R v Whitehouse
[2024] SADC 66
•6 June 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHITEHOUSE
Criminal Trial by Judge Alone
[2024] SADC 66
Reasons for the Verdicts of her Honour Judge Tracey
6 June 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND - GENERALLY
The accused is charged with two counts of aggravated assault, three counts of contravening the terms of an Intervention Order, one count of attempting to dissuade a witness and one count of aggravated serious criminal trespass in a place of residence. The complainant is the accused's former partner.
The accused elected for trial by Judge alone.
Held: Not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 20(3), 244(3), 170(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 31(2aa)(b); Mental Health Act 2009 (SA), referred to.
R v WHITEHOUSE
[2024] SADC 66
The accused is charged with seven offences alleged to have been committed against the complainant, LM with whom he was or was formerly in a relationship. The accused and LM had been in a romantic relationship from 2014 until around 2017. They remained friends and continued living together for periods of time thereafter.
First Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Alan William Whitehouse on the 11th day of October 2020 at Kilburn, assaulted LM.
It is further alleged that Alan William Whitehouse committed the offence knowing that LM was a person with whom he was, or was formerly, in a relationship.
Second Count
Statement of Offence
Contravene a Term of an Intervention Order. (Section 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act, 2009).
Particulars of Offence
Alan William Whitehouse on the 11th day of October 2020 at Kilburn, contravened a term of an Intervention Order that involved physical violence or the threat of physical violence against LM.
Second Count
Statement of Offence
Contravene a Term of an Intervention Order. (Ibid)
Particulars of Offence
Alan William Whitehouse on the 29th day of April 2021 at Hectorville, contravened on a second or subsequent occasion a term of an Intervention Order protecting LM.
Fourth Count
Statement of Offence
Attempting to Dissuade a Witness. (Section 244(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Alan William Whitehouse on the 29th day of April 2021 at Hectorville, attempted to dissuade LM from attending as a witness or giving evidence at judicial proceedings.
Fifth Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Alan William Whitehouse on the 29th day of April 2021 at Hectorville entered into or remained in the place of residence of LM as a trespasser, with the intention of committing an offence therein, namely assault.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and Alan William Whitehouse knew of the other’s presence or was reckless about whether anyone was in the said place.
Sixth Count
Statement of Offence
Contravene a Term of an Intervention Order. (Section 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act, 2009).
Particulars of Offence
Alan William Whitehouse on the 29th day of April 2021 at Hectorville, contravened a term of an Intervention Order that involved physical violence or the threat of physical violence against LM.
Seventh Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Alan William Whitehouse on the 29th day of April 2021 at Hectorville, assaulted LM.
It is further alleged that Alan William Whitehouse committed the offence knowing that LM was a person with whom he was, or was formally, in a relationship.
The Prosecution case
The prosecution case was said to concern ongoing and escalating domestic violence perpetrated by the accused against LM.
Their relationship commenced in 2014, and quickly became dysfunctional with the accused becoming verbally and physically violent towards LM. The violence was sometimes associated with alcohol and often linked with accusations of LM cheating on the accused. LM and the accused had an on and off-again relationship for an extensive period of time.
During all relevant times, an Intervention Order was in place, with the condition that the accused did not assault, threaten, or harass LM. Contact with LM was not prohibited.
Around the time of the offending alleged in counts 1 and 2, the accused and LM were not dating but saw each other from time to time. On 11 October 2020, the accused and LM were at the accused’s brother’s house.
They had travelled there together from the accused’s house which was walking distance. LM had left her phone on charge at the accused’s house. At his brother’s house, the accused became intoxicated and LM decided that she wanted to leave and started to make her way back to the accused’s house to retrieve her phone. The accused followed LM outside and down the street. In the street the accused was grabbing LM, which is the subject of count 1, in contravention of the Intervention Order that was in place, and which is the subject of count 2.
LM ran to a McDonald’s and reported the matter to police. Police attended the accused’s property later that day and retrieved LM’s phone, which they returned to her. An information concerning the events alleged on 11 October 2020 was filed on 21 January 2021.
On 29 April 2021, the accused attended LM’s home in Hectorville. They had a discussion that became heated, during which the accused pleaded with LM to drop the October 2020 charges. This is the subject of count 4. The threats, harassment or intimidation alleged against the accused are the subject of count 3.
The accused left and LM locked her doors and fell asleep on the couch. The accused returned to LM’s property that evening. LM woke up to the accused in her house. She had not given him permission to be there. This offending is the subject of count 5.
The accused was angry and accused LM of sleeping with her friend Victor. He kicked her to the right upper leg and inside of her left thigh, and is offending the subject of count 7. This assault was also in breach of the Intervention Order which is the subject of count 6.
After the assault, LM was screaming, and the accused fled from her house. Later that evening, Victor attended the property and assisted LM in installing CCTV equipment. LM did not feel safe at that address, so she stayed elsewhere.
LM reported this matter to police within the following days and arrangements were made for her injuries to be photographed.
The prosecution called LM, Mr Victor Novikoff and police officers Sergeant Michael Hamilton and Constable Harrison Rugless.
I received by way of agreement, statements prepared by Senior Constable Edwards signed on 3 June 2021 and Constable Nikolaos Contibas dated 6 September 2021.
General Directions
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt and the burden of proving each of the charges lies wholly on the prosecution. The accused is not obliged to prove that he did not commit the offences charged. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
As was his right, the accused elected not to give evidence. I have not drawn any inference adverse to him because of his exercise of that right.
I must assess each witness as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
LM gave evidence in a closed court, via AVL and with the assistance of a court companion. Those arrangements do not influence the weight I give to her evidence or say anything adverse about the accused.
Each of the counts before me is charged as a separate offence and each must be treated separately upon its merit. Should I be satisfied of the accused’s guilt on one count, it does not necessarily follow that he is guilty of any other count.
The only relevance and permissible use I may make of the uncharged acts of violence, the Intervention Order, and the agreed breach of that order on 3 February 2017, is as evidence which provides context to the charged offending. Further, it explains why LM agreed to discontinue her previous complaints against the accused and his confidence in repeating his abuse. I must not reason, if I am satisfied the uncharged acts occurred, that it is more likely that the accused committed any one of the offences. Further, I must not reason that the accused is the sort of person who would commit such offences as those with which he has been charged, and reason that he therefore in fact, committed any of the offences.
Elements of the offences
Aggravated Assault
Counts 1 and 7
To establish the offence of aggravated assault the prosecution is required to prove each of the following elements beyond reasonable doubt.
1. The accused directly applied force to LM.
2. The application of force must have been deliberate, that is not unintentional or accidental.
3. The accused must have acted without LM’s consent.
4. The accused must have acted unlawfully.
5. The accused and LM were or had formerly been in a relationship
Contravention of Intervention Order
Counts 2, 3 and 6
To establish the offence of contravening a term of an Intervention Order, in relation to counts 2 and 6, the prosecution is required to prove each of the following elements beyond reasonable doubt.
1.That an Intervention Order was in force.
2.The accused knowingly contravened a term of that Intervention Order. (The contravention of count 2 is the assault the subject of count 1 and the contravention of count 6 is the assault charged at count 7).
3.That the act alleged to constitute the contravention, involved physical violence or a threat of physical violence.
With respect to Count 3, the third element of the offence is that the contravention is a second or subsequent contravention of the Intervention Orders (Prevention of Abuse Act) 2009 (The Act). It was agreed that the accused was previously convicted under s 31 of the Act, within five years, to bring it within the realm of that section).
Attempting to Dissuade a Witness.
Count 4
To establish the offence of attempting to dissuade a witness, the prosecution is required to prove each of the following elements beyond reasonable doubt.
1. LM was a witness or may be required as a witness in judicial proceedings.
2. The accused knew or was recklessly indifferent as to whether LM may be required to be a witness in judicial proceedings.
3. The accused intentionally did an act to attempt to prevent or dissuade LM from attending as a witness at judicial proceedings.
4.The judicial proceedings were in progress at the time of the act or were to be instituted later.
Aggravated Serious Criminal Trespass in a Place of Residence.
Count 5
To establish the offence of aggravated serious criminal trespass in a place of residence, the prosecution is required to prove each of the following elements beyond reasonable doubt.
1.The accused entered or remained in a place of residence.
2.The accused entered or remained in a private place as a trespasser.
3.The accused knew that he was a trespasser or was reckless as to whether he was a trespasser.
4.The accused entered or remained in a private place intending to commit an offence.
5.LM was lawfully present and the accused knew of her presence or was reckless about whether she was in the said place.
