her safe. They left the carpark and drove out to a service centre because she told him that she wanted to get money out of her account. She explained that she wanted to get money out of her account before her ‘ex’ took the money from her. They went to a service station where they got money out of an account, presumably from an ATM. He said that he knew that she did that because he saw her counting it when she went back to the car.
After she’d got back in the car Debreceny’s recollection was that Ms Morris said that she was going to try and make a phone call to someone in Wingham to see if she could stay there. They then drove to Wingham. He said she could not get onto this person so she went and knocked on the door and there was no response.
He then said that they parked next to the Police Station in Wingham for probably half an hour while Ms Morris was trying to work out where she could go from there.
Debreceny at one stage suggested that she go and tell the Police. She said that she didn’t want the Police involved at that point in time. Debreceny was asked if she had told him why she was fearful of her ‘ex’ and he said that she had told him that he was going to kill her. She also told him that she had been woken with a gun to her head which had been pointed at her by her ‘ex’.
After sitting outside the Police Station for a period of time he drove her to her brother’s house where she stayed. That brother was Deru who Mr Debreceny said he was friendly with. He said he did not hear from Ms Morris again.
He drew on a map on which he indicated where his vehicle was parked in the carpark and the direction of travel of the Mustang which he had observed. That map and diagram was tendered as Exhibit #8.
In order to make sense of the Exhibit and taking into account local geographical knowledge, Mr Debreceny’s map indicates the Mustang travelled in a generally easterly direction along River Street before turning right into Stevenson Street and down into the carpark area adjacent to the Manning River Rowing Club. It then completed an effective circumnavigation of the carpark area before travelling generally north and then turning right into the dead-end portion of River Street and driving around and into a parking area behind the Rowing Club.
Exhibit #8 then indicates the Mustang doing a u-turn and coming out of River Street before turning right into Stevenson Street and proceeding up to the main road of Victoria Street and turning left at the KFC. Whilst there was no cross-examination, the implication was that the Mustang made those movements on three occasions.
In cross-examination Mr Debreceny confirmed that he had no criminal history, that he had never given evidence before, and that he had never given a statement to Police previously. He said that he had been honest in his statement and had tried to give all the details he could remember.
He said he had made his Police Statement in August 2022. I note that this was some six months after the incidents which he was describing.
In the course of cross-examination it was put to him that he was in the carpark at about 7:00pm and he was there for a little bit chatting with his friend and that it was dark. Mr Debreceny agreed with those propositions.
I am constrained to observe in passing that at 7pm in January in Taree the light would certainly not be described as dark. My own experience at Taree would make the same observation at 7:30pm. I should observe that no cross-examination or questioning of his recollection of arriving at the carpark between 7:00pm and 7:30pm and his recollection of it being dark when the complainant was in the carpark was pursued by either counsel.
Following his agreement that it was dark, in the course of cross-examination the witness agreed that he could not see who the driver was nor how many passengers, if any, were in the car.
He agreed with a series of propositions contained in his statement to Police, each of which was consistent with the proposition that the complainant had her mobile phone in her possession. He had told Police that she was worried her ex-partner could be tracking her mobile phone’s location and also that she tried to ring someone in Wingham and that she was using her phone while they were parked outside the Police station. Mr Debreceny said that she had not said anything at that time about her ex-partner taking her phone. It is appropriate to note in passing that this evidence is in direct contrast to the evidence of the complainant regarding possession of her phone.
The witness was asked if Ms Morris had told him that she had been assaulted by her partner that night. He replied “yep” and said that he could remember her saying such things but could not recall the detail.
He agreed with the proposition that she told him that she had a fight with her ex-partner and she was worried he was going to kill her or do something really bad. The final point in cross-examination was to confirm his evidence that when Ms Morris got in his car she reclined the seat back so that she was lying down and could not be seen.
This similarly is a different recollection than that given by Ms Morris where she had said she did not recline the seat.
I note that the Crown submitted in closing address that the witness had not used the word ‘recline’ in his evidence-in-chief as was suggested to him, but rather he had said that she “rolled the seat back”.

Andrew Cadogan

The next witness was Andrew Cadogan. He knew the complainant but was actually friends with her two older brothers. He viewed her as his mate’s sister.
He also knew and was friends with Jeremy Holman. Although they had grown up in the same community he had only known him as a friend for about a year and a half. In late 2021 and early 2022 he said he had been in a bad state on drugs at that time. He had been on heroin and fentanyl and ended up in a drug-induced psychosis. He said he didn’t really remember much over a period of probably four to five months. He said it was over the Christmas period.
He was asked about staying at the Taree Lodge Motel. He said he had stayed there for a few months and whilst he had remembered when he first stayed there, he could not remember when he left. He was shown a bundle of documents which were registrations made through Booking.com. Mr Cadogan said that he didn’t only book the motel through Booking.com and about half the time he paid cash. He described the “Indian motel dude” who would give him a weekly rate for cash rather than having to pay the daily rate of $110 or $120 nightly. He got the full week for $550 which effectively meant he was getting seven nights for the price of five.

The records from Booking.com were tendered as Exhibit #9. The reservations and payments on Booking.com in Exhibit #9 indicate bookings for Mr Cadogan for two days from 8 January 2022 to 10 January 2022; 2 days from 12 January 2022 to 14 January 2022; 2 days from 20 January 2022 – 22 January 2022 2 days from 3 June 2022 – 5 June 2022; and 2 days from 7 June 2022 – 9 June 2022. With respect to the first booking pursuant to Booking.com being in early January 2022 Cadogan thought there would be bookings from earlier as he thought he was there over Christmas. He had no recollection as to whether Bree or Jeremy visited him while he was staying at the Motel. He recalled Jeremy at one stage driving a little white Subaru and had no memory of seeing a dark coloured Mustang.
In cross-examination Mr Cadogan was asked if he had ever used ice or methylamphetamine with Bree Morris. He said he had years ago. He was asked by me how many years ago and he replied “over the years, growing up, I suppose.”
In further cross-examination he ‘supposed’ that he agreed with the suggestion that Ms Morris was using methamphetamine in late 2021 or early 2022. When asked to clarify whether that was during the time he was at the motel, he said “not around that time, no. As I said, I can’t recollect any of that time. So I can’t tell you.”

