v Yanes v Simon Troy Trewin

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	V Yanes v Simon Troy Trewin
Citation:	[2020] ACTMC 1
Hearing Date(s):	12 December 2018, 13 December 2018, 12 March 2019.
DecisionDate:	07 February 2020
Before:	Special Magistrate Hunter OAM
Decision:	See [374] - [408]
Catchwords:	CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Offences Against the Person, Assault, Assault Occasioning Actual Bodily Harm, Consent, Consent to harm during sexual intercourse, Tendency evidence.
Cases Cite:	R v Freeman-Quay (No 1) [2015] ACTSC 262 Groessler v Gregoric -Ceballos [2017] ACTSC 124 Wilson v R (1970) CLR 334 R v Fordham (1997) 90 8A Crim R 359 R v Brown [1993] 2 All ER R v Donovan [1934] 2KB 498 R v Stein [2007] VSCA 300 R v McIntosh [1999] VSC 258 Neal v The Queen [2011] VSCA 172
Parties:	V Yanes (Informant) Simon Troy Trewin (Defendant)
Representation: Solicitors:	Ms V Wei (Prosecution) Mr J Lawton (Defence) ACT Director of Public Prosecutions (Informant) Legal Aid Commission ACT (Defendant)
File Number(s):	CC 3573 and 3574 of 2017, CC 2696 of 2018

SPECIAL MAGISTRATE HUNTER OAM:

The Defendant Mr Simon Trewin is charged;

(a) Pursuant to section 26 of the Crimes Act 1900 (ACT) with two counts of common assault committed on 25 March 2017 against the complainant Ms Stephens (Charge 3573 and 3574 of 2019); and

(b) Pursuant to section 24 of the Crimes Act 1900 (ACT) with one count of assault occasioning actual bodily harm committed on 25 March 2017 against the complainant Ms Stephens.

This matter was heard before me over three days on 12 December 2018, 13 December 2018, and 12 March 2019.

I heard evidence from the following witnesses:

(a) Ms Stephens who was the complainant;

(b) Ms Kulas, Ms Proudfoot and Mr Marshall who were witnesses to some of the events;

(c) Constable Heading, Richardson and Yanes; and

(d) The Defendant.

The complainant Ms Stephens gave evidence remotely before me as she is entitled to do.

I also had the following materials exhibited before me:

(a) P1 – Audio Recording of Evidence in Chief Interview with Ms Stephens at her home, 27 March 2017 12:32 pm;

(b) P2 – Drawing of the spa by Ms Stephens;

(c)P3 – Drawing of a bedroom;

(d) P4 – DVD Recording of Evidence in Chief Interview with Ms Stephens at Winchester Police Centre, 26 January 2018 10:05 am;

(e) P5 – Bundle of Photos showing injury in text message;

(f) P6 – Bundle of Photos taken by Police of Ms Stephens;

(g) P7 – Facebook messages;

(h) P8 – Hand drawing of the spa by Ms Kulas;

(i) P9 – Hand drawing of the spa by Ms Proudfoot;

(j) P10 – Hand drawing of the spa by Mr Marshall;

(k) P11 – Statement of Melissa Bedford;

(l) P12 - Audio recording of 000 call;

(m) P13 – Video disc of Police Interview with the Defendant;

(n) D1 – Text messages.

(o) D2 – Drawing of layout of spa and backyard.

Prosecution Case

Ms Stephens

The Prosecutor played the evidence in chief interview audio recording (P1) to the Court, this was recorded in her home by Police on 27 March 2017.

In the evidence in chief interview audio recording (P1) Ms Stephens is asked by Police to tell them what happened that evening. Ms Stephens states that there was a barbeque and some drinks. Everyone was getting along well and decided to get in the spa. Ms Stephens was sitting next to the Defendant and opposite to them was their friend Mr Marshall. They had only been in the spa for 5 to 10 minutes. The Defendant said to Ms Stephens, ‘stop touching Simon with your toes’. Ms Stephens said words to the effect of, ‘Stop being crazy’, to which the Defendant replied, ‘Oh, stop being a slut’. Then the Defendant wrapped his feet behind her feet and held her hands. He was getting angrier saying words to the effect of, ‘stop looking at him’ and, ‘turn around and look at me’. The Defendant grabbed her hair a few times and said some nasty things to her. Ms Stephens got out of the spa because she was upset, and she went inside the house and started crying. Ms Stephens’ friends followed her into the bathroom. The Defendant then started yelling at everyone to get out of his house and to just let him talk to Ms Stephens. There was conflict between the Defendant and the complainant’s friend for about 20 minutes. By that stage the Police had arrived. Once the Police had left, the Defendant turned on a shower for the complainant. Ms Stephens stated in the record of interview that she remembered slipping and falling. When she woke up, the Defendant was looking over her and that’s all that happened.

Ms Stephens was asked by Police how it was that the Defendant pulled her hair while in the spa. Ms Stephens explained that the Defendant grabbed her hair and pulled it down to the side. Ms Stephens later states that she knows she was drunk because she cannot remember a lot, but she remembers the Defendant being angry once her friends and the Police left, including things that he said to her about the situation. Such as, ‘what have you done’, which lasted about 30 minutes.

Ms Stephens said that she did not remember getting in bed but that the Defendant turned the shower on for her. She then remembers seeing the Defendant looking over her and her face was a little bit sore. It hurt on her left side of her face, around her cheek and on her jaw. Ms Stephens states that she sent a picture of her face to her friend Rachel saying something along the lines of, ‘in case something else comes up in the future or something, there’s that photo’. Ms Stephens told the Police that the Defendant uses Ice, but she didn’t know that until they were pulled over for a roadside test and it was positive.

Ms Stephens told the Police that she felt drunk, about 6 or 7 out of 10. Ms Stephens told Police that she does not remember anything happening after the Police left. The Police ask Ms Stephens if she gave permission to the Defendant to assault her in any way, Ms Stephen said ‘no’.

A DVD recording of the evidence in chief interview which was taken by Police Officers at Belconnen Police Station is played to Ms Stephens in Court. The DVD recording is then tendered in evidence (P4).

In that recording a SACAT Officer stationed at Winchester Police Centre asked Ms Stephens to recall everything that happened the night of the barbeque. Ms Stephens explained that she was having a party for her birthday with a few of her close friends, their husbands, and the Defendant who she was with at the time. The Defendant then suggested that they get in the spa. They were in the spa with Mr Marshall. Ms Stephens recalled that the Defendant’s mood started to change, and he became aggressive. The Defendant had his legs around Ms Stephens’ legs, and he started saying softly, ‘stop touching Simons feet’. Her friends were situated on the other side of the spa. Ms Stephens replied to the Defendant, ‘what are you talking about’. The Defendant then started calling her words like ‘whore’ and ‘slut’. That is when the Defendant wrapped his feet around Ms Stephens’ feet and held her hands behind her back.

The Defendant then started to dunk Ms Stephens under water, pushing her down. Ms Stephens asked for him to stop but he didn’t, so she yelled at him to stop. Ms Stephens got out of the spa and she was crying, she went and closed herself in the bedroom. There was then a lot of arguing between everyone inside the bedroom. Ms Stephens recalls that she was saying to her friends, ‘don’t leave me when he is like this’. Ms Stephens explains that she didn’t go outside with her friends while they waited for the Police because the Defendant was saying words to the effect of, ‘don’t you dare go outside’, and she was scared that if she did it would make him more aggressive.

Once everyone left the pair were intimate. During intercourse the Defendant slapped Ms Stephens four to five times. Ms Stephens said that these slaps gave her a black eye.

Ms Stephens says that she probably had about 10 drinks all up that night and that she was drunk. Ms Stephens explained that she doesn’t drink often but if she catches up with a friend, she might have two drinks. But otherwise she only drinks unless it is a birthday or special event.

Ms Stephens explained that the Defendant is a very jealous person. Ms Stephens thought that the Defendant might have had double the amount she had to drink that night. Ms Stephens said that he handles alcohol well and that she has never seen him drunk. Ms Stephens said that the Defendant was controlling of her, becoming jealous, and had begun controlling her social media usage. He would also put her down and say nasty things about her friends.

Ms Stephens stated that the Defendant choked her ‘quite a bit’ when he was angry. When Ms Stephens was asked to recall the incident in the spa she initially did not remember how her head became under water, stating that she felt like he had pushed her shoulders down. She soon after recalled that he grabbed her hair and pulled her hair down. Ms Stephens explained that she doesn’t think her friends could hear the Defendant speaking in the beginning, but towards the end she thinks that her friends could hear because he was raising his voice.

