R v SCHMIDT - [2017] SADC 98

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SCHMIDT
Criminal Trial by Judge Alone
[2017] SADC 98
Reasons for the Verdicts of His Honour Judge Rice
30 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES
SERIOUS CRIMINAL TRESPASS IN A PLACE OF RESIDENCE - INDECENT ASSAULT - ASSAULT - THEFT
The accused is charged with four offences arising from events on Monday 9 November 2015. All alleged offences involved his former domestic partner, Ms Julie Gent. The four charges are as follows:
Aggravated Serious Criminal Trespass in a Place of Residence (Count 1), Indecent Assault (Count 2), Assault (Count 3) and Theft (Count 4).
Accused found guilty of Counts 1, 2 and 4 and not guilty of Count 3.
Evidence Act 1929 s 34P (2) (b), referred to.

R v SCHMIDT
[2017] SADC 98
Introduction

This is a trial by judge sitting without a jury.
The accused is charged with four offences arising from events on Monday 9 November 2015. All alleged offences involved his former domestic partner, Ms Julie Gent. The four charges are as follows:
Aggravated Serious Criminal Trespass in a Place of Residence (Count 1), Indecent Assault (Count 2), Assault (Count 3) and Theft (Count 4).
The prosecution called Ms Gent, the neighbours, Mr and Mrs Harman and various police witnesses. There was also various Agreed Facts[1].
[1] Exhibit P7.
The prosecution case was that the accused was angry because Ms Gent rejected him and was spending time with another man. He was jealous. He went there seeking money and broke in to assault her and did so. It is alleged he brought an iron bar to the house and, upon leaving quickly, left the iron bar behind.
The accused gave evidence in his own defence. He was the only witness for the defence. The accused admitted being at Ms Gent’s house on the relevant night, but denied any offending as alleged or that he took an iron bar. If I was to convict the accused on any count, I could only do so if I rejected his denials beyond reasonable doubt and were otherwise satisfied of the charge or charges beyond reasonable doubt.
Background to the relationship
At the time of the events on 9 November 2015, Ms Gent and the accused had been in a relationship for some years. Their relationship was not settled and they were sometimes not on good terms. Ms Gent said they were in a relationship ‘… on and off between three and a half to four years[2]’. The accused said their relationship started around 2009/2010[3].
[2] T30.
[3] T169.
They lived together at some units off Carrington Street, Adelaide and at Ms Gent’s house at Parafield Gardens. It is not entirely clear from the evidence how long they had lived together and how long they lived apart, but it seems to be common ground that during this period the accused spent some time in custody and some time living with Ms Gent pursuant to a Home Detention order of some type. Again it seems common ground that for a number of reasons it was an ‘on-again, off-again relationship’.
The Agreed Facts detail the periods the accused was in custody or on a form of home detention. Importantly for the purposes of this case he was released from custody on 31 March 2015 on Home Detention to serve the remaining period of cancelled parole. His home detention from that date was to be served at Ms Gent’s home at Parafield Gardens. From 24 August 2015 the accused moved his home detention address to his parents’ home at Goolwa North. On 11 October 2015 the accused was released from home detention.
As at 9 November 2015 Ms Gent said she was not in a relationship with the accused. She said she had kicked him out some months before 9 November[4]. Ms Gent explained that the accused would take drugs and become very paranoid, angry and abusive to her. He would accuse her of having affairs. For her own sake and that of her children she said she wanted to end the relationship[5]. Notwithstanding the fact that they were not thereafter living together, there was telephone contact between the two and they went on a camping trip together (with Ms Gent’s son) for some days about the time of her birthday on 21 October[6]. Some form of relationship was on-going, although not as late as 9 November.
[4]    T28, T38.
[5]    T20-T30.
[6]    T38-T39.
Alleged discreditable conduct
Apart from the general evidence of their relationship to which reference has been made, there was specific evidence about earlier events that were adduced as part of alleged discreditable conduct.
The nature of the discreditable conduct was evidence of uncharged acts of violence by the accused towards Ms Gent. The evidence was said to be permissible pursuant to s 34P (2) (b) of the Evidence Act because it showed ‘that the accused had a tendency to act in a violent and controlling manner towards [Ms] Gent’.
The evidence from Ms Gent about the specific incidents are as follows. The first incident occurred at some units on or off Carrington Street, Adelaide when they were living together at a time the accused was on Home Detention. Ms Gent concluded the accused was having an affair and, when packing her belongings to leave, he is said to have kicked her in the back[7].
[7] T31-T33.
The accused denied any assault[8].
[8] T169-T171.