Anthony Morris

The next witness called was the complainant’s brother, Anthony Morris. He had known Jeremy Holman since childhood. He said their parents used to be friends and they used to go to the same primary school.
After becoming adults he said that he did not stay in much touch with Mr Holman. In late 2021 and early 2022 he said he would see Jeremy Holman around but that he didn’t really hang around with him. At some stage he heard that his sister and Jeremy Holman were seeing each other but he denied ever seeing them together. He said that he did not have much to do with Mr Holman at that time. He was asked whether he had ever gone in a car with Holman in trips either down to Newcastle or Sydney. He said “No” to both propositions. He was asked whether he had ever been in a car with Holman in a forest where he was involved in the car coming off the road and being damaged. He said he had never been in a car with Holman and his sister.
He couldn’t recall what type of car Mr Holman was driving at that time and had no recollection of a dark coloured Mustang. He didn’t think he had ever been in a dark coloured Mustang with Mr Holman.
Mr Morris was asked if he knew Rachel Clauscen and he said that he did and had known her since childhood. He denied ever visiting her at her house and said he had no recollection of ever going to where she was staying and banging on the door and asking his sister to come out. He similarly had no recollection of going to that location with Mr Holman.
Notwithstanding his evidence clearly being unfavourable to the Crown there was no application to cross-examine pursuant to s 38.
The Crown next sought to tender a copy of a letter sent by the accused to the Supreme Court in support of an application for bail. On its face it was a commentary on various propositions contained in the Crown Case Statement which had been provided to this Court in relation to the pre-trial application. The Crown sought to tender the Crown Case Statement together with the letter from the accused in order that his responses might be intelligible.
After hearing submissions in opposition to the reception of this material the Crown Case Statement was admitted into evidence, not as proof of the truth of the statements contained therein but in order to give a proper understanding of the accused’s letter to the Supreme Court.
In short, he accepted some aspects of statements made in the Crown Case Statement, while rejecting or disputing other parts. The document was admitted on the basis that his admissions regarding his presence at relevant locations on particular occasions would fall within the definition of an admission, notwithstanding that the allegations regarding his actions were disputed. The documents became respectively Exhibits #10A and #10B.
Prior to the commencement of the trial proper, a pre-trial issue regarding the proposed tender of tendency evidence was dealt with. The evidence related to prior incidents in relation to the accused’s relationship with previous domestic partners. Evidence was admitted regarding two of the three sets of circumstances sought to be relied upon by the Crown. The tendency sought to be proved was the tendency of the accused to physically assault and threaten violence towards his domestic partners.
The first incident involved Jeremy Holman, and a complainant Sharntel Collins, in September 2015. They had been in a domestic relationship for three years which had ceased by September 2015. Holman attended the victim’s premises in Boyce Street Taree on 11 September 2015 where he joined her in the lounge room whilst smoking ice in a glass pipe. After a disagreement between them Holman took hold of Ms Collins and pushed her backwards causing her to fall on a coffee table and a broken glass ice pipe. After the victim got up Mr Holman threatened her before punching her with a closed fist to her face. He wrestled her into a headlock before subsequently again hitting her with a ‘full arm swing closed fist punch’.
At the time of the assault Ms Collins feared calling the Police and did not report the matter at that time. Around 20 September 2015, Mr Holman and Ms Collins again split up. The evidence tendered with respect to these facts were the statement of facts tendered in the Local Court and a Certificate of conviction. These became Exhibit #11.
On the evening of 25 September 2015 Ms Collins was out in Taree with a number of friends. She saw Mr Holman outside the hotel where she was located. She was later given a lift home by a friend. After arriving in the vicinity of her home at 25 Boyce Street, Taree, Ms Collins went into her sister’s house located next door at 23 Boyce Street, Taree.
Whilst at her sister’s home Ms Collins saw a vehicle in which Mr Holman was a passenger, drive past the premises on a number of occasions with Mr Holman yelling out of the vehicle. Ms Collins felt intimidated by his actions and called the Police.
At about 1:30am Ms Collins returned to her own home which was next door to her sister’s. Mr Holman climbed over a fence into the yard at the rear of the premises and banged on the lounge room window and threatened to kill Ms Collins. He yelled: “I hope he was worth it. I hope he is coming here. I am going to kill you.” One of Ms Collins’ friends chased Mr Holman from the yard and observed him jumping over the side fence. Ms Collins then went back next door to her sister’s home and the Police were called.
Police arrested Holman later that day. A bag in his possession was found to contain a quantity of approximately 10 grams of methylamphetamine. He was subsequently convicted of assault occasioning actual bodily harm for which he was sentenced to a term of imprisonment.
No certificate of conviction was tendered with respect to those incidents. The statement of facts tendered in the Local Court became Exhibit #12.
The defence position had originally been an objection to receipt of this material. I had ruled on 20 February 2024 that some parts of the tendency evidence sought to be relied upon by the Crown was admissible. The defence position in due course, after the tendency evidence was allowed, was that the Certificate of Conviction could be received under s 91 of the Evidence Act and that the facts could be received “in the way your Honour has determined”.