Agreed facts
The following facts were agreed:
Photographs taken on 3 May 2021
1. On 3 May 2021, Brevet Sergeant Daniel Cullinan attended a premises at Gilles Plains where he met with LM. He observed injuries to the inside of her upper left thigh and bruising to the outside of her upper right thigh. These injuries were photographed which are produced as exhibit P1. There were no other visible injuries disclosed by LM.
Breach of Intervention Order
2. Alan William Whitehouse was convicted on 28 February 2018 for an offence against section 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) committed on 3 February 2017.
Queen Elizabeth Hospital
3. LM was admitted to the Queen Elizabeth Hospital for psychiatric assessment on the following dates:
a. 26/01/2015
b. 22/12/2017
Seroquel
4. As at September 2018, LM had, at some date prior, been prescribewith the medication Seroquel with poor compliance noted.
5. Seroquel is medication which is used in the treatment of major depressive disorder.
Arrest
Alan Whitehouse was arrested for the offences subject of this trial on 4 May 2021 and has remained in custody since his arrest.
Application pursuant to s 67F of the Evidence Act 1929 (the Act)
The defendant sought a preliminary examination and permission to adduce evidence in relation to documents that were the subject of a subpoena to the Central Adelaide Local Health Network. The application concerned various documents contained within medical records held by the Royal Adelaide Hospital, Queen Elizabeth Hospital and Glenside Hospital in relation to LM.
S 67F(2) of the Act provides:
(2)On an application for permission to adduce evidence of a protected communication, the judge may make a preliminary examination of the relevant evidence if satisfied
that—
(a) the applicant has a legitimate forensic purpose for seeking permission to adduce the evidence; and
(b) there is an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his or her case.
The basis of the application concerned LM’s statement to police in April 2023 that she had never been diagnosed with a psychotic illness. The focus of the defence interest in the material was whether there had been any evidence of psychosis or treatment for it. LM had previously told police that she had been diagnosed with ‘psychosis’. A document returned on subpoena, which was not subject to protection pursuant to s 67F of the Act, concerned a progress note from the Queen Elizabeth Hospital in 2018, suggesting that LM had been prescribed Seroquel, which defence argued was the gold standard anti-psychotic medication for the use of treatment for schizophrenia.
The prosecution argued that beyond the indication that Seroquel had been prescribed, LM had been diagnosed with anxiety, depression and post-traumatic stress disorder.
Prosecution argued that it would be speculative to say that simply because a medication had been prescribed at some point, it would be odd for there not to be an apparent reference to a diagnosis of psychosis or suspicion thereof. To simply find that the prescription of Seroquel leads to a potential that she has been diagnosed with psychosis was speculative and engaging in what the legislature is not designed for.
I ultimately conducted a preliminary examination pursuant to s 67F(2) being satisfied that the defence had a legitimate forensic purpose for seeking permission to adduce the evidence and there was an arguable case that the evidence would materially assist the applicant in the presentation or furtherance of his case. In conducting that examination, I found that there was nothing in the material that would assist defence in its quest to cross-examine the complainant with the respect to any diagnosis of psychosis.
LM’s evidence
LM said that she met the accused in 2014.[1]
[1] T20.
They started dating after a couple of weeks and began living together about three months into their relationship.[2]
[2] Ibid.
LM described her relationship with the accused in 2014 as ‘crazy and unusual’. She said that it was ‘normal dating’ until he started drinking, when he completely changed and became aggressive and violent.[3]
[3] Ibid.
The accused’s behaviour became worse once they started living together. They lived together on and off for around 6 or so months. During that time, their relationship was ‘hectic’ and ‘horrible’. The accused hid alcohol and became a ‘completely and utterly different person’. He would yell and say things to LM about her cheating on him. She described him as ‘horrible’ and ‘abusive’.[4] The accused would constantly pull her hair, scream at her, spit in her face, threaten her and do ‘awful things’.[5]
[4] T21-22.
[5] T22.
The accused told her that he could kill her, and it would not matter because no one loved or cared about her. He also made threats that he would get other people to come and ‘bash her up’.
Once they stopped living together, the accused would still visit her and she had still cared for him.[6] LM detailed an occasion, perhaps around early 2015 when the accused assaulted her, waiting behind the bathroom door as she walked in. She described this incident as ‘horrific’ and ‘horrible’, the accused tried to strangle her and spat on her.[7]
[6] Ibid.
[7] Ibid.
She lived with the accused for a period after this incident and although she made a report to police, she did not proceed with charges as she was under duress and threats.[8] The accused told her that he could make her life hard, could have her hurt, and that she could go missing. He constantly made threats and would often hit her, strangle her, throw her around or break her stuff, and scream and humiliate her. LM explained that during the period of 2014 to 2019 this abuse was constant and was a ‘weekly thing’.[9]
[8] T23.
[9] T23-24.
There were times during this period where she did not see the accused, sometimes for a few weeks or a month, but generally only days.[10]
[10] T24.
LM said that she had retracted some of her police statements as she was ‘under threat’. She said she had been ‘basically forced’ into telling police that she had psychosis as she suffered constant abuse, harassment and threats from the accused which made her scared.[11]
[11] Ibid.
Conversations about criminal charges, occurred quite often. The accused would plead with her, saying words to the effect of ‘please don’t’, ‘I don’t want to go to gaol’, ‘don’t do anything [LM], I love you’.[12]
[12] T24-25.
LM described that the assaults and threats made her feel like ‘nothing’, and like she ‘wasn’t worth anything’. Despite this, she continued to see the accused as she cared about him and thought that he was in a hopeless place.[13]
[13] T25.
In 2020, LM was living in Hectorville. At that time, they were not seeing each other romantically, but she still cared for the accused and wanted to make sure he was okay. During this period, the accused would stay at her home for a few days at a time as he had nowhere to go. LM detailed how she wanted him to be able to shower and be fed and she wanted to take care of him.[14]
[14] T25-26.
LM was aware that in October 2020, an Intervention Order was in place between her and the accused, and that there was a condition that the accused could not assault, threaten, or harass her.[15]
[15] T26.
On 11 October 2020 LM left her phone on charge at the accused’s house in Kilburn, and they walked together to the accused’s brother’s house, where the accused and his brother started to drink excessively and began to ‘get noisy’.[16]
[16] Ibid.
LM believed it was going to get ‘very ugly’ and thought that they should leave. She did not want to be around the accused when he was drunk as she was frightened.[17] She recalled speaking to the accused about leaving, The accused refused to leave and begun to pull her hair and yell at her. LM said that she ‘had enough’ and started to leave.[18]
[17] T27.
[18] T27.
LM crossed the road to catch a bus to retrieve her phone. She could hear the accused screaming at her and she began to run, as she thought he was going to hurt her. The accused chased and caught her. He put his hands around her throat, pulled her hair and grabbed her arms. In doing so, he ripped her top and she pulled away. LM said that she thought the accused kicked her, but she was not sure.
Once the accused caught her the second time, the accused pushed her onto the road and into a van. The driver stopped and got out and she asked him to take her way from there, but the man was scared and left.[19]
[19] T28.
LM believed that the accused grabbed her right arm as she had scratches and bruising on that arm, but she could not recall for sure. She believed that this incident went on for a good five minutes, at around 2:30 pm.[20]
[20] Ibid.
After LM was pushed in front of the car, the accused grabbed her again and spun her around, kicking her in the groin. She then ran again, and the accused threw a beer bottle at her, and it smashed near her on the road. At this point, he was still screaming abuse at her and chasing her down the road.[21]
[21] T29.
She ran to the McDonald’s on Churchill Road and called police who attended later that afternoon. Police retrieved her phone from the accused’s premises.[22]
[22] Ibid.
LM said that around April 2021 she was not seeing the accused ‘very frequently’ and ‘not very much at all’. When they met, the accused would come to her house in Hectorville, or she would meet him somewhere in the city.[23]
[23] T30.
Generally, the accused would come over to LM’s house and ask her for alcohol, something to eat, or to shower. They would sometimes go for walks or catch the bus to the city or go to the accused’s house or visit his brother. LM described it as ‘normal behaviour’.[24]
[24] Ibid.
According to LM, during this period the accused’s behaviour was ‘cagey, edgy and very untruthful and very anxious and frightening’. The prosecutor asked her to describe how the accused was frightening and LM gave the following evidence:
Well, he just - he was horrific, he was horrific, the words, his demeanour, his whole attitude towards me was hatred and he would quite often, he would quite often keep me and not leave. I would ask him to leave, he would quite often torture me by staying and screaming abuse at me and making sure that I was humiliated before he would go and I rang the police, or I would have to pretend to ring the police sometimes. He was so frightening.[25]
[25] T31.6-14.