The Officer asks Ms Stephens how the Defendant gabbed her hair. Ms Stephens recalled that she had her hair in a ponytail and he grabbed it with one hand a pulled her head under the water, but not all the way down, saying it was quick and then she jumped back up again. Ms Stephens thought he would have used his right hand. Ms Stephens remembered that her whole face was wet. Ms Stephens then started crying, walked inside to the walk-in robe, and was crying while sitting on the floor.

Ms Stephens remembers the Police knocking on the door and the Defendant telling her not to answer it. The Police said through the door that they just wanted to check if she was okay. Ms Stephens remembers telling the Police that she was okay and that everything was fine. They then asked her to step outside and talk to them for 5 minutes. After some time, maybe 30 minutes, everyone left from out the front including the Police. The Police were at the property for no longer than an hour, about 40 minutes.

Ms Stephens was back inside the house. Ms Stephens then remembers sitting on the bed and the Defendant making a sexual comment to her. One of the comments she remembers is ‘do you like it rough’. They were then intimate, the Defendant then slapped her about 4 or 5 times. Ms Stephens said that she didn’t remember saying anything or moving.

Ms Stephens said that she was surprised when she was in the bedroom with the Defendant that he wasn’t yelling and screaming at her. She was surprised because she thought he would have taken it out on her and yelled and screamed at her for the earlier events. She opines that she didn’t feel like he was going to hurt her, choke her, or throw her against the wall.

Ms Stephens was asked why she did not remember much about what was said in the bedroom when they were alone. Ms Stephens said that she thinks she doesn’t remember a lot because of the shock of the Police being there.

Ms Stephens explained that after the sexual comment she knew that he wanted to have sex, so she just went along with it. When Ms Stephens said sex, she meant penile-vaginal intercourse. She remembers the Defendant on top saying words to the effect of, ‘oh you like that don’t you’, and she said, ‘yes’. The Defendant then gave her a ‘big slap’. Ms Stephens thought at that point ‘that really hurt’, but she didn’t say anything. Then she remembered the Defendant slapping her a few more times to the point where it really hurt. She remembered feeling lightheaded and dizzy. She doesn’t remember if she told him to stop after that but thinks that she probably did because she felt completely numb after the slaps. Ms Stephens remembered thinking, ‘are you going to stop… if you keep going... it’s not going to be good’.

Ms Stephens said that he had never done this before (slapped her in the face during sex). Ms Stephens was asked what was going through her mind when she was in shock after being slapped. Ms Stephens said that she remembered thinking that it was turning him on because he got a certain look on his face. She explained that it looked like he was going to kill her. Ms Stephens remembers thinking to herself, ‘I hope he’s in control of himself’. Ms Stephens explained that is how she felt when he choked her as well.

Ms Stephens said that he slapped her towards the top of her face around her eye, forehead and cheekbone area on her left side. She said that she turned her face because she could see his hand coming. Ms Stephens thinks that the Defendant used his right hand in an open-handed slap. She saw his hand swinging back and come all the way down to slap her face. The Officer asked Ms Stephens to describe the force of the slap on a scale of one to ten (with ten being the highest), Ms Stephens described the slap as a six. Ms Stephens was asked what she felt when he hit her. Ms Stephens described that she felt physical pain, emotionally she felt that if she didn’t move and just lay there that he wouldn’t do it again. She thought he would only do it the one time. When he slapped her the further times she was thinking ‘please stop’.

Ms Stephens was asked why she didn’t ask him to stop. Ms Stephens explained that she doesn’t know why she didn’t tell him to stop, she just laid there. She opined that when she asked him to stop when he was choking her he would keep going, so she thought it might make him worse and do it more if she told him to stop. Ms Stephens recalls a 2-3 second gap between each slap. The whole episode occurred in 10 seconds. Ms Stephens was asked how much the first slap hurt on a scale of one to ten, she replied with, ‘eight’. The subsequent slaps were around a six. Ms Stephens says she doesn’t remember anything after being slapped, she cannot recall how long sex went on after that. She only remembers turning away from him. The Defendant stayed in bed after the event, but they were not talking.

Ms Stephens was asked why she didn’t leave at this point. She said that she was too worried to leave and that if she did, she would have had to deal with it the next day. Such as, the Defendant accusing her and asking where she went to. She didn’t want any further drama. Instead she just laid there.

Ms Stephens was asked further about the Defendant choking her. Ms Stephens gave an example of one time when an old friend asked if she wanted to catch up for a coffee and the Defendant became really angry and choked her. She couldn’t breath or pull his hands away. She recalled one incident where she couldn’t move or breath and when he stopped, she burst into tears. Ms Stephens stated that he choked her once a week to once a fortnight. They were together for 8 months. During that period there were a few days where she would leave but then ultimately go back to him. Ms Stephens explained how the Defendant would choke her; she said that often it would be one hand while she was laying down. A few times she was left with marks on her neck.

Ms Stephens was asked if her face was red after being slapped. She explained that it had knocked her nose piercing out but that she didn’t look in the mirror afterwards, she saw the bruising the next day. She was shocked when she saw her face in the mirror the next day. She remembers her eyebrow being dark and her eye red and her cheek was very sore down to her jaw line.

Ms Stephens explained the next day she sent a photo to her friend Rachel in case he kept treating her like that, in case she needed it if something else happened. The Officer asked Ms Stephens to explain what she means by, ‘in case something else happens’. Ms Stephens replied by saying that she knew that things with the Defendant were not right and that she tried several times to end the relationship but felt pressured to come back. She said that at times he was frightening and that if he hurt her down the track she could refer back to the date and the picture because she knew that he would have completely denied anything happening. Ms Stephens explained that at least if she knew someone had the photo it might be useful one day because she didn’t feel secure and didn’t know what would happen with him.

Ms Stephens explained that the photo she sent to Rachel was of the side of her face with bruises. She said that she did not explain to Rachel how she got the bruises because she was too scared in case the Defendant saw a reply.

Ms Stephens said that she did not give the Defendant permission to assault her however she recalls him saying, ‘do you like this’ or, ‘do you want it’ and she said, ‘yes’. She said she didn’t tell him to stop she just agreed. She agreed because that’s what he wanted to hear and in his sexually aggressive state it was easier to just go along with it.

Evidence in Court

Examination in Chief

Ms Stephens explained that the spa was located on the deck. The others in the spa were located up the other end. The house was on the right next to the spa. To get to the house from the yard you walk up the steps from the yard, the spa is on the deck, and then there is the house. Ms Stephens explained that to get into the house from the spa you would enter the sliding door, which was located next to the Defendant’s bedroom window, which is a metre from the spa.

The Prosecutor asked Ms Stephens to describe how the Defendant was holding her in the spa. Ms Stephens stated that initially she was sitting next to the Defendant in the spa but when he started getting angry, she moved and sat between his legs and he was restraining her. He was grabbing her legs and arms. Ms Stephens further explained that she was sitting in front of the Defendant and her arms were behind him and his legs were in front of her pinning her legs and arms back. Ms Stephens agreed that she was facing away from the Defendant. The Prosecutor asked whether her description of the hair pulling incident in the spa was as she explained it in the interview. Ms Stephens said that the Defendant grabbed her hair and pulled it under water. Ms Stephens confirmed that her entire head went under the water, it wasn’t at the depth of the spa, but enough for her whole head to be covered and wet. Ms Stephens said it was after this she went to the bathroom with Ms Froome.

Ms Stephens said that she remembered saying to Ms Froome that, ‘there is more to him’, and that there’s a lot more about him that she doesn’t know because it was the first time Ms Froome had met the Defendant. At that time Ms Stephens was crying and upset.

In relation to the slaps Ms Stephens received during intercourse she said that the slaps occurred after about 5-10 minutes of sexual activity. Ms Stephens describes the Defendant slapping her face with his right hand. The slap landed on the left side of her face as she turned her head into the pillow. The gesture that Ms Stephens made while explaining the slap was described for the transcript as the right hand held up with an open palm with the arm in a backwards motion and a 90-degree angle at the elbow. Ms Stephens clarified that the Defendant’s arm went backwards before coming forwards. Ms Stephens described the subsequent slaps as the same as the first slap.

Ms Stephens stated that she would have made a noise but that she didn’t say anything because she didn’t realise he was going to keep going. In relation to the subsequent slaps, she said she didn’t remember any conversation after those slaps. Ms Stephens said that she didn’t remember saying anything but remembered he had, ‘a very aggressive, sexual look’, that he would often get. It was suggested that Ms Stephens said in her record of interview that she was in the bedroom before the Defendant came into the bedroom. Ms Stephens said she doesn’t remember where in the room she was but at one stage she was sitting in the walk-in-robe crying and talking to Ms Froome. Later she was sitting on the toilet seat when Mr Marshall came into the bathroom. Ms Stephens recalled that after the Police and her friends had left the house, she would have been either lying down in bed or sitting in the bathroom.