Jenna Chapman

The Crown next tendered a statement of Jenna Chapman. She was not required for cross-examination. Her statement became Exhibit #13.
In 2021 Jenna Chapman was living in Armidale while she was studying at University to become a teacher. She returned to the family home at 4 East Combined Street, Wingham for the 2021 Christmas Holidays. She was aware that Brearn Morris had moved into the downstairs living area of the home and that she was a friend of her brother, Cody Chapman. She did not socialise with Cody or any of his friends, including Jeremy Holman. She said she had nothing to do with them or their world.
At the time Cody and his friends were heavy drug users, especially ‘ice’. She wanted nothing to do with any of that and stayed away from all of them.
However, after she had moved back home for the holidays she spent time with Ms Morris. She said they would hang out together if they were home at the same time and she often chatted to her. She would help Ms Morris by giving her lifts to the shops to buy groceries as she didn’t have a car. Ms Chapman described their relationship as more like flatmates than friends.
I observe in passing that her relationship with Brearn Morris in light of her expressed rejection of her brother and his friends on account of their drug use, is, prima facie, consistent with Ms Morris’ evidence that she was not using methamphetamine at this time.
During the time she was back at the household she didn’t observe any domestic violence between Brearn and Jeremy Holman. She didn’t observe any physical altercations, physical behaviour, aggression or intimidation between them.
She did recall there being general conversations where Ms Morris would talk about Jeremy not treating her well. However, she could not recall the exact concerns that were referred to or the nature of the conversations.
She did have a recollection of Brearn once telling her that Jeremy had a gun. She could not remember the context of how she said it or any detail about the gun. She subsequently told her mother, Leissa Worth, about Brearn having told her that Jeremy had a gun.
She did recall one time where Ms Morris was at home and was “freaking out”. She was told that Jeremy had come over and scared Ms Morris before getting into a fight with Cody’s friends. Ms Chapman did not hear or see that incident but was told about it after it had happened.

Rachel Clauscen

The next witness called was Rachel Clauscen. She had appeared pursuant to a warrant which had been issued to compel her attendance. The warrant had been issued at the request of the Crown after clear indication had been given of her disinclination to attend.
She attended with her mother, Ms Tracy Anderson, who was herself a potential witness. Ms Anderson had been nominated as the driver of the vehicle that attended the location in the forest after Ms Morris had sent to Rachel Clauscen a pin location. Ms Clauscen had originally requested that her mother be present in Court as a support witness. The Crown requested that that not be permitted as, although they did not have a statement from Ms Anderson, it was possible that she would be called as a witness. Ms Clauscen, who was at least 30 years of age, was required to give evidence without a support person.
In her evidence-in-chief Clauscen said that she knew Bree Morris because she was friends with her older brother Anthony. She knew of Jeremy Holman as the person that Ms Morris was ‘with’. Ms Morris had told her she was with him and she also saw him in her presence. She visited Ms Morris when she was living in the granny flat at Wingham.
She was directed to an occasion when she received a message in which she was told by Ms Morris that she had woken up that morning to find Holman in front of her pointing a gun straight at her. After receiving that message Clauscen drove out to Wingham and went to see Ms Morris. Ms Clauscen was asked whether Jeremy was there when she arrived and she was quite adamant that he was not there.
She was asked whether she had looked for the Facebook message which referred to a gun. She said that she had and that she had found it. However, she went on to say that she didn’t have it with her, and it was on an old phone with a different number which she didn’t have anymore. She had found the message but didn’t have a copy of it.
She subsequently thought the message might have been an SMS.
When she got out to Wingham and spoke with Ms Morris she said that she remembered Ms Morris telling her quite distinctly what had happened. She observed Ms Morris to be quite distressed and scared. She said that she was worried to go to the Police and she didn’t want to do that at the time because she was very scared of him. While she was there she said that Cody Chapman was also there “kind of loitering”. She thought she had remained at Wingham for about 4 to 5 hours. Ms Clauscen said she encouraged Ms Morris to go to Police.
She was next taken to an incident on Saturday 8 January 2022. She said that she had received messages from Ms Morris which indicated that she needed assistance and received a pinpoint showing Brearn’s location.
Ms Clauscen said she took her mother with her and asked her mother to drive and they went out together. She estimated that it was 7 -10 kilometres away from their home in Rosewood Crescent, Taree.
When they got to the location she thought they had seen another vehicle and then saw Brearn and Jeremy on the side of the road. Holman was close to Ms Morris and she said it looked like he’d either let her go or he was grabbing her.
After initially recalling that Ms Morris had come back to town with them she refreshed her memory from a statement given to Police at an earlier point in time and agreed that Ms Morris did not go home with her. She said that they had slowed down without stopping and she was concerned about aggression or hostility and they drove home without stopping at the scene.
She identified Exhibit #2 which was the message she subsequently received from Ms Morris saying that she had not been cuddling Holman at the time.
The next incident she was taken to was Wednesday 19 January 2022. She said that they had made plans to go to the Aquatic Centre at Taree. She believed she had picked Ms Morris up from Wingham at the granny flat but also said “I may have had to pick her up from somewhere else.”
In due course she was more certain that she had picked her up at Wingham and described the detail of collecting her on that occasion. She said they went to the pool and then back to her place at Rosewood Crescent. She gave the detail of what they were doing when the Mustang turned up outside her premises which was captured on surveillance cameras at the house. She recognised Anthony Morris and also Jeremy Holman. She described the “really nice” Mustang that was being driven. She described each of the men coming to the door seeking to get Ms Morris to go outside. She said that she told Anthony to leave the property because she was calling the Police. She identified an image from the security camera at her home which was tendered as Exhibit #14.
A disc showing a short video showing the video from the surveillance cameras was tendered as Exhibit #15.
After initially not recalling that she had contacted anyone else she was permitted to be asked questions from her statement pursuant to an application under s 38 of the Evidence Act. The application was not opposed and Ms Clauscen was taken to identify paragraphs of her statement.
She confirmed that she did contact her neighbour Cory to see if he could assist to call the Police. She also confirmed that she received a message back to confirm that he had contacted Police.
She was also assisted with her memory from her statement that she had not collected Ms Morris from Wingham but had collected her from her younger brother, Daru’s home, and then taken her back to Rosewood Crescent. She still said that they had gone to the swimming pool but said they had not stayed there for long because of everything that had happened.
She gave evidence that before the Police arrived at her home the two men had left. Similarly, to the evidence given by Cory Maher she said: “I am quite sure that it was a speedy drive off and a kind of, I don’t know, a burn out or something…”
She also gave evidence about what she told Police after they arrived. She said that she had whispered Jeremy Holman’s name to them because Ms Morris, as she described, it “initially wanted it to negate away from the Police and she was obviously very scared [sic].”
She was asked whether Ms Morris had told her of any other incidents other than the incident involving a gun. She recalled that one specific time was an occasion of being choked and her being picked up off the ground. She described seeing some red marks or red swelling which she demonstrated with a hand around the “lower” part of the neck.
In cross-examination she agreed that she had known Ms Morris since they were young. She agreed that they were like sisters for each other. She did not agree with the proposition that Ms Morris was prone to exaggerate. She said she was unaware as to whether Ms Morris used ice and said that she herself did not use methamphetamine. It was put to her that in January 2022 she was using methamphetamine and she responded “No, actually I wasn’t.” She agreed that she told Police that she was introduced to Jeremy Holman by Ms Morris in about June or July 2021 as her new boyfriend.
She agreed she had never witnessed any violence towards Mr Holman by Ms Morris. She also agreed that any worries about Mr Holman and what he might do to Ms Morris stemmed from what Ms Morris had told her had happened.
She confirmed that she had received a text message about the gun being pointed in Ms Morris’ face, and that the phone on which it had been received was not changed until some considerable time after she had given her initial statement to Police.
She said there was no reason she would not have provided it to Police if she had been asked for it. She agreed that she had said it was a Facebook message to Police but now believed it was likely to have been a text message.
She agreed that her statement to police said that they had looked through her Facebook messenger and it appeared the message had been cleared. She had told Police that she cleared the chat history because data would build up and she did not have much memory space on her phone.
After being shown portions of her statement she agreed that Ms Morris had told her the night before the gun was held at her head that Jeremy said he had lost his drugs and had been frantically looking for them. Ms Morris had also said that she had asked Mr Holman to leave and he wasn’t going. This had occurred before the incident with the gun to her face.
She was then cross-examined about going to Yarratt Forest on 8 January 2022. She agreed that she received a message that Ms Morris was out in the bush and couldn’t talk. After getting the pinpoint location and driving to the location with her mother she agreed that she saw Dylan Spicer in a car. She also saw Ms Morris and Holman “close to each other and it appeared Jeremy was cuddling Brearn”. She agreed that while they did not stop she did not have sufficient concerns to warrant calling the Police. She said that the look on Ms Morris’ face did cause her concern and it was put to her that it was not enough concern to stop. She said that she was actually pretty scared of Jeremy.
The cross-examination then turned to the attendance at her home by Anthony Morris and Holman on 19 January 2022. She agreed that they had not tried to kick the door in or force it.