She said that during this period she saw the accused very regularly and the only reason she let him inside her house was because he would be at the front screaming, and she was humiliated and embarrassed for her neighbours to hear.[26]
[26] T31.
The last occasion that LM saw the accused, was when he came to her house early in the day. He was asking her for money as he wanted to buy a car. Every time LM refused to give the accused money, he would become aggressive and forceful towards her. He begged LM to not go to the police as it would ruin his life.[27]
[27] T31-32.
He became aggressive and very violent, but eventually left LM’s home. Later in the day, the accused came back and entered through her backdoor. At the time, she was asleep on the couch and woke up to her dogs barking with the accused standing in her hallway. The accused asked her if she was ‘fucking Victor now’ then came towards her, and they stared to fight. The accused was hitting and strangling her.[28] LM described the accused’s tone of voice as ‘sinister’. He threatened that he had ‘mates’ who he would have run through her house. He said that whatever those people did to her was not any of his business.[29]
[28] T32.
[29] T33.
LM said that her neighbour, Mark came to her house because he could hear arguing but was only there for 5 minutes and that later, Victor attended.[30]
[30] T34.
LM said Victor came twice that day and was helping her with repairs on the house. She could not recall the time of day when he first came but said that the accused was at the front of her house at the time.[31] She said she was pretty sure that Victor was there. Her neighbour ‘very well could have’ been there at the front also.
[31] Ibid.
After the accused left, Mark went home, and Victor came inside to talk to her about the events that had taken place.[32]
[32] T36.
LM said she recalled falling asleep on the couch. She was sure that she locked the door but perhaps not the screen. She checked that the doors were locked as she knew ‘how the accused is’ from prior incidents.[33]
[33] T37.
LM thought that when the accused had returned, that it may have been in the afternoon, as it was still light outside.
After the accused had accused her of sleeping with Victor, she got off the couch and the accused started to physically attack and threaten her. He asked her for money and to drop the charges again. He called her a ‘whore’ and a ‘slut’ and made threats that people would come and hurt her or kill her and that he wished he had done it long ago.[34]
[34] T38.
The accused was at her house for around 10 to 15 minutes before he left the second time.[35]
[35] Ibid.
The accused kicked her twice in the outer and inner thigh. As a response to the first kick, LM stated that she was shaking and spun around and as she did so, the accused kicked her for the second time. She could not recall in what order the kicks occurred, but that they were on the same leg as she had bruises, which she identified in the photographs in Exhibit P1.[36]
[36] T39.
After the accused left Victor came back and helped her set up some CCTV and then they packed up and left.[37] It was dark when Victor came back, and he stayed with her for a long time, early into the hours of the next day.[38] Victor set up a phone to record movement, aimed towards the back door because that was where ‘everything had been happening’ and ‘where he was getting in’. LM said that her sliding door had been manipulated and damaged so that ‘they’ could get in by pushing it outwards.[39]
[37] T41.
[38] Ibid.
[39] Ibid.
She noticed the manipulation to her door about a month before the incident in April 2021, and she told Victor about it. LM said that when looking at the locking mechanism, she noticed screws missing and scratches. The gap had been widened so that the door could be lifted up towards the inside of her house to walk through.[40]
[40] T42.
LM said she had looked at the door and its locking mechanisms as there were people coming into her house, taking her things, and ‘terrorising’ her.[41]
[41] Ibid.
She did not give those people permission to come into her house and did not give the accused permission to enter her house unconditionally prior to that. He did not have a key to her house in April 2021.[42]
[42] Ibid.
LM looked at photographs of the door in Exhibit P2 and described what she saw, detailing how the images showed scratches, marks, and gouges. She said the images depicted things that had been moved and screws that had been taken out.
The CCTV set up by Victor, involved a camera pointing to the back door and was set up to receive pictures of movement on Victor’s phone.[43]
[43] T44.
When LM left her home, she and Victor drove towards his house. Victor pulled over to check the phone and they noticed two ‘familiar’ people at her backdoor, namely the accused and her friend Michelle who was the accused’s girlfriend at the time.[44]
[44] T45.
She saw Michelle standing outside on the accused’s left, towards the door handle and the accused was on the ground manipulating the door.[45]
[45] Ibid.
She said she had left the blinds open and the lights on because of the CCTV and so they could see if anyone came through her backdoor.[46]
[46] Ibid.
When she and Victor first saw them in the footage they decided to go to the Port Adelaide Police Station. At around 2:30 am, they showed police the live footage, but it was not clear enough, so police sent a car.[47]
[47] Ibid.
When they were at the police station, LM said they were only able to see a ‘couple of silhouettes’ on the CCTV. They were outside of her house and the lights had been turned off, but the blinds were still partially open. LM conceded that on the CCTV footage she watched, she did not see the accused inside her house.[48]
[48] T46.
In cross-examination, LM said that her relationship with the accused started in 2014 and that they stopped living together in 2015. In around 2016 or 2017, she and the accused lived in a flat together for maybe 6 weeks until he was arrested for assaulting her.
Although that was the last time they officially lived together, the accused stayed with her on and off on occasions throughout 2016 to 2021. He would stay with her for one or two nights and then go back to his house.[49]
[49] T47.
After 2016, LM had lived alone and eventually moved into the Hectorville address in around 2019.[50]
[50] T48.
While they stopped being a couple in 2016 or 2017, she described their relationship as a ‘casual friendship’ with somebody that she knew intimately.[51]
[51] Ibid.
Throughout 2016 to 2019 the accused was violent towards her ‘most of the time’, particularly when he was drinking. She said that she saw the accused because she loved and cared for him. Although she knew he had problems, she hoped for the best for him and was always happy to see him.[52]
[52] Ibid.
LM said that she met Mr Novikoff in 2019. She described him as someone she knew but that he was not a friend of hers. She said that she knew Mr Novikoff used drugs, including methamphetamine, and had told her that he was addicted.[53]
[53] T49.
LM denied that she got methamphetamine from Victor but conceded that she had tried the drug.[54] LM denied that she had been using methamphetamine in 2020, but later conceded that she had some ‘here and there’.[55] LM said that she had tried lots of drugs but was not addicted to methamphetamine. She denied that she had been using methamphetamine in 2021, but later conceded she smoked it with him.[56]
[54] Ibid.
[55] T49-50.
[56] T50.
She denied that she was using the drug in April of 2021.
LM denied that when they got to the accused’s brother’s house, the accused and she had a verbal argument. She said that the accused started abusing her, and she had to defend herself verbally and asked to leave.[57] LM denied that they were having an argument about her drug use, but rather, it had concerned his cheating.[58] She said that the accused grabbed her hair in the house before she left and when she told him she wanted to leave. LM said that she had not told police about the accused grabbing her hair when she gave her first statement on 3 December 2020 because she was traumatised.
[57] T51.
[58] T52.
LM agreed that she had given about 8 statements to police but it was not until her statement in December 2021 that she disclosed to police that the accused grabbed her hair.[59]
[59] Ibid.
LM said that she had left out ‘lots of little things’ that the accused did to her and that pulling her hair may have been one of those.
In relation to the incident at the accused’s brother’s house, LM said the accused did not throw her in front of a car, but that he pushed her into the road where there was oncoming traffic, and a car was coming.[60] When asked about her statement dated 3 December 2020, where LM had not told police that the accused pushed her on to the road, LM said that she did tell police about this, but she did not want it in her statement. She said that the accused quite often pushed her in front of traffic and that she decided to let it go at the time because it was ‘just another incident’ with the accused.[61]
[60] T55.
[61] T55-56.
LM agreed that she did not tell police about the accused pushing her in front of the car until a year later, in her statement dated 1 December of 2021.[62]
[62] T56.
LM was asked about her description of the accused having choked her as part of the assault in the street. LM said that the accused grabbed her hair inside the accused’s brother’s house and choked her on the street before he pushed her into traffic.[63] The accused squashed her neck with both hands. She could not remember whether she could breathe and said, ‘I don’t remember the incident’.[64]
[63] Ibid.
[64] T57.
In her statement dated 3 December 2020, LM told police that the accused ran up to her and ‘grabbed her by the collar and arm’ and made no mention that the accused had both his hands around her throat. LM conceded that she probably said ‘collar’ but meant ‘by the scruff’ and that ‘strangling is basically using both hands’ and she thought she made that clear.[65]
[65] Ibid.