The second incident occurred at Ms Gent’s house at Parafield Gardens. She described that in the middle of a night she was in bed and the accused was initially in the garage. She said that, apparently, there were two other men that came into the house and were having an argument with the accused. Ms Gent said she barricaded herself in the room but the accused pushed his way in and pinned her down and had his knee on her chest. She said she eventually got him off her and told him to leave[9].
[9] T33-T34.
The accused denied any such incident but said there was an occasion when Ms Gent’s former partner and others did come to the house and Ms Gent and the accused were assaulted[10]. The accused suggested in his evidence that after this incident Ms Gent kept an iron bar close at hand to protect herself. Ms Gent denied having such an iron bar.
[10] T175-T177.
The third incident was said to be an occasion when the accused allegedly ‘drove his car through my roller door’[11]. Ms Gent said that these events occurred at a time when he was not living at her house but was coming around to collect some of his belongings. She left his belongings out the front of her house and when he came to collect them he was seemingly angry, yelling and banging and kicking the front door. When leaving it is alleged he drove through the roller door. At the time when photographs of the front of the house were taken by the police after the 9 November 2015, it was said the roller door had not been fixed[12]. The photographs of the front of the house do not show any damage[13]. The case for the accused was that, if there was any damage it was caused by the car being accidentally put in drive rather than reverse, although his evidence varied from that[14]. In my view, clearly Ms Gent over-stated or exaggerated the damage and the event contributed little to the proposed purpose of the evidence.
[11] T35, T36.
[12] T81.
[13] Exhibit P, photographs 1 and 2, T81.
[14] T80-T81, T182.
On my assessment of the evidence I could not conclude any more than there had been a separation, the accused was there to collect belongings and was angry, abusive and kicked the door. However, bearing in mind Ms Gent’s exaggeration, I would not even conclude that much. This incident is irrelevant for any suggestion of discreditable conduct and I ignore it. It does, however, bear upon her reliability and credibility.
The fourth incident is said to have occurred at Ms Gent’s home at Parafield Gardens when, during an argument, the accused is alleged to have shoved or pushed her backwards against the knobs of the oven causing intense pain. She said it was a deliberate push by the accused, although she told the ambulance officer who attended that she slipped over. She said that she gave that account because the accused implored her to because, if she reported the matter to the police, the accused would be returned to gaol[15]. The case for the accused was that she simply slipped on the kitchen floor at a time the accused was in the bedroom. He denied trying to get her to tell a false story[16].
[15] T37-T38.
[16] T180-T182.
For me to be in a position to use any of these events as uncharged acts of violence, I would have to find that the essential facts are as alleged by Ms Gent. As I have indicated, I am not in such a position with the roller-door occasion. Further, in the absence of significant supporting and independent evidence, I am not in such a position concerning the other three occasions and I ignore that evidence also. As is well recognised, I can accept some of the evidence of a witness and reject other parts of it.
Events of 9 November 2015
Ms Gent said her relationship with the accused ended before the events of 9 November 2015, although they were in telephone contact and he took her and her son on a camping holiday close to her birthday on 21 October. She said that after that camping holiday she wanted nothing more to do with the accused because he accused her son of taking money[17].
[17] T38-T39.
She said on the night of 9 November she was at home. Her son was staying elsewhere that night. Her son’s father, Paul Williams, was at her home that evening. She said that on that evening the accused kept ringing and she rejected him, that is, she refused to take his calls. She said he rang about 33 times but she kept rejecting him. Eventually she got tired of it and answered one of his calls saying: ‘What do you want?’ To which he said ‘You owe me money.’ Then he said ‘Who are you rooting? You are rooting Paul again.’ She said she replied ‘I am trying to’ and hung up[18].
[18] T40-T41.
On her account Paul Williams was there but he left soon after, not long before the accused arrived. She said that within five minutes or so of Paul Williams leaving the accused came through the sliding back screen door, that is, he ‘ripped it off’[19]. She said she was sitting nearby to that door and she got up and ran down the hallway. He chased and caught her, holding her up against a linen cupboard. She said the accused had picked her up by the throat, she could not breathe, her eyes were just about popping; he was using both of his hands (Count 1)[20].
[19] T41, T47-T48.
[20] T41, T48, T52.
She described the accused grabbing her vagina and punching her in the genital area (Count 2). The accused was saying she was a ‘disgusting slut’.
The accused allowed her to drop to the floor because he thought Paul Williams may have been outside and he went to check. On coming inside again he shoved her onto the lounge as she was trying to hide Paul Williams’ mobile telephone. On her account the accused grabbed both Williams’ and her mobile telephones. She then described a ‘king hit’ to the left side of her eye, her face[21] (Count 3).
[21] T41-T42)
Ms Gent described the accused leaving quickly via the front door after he apparently heard something. He allegedly stole Ms Gent’s phone as he left (Count 4).