Leissa Worth

The next witness called was Leissa Worth, Cody Chapman’s mother.
Ms Worth confirmed that she had lived at the address at Wingham for about 10 years. She was asked about the CCTV cameras at the premises and significantly she said that they did not video record. They just showed images of what was happening in real time. She confirmed that there was no hard drive and it was not being recorded to a device. “You could simply see it on your phone.”
A plan of the premises was tendered as Exhibit #16. Six photographs depicting the granny flat area were also tendered as Exhibit #17. Ms Worth’s recollection was that Ms Morris had moved in towards the end of March 2021. It was initially agreed that she would stay for about 2 weeks. She ultimately stayed for about eight months.

The Crown also pointed to the tendency evidence as having a number of specific similarities with the account of the present complainant.
After identifying a number of apparent inconsistencies the Crown ultimately submitted that the fundamental allegations by the complainant were supported by the other evidence and that the Court would be satisfied beyond reasonable doubt with respect to all of the counts.

DEFENCE SUBMISSIONS

On behalf of the accused Mr Cranney of counsel submitted that the nature of the relationship between the complainant and the accused revolved around methamphetamine use.
In the defence’s submission, Ms Morris was a part of the drug world described by Jenna Chapman. I observe in passing that was not stated by Ms Chapman in her statement. Cadogan and Cody Chapman were similarly part of that world and in Mr Cranney’s submission “they both gave evidence pointing towards the complainant’s involvement, and I’m talking about frequent use of methamphetamines”. Mr Cranney addressed with respect to a Murray direction and a Markuleski direction with respect to the evidence of the complainant. He submitted that there should be a Liberato direction regarding the letter written by the accused.
With respect to the gun incident Mr Cranney pointed to the difference between an account with respect to rifle bullets and the description of a shotgun. The defence also pointed to the difference between standing over the complainant whilst beside the bed and getting off the bed.
It was submitted that the proposition that the complainant told Cody Chapman about the incident with the gun was not substantiated.
Mr Cranney pointed out that the complainant had not said anything in her evidence in chief about Rachel Clauscen coming over during the day after the gun had supposedly been held at her head. She had, however, agreed in cross-examination with the suggestion that Rachel had come over but said that it was only for a brief period. The difference with Rachel Clauscen’s version in which she recalled staying there for four or five hours was highlighted.
With respect to the video of the images on the TV screen taken from the surveillance cameras, the defence submitted that the Court could not be satisfied with the identification of the person on the video and queried whether one could be certain that the person was holding a firearm. Mr Cranney raised the question of whether it could be someone other than the accused.
The defence acknowledged that the Court would entertain some suspicions of the accused at some time possessing a firearm, but put succinctly, “that’s not going to get the Crown over the line.” In the course of an exchange with Mr Cranney during his submissions both Mr Cranney and the Crown were in agreement that the Court needed to put out of the judicial mind, in consideration of the trial issues, knowledge of the description given by Ms Morris of the weapon which was contained in her statement and which had been provided to the court in the pre-trial application.
Both parties were agreed that any knowledge of what Ms Morris said in that statement regarding the description of a weapon should be ignored and put to one side.
I should make clear that I do so and only note that the Crown opened the trial with specific reference to an anticipated Crown Case involving the accused having access to a ‘rifle’ and standing over her with a rifle held a short distance from her head.
I remind myself that a submission or a Crown opening is not evidence but merely an expectation of what will be lead in evidence and that the actual evidence in the course of the trial and the information to Police made reference to a shotgun while the bullets retrieved and tendered are clearly bullet casings or shells from a rifle.
Mr Cranney addressed in some detail regarding the ‘forest incident’. In his submission the complainant had failed to take reasonable opportunities to leave with her brother or with her friend Amy, and Dylan Spicer. Mr Cranney pointed out that if Dylan and Amy were there, then what he described as the accused’s ‘rampage’ and the surrounding circumstances all happened in front of those witnesses and they were not called to give evidence.
Mr Cranney pointed out that the complainant denied that they were there while Rachel Clauscen placed them there. I should note that the complainant’s evidence varied, in that sometimes she placed him there, and sometimes she did not.
In Mr Cranney’s submission the message to Rachel Clauscen to be picked up was not simply consistent with fear of the accused but was consistent with wanting a lift home because she was not getting home fast enough.
The defence also pointed to the absence of corroboration regarding the dates of Cadogan being at the Taree Lodge Motel.
In the defence submission the Court could not be satisfied as to who was driving the Mustang in the carpark. With respect to the movements of the complainant Mr Cranney submitted:

“she goes to Cundletown. She goes that way. Its not the direction of the carpark. And we don’t know how long she goes there for. She wouldn’t be pinned down on how long she ran for. But, what I’m saying is, is that it’s the opposite direction of the carpark and there’s no evidence that the accused would have or must have known that she must have doubled back at some point.”

Mr Cranney further submitted that even if the court was satisfied that the accused was driving the Mustang, the Court could not be certain he was looking for Ms Morris. The defence made submissions regarding evidence which was consistent with the complainant being paranoid and submitted that this was consistent with her being influenced by a high level of methamphetamine use.
Mr Cranney pointed to the failure to produce the logs regarding messages between the complainant and Ms Clauscen as being a “convenient excuse” for the lack of proof regarding those messages.
In the defence submission Ms Clauscen was not a witness of truth.
With respect to the factual material relied upon as tendency the defence submitted that the complainant in the earlier matters was not called in evidence. While the Fact Sheet was before the Court there was an absence of detailed knowledge about what had happened between the parties. In the Defence submission a relevant pattern of conduct was not demonstrated.
The ultimate defence submission regarding the complainant was that the court could not be satisfied beyond reasonable doubt of the facts where it was necessary to believe the complainant.

CONSIDERATION

There is no doubt that the evidence of the specific incidents which have been charged require belief of the account given by the complainant with regard to the elements of the charge brought in each respective instance and that such belief must be to a level of satisfaction beyond reasonable doubt.
The defence has submitted strongly that the evidence of Ms Leissa Worth regarding her experience with the complainant exaggerating things must lead, inexorably, to the presence of a reasonable doubt. It is important to be conscious of what Ms Worth said in evidence to which I have referred earlier in these remarks. Ms Worth said: “like there was always truth in what she said, but, it was the degree of.” She had also said “I think there is definitely some truth in what Bree has told me, I just do not know if she has exaggerated the facts.”
In giving careful consideration to the evidence of Brearn Morris the current tribunal of fact watched the demeanour of the witness at the time she gave her evidence from the remote witness room. The Court has also had, somewhat unusually, not only the transcript of her evidence but also the video recording of her evidence which was available and able to be watched and listened to in order to check some aspects of the trial transcript.
Such errors in transcription as were occasionally found were not major. However, the replaying of a substantial portion of the complainant’s evidence also permitted the Court to refresh the judicial memory regarding her demeanour as the recording had included, at the request of the Crown, the video of the witness, in addition to the audio recording. The discs had been obtained during the course of the trial at the request of the defence.
The frequency of requests by the complainant for a short break, and at one stage an assertion that she would no longer be cross-examined were also able to be observed and taken into account in an assessment of her credibility and reliability.
There is, to my mind, no doubt that her recollection regarding some matters was potentially unreliable and on occasion demonstrated inconsistencies. However, the description by Ms Worth that in her experience there was “definitely some truth” in accounts by the complainant was confirmed by my own assessment of the accounts given by the complainant.
The critical question with respect to the separate incidents she described is whether, and to what extent, there may have been an element of exaggeration and whether or not such inconsistencies which might exist would or should lead to a finding of a reasonable doubt with respect to the core elements of each individual allegation.
I am satisfied beyond reasonable doubt with respect to the evidence of Ms Morris that the nature of the domestic relationship between herself and the accused during the period December 2021 and January 2022 was troubled. The evidence of Leissa Worth regarding audible arguments between those two protagonists in the house provides corroboration for such a conclusion. Evidence to the contrary, such as the evidence adduced from Cody Chapman, I have no hesitation in rejecting.
It is one thing to find that the relationship was troubled and that it involved fights and arguments. It is another to find that individual acts or threats specifically occurred. A consideration of whether individual acts of either assault or intimidation took place must be viewed against the overall perspective of what the complainant did and said, and how she reacted on different occasions during the relevant period.
The unchallenged evidence is that by the time the complainant was assisted by a support agency in Taree and the matter reported by them initially to Police, she had expressed sufficient fears regarding Jeremy Holman as to be assisted in relocating her residence interstate.
I propose initially to give detailed consideration to the last relevant incident giving rise to the charges before this court, namely the circumstances giving rise to Counts 5 and 6.
Count 5 relates to the alleged choking incident which is said to have occurred in the Taree Lodge Motel on what can be calculated to have been the 18^th January 2022. Ms Morris’ account placed herself and the accused in a room at the motel which was occupied by Andrew Cadogan. She described the accused having possession of her mobile phone and using it to “play the pokies”. She described the incident of the accused squeezing her neck and lifting her from the floor by means of his hand around her neck or throat area and under her chin and physically elevating her as high as he could reach.
I refer to this as a ‘choking’ incident simply to identify it with clarity, noting that the Director of Public Prosecutions has brought an allegation of assault occasioning rather than an offence under the relevant choking or strangulation provisions. The action described by Ms Morris and the resultant alleged actual bodily harm was the subject of detailed questioning regarding the nature of the placement of Mr Holman’s hand and questions with respect to the alleged resultant actual bodily harm, namely red marks and bruising.
There was little, if any, questioning about the physical possibilities of the actions she described in lifting her physically off the ground. The Crown relies on a subsequent complaint to Ms Leissa Worth and also to Rachel Clauscen regarding this physical act. Ms Worth looked but could not see any marks on either the throat or the neck of the complainant. Ms Clauscen on the other hand described red marks in a statement to Police and subsequently grey marks in her oral testimony. The Crown also pointed to the fear expressed by Ms Morris regarding the accused during her interaction with Jack Debreceny shortly after the alleged physical assault. He had said in evidence that she did say something about an assault but he could not recall any detail. While her expressions of fear and concern to Mr Debreceny are not inconsistent with such an assault having occurred the fact of such fears does not establish the nature of any actual assault.