LM agreed that in a statement she had given in December 2021, she told police that once the accused caught up to her, he grabbed hold of her throat with one of his hands with a tight grip, and that she could still breathe but was struggling to get him off. LM said that this was correct, and that the accused proceeded to put two hands around her neck and dropped his beer.[66]
[66] Ibid.
LM said that the accused ‘always grabbed her by the throat’. She conceded that she told police that he grabbed her by the throat with one hand, but that it was two hands. She said that it started with one hand and that the accused used two hands when she started to struggle.[67] She said that she did not tell police about how the accused grabbed her when she first spoke to them as she was traumatised.[68]
[67] T58.
[68] T58.
LM said she could not recall police coming to her house and speaking to her but conceded that she must have made statements to police on 3 December 2020, 30 January 2021, 3 February 2021, 3 May 2021, 5 June 2021, 21 September 2021, and 1 December 2021.[69]
[69] T58-59.
As to the suggestion by defence counsel that it was not until her statement dated 1 December 2021, that LM told police that the accused pushed her into traffic, strangled her or grabbed her hair, LM said that she was traumatised, scared, and was living in fear. She said that it took her that long to ‘get it together’ and that she was always crying because the accused was ‘the worst kind of person’.
On LM’s account, the accused would stand out the front of her house and abuse and humiliate her, which was why she did not remember every incident.[70]
[70] T60.
LM said that when she was at McDonald’s she had bruising and scratches on her face, and marks around her neck. She described the marks on her neck as not black bruises, but there were scratches and red marks.[71] LM said that the accused had ripped her top. It was torn from the button up one side, and her necklace was broken. She believed that there were multiple scratches on her right arm, but she could not be certain which arm it was. She said that these marks were left after the accused grabbed her, and his nails dug into her when she pulled away.
[71] Ibid.
LM said she met with a police officer at the McDonald’s about an hour and half later. She said that he saw the scratches on her arm, her ripped top and her red and marked face.
LM said that the accused threw a beer bottle towards her outside, on the street, then said that the accused ‘dropped his beer when he was chasing her’.[72]
[72] T63.
When asked to clarify, LM said the accused dropped his beer when he was chasing her and went to get it on his way back and that is when he threw it at her whilst she was running down the road.[73]LM denied that she had not told police about this incident and maintained that she told them that the accused threw a beer bottle at her.[74] She was, she said, sure she told police about this incident before her statement on 1 December 2021. She did not show police her torn top, but it was ‘visibly clear’.
[73] Ibid.
[74] Ibid.
LM said she did not recall reading her statement before she signed it. She said that she did not recall much of that day, except for what physically happened to her, waiting for police and having a panic attack.[75]
[75] T64.
LM agreed that between the assaults in October 2020 and April 2021 the accused stayed at her house overnight on multiple occasions.[76]
[76] T64-65.
On 29 April 2021, the accused came to her front door, knocked and she answered. She said she was under a lot of duress and stress so she could not recall whether she let him in that day.[77] LM said a number of times that she did not know what happened on that day. When defence counsel drew LM’s attention back to the events on 29 April 2021, LM agreed that the first time the accused came to her house on that day, she had let him in. LM said that she was not frightened of the accused but was ‘wary’. She let him in because she cared and loved the accused and was worried about him.[78]
[77] T65.
[78] T65-66.
When challenged about her earlier evidence that because of what the accused did to her so many times, she was frightened of him, LM said she was frightened of what he could do to her when drunk, but she was not so much frightened of him. She was wary of the accused’s true intentions, but that did not change the fact that she cared enough about him to let him in.[79]
[79] T66.
LM denied that she was changing her evidence and said that she was stressed, and at the time she was under trauma, and suffers from PTSD.[80]
[80] Ibid.
LM confirmed that the second time the accused came to her house, they had a conversation inside her house. She denied that she was arguing with the accused about the nature of their relationship. She said the argument was about $2,000 that the accused wanted. She said that she had a discussion with the accused the first time he came over on that day about their relationship, and that he did not want her to go ahead with the charges and said that he loved her. LM then said she did not have a conversation with the accused about their relationship. She gave evidence that the accused was speaking at her and yelling at her about their relationship.[81]
[81] T68.
LM said she asked the accused to leave and told him that they were no longer as close and that she could not trust him.[82] LM said that Victor was not there until around 20 minutes later when she rang him and asked him to come.[83] She said the accused was threatening her and that he was ‘sinister’. She could not recall him crying but did recall him begging her not to call the police. On LM’s account, he was there for no more than 10 minutes.[84]
[82] T69.
[83] Ibid.
[84] Ibid.
Once the accused left, she was ‘pretty sure’ she locked the door. She said she locked the backdoor as it always worried her with the ‘manipulations’. She could not recall whether she locked the screen door. She ‘remembered locking the doors but was not well that day’.[85]
[85] T70.
She woke up to her dogs barking and the accused was in her hallway. She believed that she had been asleep for around 2 to 3 hours. She and the accused got into a scuffle and the accused tried to strangle her.[86] She could not recall whether he used both hands but remembered him having her by the throat.[87] LM was asked about her statement dated 3 May 2021, when LM told police that the accused walked towards her as she got off the couch, went to grab her, reaching out towards her neck area and managed to grab her by some of her hair and necklace. LM said, ‘Yes, which was around my throat’.[88]
[86] T71.
[87] Ibid.
[88] Ibid.
LM did not agree that the first time she told anyone that the accused had strangled her when he broke into her house was in court. She maintained that she told police about this incident and that the accused tried to choke her and broke her necklace.[89] LM then said she had been too quick for the accused and had Sorbolene on her neck and in her hair, so it was slippery and there were no marks left around her neck. She recalled the accused trying to choke her because her necklace was broken. LM said that the accused had his hands on her throat, but she got away that time.[90]
[89] T72.
[90] Ibid.
In that same statement, LM had told police that the accused kicked her to the back of her right upper leg, which caused her to buckle and bend down. She gave evidence that she was traumatised, but the photo shows it was on the ‘side towards the back’. LM accepted that she may have told police that the accused kicked her to the back of her leg but said that ‘whether it was back, side or front,’ the accused kicked her.[91]
[91] T72-73.
LM said that she believed that her friend called the police, but she could not recall as she was so traumatised and hurt. She agreed that she did not speak to police on the night as she was scared that the accused was coming back.
LM agreed that the photographs taken by police were taken at least several days after the incident.[92] LM said she was ‘quite positive’ that the accused entered her home through the backdoor. She recalled multiple people breaking into her house. She believed that the accused was the one who manipulated the door so that they could get into her house.[93]
[92] T74.
[93] Ibid.
LM alleged that the accused used screwdrivers to take screws out to manipulate the door, and to leave a gap from where the locking system was so that he could lift the door up.[94]
[94] Ibid.
When it was put to LM that she did not see him do any of this, LM said that there was no one else in her house apart from herself and the accused. She said that she had known the accused since 2014 and knew what he was capable of.[95]
[95] T75.
LM spoke to police, and they attended her property in early May of 2021. She told police that her rear screen door had been cut. She thought it was slashed, but now believed that it was just cut or ripped. Police were shown the door and the photographs in Exhibit P2 were taken then.[96]
[96] T75-76.
LM said there were other people breaking into her house at the time other than the accused, but that the accused was in charge of manipulating the door so that other people could break in. This included the accused’s girlfriend as she saw messages on his phone about it.[97] The accused left it so others could just ‘come and go’.
[97] T76.
LM confirmed that she attended at the Port Adelaide Police Station with Victor in the early hours of the next morning, and by that stage Victor had set up the CCTV.[98] She had the light on, and the blinds pulled to the side, and both she and Victor saw two silhouettes, one of which was the accused ‘for sure’ and the other one ‘looked like a friend’.[99]
[98] T76-77.
[99] T76.
LM said that they showed live footage to the police officer. He could not see clear enough. She confirmed that the footage was live and so it was different to the footage that she and Victor had seen previously. Police saw the footage about 30 minutes after she and Victor watched it.[100]
[100] T77.
LM said that she was sure she had left the lights on and was absolutely sure that the person she saw was the accused. She did not have any doubt about that.[101]
[101] T78.
On 5 June 2021, LM told police:
‘As I stated in my previous statement, after my friend Victor had set up the CCTV cameras at my house we left because I was scared Alan would return. Whilst we were driving we viewed the camera and saw two silhouettes were attempting to pry the bottom of the back sliding door as I've described. I believe one of those silhouettes was Alan because he knows how to manipulate the sliding door'.[102]
[102] Ibid.
LM conceded that it was possible that what one had said to police, as she was traumatised, scared, and tired. LM said that she knew what the accused looked like from a distance and in the dark and denied that there were no silhouettes shown on the vision.