Ms Stephens was shown a document which she recognised as a picture she took of her face with her phone which shows an injury to her face (P5). The Prosecutor asked Ms Stephens about the messages accompanying the photo and Ms Stephens explained that she took the photo with her phone and sent the picture to her friend Rachel. The Prosecutor asked Ms Stephens why she said she was frightened of taking the photo in her evidence in chief interview. Ms Stephens explained that it was because the Defendant had done it to her and that he wouldn’t want there to be any proof that he had done it and wouldn’t have liked her telling anyone. Ms Stephens continues saying that she was frightened that he would see it and that is why she told Rachel, ‘please don’t message me about this’, and deleted the message from her phone. If he had seen it, it would have started another fight.

Ms Stephens identified a further document as three photographs of herself taken by Constable Yanes two days after the incident at her home in their first interview (P6). Ms Stephens was asked if she was wearing makeup at the time. Ms Stephens confirmed that she was wearing foundation, lipstick, eyeliner, and mascara.

Ms Stephens was questioned as to why she did not leave with her friends after the initial spa incident. Ms Stephens explained that the Defendant was quite possessive and controlling and that she often did what he wanted her to do to avoid getting into an argument, he was also very escalated that night. Ms Stephens also believed that he had taken drugs that night. Ms Stephens said she didn’t want to make it worse for her children because she would have needed to go back to the house the next day because their things were there.

The Prosecutor asked why Ms Stephens told the Police that she had slipped in the shower and why she didn’t tell them that she had been hit. Ms Stephens said that the Defendant said that was what she was to say. Ms Stephens explained that it was discussed the next day while in the car on route to collect her children from Braidwood. At the time they were still in a relationship and she didn’t want to get him into trouble. She also said that she was very emotional and upset at the time. Ms Stephens was asked whether it was the truth that she slipped in the shower, she replied, ‘no’.

In relation to the second interview with the SACAT Officer. Ms Stephens stated that Police contacted her in January, which was the first contact the Police and Ms Stephens had with each other since the initial interview in March the year before.

Ms Stephens stated that the relationship with the Defendant ended around June 2017 when she received a house through a women’s service. When she left there was no contact with the Defendant until the Defendant got in contact with her, about 3 months. During that time there wasn’t much of a relationship, there was constant fighting and he would often drive around to find her. In August Ms Stephens described a time where she went back to his house to collect something and there was a serious incident of choking. There was no relationship at all from August 2017 onwards. They may have texted once or twice, and Ms Stephens met with him once to get her mail. October of that year was the last time they had any contact.

Ms Stephens was shown a bundle of documents which she identifies as Facebook messages between herself and the Defendant (P7). Ms Stephens identified that the message, ‘Why don’t you email Victor now instead?’, was written by the Defendant. Ms Stephens explained that Victor is the Police Officer who arrested the Defendant the day after the incident. Ms Stephens wrote, ‘yes okay’, back to the Defendant in message. Ms Stephens explained that the Defendant asked her many times to email or call Victor and to tell Victor that she wanted everything to stop and that she would not proceed with anything and that she didn’t want any involvement with any of it. Ms Stephens said that the Defendant would check in with her to see if she had done it. In relation to how often that would occur Ms Stephens said it would depend on his mood, if they were fighting he would keep bringing it up, but even if things were going well he would say words to the effect of, ‘ things are fine with us now, so why don’t you just tell Victor that’.

In relation to the next message which states:

‘Just stress again, it was an assault. You weren’t threatened, hurt or scared and that you were just playing, that you think the charge should be dropped and you want no part in the proceedings and you will be defending me if they choose to proceed, regardless’ .

The Prosecutor asked Ms Stephens if that was in effect what he would say to her on those other occasions. Ms Stephens agreed and explained at first it was that she slipped in the shower but when she told Victor the truth about what really happened, the Defendant said to say that they were just playing, and it was nothing serious. In relation to a message which reads, ‘Show me what you said before you send it’, Ms Stephens explained that she never actually said anything to Victor. Ms Stephens stated that the Defendant would ask her at least once a week to contact the Police Officer.

The Prosecutor asked Ms Stephens whether she agrees that at this point (referring to the date of the messages) she had not told the Police the truth about the sexual intercourse and being struck. Ms Stephens explained that she could not remember the date when she told Victor what happened, she recalls that she told him in a phone call..

In relation to a message from Ms Stephens which stated, ‘after you’d threatened me with DOCS’. Ms Stephens explained that it means Child Protection, as in, Child and Youth Protection Services. Ms Stephens said that the Defendant made that threat to her constantly. Ms Stephens said that he never actually contacted Child Protection but would use it as a tool to hurt her because she has a close relationship with her children.

In relation to the Defendant’s messages about her fluctuating number of friends she had on Facebook. Ms Stephens said that the Defendant had control, he had her Facebook password and he would go through her Facebook and he would delete anyone he didn’t want her to have as a friend. Ms Stephens said that she didn’t change her password because if the Defendant realised she had done that he would harass her until she gave him the new password. The Defendant also had the password to her email and to her mobile phone. Ms Stephens stated that she wanted Snapchat, but the Defendant did not want her to have it. Ms Stephens said the Defendant had the password to her phone at the time she sent the messages to Rachel.

In relation to a further message written by the defendant:

‘And I promise you Ms Stephens if you ever try again to set me up every text message and email that you’ve ever sent me, my family and friends, have been documented with all photographic evidence of your neglect and is sitting in a folder in my iCloud account that Cindy has access to and already knows in the event that you ever try again to have me arrested, that the folder will be handed straight to the Police and Child Protection’ .

Ms Stephens confirms that Cindy is the Defendants Sister. Ms Stephens said at the time of that message she had not spoken to the Police. Ms Stephens thought that the Defendant must have thought she was trying to when Victor called her about the statement, and she had locked herself and her kids in the room so she could speak to him. Ms Stephens then told the Defendant that she was on the phone to Victor.

Cross-examination

Ms Stephens said that their relationship started in December 2016 and soon after moving in with the Defendant the relationship became sexual. It was suggested they would send each other erotic messages, and she agreed. Defence Counsel reads a sequence of messages to Ms Stephens.

Counsel reads the following message:

‘I’m pretty wet right now as well and it’s throbbing, I have to see you tomorrow’. The Defendant responds, ‘Fuck I love how you back up to me baby. Can I see you tomorrow? You’ve made me hard’. Ms Stephens replied ‘mm, yes, we should do that sometime’. The Defendant wrote, ‘Then punish you on the side of the road somewhere, baby’. Ms Stephens replied, ‘You should kidnap me, and I try to fight you off but you’re too strong, so you end up putting your big cock in me and we both really love it’. The Defendant replied, ‘You want me to drive past and abduct you?’ Ms Stephens replied, ‘I know, but we could play a game and it would feel real’. The Defendant said, ‘You’d love it but [smiley face]’. Ms Stephens then replied to that message saying, ‘You could, and then rape me [smiley face with a wink]’.

Ms Stephens said that she does not remember writing that message but yes, he did suggest lots of things like that and that she responded, because that’s what he wanted to hear. Defence Counsel asked if she was an active participant in the messages and she replied yes. Ms Stephens agreed it is a part of passionate talk that lovers sometimes have about fantasies they’d like to have.

Ms Stephens agreed she made sex tapes with the Defendant but clarified that this would be the Defendant filming her on his phone, he didn’t let her film him. Ms Stephens agreed that he recorded Ms Stephens having sex and that it was three times and on one occasion it was using a camera which had a remote which could adjust the position. Ms Stephens agreed that on all occasions she knew the sex was recorded.

Defence Counsel suggested that the Defendant pulled her hair and choked her as well during intercourse. Ms Stephens recalled that it was, ‘very rough’. Ms Stephens denied asking the Defendant to do that to her and said, ‘not that I remember’. It was suggested there was a third video where there was hair pulling, choking, and buttocks being slapped during intercourse. Ms Stephens stated that she could not remember what was exactly in the video but agreed the Defendant could be very sexual and rough at times. It was suggested the third video was made after the incident which occurred at her Birthday. Ms Stephens said, ‘No, I don’t remember a third video being made after the birthday party’. Ms Stephens agreed she had sexual intercourse with the Defendant after the birthday party and that she remained in a relationship with him.