Ms Gent then ran next door to the neighbours. The neighbours, Kym and Scott Harman, reported the matter to the police. Ms Gent was scared because, as the accused was leaving, he said he was coming back for the money and to burn the house down. An ambulance attended but Ms Gent told the officers they were not needed. She said her throat had red line marks over it; her face had red marks on it and when she went to the toilet she had red marks on her vagina and it was sore[22].
[22] T42.
As mentioned, the accused admitted being there that evening. On his account he was visiting her by arrangement. He said that after the camping trip to which reference has been made, he stayed for about four days, their relationship was good and there was no fighting[23]. This is clearly markedly different from Ms Gent’s account.
[23] T187.
The accused said in the week preceding Monday 9 November they were in regular mobile telephone contact and sent text messages as well. He said the previous Monday he made the arrangement to return on Monday 9 November to stay another week. He said he left his parent’s place at Goolwa at about 8.00pm to drive to Ms Gent’s place. He said he had spoken with her at about 3.00pm for about five – ten minutes, confirming the arrangement and said he would ring when he left Goolwa at 7.30pm or thereabouts[24].
[24] T189-T190.
He said that he had trouble getting through and tried many times before and after 8.00pm. The accused said the schedule of mobile telephone calls forming part of the Agreed Facts[25], reflects those attempts. He said he eventually got through just as he entered her street, saying he would be there shortly. He said she did not voice any opposition and that they were looking forward to seeing each other[26]. He said his brakes did screech because he nearly drove past and slammed his brakes on[27].
[25] Exhibit P7.
[26] T191, T192.
[27] T205, T248, T254.
Surprisingly on the account of the accused, when he arrived Ms Gent was out the front of the house, already yelling about what the accused was doing there. On his account he said ‘I have been trying to call you to come down because we had to organise the trip, why aren’t you answering your phone’[28]. The accused said he was yelling and Ms Gent was yelling back at him as they walked inside and down the hallway. The accused said there was no suggestion he was not invited or at least allowed inside. He said they continued to argue as they went down to the kitchen area, but he did not assault her or grab her by the throat[29]. The accused did admit, however, slapping her twice in the head[30]. (That use of force is not the subject of any charge).
[28] T194, T249-T251, T252-T255.
[29] T194-T195.
[30] T249, T254.
It should be noted that the accused says that Ms Gent at some stage pushed him backwards against the rear sliding screen door, causing it to click off its rails but not fall to the ground (outside)[31]. The accused denied that his original means of entry was to take the screen door off its rails or track and stand it against the extension wall[32]. As mentioned, he said he entered through the front door with or shortly after her.
[31] T250.
[32] Exhibit P1, photographs 7 – 9.
Evidence from the neighbours Kym and Scott Harman
It is useful to consider the evidence of the neighbours, Kym and Scott Harman, to ascertain whether there is any independent support for Ms Gent’s account or casts a doubt on it.
Mrs Kym Harman, with her husband Scott, were the next door neighbours of Ms Gent. She gave evidence of the events of the evening of 9 November 2015. During that evening she was in the kitchen area towards the rear of her house. The first thing she heard was a car screeching up, followed with the conflict of words between Ms Gent and another male person. The time between the car screeching and the start of the conversation was 30 seconds to a minute. She said the male voice had a very aggressive tone and Ms Gent sounded quite frightened.
She heard a commotion from next door, shouting between a man and Ms Gent, whose voice she recognised. She described Ms Gent’s voice as ‘very fearful’. She was telling the male in this conflict to ‘fuck off’. She also described Ms Gent as ‘screaming’ and she made a sound like an ‘augh’, as if someone had been pushed or harmed in some way. I infer that sound was similar to the application of force and a groan. She heard the banging of doors, sounds like a screen door.
Mrs Harman described the commotion as lasting between three and five minutes. It came to an end when she heard ‘the car screeching back off down the street’[33].
[33] T120-T122.
Mrs Harman described Ms Gent then coming over and she was ‘quite upset’[34].
[34] T123.
In cross-examination it was elicited that Ms Gent told Mrs Harman that the male person took her mobile telephone, keys and purse[35]. Ms Gent had not mentioned the latter two items as having been stolen by the accused.
[35] T124.
Mrs Harman described the closing, at some stage, of an outside closing flyscreen door of the type shown in P1, photograph 3[36].
[36] T125-T126.
Scott Harman gave evidence that he heard a loud screech of brakes from a car that seemed to be at the front of his house. It was so loud that he proceeded to mute the television because it was not normal for that noise to occur. From that point he heard shouting and yelling from Ms Gent, ‘… screaming out in a very terrified manner, Daniel …’. The event was still unfolding and Ms Gent was responding to his violence and aggression.