LM agreed that by mid-May of 2021, she had been told that the accused was arrested and was in prison.[103] She spoke to police and had confirmed with them that she had returned home and felt unsafe and did not like to leave the house. She told them that someone else had been breaking into her house and had stolen her clothing, and they were stealing the same things they were stealing when the accused was doing it.[104] She also agreed that she told police that the accused had been drugging her and doing things to her, although later in cross-examination she said that this had been when the accused was at her house when they were drinking together.[105] She told police that her phone had Spyware on it and still did and that someone had broken into her house and swapped her television. She believed that someone had hidden a camera in the television that was in her house, or a listening device.
[103] T79.
[104] T80.
[105] T84
LM agreed that in November or December of 2021, and she was not happy with the police as she thought they were not taking her seriously.[106] She agreed that she had lost confidence in them and felt like she was paranoid but wasn’t. She told police that someone had threatened to kill her dogs and had thrown property around her house.
[106] T83.
LM maintained that ‘in some way, shape or form’, everything that had happened and continued to happen to her was because of the accused. She said that ‘not everything is as it seems with the accused’ and he is ‘two different people’.[107]
[107] T83-84.
LM denied her mental health challenges were significant. She agreed she has severe anxiety disorder, panic disorder, borderline personality disorder, social phobia, occasional agoraphobia, and severe post-traumatic stress disorder because of trauma she suffered when she was younger.[108] She had never been diagnosed with psychosis.
[108] T84.
LM said she was healing from that trauma, but the accused replaced what was healed with what he did to her, and it was again very severe.
LM said she did not take medication. She conceded that she had taken a couple of antidepressants ‘here and there’ and had taken Xanax for 6 years but came off them before she met the accused. She denied ever taking Seroquel or Clozapine.[109]
[109] T85.
LM said she had been hospitalised several times in the last decades because of her trauma. She went to hospital in 2013, 2015, 2017, 2018 and 2019. She could not recall whether she had been in hospital in 2020 or 2021. She agreed that she had at times been detained under the Mental Health Act 2009 (SA),[110] since she was 12 years old.[111] LM agreed that on several occasions, she was taken to the Royal Adelaide Hospital for mental health concerns because she was so traumatised by what the accused did to her, and she needed a break and to rest. She was not on any medication.[112] LM denied ever attending Glenside Hospital.
[110] Mental Health Act 2009 (SA).
[111] T85-86.
[112] T86.
LM denied that by April 2021, she was having severe issues with her mental health and was having a number of crises. She said:
I was having a number of beltings and break-ins and physical assaults and torture and being humiliated in public by Alan, yes, that was happening, that's exactly what was happening.[113]
[113] T87.
When asked whether her mental health issues accounted for her belief that someone had swapped her TV and that the new TV had a camera in it, LM, said a friend came and looked at the TV and said that it was not the same TV.[114]
[114] T88.
LM said the PD207B dated 18 October 2017 (Exhibit D3) did not reflect the truth and that the accused told her to say that she had not been hurt by him, and that she was angry when she had first gone to the police.
LM telling police she was suffering from psychosis was not the truth, but she did not concede that it was a lie. She said this was her way of following the accused’s instructions and to cope with the abuse and threats.[115] In relation to the PD207B she had signed on 9 November 2017 (Exhibit D4), LM said that she was again under duress and wanted the accused to stop. She said that it was not a lie but was to ‘save herself’.[116] LM confirmed she had signed another PD207B dated 5 December 2017 (Exhibit D5). She did not concede that she lied but said she was under duress. She said that it was not the truth, so the accused would not go to gaol.
[115] T89-90.
[116] T90.
Victor Novikoff
Mr Novikoff said he met LM through a mutual friend in late 2020.[117]
[117] T92.
He attended LM’s house in Hectorville quite regularly, potentially several times a week, if not more. He said that he had become good friends with her, and she wished to purchase his car.[118]
[118] T92.
In relation to LM’s rear sliding door, Mr Novikoff said that he had observed that the wheels had been adjusted so that the door could be removed. He explained that there was space at the top of the door so that it could be lifted above the lip on the bottom of the door.[119]
[119] T93.
He had made those observations probably the first time he was there to inspect her house, in February, March, or April of 2021.[120]
[120] Ibid.
He said that he had screwed the door so that it could not be opened at all and put some button head screws through the door and the frame so that it could not be opened. He also put L brackets on the windows.[121] When he first attended LM’s house he merely adjusted the door by ‘jamming’ a broom in the cavity of the door so that it could not be opened. He installed the screws on a subsequent occasion.[122] The screws could be uninstalled only from the inside.[123]
[121] Ibid.
[122] Ibid.
[123] T94.
Mr Novikoff confirmed that he attended LM’s property in April 2021 as she did not feel safe and wanted some company. He said that he was at her house ‘pretty much every day’. He would call her or sometimes just drop in.[124]
[124] Ibid.
When LM called him on 29 April 2021, he could not recall what LM said specifically but recalled her saying she did not feel safe. He believed this was at around 2 pm. According to Mr Novikoff, when he first attended her address, LM was upset and the accused was there, trying to convince her to come back into the house, to let him in, and he was saying that ‘it wasn’t going to happen again’.[125]
[125] T95.
He could see LM and the accused at the front of the house talking. Mr Novikoff had not met the accused previously and identified him in the dock.[126]
[126] Ibid.
Mr Novikoff said he knew that LM did not want the accused there and told the accused ‘Mate, she doesn’t want you here’. The accused then left, and Mr Novikoff stayed that night until the ‘wee hours of the morning’ because LM did not feel safe to be left there alone.[127]
[127] T96.
Mr Novikoff said that they did not set up the cameras that night, but on a later date, within a couple of days. He believed that he went home close to sunrise, at around 5 am, having arrived at around 3 pm.
Mr Novikoff confirmed he had shown police footage from his phone on the day that they set up the cameras. Mr Novikoff said that they checked the footage when they were on Glynburn Road and saw the curtains had been moved.[128]
[128] T98.
They set up the CCTV the day before they went to the police station, or earlier that night.
He recalled the system was set up for sound and motion activation, and it would record for 15 or 30 seconds. The recordings could be accessed through the app on his phone.[129] Mr Novikoff said that nothing concrete was observed on the footage, only that the vertical blinds had shifted and there were some very small movements that police thought may have been the wind.
[129] T99.
In relation to the live stream footage that he and LM watched in the car, Mr Novikoff recalled seeing the bottom of the vertical blinds moving. He believed that someone may have been trying to put a stick through the side in the gap between the sliding door and the frame. This clip was not recorded.[130]
[130] T100.
The footage shown to police was the footage that had recorded on its own, and different to the footage that he and LM viewed in the car. He confirmed that he emailed some clips to a police officer.[131] That footage (Exhibit P6) would have been taken after they left with LM’s dogs and would have been at around 2 am.[132] This was not the footage that he and LM watched in the car, or the live footage that was shown to police, but rather, the footage that was automatically recorded.[133]
[131] T100-101.
[132] T101.
[133] T101-102.
Mr Novikoff recalled making observations of bruises on LM’s stomach and thigh. He said that would have been a week, perhaps more before this incident. When questioned further, he said he had not made any observations of LM at all on 29 April 2021. His observations were after that, but he could not say exactly how much later. He and LM took the CCTV footage to police within a few weeks after the incident on 29 April 2021.[134]
[134] T103.
In cross examination, Mr Novikoff said that the time he saw the accused at LM’s house on 29 April 2021, was the only time he saw him that day. It was for a short period of time and that from what he observed, the accused was polite, and left when LM told him to leave.[135]
[135] T103-104.
Mr Novikoff said that LM showed him bruising to her thigh and stomach, after the 29th, but before they went to the police station.[136] He agreed that it is possible that he had seen those bruises before the 29th but said that he ‘doubted it’.[137]
[136] T104.
[137] Ibid.
Mr Novikoff conceded that he had ‘maybe once’ used methamphetamine in 2021. He said that he knew LM was using methamphetamine in 2021, ‘occasionally’, and drinking as well. He said that by April 2021, LM was using methamphetamine and drinking.[138]
[138] T105.
Sergeant Hamilton
Sergeant Hamilton was on shift on 11 October 2020.[139]
[139] T108.
He recalled attending at McDonald’s in Kilburn at about 4 pm on that day to meet with LM. He described LM as being visibly upset and said that he believed that she had some torn clothing.
Sergeant Hamilton said that he spent approximately 30 to 40 minutes with LM.