Defence Counsel suggested to Ms Stephens that her relationship with the Defendant came to an end at the end of July. Ms Stephens explained that they remained in a relationship until August when there was an incident. She continued to explain that the relationship was very different and that she wasn’t living with him at the time.

Ms Stephens said she moved out in June. It was suggested it was 10 June. Ms Stephens could not remember the date, but said it was sometime in June. It was suggested that on 17 June the Defendant helped move her belongings to the new accommodation. Ms Stephens denied that and said he met her somewhere and that she didn’t tell him where she lived. They met somewhere on the side of the road and he got her stuff out of the back of his car and put it in her car.

Defence Counsel suggested that even though she had moved out their relationship continued until August. Ms Stephens explained that the relationship at that point was one-sided, she was constantly trying to end the relationship, but the Defendant would call, text, and sometimes show up at her workplace. She found it difficult to break away.

It was suggested that Ms Stephens went to the Defendants house on 14 August and kicked a hole in the window of his house, Ms Stephens agreed that she did. It was suggested that after 14 August their relationship was over. Ms Stephens agreed with that assertion.

In relation to the spa incident. Defence Counsel suggested that the spa was in fact more of a rectangular shape. Ms Stephens replied that she does not remember it being a rectangle.

In relation to Ms Stephen’s evidence given to Police. Ms Stephens agreed she had about 8 to 10 drinks over the course of the evening and was drinking Southern Comfort with Coke. Ms Stephens said that she mixed some, but a friend also mixed some drinks for her.

In relation to the diagram Ms Stephens drew of the spa (P2 and P3). Defence Counsel suggested that Mr Marshall, Ms Kulas and Ms Proudfoot were in the spa at the same time as the Defendant and herself. Ms Stephens said that she remembered Mr Marshall, Ms Kulas and Ms Proudfoot all being opposite in the spa to where they were sitting. It was suggested that Ms Proudfoot was not in the spa with them. Ms Stephens disagreed stating that she remembers all three being on the opposite side of the spa. Ms Stephens denied that she was in fact sitting next to Ms Kulas and Mr Marshall on the opposite side stating, ‘definitely not’.

Ms Stephens denied that she was in the Defendant’s lap in the spa when the incident started, stating that she was beside him when it started and then she ended up sitting between his legs towards the end. Defence Counsel suggests that the Defendant did hook his legs around her legs to stop her moving them at one point but that he did not restrain her arms behind her back. Ms Stephens disagreed with that proposition. Defence Counsel suggested that the Defendants arms were instead wrapped around Ms Stephens’ waist like a ballerina. Ms Stephens agreed that the Defendant was holding her like that but that she knew her arms where behind him and he had his arms around her. Defence Counsel asked if the Defendant was holding Ms Stephens’ arms behind her back or whether he had his arms around her waist. Ms Stephens explained that he had his arms in front of her but her arms where tucked underneath his arms and around his back. Defence Counsel suggested to Ms Stephens that at no stage was the Defendant responsible for her arms being behind his back, Ms Stephens disagreed and said that he put them behind his back.

Defence Counsel then suggested to Ms Stephens that the Defendant did not dunk her head into the spa or pull her hair, Ms Stephens disagreed. Defence Counsel then suggested that the Defendant pushed Ms Stephens off his lap, got out of the spa to get some towels and came back to the spa. Ms Stephens did not recall this happening. It was then suggested to Ms Stephens that the Defendant asked to talk to her by herself and there was interaction between him and other members of the party. Ms Stephens said that she did remember that happening.

In relation to when the Police arrived and the Defendant said, ‘don’t answer the door’, Ms Stephens disagreed with Counsel that it never happened. Defence Counsel suggested that when the Police arrived that the Defendant swiftly opened the door. Ms Stephens stated that she can’t remember who opened the door when Police arrived because there was so much going on in the house.

Defence Counsel suggested to Ms Stephens that during intercourse she asked the Defendant to slap her. Ms Stephens disagreed with the proposition. Counsel puts further to Ms Stephens that she asked him to slap her again and to slap her harder. Ms Stephens also disagreed with this proposition. Defence Counsel puts to the witness that the Defendant slapped her a total of four times and after the fourth time she asked the Defendant to slap her again and he did not slap her any further times. Ms Stephens disagreed.

Ms Stephens agreed that she did not appreciate the injury she received until the next morning when she got up. It was suggested that the Defendant wanted her to keep doing things during the day such as watch the kids play soccer, she agreed. Defence Counsel asked if she was embarrassed by the injury, she agreed. It was suggested that she didn’t want anyone to know that the injury happened during a sex session with the Defendant, Ms Stephens agreed and stated that she didn’t want anyone knowing it happened at all, or why it happened.

Ms Stephens agreed that she watched the kids play soccer and that the image of her face was taken before soccer that morning.

Ms Stephens denied the suggestion the Defendant encouraged her to speak to the Police that night. In relation to the second interview with Police, Ms Stephens said that the Police contacted her. Ms Stephens was then asked whether she made the statement and recording on the same day (that being, 6 January 2018). Ms Stephens said that the written three-page statement made to First Constable Yanes was made before the recorded interview. The recorded interview was made on 26 January 2018.

Defence Counsel suggested that between the pair breaking up and the statement being made there was an incident involving her father and the Defendants house. Ms Stephens agreed that her father was charged with some offences to do with breaking into the Defendants house.

Defence Counsel asked Ms Stephens if she had sent some correspondence to the Defendant in October saying that she had no idea that her Father was going to do that. Ms Stephens agreed and added that she didn’t have a relationship with her Father at the time, so she didn’t know.

In relation to text messages (D1) sent by the Defendant where he tells her to, ‘stress again it wasn’t assault, you weren’t threatened, hurt or scared and that we were just playing’. Defence Counsel suggested to Ms Stephens that when the Defendant said ‘playing’ that he was referring to sexual play. Ms Stephens agreed with that proposition.

Defence Counsel then directs Ms Stephens to a message which states, ‘I have no need to talk about you to anyone. I want to be happy and whatever happened with you is done’. That message is replied to by the Defendant with, ‘What about the so-called assault? Are you just going to let that continue to fuck me up when it didn’t happen?’ Ms Stephens sent a reply text which said, ‘I didn’t call the Police on you, okay? You know that. I have never said you intentionally hurt me’. Ms Stephens agreed that she sent that reply. Ms Stephens agreed that the Defendant sent a message in reply saying, ‘You can tell them to stop but you still haven’t, knowing it will fuck me up’. The Defendant said, ‘You’re holding it over my head, why?’. Ms Stephens replied, ‘I told Victor, alright, and he said they are choosing to go ahead with it because they believe it happened’.

Ms Stephens agreed that the morning after the birthday incident she sent the photo of her face to Rachel before she woke up the Defendant. It was suggested that when she woke the Defendant up by tapping him, he looked at her and said, ‘What the fuck?’ when looking at her face. Ms Stephens replied that she did not recall that. It is suggested that it was then that the pair discussed what to say about how the injury occurred. Ms Stephens stated that she could not remember discussing it that morning, but she remembers discussing it during the car trip.

Counsel suggests to Ms Stephens that it was discussed that morning and when Police pulled the car over and took Ms Stephens out of the car to have a conversation. Ms Stephens agreed that’s what happened. Ms Stephens was asked whether the Defendant was left in the car when that conversation occurred, she agreed. Ms Stephens was asked whether she recalls saying to the Defendant when she got back to the car that she told them that she had slipped in the shower. Ms Stephens agreed that she would have said that.

Counsel then suggests to Ms Stephens that the only time the Defendant ever choked her was during acts of sexual intercourse, Ms Stephens disagreed. Counsel suggested that in fact on most occasions (of sexual intercourse) it was she who requested that the Defendant choke her and/or she did not ask him to stop choking her. Ms Stephens disagreed and said that she never asked the Defendant to choke her during intercourse and that she did tell him to stop choking her at times during intercourse.

Ms Stephens agreed that when the Police contacted her in January to make a statement she and the Defendant had moved on. Ms Stephens denied having anything to do with the Defendant in January of 2018.

Re-examination

In relation to the sex tapes, Ms Stephens said that it was the Defendant’s camera which was used. Ms Stephens said it was the Defendant’s suggestion to film the sex. Ms Stephens said it was the Defendant’s suggestion to engage in rough sex, and it was also his suggestion to choke her. Ms Stephens said it was his idea to slap her on 26 March, he ‘just did it’.