The Crown relies specifically on the marks and bruising said to have been sustained to her throat and neck as evidence both of the fact of the assault and of the injury thereby occasioned. The complete absence of any photographs does not assist in an acceptance of the account by the complainant. The absence of any marks when she made complaint to Ms Worth, similarly affords no real corroboration. The accounts given by Ms Clauscen were both variable on the one hand and also placed the markings said to be observed at a different part of the throat or neck than described by the complainant. In all of these circumstances I am left with a question mark as to whether there were threats of violence, or whether there was an actual physical assault occasioning actual bodily harm. In all of the circumstances, whilst I am of the view that there is a likely element of truth in what is alleged by Ms Morris, I cannot be satisfied beyond reasonable doubt that the actual assault, as described by her, took place. Accordingly, there must be a verdict of not guilty with respect to Count 5.
I have dealt with this count first notwithstanding its chronological sequence in the various incidents described by Ms Morris. I have done so because it will be important to give consideration to my reservation regarding the accuracy of what she has described in determining her credibility and reliability with respect to incidents which occurred earlier in the chronological sequence.
I do, however, accept Ms Morris’ account that she effectively fled from the motel with fears and concern for her safety. Her description of the route which she took makes abundant common sense when one is familiar with the geography of that part of Taree and the location of the pedestrian path which she took after initially running towards the direction of Cundletown. The route from the motel and the way in which she describes it clearly took her down the first street down to the right after running in a generally east direction away from the Motel. That route then takes one along a pedestrian walkway leading back effectively behind the motels and ultimately comes to the area of the carpark where Mr Debreceny was with his mates.
The circumstantial evidence and her concern that the accused would follow and try to find her was then objectively manifested in the evidence by the appearance at the location of the carpark of a dark coloured Mustang. There is an irresistible conclusion based on the observations of Debreceny that Ms Morris was trying to hide when the Mustang drove into the carpark for the first time. Her fear and concerns for her safety were patent and clear in her interaction with Mr Debreceny who she happened to come across and who she happened to know.
The circumstance that she got into the passenger side of his vehicle and positioned herself so as to hide from the Mustang was unchallenged. Of critical importance are the circumstances that unfolded with respect to the Mustang.
Ms Morris described hearing the car at a distance as it drove around. She described the Mustang as making quite a distinctive noise. She had described the Mustang having earlier been parked in the motel carpark.
There was unchallenged evidence that the following morning at the premises occupied by Rachel Clauscen the offender was driving the dark-coloured Mustang which was recorded on the surveillance cameras and also observed by the neighbour Cory Maher.
On the previous night, after Ms Morris fled from the motel, the actions of the vehicle which appeared in the carpark were described in detail in a map and diagram tendered as Exhibit #8.
As I described earlier, the Mustang was first observed by Debreceny travelling in an easterly direction along River Street towards the carpark and the Manning River Rowing Club. To have come from that direction it must have entered from the main road, namely Victoria Street, and driven down Florence Street towards the river where the street turns left and becomes River Street.
After progressing along River Street the Mustang turned right into Stevenson Street which in turn runs into the open area of the carpark. Mr Debreceny then drew on his map the vehicle circumnavigating the carpark before exiting back up Stevenson Street and then turning right into the dead-end portion of River Street which runs into a vehicular path behind the Rowing Club and down to a dirt area adjacent to the river.
The vehicle then returned from that direction back to River Street before turning right into Stevenson Street and then back onto Victoria Street, turning left at the KFC.
Mr Debreceny indicated that the Mustang came into the carpark and effectively circumnavigated it on two occasions before Bree got into his car, and on a third occasion, after she entered his car.
The analysis of these movements leads inevitably to a conclusion that the only explanation for the Mustang’s movements in and around the area were consistent with the driver trying to find someone.
The route taken is completely consistent with the account of the complainant. Mr Debreceny was not challenged with respect to his observations or the accuracy of his diagram and directions on the map.
I am satisfied beyond reasonable doubt that this was the Mustang being driven by the accused and that his actions were clearly directed towards the complainant, who he was trying to find.
The necessity of finding specific intent in his actions leaves me with no doubt regarding his intentions.
His intention to locate Ms Morris continued in his actions the following day when he attended with her brother at the premises at Rosewood Crescent. The actions on the morning of the 19^th of January are not separately relied upon by the Crown as an act of intimidation but they provide contextual support for the conclusion regarding his intentions the previous evening. I am satisfied that the act of intimidation alleged by the Crown in Count 6 is proved beyond reasonable doubt. There will be a verdict of guilty with respect to that count.
I turn now to Counts 1 and 2 in the indictment. These charges derive from the alleged incident where the complainant says she was woken up with a gun pointed at her head and hearing clicking sounds consistent with the trigger being pulled.
The defence case was that the incident did not occur. It was put to Ms Morris in terms during her cross-examination: “He never threatened you with a gun.” In the letter by the accused sent to the Supreme Court, Exhibit #10A, the accused had said: “there was no firearm incident as I do not own one.”
The complainant gave evidence that she had seen the gun in the granny flat on an earlier occasion and that when the accused left after the incident he took it with him in a brown bag. Clearly, if the accused did not own or possess a gun, the incident as described could not have occurred. The first question for consideration is whether there is evidence of a gun at the relevant time. The second question is that if he did possess or have access to a gun, did he use it in the fashion described by the complainant and was such use with intent to commit common assault. In the way in which the case has been conducted this requires consideration of whether there was indeed a clicking sound of the trigger being pulled which, if it occurred, would place the complainant in immediate fear and apprehension such as to constitute the offence of common assault. I note in this respect that the Crown did not allege that this offence was intimidation.