He attended the accused’s property and spoke to the accused about the phone and his interactions with LM during that day. He returned LM’s phone to her directly after leaving the accused’s house.[140]
[140] T109.
Sergeant Hamilton informed the accused that he was reported for assault, a breach of Intervention Order, and theft, spending a total of 15 or 20 minutes with him.
He could not recall whether he took a statement from LM on that day or a subsequent day. He spoke with LM to have a formal statement signed in December of the same year.[141]
[141] T110.
In cross-examination, Sergeant Hamilton said he was trained in responding to incidents of family violence.[142]
[142] Ibid.
He confirmed that when he had received additional training in relation to family violence and was taught the importance of taking notes and recording observations at the time.[143]
[143] T111.
Sergeant Hamilton said that if he were to see any visible signs of injury, it was important to record the injuries he observed. When he spoke to LM on the day, she told him that she had scratches on her arms, however he did not observe any marks on her neck or scratches on her arms.
He agreed that in both of his statements from April 2021 and 27 May 2024, he made no record of him observing any injuries on LM’s neck or left arm and there was no mention of LM’s torn clothing.
In re-examination Detective Hamilton confirmed that he had recently reviewed body-worn footage that was taken on 11 October 2020 during his attendance with LM.[144] He said that he could not say specifically that he saw any torn clothing in the footage. LM told him that she had torn clothing, but it was not something that he had observed.[145]
[144] T114.
[145] Ibid.
Constable Rugless
Constable Rugless confirmed that he is the investigating officer in relation to this matter and attended LM’s address on numerous occasions after 29 April 2021.[146]
[146] T115.
He took the photographs in Exhibit P2 in June when he attended LM’s house to get an addendum statement.[147]
[147] Ibid.
When asked to detail what was in the photographs, constable Rugless said he observed a scratch towards the centre stile of the door, and a dent on the top rail of the door. He could not recall making any other observations of the rear door of LM’s premises.[148]
[148] T116.
He described the door set up as a standard sliding door with a flyscreen and a fixed window on each side of the door. He could not recall whether he could open the door when he attended in June 2021.[149]
[149] Ibid.
Constable Rugless confirmed that he had been provided with some CCTV footage from Mr Novikoff via email.[150]
[150] T117-118.
In cross-examination, Constable Rugless confirmed that he was assigned as the investigating officer on 4 May 2021 when he placed the accused under arrest. He also confirmed that when dealing with a serious criminal trespass one of the first things he would do is make inquiries about the point of entry.[151]
[151] T119.
LM had said that the backdoor screen had been slashed. After the accused’s arrest, a patrol was sent to the address and there was no slashing evident.[152]
[152] Ibid.
He attended the premises in June and took the photos in P2.[153]
[153] T120.
Constable Rugless confirmed that he followed up with LM numerous times between the accused’s arrest and the end of 2021. He conceded that LM was difficult to locate at times but did not agree that she was not an easy complainant to deal with.[154]
[154] T121.
On Constable Rugless’ account, it was challenging to locate LM at times, but once he was able to get in contact with her it was ‘quite a lot easier’. He maintained that it took a few months to get in contact with her to begin with.[155]
[155] Ibid.
He said that by November 2021 he knew that LM was receiving support from the mental health triage.[156]
[156] Ibid.
Statement of Senior Constable Travis Gordon-Edwards sworn on 3 June 2021
In his statement, Senior Constable Gordon-Edwards said he was working within the Grenfell Street police station on 3 May 2021. At around 4:30pm he spoke to LM. He described her as emotional at the time of speaking and was asking for help. She disclosed a recent assault against her by the accused. LM advised him that she was staying in self-funded accommodation as she was too scared to return to her home address.
He met LM at 5:55pm at her temporary accommodation and obtained her statement. He arranged for a crime scene officer to photograph the injuries that LM had described to him.
Statement of Constable Nikolas Contibas sworn on 6 September 2021
Constable Contibas said that on 30 April 2021 he was performing front station duties at the Port Adelaide police station on nightshift. At about 4:30am that morning LM attended and informed him that she had remote access to cameras that showed a livestream of vision at her home address in Hectorville.
LM showed him the stream of vision on her mobile phone, which showed night vision of a premises. Nothing to indicate anything suspicious was noted. LM however continued to reiterate that someone was trying to get into her premises as objects may have been moving. He created a task for police patrols to attend her premises in response.
Prosecution Address
The prosecution conceded that the case rested solely on the evidence of LM. It was suggested that LM was open with the court about significant personal matters, her struggles with mental health, and she was open about the fact that she had tried methamphetamine on a previous occasion.[157]
[157] T125.
Although the prosecutor conceded that LM was not the perfect witness and it was clear that she got frustrated during the process of cross-examination particularly as the day wore on, that did not mean that she was a liar or was purposely trying to mislead the court.
The nature and chronology of the relationship LM described was a clear example of a cycle of domestic violence. Only after a couple of weeks of meeting the pair commenced their relationship in 2014. Three months later, they started living together and LM described the relationship as ‘crazy’ and ‘unusual’. She described his violence as often being associated with drinking alcohol.[158]
[158] T126.
Having described her relationship with the accused for the first six months of living together as ‘hectic, horrible and there were moments of laughter, I guess’, the prosecutor suggested there were both good and bad times in their relationship. She described him as a different person when he would drink.
They stopped living together after about six months because the accused became so violent. He would threaten LM frequently, say derogatory things, accuse her of cheating, belittle her, physically assault her, push, scream, and spit at her in the face. The prosecution submitted that these things happened over the course of six years and would happen almost weekly.[159]
[159] Ibid.
LM reported matters to police, but as the cycle goes, the accused would tell her he loved her, he would ask her not to do anything about the abuse because he didn’t want to go to goal, and so the cycle repeated.
The prosecutor conceded that requests to police to take no further action might suggest an inherent unreliability on the part of LM, but instead it demonstrates exactly how LM was feeling at the time. She still loved the accused; she still wanted the best for him. She thought that if she did what he asked that life would be easier for her.
LM’s behaviour, which at first seems “extremely off” can be viewed in the light and with an understanding of how victims of domestic violence respond and how those with mental health issues respond to horrific abuse. The lie she told police that she was psychotic, becomes explicable in that light. On the prosecution case, Exhibits D3 to D5, rather than showing some inherent unreliability, actually support LM’s account.[160]
[160] T126-127.
The repeated abuse and the allegations LM makes in relation to Count 4, is supported by the evidence of Mr Novikoff. He recalled a conversation between LM and the accused, where the accused was saying ‘It wasn’t going to happen again’. The accused did not threaten her in front of the two men that were there, but he was willing to try and coax her into allowing him to come inside.
In relation to Mr Novikoff, the prosecutor submitted that I might think that he presented as a nice and helpful person wanting to assist LM, his friend, during a difficult time in her life. She suggested that the inconsistencies about the timings and the setup of the CCTV and when he went to police with the footage were innocent errors of memory due to the passage of time. It was suggested that LM’s evidence about the fact that they went to police in the early hours of the next morning after the alleged offences on 29 April 2021 is to be preferred.[161] These were memories of significance to LM and less so to Mr Novikoff who was just a friend of LM and who was at her house frequently during that period. There is also additional evidence of Constable Nikolas Contibas, who was shown a phone with streaming footage by LM on 30 April 2021 at around 4:30 am.
[161] T130.
On LM’s account, it happened on the same day that the CCTV footage was set up, and the same day that the accused attended at her house and asked her to drop the charges. It could not have happened in the days after as suggested by Mr Novikoff.
LM’s evidence that Mr Novikoff returned when it was dark is consistent with the surrounding evidence of the CCTV being shown to the police some hours later. The prosecutor submitted that Mr Novikoff was wrong in his evidence about timings and days, but not trying to mislead the court. He was simply mistaken given the passage of time and the significance or lack thereof of the events of that day for him personally.[162] It is that same afternoon that LM described being alone asleep on the couch, when the offences of counts 5 to 7 were committed.
[162] T131.
The prosecution submitted that the CCTV, Exhibit P6, is a ‘non-event’. She suggested that it is not clear on the evidence when that footage was from. It was around the time but certainly not of the charged occasions. The footage that was shown in court was not the footage that Mr Novikoff and LM watched in the car, and it is not the livestream that was shown to police on 30 April 2021. It is a clip that was emailed to police of an unknown date and time of LM’s rear door showing nothing of relevance on the prosecution case.[163]
[163] Ibid.
LM said that she has never taken Seroquel, however, it is agreed that she has been prescribed that drug previously. That is not evidence that LM has in fact taken the drug, but poor compliance was noted.