Ms Stephens accepted that on the occasions where the Defendant would choke and on this occasion slap her, she never said ‘no’. Ms Stephens said that she didn’t tell him to stop, she didn’t say no. This is because on other occasions when he had choked her and she asked him to stop or tried to pull his hand away the Defendant would get more angry and would keep going. She was scared that on this occasion that would happen. Ms Stephens denied that she wanted to be slapped across the face during intercourse on 26 March, she replied, ‘Definitely not’.

Ms Stephens said that she kicked the Defendants window in August when they were still on and off. She describes that on that day he had told her he loved her. That afternoon she went to his house after the gym to collect her daughter’s puffer jacket. She knocked on the door and he didn’t answer but she still had the key, so she let herself in. She could see the bedroom door was shut and the Defendant started yelling at her. She thought that he was in there with someone, so she went around the deck to see that he was in bed with another man. Ms Stephens said that she was very angry and upset and kicked the window.

The Prosecutor then asked Ms Stephens whether she remembers the Defendant getting out of the spa and saying that he wanted to talk to her by herself. She replied, ‘I think so’. Ms Stephens said at that point she had gotten out as well.

In relation to how Ms Stephens felt physically after she was slapped during intercourse, she said that physically she just felt it stinging but that when she went to the bathroom she didn’t look in the mirror that night, it wasn’t until the next morning [that she saw her injuries].

Ms Stephens agreed she ceased contact with the accused in October 2017. Ms Stephens agreed the message would have been prior to October 2017. Ms Stephens said in relation to whether January 2018 was the first time she had told Police she was assaulted during intercourse, that it was not the first time and that she had a phone conversation beforehand and then she had to come in to do the statement. Ms Stephens opined that it was a few months between the phone call and doing the statement. Ms Stephens agreed that it would have been after the messages (D1).

Ms Stephens indicated that what is meant in the messages by ‘your so-called assault’ is in reference to the assault that happened against Ms Stephens in March, the sexual intercourse incident.

In relation to the conversation which took place in the car trip about what to say, Ms Stephens said that it was before the Police had pulled her over. Ms Stephens confirms that it was on their way to Braidwood when the pair were pulled over.

Ms Kulas

Examination in Chief

Ms Kulas said on 25 March 2017 she attended Ms Stephens’ birthday party. She arrived at about 7:30 pm. It was a barbeque. Ms Kulas describes how everything was normal until a couple of people entered the spa, at which point something was happening under the water with Ms Stephens and The Defendant. Ms Kulas states she didn’t know what was happening, but it made her uncomfortable, so Ms Kulas exited the spa. When she came back (to the spa) the Defendant was pulling Ms Stephens’ hair and Ms Stephens was yelling, ‘stop’. Ms Stephens got out of the spa and said, ‘did everyone see that?’. Then Ms Stephens said, ‘do not let Simon follow me into the bedroom’. At which point Ms Kulas went into the bedroom with Ms Stephens. The Defendant eventually got into the room, he went into the ensuite with Ms Stephens and things escalated. There was a lot of yelling and the Defendant was telling everyone to get out of the house. The Police were eventually called.

Ms Kulas said that Ms Stephens’ birthday party was at an address she knew as the Defendant’s. She said what she meant by a normal party was that it was a typical party, people were eating, drinking, taking photos, chatting and getting to know each other. Ms Kulas said that she wasn’t drinking that night. She recalled the people who were present at the party. Ms Kulas stated that she had met the Defendant twice before and that she has known Ms Stephens for a long time, everyone else she met that night.

Ms Kulas said she got into the spa around midnight. Ms Kulas said Mr Marshall, the Defendant, Ms Proudfoot, Ms Stephens and herself were in the spa. She does not remember who got into the spa first and did not remember if anyone was already in it when she got in. Ms Kulas was asked about what she thought was happening under the water. She said she didn’t know if it was a playful thing because the spa was going, whether it was a sneaky grab or something, but Ms Stephens was saying ‘stop it’. She didn’t know if it was something Ms Stephens didn’t want or whether it was playful, and she didn’t want others in the spa to see it. Ms Kulas said that she just saw Ms Stephens make a movement and say, ‘stop it’.

Ms Kulas drew a diagram of the spa and the positions of the people in it (P8). Ms Kulas identified where everyone was in the spa when she heard Ms Stephens say stop it. Ms Kulas said that when she got out of the spa she went and got a towel which was inside the house. She recounts that she was at the door coming back with her towel when she saw the Defendant pull Ms Stephens’ hair. Ms Kulas said that she was three meters away.

Ms Kulas remembers that she was exiting the house and the Defendant still had his hand on Ms Stephens’ hair. She stated that she can’t remember what happened she may have looked away because the last time she looked it looked like Ms Stephens had come up from the water, but she didn’t see what happened. Ms Kulas explained that Ms Stephens was wet, before, her face wasn’t wet and Ms Stephens said, ‘stop it’ and screamed. Ms Kulas said that she helped Ms Stephens out of the spa and Ms Stephens asked if she had seen that. Ms Kulas said ‘yes’ and then Ms Stephens next words were, ‘do not let him near me’. Ms Kulas said that Ms Stephens appeared confused.

They went into the room and shut the door. Ms Kulas recalls that after Ms Stephens exited the spa Ms Proudfoot asked, ‘what’s going on’, the Defendant replied, ‘what do you mean?’. Ms Proudfoot, Ms Froome, and Ms Kulas then followed Ms Stephens into the bathroom. Ms Kulas recounts that while they were in there, there was a conversation but she could not remember the exact details of what they were talking about. Ms Kulas described how at this point Ms Stephens was really shaken and really confused. Ms Kulas states that normally Ms Stephens is a really confident woman and holds herself well, and at this point she just looked worried and confused.

The Defendant then managed to get into the room. Mr Marshall was stopping him from getting in because they had told Ms Stephens that they wouldn’t let him into the room. When the Defendant did enter the room, he took Ms Stephens to the ensuite. Ms Kulas states that she can’t remember exactly what was said when that happened but he pushed Ms Kulas out of the way and she said, ‘do not touch me’, and he said, ‘ it’s my house, my girlfriend’, and took Ms Stephens to the ensuite. Ms Kulas said that they stayed in the ensuite for some time but that she didn’t hear anything coming from the bathroom. Eventually Ms Froome’s husband called the Police.

At one point both the Defendant and Ms Stephens came out of the bathroom and the Defendant told everyone to get out. The words he used were, ‘Get the fuck out of my house, the party’s over’. Ms Kulas said her response was, ‘we’re not leaving without Kelly’. Ms Kulas said Ms Stephens came out of the bathroom still looking confused and worried saying, ‘don’t let him near me’. The Defendant kept repeating, ‘It’s my house. The party’s over. Get the fuck out’. Ms Kulas said he was very aggressive and made a lot of people at the party frightened. Ms Kulas said that she knew he was very aggressive because he was yelling and there was swearing.

Ms Kulas states that after that they hung around to try and convince Ms Stephens to come with them and then the Police arrived. When the Police arrived Ms Kulas told them the events of the night. Ms Kulas said that she almost got Ms Stephens to leave with her but in the end she stayed. Ms Kulas said that because Ms Stephens had told her not to leave her with the Defendant, she ran around the back of the house and grabbed Ms Stephens and started walking down the side of the house. The Defendant came out, grabbed her hand, and lead her back inside. Ms Kulas said that when the Defendant took Ms Stephens by the hand, she didn’t do anything or say anything.

Cross-Examination

Defence Counsel suggested to Ms Kulas that when the incident in the spa occurred the Defendant got out before Ms Stephens, went inside the house, and came back with some towels. Ms Kulas states that she did not remember him coming back with towels. Counsel then asks if Ms Kulas remembers the Defendant asking Ms Stephens if she was getting out of the spa to come and talk. Ms Kulas said, ‘No, I helped Kelly out of the spa’.

Counsel then suggested to Ms Kulas that the Defendant, Ms Stephens and Ms Kulas were sitting together on one side of the spa with Mr Marshall on the other side of the spa. Ms Kulas said no, that her layout was the layout. Counsel asks whether the spa was more rectangular rather than oval and Ms Kulas said she didn’t know. She states that she didn’t particularly draw the shape of the spa. Ms Kulas recalls that it was a relatively large spa but can remember the exact shape.

Counsel suggested that Ms Stephens was in fact in the lap of the Defendant when the ‘stop it’ conversation happened. Ms Kulas said that she would have said that they were next to each other. Ms Kulas elaborates by saying that they were sitting close and maybe at some point she was sitting in his lap, but she doesn’t remember that, what she does remember is the two-sitting side-by-side.

Counsel then suggested to Ms Kulas that she was mistaken that the Defendant pulled Ms Stephens’ hair, she replied, ‘no that happened’. Counsel suggested to Ms Kulas that she didn’t see that happen, she said, ‘no, I saw hair being pulled’. When asked if certain she replied, ‘yes’.