The evidence of Rachel Clauscen was that she was told by the complainant that a gun had been pointed straight at her when she had woken up and she received that message on the day it had occurred. The complainant had not given that evidence in Chief but when asked in cross-examination who she had told about the gun being pointed at her she nominated that she had told Rachel the same day.
She recalled that Rachel had come over that day during her cross-examination despite not having given evidence of that circumstance in her evidence-in-chief. She said that the first person she told about the gun being pointed at her was Cody Chapman.
When she had gone upstairs and first spoken to ‘Nan’, that is Ms Worth’s mother, Cody Chapman’s grandmother, she had not told her all of the details.
She thought she had told Leissa Worth. Ms Worth’s evidence, as I have already noted, was that she had been told by her daughter that Jeremy had a gun but her evidence did not extend to her being told that it had been pointed at the complainant.
The failure of Cody Chapman to provide corroboration of the fact that he was told and his professed inability to recall almost anything of relevance, whilst not assisting to support the complainant’s account, in my view provides no material upon which she is contradicted. His mother had expressed a clear opinion that he would not assist in providing evidence against his friend Jeremy Holman and I have little doubt that that was an accurate observation. I simply put his evidence on that point to one side.
Jenna Chapman had also been told that Jeremy Holman had a gun at the granny flat. Whilst not called her written statement gives the indication of a responsible person whose evidence could be accepted. She had told her mother about the presence of the gun based on what she had been told by the complainant.
Of significance on the question of whether there was a gun present is the video which was tendered from the surveillance camera. The evidence from the complainant, which was unchallenged, was that she had recorded that on her phone in December 2021. The evidence from Leissa Worth was that the vision from the surveillance cameras was not recorded on a hard drive or any other device. It was only able to be viewed in real time. The evidence of Cody Chapman on this aspect was similarly that it was viewed live.
The unchallenged evidence of the complainant was that the vision from the surveillance cameras could be accessed by Jeremy Holman’s mobile phone and that his phone could project to the TV by means of a Google Chromecast device. The vision on the screen was recorded by Ms Morris on her own mobile phone and she said that she stopped recording when Mr Holman was about to “come back in.” She said that the image had been recorded earlier in December than the matters of intimidation about which she gave evidence.
Her identification of the person in the video as being Jeremy Holman was not challenged in cross-examination. All of this evidence supports a conclusion that the accused possessed what appears to be a rifle in the course of him being captured by the surveillance cameras outside the premises and in the area between the house and the garage.
Also of importance in consideration of an acceptance of the account by the complainant is her complaint made to Jack Debreceny on the evening of 18 January 2022. She told Debreceny that her ‘ex’ had told her he was going to kill her and also that she had been woken with a gun to her head. It should be noted that this complaint to Debreceny was made at a point in time before she had spoken with Police and at a time when she was endeavouring to hide from the accused.
Against the acceptance of her account and the support for the proposition that the accused had held a gun towards her head is a consideration of her description of the detail of the weapon as a double-barrelled shotgun. I have already observed that the Crown in his opening anticipated that the evidence would be that the weapon was a rifle. The complainant was queried in cross-examination as to whether she had taken the .308 bullets to Wingham, in other words, whether she had planted the evidence. She refuted such an implication. There is no doubt that the bullet casings provided to Police are from a rifle and are not capable of use in a shotgun. The ultimate question is whether the mismatch between the bullets and the weapon described in evidence by her, and also the recorded description of a shotgun in the Police information report, are such as to create a reasonable doubt about the core allegation, namely that a gun was pointed at her head when she woke up.
I have given careful consideration of the reservation regarding her evidence I have entertained with respect to the so-called choking incident. I have also given careful reflection to the timing of the requests for short breaks during cross-examination and the ultimate threat by her to stop giving evidence. I have also reviewed the demeanour of the witness during her time in the remote witness area. After due consideration I am satisfied beyond reasonable doubt that an offensive weapon was pointed at her and that she was intentionally intimidated by a clicking of the trigger mechanism. I am not of the view that what may be a misdescription or an exaggeration with which she has persisted in describing the detail of a double barrelled shotgun leads to the entertaining of a reasonable doubt about the core elements of the offence. Her likely misdescription, whether intentional or inadvertent, does not lead me to detract from that conclusion.
I am satisfied, in circumstances where he had been requested to leave the premises the night before, that Leissa Worth’s recollection of raised voices on one particular morning at about 5:00am is consistent with the complainant’s estimation of the time on the morning she claimed to have been woken by the clicking sound and a gun pointed at her.
I am satisfied beyond reasonable doubt that the bullet casings that were located by the complainant were found in the granny flat and the difference in recollection of Ms Worth thinking it was 12 months later and that there was only one bullet is an inaccurate recollection by her. The objective facts are that there were two bullet casings and they were provided to Police in early March 2022. I am satisfied that threats were made to the complainant and the surrounding circumstances including threatening her physically with the gun constitute a completed offence of intimidation.
There will be a verdict of guilty with respect to Count 1 and also Count 2.
I turn next to the incident described as ‘in the forest’. The circumstances surrounding this incident are difficult to establish with clarity. As I pointed out in my summary of the evidence the apparent location of this incident is some distance to the north from both Taree and also Wingham. It is inconsistent with a return journey to Taree from either Newcastle or Sydney. Whether the occupants of Mr Holman’s vehicle, however many there were, were returning from a trip to Newcastle or from visiting somewhere else is left completely uncertain and unexamined in cross-examination. Ms Clauscen’s evidence suggests she received a message that they had been visiting a friend.
The circumstances of an apparent leaving of the roadway and a collision with a tree or trees and precisely when that occurred is also very vague. The proposition that Mr Anthony Morris had been in the vehicle when an accident occurred and that he was conveyed back home by someone else, who remains unidentified, is similarly left unexplained and to a considerable degree unexplored. Two identified persons who are said to have come on the scene of the relevant incidents involving an alleged common assault by means of a hug or cuddle and threats amounting to intimidation, namely the girl called Amy and her subsequently identified partner, Dylan Spicer, were neither called nor has any evidence been proffered as to the reason for their absence.
Ms Rachel Clauscen resisted attempts to obtain a statement from her mother. However, when conveyed to court pursuant to a warrant having been issued for the purpose of securing her own attendance to give evidence, Ms Clauscen was accompanied to Court by her mother.
After seeking for her mother to be present in court as a support person her mother was excluded from the courtroom due to the prospect of her being a witness in the proceedings. The Crown subsequently indicated that she would not be called.
Whether she had provided a statement or not the provisions of s 38 of the Evidence Act were introduced by the Law Reform Commission specifically to enable relevant witnesses to be called in a criminal proceeding. In my view Mrs Anderson was both a relevant and potentially significant witness. Her absence does not assist the Crown case.
The actions and observations of Ms Clauscen are consistent with the following conclusions.
She entertained sufficient concern about her friend to recruit her mother to drive them both out of Taree and into the Yarratt Forest to the location which had been indicated by Ms Morris. However, what she observed at the scene including what she took to be a cuddle sufficiently allayed her concerns so as not to stop or offer to take her friend away from the scene. However, what is clear is that the surrounding circumstances were such that Ms Morris had got out of the vehicle and had either walked, run, or at least moved a distance from it in an attempt to leave the vicinity.
The description by Ms Morris of what took place in the car and subsequent events leads inevitably to a finding that there was some level of disagreement in the vehicle. On her account the accused threw his phone out the window and the vehicle was then stopped and steps taken to try and retrieve the phone. The defence case as put in cross examination was that she had thrown a bum bag out the window which had contained the phone.
Whichever version is accurate there seems to be no dispute between the parties that by some means or other, Holman’s phone ended up out a window and outside the car.
The car was then stopped and Ms Morris gives an account of being abused regarding the phone and in the face of threats from Mr Morris she effectively sought to decamp from the scene.
The evidence of Clauscen was that the complainant and Holman had gone out of town to see some friends. She said the complainant told her that an argument took place and she required assistance and sent the pinpoint location to Clauscen.
It must be noted that whether she was told there was an argument or whether that was an inference she drew was not clear on the evidence. However, on arrival at the scene it was clear that Ms Morris was not in the vehicle and at the time neither was Mr Holman.
Notwithstanding the absence of other potential material witnesses, the surrounding circumstances and the physical situation of the complainant being out of the vehicle lead me to a conclusion, beyond reasonable doubt, that what Ms Morris described and what Ms Clauscen observed, was not a reciprocated or consensual hug or cuddle. I reach that conclusion despite its physical appearance apparently having the effect of Ms Clauscen concluding as she expressed to the Court, “I just thought it would be best to leave – let Bree be, if that makes sense.” Despite its apparent minor physical nature, I am satisfied that this action constituted a common assault.
In circumstances of the volatile nature of their relationship, the complainant’s communications with Rachel Clauscen and her sending of the pin location so that she could be collected, and the tendency of Mr Holman, I am satisfied that the actions and abuse directed towards Ms Morris by Holman did occur and, together with the physical interaction, amounted to intimidation of her. I should make abundantly clear, that I am satisfied beyond reasonable doubt.
Accordingly, there will be a verdict of guilty with respect to both Count 3 and 4.
Mr Holman will be convicted in relation to Counts 1, 2,3,4 and 6. There will be a verdict of Not Guilty with respect to Count 5.