Similarly, the prosecutor suggested that the psychiatric evidence amounts to nothing more than a mere suggestion that because LM has mental health troubles she has lied to the court of that offending conduct.[164]
[164] T131-132.
The prosecution submitted that when giving evidence, LM demonstrated that she was recounting a memory and not trying to recite statements or a story that she concocted. There were added details that came about in statements as elicited in cross-examination, but at the core, the charged offences really did not change. LM was consistent about being grabbed and her evidence about count 1. She was also consistent about the kicking assaults, which were supported by the photos of those injuries.[165]
[165] T132-133.
LM was willing to agree with the propositions that she thought were fair and she disagreed, sometimes strongly, when he thought that they were wrong. On the prosecution case, LM’s presentation was consistent with a victim who has had a hard life, plagued by mental health difficulties. She is someone, the prosecutor suggested, who is distrustful of others and quite fairly so.[166]
[166] T132.
Defence address
Defence counsel submitted that LM’s evidence has independent support, I could not rely on the truth of her evidence as a whole beyond reasonable doubt.[167]
[167] T138.
Defence counsel described LM as erratic and prone to outbursts of anger, particularly when she was cross-examined. She was prone to making speeches or giving non-responsive answers to questions, particularly about inconsistencies with what she told the police.[168]
[168] T140.
In defence counsel’s submission, it was not enough to rely on common cycles or common observations of people who experience domestic violence.
In relation to counts 1 and 2, Sergeant Hamilton gave evidence that when he attended at the McDonald’s, he could not observe any injuries to LM’s neck, injuries to her left arm or any torn clothing. His evidence was that he was told of these issues by LM, but he made no observations.
LM said that the attack occurred in broad daylight in the middle of the road, where the accused grabbed her, strangled her enough to put marks around her neck, and had kicked her and grabbed her, causing scratch marks to her arm. Here, the observations of Officer Hamilton are particularly important. In cross-examination he conceded that he is trained to look for injuries and for signs of any force. He saw LM about an hour or two at most after the attack itself and he observed none. He confirmed that if he had observed any, he would have reported it or recorded it in some way.[169]
[169] Ibid.
The evidence of the retrieving the phone from the accused’s address was not corroborative and did not corroborate LM’s account or support it materially. Defence counsel submitted that how LM described the attack to have come about did not make a great deal of sense. The attack either seemed to be unprovoked or provoked because LM wanted to get her phone and she later said in cross-examination that they were arguing about the accused cheating on her, despite not being in a relationship for three to four years, and by that stage, were only friends. This evidence was in response to defence counsel’s suggestion that there was an argument, but the argument was about drugs and her drug use.[170]
[170] T141-142.
Defence counsel argued that I could not be satisfied beyond reasonable doubt that an assault occurred and, consequently, there had been a breach of the Intervention Order.
There is, defence counsel argued, inconsistency between the evidence of LM and Mr Novikoff. LM gave evidence that she dabbled with methamphetamine. Obviously, she had used drugs in the past, but said unequivocally was not using methamphetamine around April 2021, contrary to the evidence of Mr Novikoff.
In defence counsel’s submission, this went to LM’s truthfulness as a witness when confronted with the assertion that she was indeed using drugs. It was submitted that she downplayed her drug use when she was cross-examined and deflected it onto Mr Novikoff who she said was using drugs.[171]
[171] Ibid.
Defence counsel argued that there is no evidence that the accused was served with the summons, relevant to count 4. Exhibit P7 has a court date, and a return date of 25 March 2021. Assuming the accused was served with the summons itself, for which there is no evidence, he would have been brought to the court on that date, and there is no evidence that he ever attended court.[172]
[172] T143.
At best the accused was told by Officer Hamilton, some six or so months prior to the events of April 2021, that he would be reported. The accused was not arrested, and LM did not give any statement in the matter until December 2021. This casts doubt about two aspects of count 4. First, that the accused knew LM was a witness and had given a statement at all or could be a witness, which goes to the second element of count 4. It also casts doubt on whether the accused was at LM’s house for the purposes of attempting to dissuade her, considering the lack of evidence other than loose inferences with a significant temporal gap.[173]
[173] T143-144.
Defence counsel submitted that the paucity of evidence in this matter should cast doubt. There is no evidence about what the accused actually said to LM to dissuade her, and LM was never asked that directly.
With respect to the bruises depicted in Exhibit P1, defence counsel submitted that there is a possibility that they predated 29 April 2021. Mr Novikoff gave evidence that he may have seen the bruises on the day, a week previously, or maybe a few days later. This possibility significantly undermines the use that can be made of the evidence, namely that it provides independent support of an assault in the way described. It also elevated the small inconsistency in relation to the location of the bruise on LM’s right leg. She said initially in her statement that it was from behind, and the photograph showed it to be on the side.[174]
[174] T145.
Of itself, it may not be particularly important, but that, coupled with the evidence of Mr Novikoff in that respect, and when he saw the bruises, elevates the importance of that inconsistency, and again goes to LM’s reliability as a witness.
There is no dispute that Mr Novikoff was at LM’s house on 29 April 2021. LM’s evidence was that the accused was aggressive, sinister, not necessarily physically violent, but certainly threatening at the time. Mr Novikoff, by the time he arrived, observed them talking in the front yard. The accused was trying to convince LM to go inside, but there were no observations made of the accused acting aggressively. Mr Novikoff made the direct observation that the accused was polite, and when he was asked to leave, he left without fuss.
This interaction, defence counsel submitted, was very important with respect to timing. LM gave evidence that she could not remember when the accused came around, but at the time Mr Novikoff was there. The break-in happened, it would seem on this timeline, some point thereafter.[175]
[175] T145-146.
The evidence of LM being alone in the house, seeing the accused in her hallway, is completely at odds with the unchallenged evidence of Mr Novikoff. He remained, it would seem, with LM until the ‘wee hours’ of the following day.
Defence counsel submitted that Mr Novikoff having fixed and reinforced the back door, the point of entry, before 29 April 2021, was relevant in that Mr Novikoff said that having had concerns expressed to him by LM, he reinforced the door, and it could not be opened from the outside, only through the inside. It would seem by 29 April 2021, it would not have been possible to forcibly gain entry form the outside as LM claimed.[176]
[176] T146.
The police records indicate that police attended LM’s house on 4 May 2021 and reported that they could find no damage to the back door at all.
According to Mr Novikoff, he spent the afternoon and evening with LM to keep her safe between 29 to 30 April 2021. He gave no evidence of a break-in. He said he saw the accused once, and he was in the front yard of the house. Mr Novikoff gave further evidence that he arrived at LM’s house sometime between 2 to 3 pm, and he left at about 5 am.[177]
[177] Ibid.
In relation to the CCTV footage, defence counsel submitted that the livestream of the CCTV did not show that there was any individual that broke into the house at all. LM was adamant that she could see the accused and ‘Michelle’ in the livestream. This was internally inconsistent with what she told the police. LM told police that she could see silhouettes, one of which she believed was the accused. There was no mention of Michelle at all, or any second individual for that matter.[178]
[178] T146-147.
Both versions were not consistent with what Mr Novikoff told the court. He gave evidence that he could not really see anything at all on the livestream. He certainly did not identity, or even purport to identify any individual, let alone the accused who he had met some hours prior in the front yard of LM’s house. Although I note here that Mr Novikoff says the footage is some days after the offence LM described.
Defence counsel argued that the footage in Exhibit P6 does not disclose any material that would assist the prosecution to show there was any damage to the door, or that the door had been opened on 29 and 30 April 2021.[179]
[179] T147.
It was further submitted that the images in Exhibit P2 do not show damage consistent with a sign of forced entry or manipulation to gain entry to the house, and it could not be inferred that the damage, if any, in the photographs was caused by the accused or how such damage could have resulted in the door being removed, allowing the accused access.[180]
[180] Ibid.
Each of these findings, defence counsel argued, cast a significant doubt about whether there was any break in at all and whether LM was ever assaulted or pressured during the break in or before.
These doubts and contradictions raised doubts about LM’s credibility and reliability which have serious impact on counts 1 and 2 in circumstances where there was no independent support for what LM said.
Defence counsel submitted that exhibits D3, D4 and D5 in 2017 are significant because they refer to either LM’s assertions that she was suffering some form of psychosis, or that she had lost touch with reality and did not know what was going on.
Defence counsel argued that it opens two possibilities, either LM had been truthful, and she did have some kind of psychotic or very serious psychiatric breakdown in that time period, or LM willingly lied to police in 2017. Putting aside the protestations of duress, her statements were given under the supervision of police on two separate occasions. LM gave three separate statements, and her evidence cannot simply be relied on for any material reason unless there is something else to support it.[181]
[181] T149.