Counsel asked whether it was correct that she didn’t actually see what was happening under water, but that she thought there might have been a sneaky leg grab or something like that. Ms Kulas replied that something must have happened for Ms Stephens to say, ‘stop that’. Counsel asked whether Ms Stephens said it in a friendly way, Ms Kulas said no it was, ‘stop what you are doing, I don’t like it’. Ms Kulas agreed that she didn’t see the position of the Defendants hands under the water but that she could see the top of his arm in Ms Stephens’ position but not where it was on her body under the water.

Ms Proudfoot

Examination in Chief

Ms Proudfoot did not give a statement but did speak to the Police on the night of the incident, 25 March 2017. Ms Proudfoot is asked what happened the night of the incident. She recounts that Ms Stephens invited a group of people to her birthday celebrations and they had a barbeque and later that night they got into the spa and that’s when Simon started pulling her hair and her saying stop it and her then crying and the Defendant getting aggressive.

Ms Proudfoot recalls that the barbeque was at the Defendant’s house later in the afternoon. When Ms Proudfoot first arrived, the Defendant was out picking up one of his friends, that friend was Mr Marshall. Ms Proudfoot agrees that it was a celebration and people were drinking and that she was drinking wine. She could not remember exactly how much wine, but she took a bottle of wine. She did not drink anything else that night and she had something to eat, meat and some salads.

Ms Proudfoot is asked who got into the spa. She states that the Defendant, Ms Stephens, Mr Marshall and Ms Kulas got into the spa. Ms Proudfoot also got into the spa but could not remember who got in first. Ms Proudfoot recalls that Ms Stephens and the Defendant were across from her and Mr Marshall was on her right and Ms Kulas on her left.

Ms Proudfoot is asked to draw a diagram of the spa and all the positions where people were sitting (P9). The diagram depicts The Defendant and Ms Stephens siting directly opposite where Ms Proudfoot was seated. With Ms Stephens on the right and the Defendant on the left.

Ms Proudfoot is asked what stood out in her memory, she replied Ms Stephens telling the Defendant to ‘stop it’. Ms Proudfoot described Ms Stephens as being distressed when she said those words. She explained that she thought she was distressed because she was saying ‘stop it’ and yelling it out. Ms Proudfoot states that people over at the fire heard Ms Stephens say those words, because they all spoke about it afterwards. Ms Proudfoot did not observe anything in the time before Ms Stephens saying, ‘stop it’. After Ms Stephens said those words she began to cry.

When Ms Stephens started to cry everyone got out of the spa and Ms Stephens went into the bathroom. Ms Proudfoot agreed that she did see the Defendant pull Ms Stephens’ hair when Ms Stephens was saying ‘stop it’. Ms Proudfoot explained that it was hard to see because of the water but that she saw Ms Stephens’ body movements. Her movements being ‘pulling down’ and saying, ‘stop it’. Ms Proudfoot indicated her right side in a downwards motion with her head. That is Ms Stephens’ right side and head coming down towards the water. Ms Proudfoot is asked why she formed the view that Ms Stephens’ hair was being pull, she replied ‘well, I could see her head moving down’.

Ms Proudfoot said she saw Ms Stephens going into the bathroom, but she stayed in the lounge and Ms Froome went into the bathroom with her. Ms Proudfoot also saw Ms Kulas go into the bathroom. The Defendant then started yelling out and things ‘got aggressive’. Everyone, ‘got quite frightened and thought the Police should be called’. Ms Proudfoot recounts that Ms Froome’s husband called the Police. Ms Proudfoot states that she cannot remember what the Defendant was saying but that he was yelling aggressively. Ms Proudfoot thought the Defendant was being aggressive due to his ‘whole demeanour’ as it was aggressive. After the Defendant yelled at Ms Stephens, he told everyone to leave. Ms Proudfoot cannot remember the words used but remembers being told to leave and then they all went out the front onto the driveway. On the driveway they met the Police who had arrived. Ms Proudfoot said after that point the defendant locked the door and wouldn’t talk to the Police. Ms Proudfoot said she saw what was happening.

Ms Proudfoot said once Ms Stephens got out of the spa, she did not speak to her because she was in the bathroom crying and had closed the door. Ms Proudfoot only saw Ms Stephens again when she came out the front when the Police arrived, and they were speaking to her. Ms Proudfoot could not hear what Ms Stephens and the Police were talking about. Ms Proudfoot did not see the Defendant again after he had locked them out of the house.

Cross-Examination

Ms Proudfoot said that she didn’t try to get into the house once the door was locked. Ms Froome and her husband were trying to get Ms Stephens away. It was suggested that the door was open when the Police arrived. Ms Proudfoot said she was not a hundred percent sure, she was on the driveway. Ultimately, Ms Proudfoot agreed with the suggestion.

Counsel takes the witness to when Ms Stephens went to the bathroom after the spa incident. Ms Proudfoot is asked to recall which bathroom it was. Ms Proudfoot replied the bathroom coming off the lounge room. Counsel questions this response, Ms Proudfoot replied, ‘I’m not really sure what bathroom it was, to be honest’. Counsel warns the witness to give evidence about what she actually saw rather than what other people have told her. Ms Proudfoot then opines that she is ‘quite sure’ it was the ensuite bathroom because there is a bedroom and then a bathroom.

In relation to the hair pulling incident, it was suggested that Ms Proudfoot made a connection because she heard the words ‘stop it’ and then saw Ms Stephens’ head and has assumed that the Defendant pulled her hair. Ms Proudfoot said she did not see the Defendant’s hand on Ms Stephens’ hair, she could only see Ms Stephens’ head going down as if her hair was being tugged. Ms Proudfoot agreed that she had made an assumption because of the way her head moved and added, ‘also her grabbing her head…like it was hurting’.

It is suggested to the witness that the Defendant and Ms Stephens were sitting on the same side of the spa as Ms Proudfoot, and Mr Marshall was adjacent. Ms Proudfoot disagreed with this proposition. Counsel also suggested to Ms Proudfoot that she may have seen the Defendant get out of the spa first before anyone else. Ms Proudfoot replied that she got out first. Counsel suggested that the next person to get out of the spa after her was the Defendant, she stated that she wasn’t sure because she went into the lounge room.

Ms Proudfoot did not see the Defendant come into the house to get towels. Ms Proudfoot said that she got out of the spa and then she had met up with the others on the deck who were at the fire, to see what was happening as Ms Stephens was crying in the spa. She thinks Ms Stephens was the last one to get out.

Mr Marshall

Examination in Chief

Mr Marshall states that he knows the Defendant as a friend through children’s soccer. Mr Marshall confirms that he was at the Defendant’s residence on 25 March 2017 for a barbeque and a couple of drinks. Mr Marshall had only met Ms Stephens on two very brief occasions. Mr Marshall recalls that the night of 25 March 2017 was a family get together and the Defendant and Ms Stephens invited him to meet some of Ms Stephens’ friends. Mr Marshall did not remember what time he arrived but that it was between seven and eight because he had to finish up soccer with the kids in the afternoon. He estimated that there were about seven or eight people at the house. He only knew the Defendant and Ms Stephens. Mr Marshall can recall Ms Proudfoot’s name because Ms Stephens had previously mentioned it to him. Mr Marshall agrees that people were celebrating, and that people were happy, adding that it was a peaceful happy occasion.

Mr Marshall said that he did not drink until he got there and he had about four drinks in total for the whole night. Mr Marshall explained he had three to four full strength beers and a shot maybe two of Tequila with the Defendant. The bottle size for the beers was 375 millilitres. He did eat that night but cannot say what, Mr Marshall said that he does not skip meals.

Mr Marshall said that there was some usual chit chatting and there was a bonfire in the corner, a couple of drinks and some laughs, everyone was happy. He also said that they had a quick spa. Mr Marshall explains that the spa was on the patio. Mr Marshall, the Defendant, Ms Stephens, Ms Proudfoot and somebody else were in the spa. Mr Marshall remembers sitting on the closest edge to the boundary of the fence, next to Ms Proudfoot.

Mr Marshall drew the spa and the people and their positions within it (P10). On the diagram he has placed himself on the left next to Ms Proudfoot with one other person who is a female. The Defendant and Ms Stephens were together with Ms Stephens sitting on the Defendants lap.

Mr Marshall states that the Defendant and Ms Stephens stayed happy for the majority of the time. He explained that he wasn’t paying complete attention because he was enjoying himself, but he noticed that the Defendant and Ms Stephens became agitated over something. He thought they were maybe just having a ‘muck around’, and he was paying more attention to Ms Proudfoot.