Mr Harman described going to the front door of his house:-
‘…and I observed a dark green vehicle, a Hyundai XL, driving around, like past the front of my property. I was inside the front of my property, inside my front door at this point. As I heard the noise it didn't seem right because the vehicle went past a couple of times without its lights on, I then thought 'This is something that is definitely not right' so I actually took my wheelie bins, I bought them in from the street at that point, I observed the car drive past again. I then observed the vehicle go past a few times, I didn't actually see the driver at all, then came back to the front of my house at that point. Just prior to entering my house Julie ran over, sort of just in absolute trauma and shock and asked to call the police and she was just that night, she was very troubled and terrified and she said that I have- you know, her Ex has come around and stolen like her phone, wallet, she didn't have any way of contacting. I did ask her in for her own safety to provide a shelter until the police arrived. She didn't take that on so we called the 000 and at the end, I think about a half an hour later, the police came around, they came to our house then but they were there - from what I can remember, within minutes they were on the scene’.
Mr Harman said that when he heard the screeching of the brakes initially, the noise was from the front of his house but he was at the back. The very next thing after the screeching of the car was the scream from Ms Gent; it was not a long period between the two[37]. He said the male seemed ‘quite aggressive’ and there was ‘sheer terror’ in Julie’s voice (Mrs Gent) and her screaming out the name ‘Daniel’[38].
[37] T129.
[38] T130.
When Ms Gent came over to his house he described her state:
‘Panic, terror, fear, very shaken up, very panicky and just like someone who had just been absolutely frightened[39]’.
[39] T130.
He confirmed that she said three items were stolen. Importantly, Mr Harmen had to ring the police because Ms Gent did not have a telephone[40].
[40] T130-T131.
In my view the effect of the evidence of Mr and Mrs Harman is to paint a significantly different picture than that put forward by the accused in his evidence. There are some similar features to what the accused said occurred, but it is strongly supportive of the generalities of what Ms Gent said.
Although I have noted some exaggeration and over-statement by Ms Gent about the events, I find the substance of most of her evidence to be reliable and that she was a credible witness.
Notwithstanding what the accused said in evidence, I find he arrived driving very fast and deliberately screeching his tyres. He was an angry, assertive and jealous man. He quickly made his way inside as a trespasser, having been told to leave because he was not wanted. Once inside he was loud, aggressive and threatening to Ms Gent by his presence and actions. He was violent to her. Based upon all of the evidence I reject the account of the accused on matters of substance.

I accept the evidence of Senior Constable Sweet that he saw redness on both sides of Ms Gent’s neck area when he attended[41].
[41] T133-T134, T137, T140.
I find that the accused grabbed her around the neck, causing the marks seen by Senior Constable Sweet. I doubt whether the accused grabbed her as firmly as Ms Gent said but I have no doubt about him holding her around the neck.
I have no doubt that the accused grabbed her in the genital area as Ms Gent said. Not only do I accept Ms Gent’s evidence in that regard, it is consistent with his raging jealousy that he believed Ms Gent had been allowing sexual favours with another or others and not him. His beliefs or suspicions would have been confirmed once he was inside Ms Gent’s house and he looked at Mr Williams’ mobile telephone that had been left behind. Messages sent to Ms Gent’s mobile telephone by Mr Williams on that day reflected that they were on affectionate terms[42]. Such suspicions are consistent with what Ms Gent said the accused said to her over the mobile telephone shortly before he arrived[43]. At the same time I am conscious of the fact that Ms Gent denied any relationship with Mr Williams as at that time[44].
[42] T199, T209-T210.
[43] T41.
[44] T39-T40.
Conclusions
As to Count 1, I am satisfied that the accused entered and remained in Ms Gent’s house as a trespasser. At the time he entered, which I find was by the back sliding door, I have no doubt he intended to assault her. He knew she was going to be there. The circumstance of aggravation is also proved beyond reasonable doubt.
As to Count 2, I am satisfied that the accused grabbed and punched Ms Gent in the area of the vagina.
As to Count 3, that is a reference to the ‘king hit’ by him upon re-entering the house after checking to see whether Mr Williams was outside. I accept that Ms Gent had an injury to her eye, but I am uncertain how it happened. I have a doubt whether it was a heavy punch as alleged.
The accused is a powerful man and a strong punch by him to the vicinity of Ms Gent’s left eye would have caused significant damage. I am unable to say how the injury occurred, but the likely explanation is that she was struck in the scuffle that occurred. Although the accused admitted slapping Ms Gent, that was not the subject of any count.
Court 4 relates to the theft of Ms Gent’s phone by the accused. I accept Ms Gent that the accused took the mobile telephone. The fact that it was not located in his possession is not determinative. It could have been disposed of quite readily once the messages had been viewed.
I find the accused guilty on Counts 1, 2 and 4 and not guilty on Count 3.