Defence counsel argued that there are internal inconsistences about the events of 11 October 2020, concerning the nature of the assault and the injuries themselves.
LM gave conflicting evidence about being fearful of the accused. She told the court repeatedly that she was frightened of him, but when challenged about why she let him in, given that was the nature of their relationship, she seemed to change her evidence about the extent of the fear, giving evidence that she only feared him when he was drunk.[182]
[182] Ibid.
When cross-examined, LM agreed that she rang the police on at least three occasions in the weeks and months after 29 April 2021. She complained that she was still being broken into. It is an agreed fact that the accused was in custody after 4 May 2021, and has been there ever since.[183]
[183] Ibid.
LM complained to police that someone had broken into her house and stolen her TV and swapped it with another one which has a hidden camera in it, presumably to spy on her. She gave a further phone complaint to police that her phone had spyware on it and still has. This evidence raised the question of LM’s state of mind at the time.
Defence counsel argued that it could only be concluded that by late 2020 and into early 2021, LM was suffering from an ill-defined, undiagnosed, acute psychiatric condition probably exacerbated by drug use which was persisting at the time of 29 April 2021 and was likely to have persisted after the accused’s arrest in May 2021.[184]
[184] T150.
There were some minor issues of credibility when it came to LM being asked about Seroquel, contrary to the agreed facts. When asked whether she had been to the Queen Elizabeth Hospital for mental health issues, LM gave evidence that she had not, contrary to the agreed facts. I note here however, that LM’s denial concerned Glenside Hospital and not the Queen Elizabeth Hospital and accordingly is of no relevance.[185]
[185] Ibid.
Ultimately defence counsel asked whether it is reasonably possible that LM was suffering from a protracted mental illness towards the end of 2020 into 2021, which would explain the bizarre nature of her evidence, particularly concerning counts 3 to 7.
Defence counsel submitted that LM’s mental state is likely, if not reasonably possible, to be so impaired that it is not possible to determine if she is credible or simply unreliable. Whilst her mental health conditions excite some sympathy, when considering LM’s evidence and whether satisfied beyond reasonable doubt, the lack of corroborative evidence for counts 1 and 2 in circumstances where you would expect, particularly from a trained professional such as a police officer, undermines her credibility and reliability.
Defence counsel argued that the break-in and the assaults could not have occurred if Mr Novikoff’s evidence is accepted as reasonably possible.[186] That he was there throughout the time period where there was a break-in, for which there is no damage to any door, and no independent support in circumstances where it would most certainly be expected.
[186] Ibid.
Defence counsel conceded that it is possible that there was some physical altercation in the October event, but it is no higher than that. It does not assist the court to be satisfied of the elements of the charges beyond a reasonable doubt.[187]
[187] T151.
Analysis
I do not doubt that LM was doing her best to give an honest account of the events that she alleged had taken place on 11 October 2020 and 29 April 2021 and was in the main, responsive to the questions both counsel asked of her. LM was clearly an intelligent woman, who has struggled with what must be said are significant issues with her mental health.
LM had previously withdrawn complaints and had formally denied that the accused had behaved in the way that she had described to police. Furthermore, she had allowed the accused back into her life, despite the on-going abuse she complained of. These are behaviours that too commonly feature in cases involving serious domestic violence and, I expect, are difficult for anyone who has not been in an abusive or violent relationship to rationalise. As such, I did not find LM’s evidence that she had withdrawn her complaints or continued to remain in a relationship of sorts with the accused, to be particularly determinative in assessing the veracity of her allegations. Nor did I find that simply because of her history of mental health issues or drug and alcohol use, her evidence could be rejected. However, it was of some concern that LM denied significant mental health issues and would appear to be non-compliant with prescribed medication.
I suspect that some of the behaviours that LM attributed to the accused were true, and where relationships are volatile and feature violence there may be a continuum of offending which means that distinguishing isolated incidents and recalling the specific particulars of the offending is extremely difficult. There were however aspects of LM’s evidence that have left me concerned as to whether I can accept that she has given a reliable account of the offences that are before me. While it appeared LM had given a broadly consistent account of the events in October 2020 and April 2021, the particular details or the surrounding circumstances appeared to be mostly of a superficial, repetitive and generalised nature. Exact words spoken, particularly relevant in count 4, were not forthcoming.
It appeared that some of what LM has attributed to the accused cannot easily be said to be based on reality. It was troubling to me that LM believed that the accused had entered her premises, removed her television, and exchanged it for another where some sort of device had been installed where she was being listened to or watched. LM described seeing the accused at the rear of her premises on the CCTV footage, crouching down with his current partner trying to enter. LM described vision that she had shown to police and recorded on Mr Novikoff’s phone, which according to police, had shown no evidence of anything of relevance. Certainly, footage provided to Constable Contibas, showed nothing to even suggest that the blinds were ‘moving’ or that there was anyone outside the premises. While I accept that Mr Novikoff is plainly mistaken as to the timing of events, given Constable Contibas’ statement, Mr Novikoff said that the footage showed vertical blinds moving and that he did not it, would seem, see anything like what LM described. He said that no persons were seen in the footage he and LM viewed in the car. This issue, in my view casts significant difficulty on accepting the reliability of LM’s evidence overall. I am concerned that this evidence of the accused being at her back door later on 29 April 2021 was given to support her allegations that the accused had broken into her home earlier that day.
With respect to the injuries that LM said she sustained from the accused’s abuse, while victims of domestic violence may not necessarily seek attention for the injuries they sustain or may conceal signs of abuse, LM was adamant that she had shown her injuries to police and certainly, there are photographs taken by police showing bruising to LM’s thigh and leg. However, even allowing for LM’s statement to police being somewhat inconsistent as to where she was injured, the evidence has left me uncertain as to how that bruising occurred, or when. It is difficult to accept the veracity of LM’s account of how the injuries were sustained without greater detail, and to necessarily attribute them to the accused. The evidence does not sit well with Mr Novikoff’s memory of what he observed and when.
As to the description LM gave of other injuries she sustained, none were said to have been observed by the police who were involved. While these could be regarded as somewhat minor injuries, Sergeant Hamilton said that he was specifically trained in dealing with persons who were alleging domestic violence and had been extensively involved in investigating such matters. He impressed me as a careful witness who appeared to have approached LM’s allegations with care, leaving me with no doubt that any sign of injury to LM would have been assessed and recorded. That LM’s phone was retrieved from the accused’s house by police does little to assist me in assessing whether the incidents as alleged by LM occurred in October 2020.
LM said she thought she had locked her back door on 29 April 2021 and believed the accused was able to manipulate the rear sliding door such that he could obtain access. She said that he and others would gain access that way. LM told police that the screen door had been slashed. Mr Novikoff said that he had previously fixed the door shut so that it could not be opened. It would seem that individuals could not ‘just come and go’ as LM had described.
Police observed no damage to the screen and in my view, the photographs in Exhibit P2 showed nothing other than what I would consider to be normal wear and tear. I note that it appeared LM had never actually seen the accused perform his practice of manoeuvring the door to open. As I have said, LM’s evidence of the accused later tying to execute the manoeuvre, which she saw on the CCTV footage, appeared to me to have been given in an attempt to bolster her evidence that the accused had gained access despite she having locked the sliding door, and the door having previously been secured by Mr Novikoff.
LM’s evidence that she had used Sorbolene which allowed for her to get away from the accused, was in my view added to her evidence in Court to address her statement to police on 3 May 2021, which had not included any reference to having been grabbed by the throat.
While I have no doubt that LM found the process of giving statements to police traumatic, I have difficulty accepting that she would have omitted certain details because it was ‘just another incident’, particularly for example, in relation to the accused having pushed her onto the road on 11 October 2020. I accept that some of the inconsistencies between what she told police and her evidence were of relatively minor significance, however collectively they raise a doubt as to the reliability of LM’s evidence. As I have said, I suspect some of the behaviours LM attributed to the accused had occurred at some times throughout their involvement with each other. I have however, struggled to accept the evidence in relation to each particular charge to the very high standard that is required. The concerns I have expressed regarding the reliability of LM’s account of the events she says occurred on 11 October 2020 and 29 April 2021 have left me with uncertainty as to whether the events she descried occurred in the manner and at the time she has alleged.
While I do not doubt that LM genuinely believes the accused acted as she has alleged, I am unable to accept her evidence as reliable without a reasonable doubt. In the circumstances, I must find the accused not guilty of all accounts.
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