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Decision last updated: 23 July 2024

Medium Neutral Citation:	R v Holman (No 1) [2024] NSWDC 267
Hearing dates:	19 – 23 February 2024, 26 February 2024, 15 March 2024
Date of orders:	15 March 2024
Decision date:	15 March 2024
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Verdict of Guilty with respect to Counts 1, 2, 3, 4, 6, verdict of Not Guilty with respect to Count 5, at [395] – [396].
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge — Verdict — Guilty on 5 counts, Not Guilty on 1 count CRIME — Domestic violence offences — Intimidation, use offensive weapon with intent to commit serious offence, common assault, choking — Six alleged offences across three incidents alleged by complainant — Crown submission complainant behaviour consistent with cycle of domestic violence — Volatile nature of relationship — Tendency evidence — Complaint evidence — Corroboration of complainant's evidence — Defence case that complainant not a witness of truth and influenced by high level of methamphetamine use
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	AK v Western Australia (2008) HCA 8; (2008) 232 CLR 438 Fleming v R (1998) 197 CLR 250
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Rex (Crown) Jeremy Holman (Offender)
Representation:	Counsel: B Queenan (Crown) P Cranney (Offender) Solicitors: Director of Public Prosecutions (NSW) (Crown) Tony Cox Lawyers & Conveyancers (Offender)
File Number(s):	2022/00080854
Publication restriction:	Nil