Mr Marshall described briefly seeing the Defendant grabbing Ms Stephens by the ponytail. He gestured to the Court with his left hand and said, ‘just briefly by one hand and just pulled her head back slightly’. Mr Marshall said that he didn’t see Ms Stephens’ reaction because he didn’t think anything of it. After that, the Defendant got out of the spa and went inside briefly. Then the Defendant came outside and seemed a bit agitated and said something to Ms Stephens. Over the noise of the spa he didn’t know what was said, but the Defendant looked agitated, like they’d had a bit of a ‘lover’s quarrel’. Mr Marshall came to that conclusion by observing the Defendants body language. Mr Marshall could not explain his body language but in his opinion he seemed agitated.

Mr Marshall then recalled that there were some male companions of Ms Stephens and they seemed very agitated and aggressive after that. They got up in the Defendant’s face, having a go at him. Mr Marshall couldn’t hear the words, but he got out of the spa and proceeded to try and calm the situation because they were up in the Defendant’s face ‘pretty hard’. Mr Marshall could not remember what they were saying but remembers it to be along the lines of, ‘they were not leaving until Kelly went with them’. The Defendant in return asked everyone to leave and leave him to have a quiet conversation with his partner and that it was no one else’s business. Mr Marshall described the Defendants demeanour at this time as slightly frustrated, as it was clearly his house and he wanted to have a private conversation.

Mr Marshall went over to calm the situation, he told everyone to go outside and that he would stay there to make sure everything was okay. Mr Marshall describes the conversation beginning on the patio and slowly progressing inside. It was when everyone was on the tiled area inside that Mr Marshall told everyone to go outside. Mr Marshall said he would stay and make sure everything was okay. They were all her friends and they were agitated about what had happened, and that Ms Stephens’ male friends were going to inflame the situation that was already there because they were really up in the Defendant’s face. The Defendant just wanted them to leave.

Mr Marshall cannot recall where Ms Stephens was at that moment. However, a couple of minutes later Ms Stephens directly communicated with Mr Marshall for him to stay there. Mr Marshall said there were no words spoken but at that moment he read her lips. At this point in time she was standing behind the Defendant’s right shoulder. Mr Marshall said that Ms Stephens made direct eye contact with him and mouthed some words. To the best of his understanding those words were, ‘don’t leave’. He then proceeded to stay there to ensure that everybody else on Ms Stephens’ side, that was agitated and aggressive, stayed outside and he tried to defuse any further situation.

At this time Ms Stephens’ friends were out the front towards the driveway. At that point the Defendant also told Mr Marshall to leave, he called him a cunt and said to leave. Mr Marshall didn’t take it personally. The Defendant was still agitated when he said it. Mr Marshall opines that he clearly wanted everybody out of the house, to call it an evening and work things out with his partner. Even after the Defendant asked him to leave, he stayed because he was concerned that Ms Stephens’ friends would come back inside and he wanted to avoid an exacerbation because everyone was heated and agitated.

Mr Marshall left once the Police arrived because they would not let the others inside, and the Police seemed fine to leave the Defendant and Ms Stephens go about their business. Mr Marshall then got a lift with one of the other people at the party.

Mr Marshall said the only thing he can remember about Ms Stephens’ demeanour after he saw the Defendant pull her hair, was she seemed a bit stressed and upset. He said that she looked a ‘little worried’.

Cross-Examination

It was suggested that the spa was rectangular in shape, Mr Marshall agreed and drew a rectangle and said that the corners were curved. Mr Marshall clarified that it was rectangular to square. It was suggested that the Defendant and Ms Stephens were near Ms Proudfoot and that he was where the Defendant and Ms Stephens were marked on the drawing. Mr Marshall disagreed with that proposition.

Mr Marshall confirms that he did see the Defendant pull Ms Stephens’ hair but that it was out of the corner of his eye. Mr Marshall agreed that Ms Stephens’ hair was in a ponytail. He was not able to recall if it was in a messy bun. Mr Marshall clarified that he recalls it being in a ponytail. Counsel opines that Ms Stephens’ hair would have been hanging into the water, Mr Marshall replied yes if her hair was long enough. Counsel asks if everyone’s heads were low to the water at this stage, Mr Marshall replied that everyone’s shoulders were just above the water comfortably.

Mr Marshall agreed that the Defendant got out of the spa first and went into the house. The Defendant then came back and had words with Ms Stephens, that he believed they [the words] were directed at Ms Stephens. Mr Marshall does not recall if the Defendant had some towels with him. He also cannot recall who got out of the spa next. He only recalls himself getting out of the spa when two men were up in the Defendant’s face. The two men were connected with Ms Stephens as far as they were Ms Stephens’ friends. Mr Marshall cannot remember their names, he states, ‘I’m hopeless with names, your Honour’. Mr Marshall agreed that he was concerned about their behaviour towards the Defendant.

Mr Marshall said he has not had any contact with the Defendant since that time because he has not wanted to talk to him since. Mr Marshall has not tried to reach out to the Defendant and the Defendant has not reached out to Mr Marshall. Mr Marshall explains that the first time he has seen the Defendant since the incident was the first hearing date where it was adjourned and the first day of the current hearing briefly outside the Court room but there was no personal interaction.

Mr Marshall agreed that he got out of the spa to assist the Defendant because of what the other men were doing. Mr Marshall agreed he then suggested to Ms Stephens’ friends that they go out the front of the house, that he stayed in the house to defuse the whole situation and avoid her friends coming back into the house and escalating the situation. Mr Marshall’s number one concern was to keep the outside separate from inside. He stated that he was not going to leave Ms Stephens alone with the Defendant with the other people still outside. Mr Marshall did not say anything to the Defendant about what his reason for staying was as it ‘happened too quickly’ and the Defendant seemed ‘angry towards him’. Mr Marshall said, ‘I just better kept my mouth shut too because I didn’t want to upset him further’. Mr Marshall agreed that he did not actually say to him, ‘Simon, I’m staying here to make sure they don’t come back in’.

Mr Marshall agreed that the spa incident appeared to be a lover’s quarrel, that was what he thought and that it could have been a playful game for all he knew. Mr Marshall said that it was his concern about the actions of the other men towards the Defendant that prompted him to get out of the spa and calm things down.

Re-Examination

Mr Marshall said he knew the Defendant did not want to speak to him since the incident, ‘because he’s made no contact and defriended me on Facebook’.

Ms Froome

Examination in Chief

Ms Froome said that she knows Ms Stephens from school and has known Ms Stephens for about 20 years. Ms Froome only met the Defendant through Ms Stephens at the party for Ms Stephens’ birthday. Ms Froome said she had met the Defendant once before briefly at Ms Stephens’ son’s birthday party about two weeks before the incident. Ms Froome recalls that the party on 25 March 2017 was at the Defendant’s house in Nicholls at quarter past six. Ms Froome was the first to arrive at the party.

Ms Froome said that at the party she had a barbeque and a couple of drinks. She said she had two drinks of wine. Ms Froome agreed that it was a jovial occasion until an incident occurred. Ms Froome said at that stage she was sitting at the fire pit with Alison and she was speaking to her. Ms Froome’s husband and Greg (Alison’s husband) were speaking together. Ms Froome heard, ‘Simon stop’, as a scream. Ms Froome turned around at that time because her back was facing the spa, and she sort of looked to see what was happening. Ms Froome then stood up and walked across to the spa. At that stage Ms Stephens was climbing out of the spa and looked quite upset. Ms Stephens said that she hadn’t done anything wrong and she was referring to the Defendant. The Defendant said something to her and then walked inside to get a towel. The Defendant returned and gave the towel to Ms Stephens.

Ms Froome then walked inside with Ms Stephens and asked her what had happened. Ms Froome said she was quite distressed at that stage, so we walked into the bedroom and walked into the ensuite. Ms Stephens sat on the toilet, Ms Froome kneeled in front of her and asked what happened. Ms Stephens told Ms Froome that while she was in the spa the Defendant grabbed her arms and pulled them behind her back. He also wrapped his legs around her legs and essentially pinned her. She was quite upset, and she was crying and shaking. The Defendant then came in and asked to speak to Ms Stephens. Ms Froome then said to the Defendant to give her five minutes with Ms Stephens. Ms Froome then told Ms Stephens that she could stay at her house for the evening and asked her to get some clothes. Ms Stephens told Ms Froome not to leave her and said she doesn’t understand, he just does this sometimes, he gets angry.

The Defendant again wanted to speak to Ms Stephens, Mr Marshall was standing outside the ensuite and said that he would remain there and wouldn’t let anything happen. Ms Froome walked out of the ensuite and waited in the lounge area with other people who were at the party. Ms Stephens came out shortly after and went into the walk-in closet and went to start getting some clothes. Ms Froome waited for her to get her clothes. Ms Froome said, ‘come on let’s go’. Ms Froome asked her husband to get their kids ready to get into the car to start leaving. Ms Froome’s husband got the kids organised and they were waiting for Ms Stephens to come out. At this stage the Defendant’s behaviour was escalating, and the Defendant was being aggressive. The Defendant was arguing with Mr Marshall and yelling at everybody to get out of the house. At that point they all walked out of the house and stood out the front. The Defendant was still arguing. Ms Froome was waiting for Ms Stephens. The Defendant and Mr Marshall were arguing inside. The Defendant told Ms Froome that Ms Stephens would not be going, that she would remain with him. Ms Froome asked why but he was very angry and told her it was none of her business. Mr Marshall told Ms Froome to call the Police and they waited outside for the Police to arrive. Police arrived shortly after and then Ms Froome spoke to the Police about what had happened.

Ms Froome said that the people in the spa were Ms Kulas, Mr Marshall, the Defendant, Ms Stephens and Ms Proudfoot. Ms Froome said that the fire pit was in the left-hand corner of the back yard which was about twelve metres from the spa. Ms Froome agrees that she heard Ms Stephens scream the words, ‘Simon, stop it’. Ms Froome recalled that the conversation after Ms Stephens got out of the spa was the Defendant and Ms Stephens arguing. Ms Stephens was saying she didn’t do anything a couple of times. Ms Froome does not recall if the Defendant said anything to Ms Stephens in reply. After the Defendant had come outside with a towel for Ms Stephens, Ms Stephens and Ms Froome went inside. Ms Froome put her arms around Ms Stephens and walked her inside. Ms Froome said that she put her arms around Ms Stephens because she was distressed and quite upset, she knew Ms Stephens was upset because Ms Stephens was holding herself and shaking.

Ms Froome and Ms Stephens were speaking in the ensuite for a couple of minutes, perhaps 3-5 minutes, before the Defendant presented at the ensuite door. When the Defendant approached the door, Ms Froome describes Ms Stephens as cowering on the seat and she told her not to leave her. Ms Froome said that the door was shut but she knew it was the Defendant because she could hear his voice. Ms Froome describes the Defendant as aggressively asking to speak to Ms Stephens. Ms Froome considered it as aggressive because it was forceful, but she does not recall the words that he said. Ms Froome left the bathroom and told Ms Stephens that she would be outside. Ms Froome saw Ms Stephens again when she walked out and went into the walk-in robe. At that time Ms Froome was in the lounge room but could see Ms Stephens through the door that was open between the lounge room and bedroom. Ms Froome does not recall if the Defendant and Ms Stephens spoke to each other at that point. At some point Ms Froome was standing at the doorway to the wardrobe. Ms Froome does not recall if Ms Stephens said anything. Ms Froome just told her to get the clothes and that they were going, and she could stay at her house. Ms Froome cannot recall if she responded to that.

Ms Froome said that she waited, her husband collected the kids, her son was asleep in one of the bedrooms and he walked to the front. Ms Froome waited inside for a couple of minutes and walked out the front as well. Simon was yelling and telling everybody to get out of the house. Once they were outside Ms Froome’s husband called the Police. Ms Froome explains that the Police were called because the Defendant and Mr Marshall were arguing inside. They were pushing each other around and there was a lot of yelling, telling everybody to get out of the house. Ms Froome asked if the Police should be called and Mr Marshall said ‘yes’.

Ms Froome recalls Ms Stephens speaking to Mr Marshall and asking, ‘I didn’t touch you…did I?’. Mr Marshall replied, ‘No, you didn’t touch me. I was trying to play footsies with Tristan’. Ms Stephens later explained to Ms Froome in the ensuite that the Defendant had thought she was trying to touch Mr Marshall and hence why he grabbed her arms and pinned her legs and called her a whore. Ms Stephens also said, ‘it’s not the first time, he gets angry’ and said, ‘look him up, he’ll kill me, look him up on Google’.

Ms Froome said that she spoke to the Police when they arrived and that would have been about 1:00 am, the Police were still there when she left. The Police attempted to speak to Ms Stephens and the Defendant. They advised that Ms Stephens would not leave the house. They also advised that it would be best for everyone to leave at that point because there was no more that they could do.

Ms Froome recalls that after Ms Stephens was in the wardrobe packing her clothes, the Defendant was saying that she would be staying with him and that she wasn’t going to be leaving and yelled at everyone to get out of the house. Ms Froome said to the Defendant that Ms Stephens would stay at her house for the night and the Defendant said that she wouldn’t and that she would be staying at his house.

When Ms Froome went outside, she saw Ms Stephens again when she came outside and asked for a cigarette and then went back inside. Ms Froome said that she probably asked Ms Stephens at this time if she was going to get her clothes so they could go, but she does not think she responded.

When the Police arrived Ms Froome recalls the Police having a conversation with the Defendant. She recalls the Defendant saying something to the Police along the lines of the Police not having a warrant and they couldn’t enter the house. Ms Stephens cannot be certain that is what he said. Ms Froome, after being read her statement, confirmed that what was said is, ‘this is my house. You can’t enter’.

Once Ms Froome left the property, she next spoke to Ms Stephens the following morning. Ms Froome contacted Ms Stephens by phone. Ms Froome explains that she spoke to her to see how she was. Ms Froome had received a text message from Ms Kulas indicating that Ms Stephens had fallen over that morning or evening so that when Ms Froome saw her not to be surprised because she had a black eye. When Ms Froome spoke to Ms Stephens, Ms Froome said something along the lines of, ‘we both know that’s not what happened’. Ms Stephens called back in about an hour and said that she was going to Braidwood with the Defendant to pick up her kids as it would cause less arguing and be easier.

Cross-Examination

Ms Froome agreed she went into the bathroom with Ms Stephens and shut the door. Ms Froome was not aware of what was going on as the door was shut. It was suggested that she said in her statement; ‘I heard Simon say something like “What’s wrong, Kelly?”. He was speaking loudly and aggressively. He seemed angry. He then went inside. He quickly came back with a towel and gave it to Ms Stephens’. Ms Froome said that accords with her recollection.

Ms Froome agreed she said in her statement, ‘A few minutes later Kelly and Simon came out of the ensuite and Kelly walked into the walk-in robe in the same bedroom’. Ms Froome agreed she at that stage said to Ms Kulas, ‘it’s okay, she can stay at our house.’

Ms Froome agreed that she gave some evidence earlier about when she asked the Defendant, ‘why are you so angry’. Ms Froome also agreed that she said he responded something like, ‘this is my house, it’s none of your business. I don’t go noseying around in your business’.

Ms Froome agreed that in her statement she said, ‘Kelly said, “I don’t want my Mother to see me. I fell over last night”. Ms Froome then said to Ms Stephens, ‘I think we both know that’s not what happened’. Ms Stephens insisted that it was. She said, ‘It was, I fell over in the bathroom’.

Ms Froome said she did not see what happened in the spa because she had her back to it. Ms Froome said she relied on what Ms Stephens had told her about what happened in the spa while in the ensuite.

Ms Froome said she was not aware of what was going on with anybody else in the house when she was in the ensuite with Ms Stephens, other than hearing voices but couldn’t tell the Court what they were saying.

[I then asked Ms Froome what the people around the fire pit did when Ms Froome went over to Ms Stephens at the spa. Ms Froome stated that everybody came across to the spa. I asked whether she saw anyone speak to the Defendant, she replied that she didn’t because she was talking to Ms Stephens. I then asked if she heard anyone being aggressive towards the Defendant, particularly the men around the fire. Ms Froome replied not that she could recall. My comment]

Ms Froome clarified her evidence and said that after Ms Stephens had left the spa and had wrapped a towel around her, they went straight to the ensuite. Ms Froome agreed that she didn’t see or hear any interactions that were occurring outside once she was in the ensuite other than raised voices.

Constable Catherine Harding

Constable Heading gave evidence before me on 12 March of 2019. She gave evidence that she attended the Defendant’s home on 25 March 2017 with Constable Richardson. Constable Heading stated there were a group of people standing outside the house and she could hear a lot of noise coming from inside the house there was music playing, some yelling and the like.

Constable Heading described the yelling as aggressive and heard other people either keeping someone calm or sorting out something. Constable Heading said that she saw Ms Stephens speak with another police officer on the driveway. That was acting Sergeant Bedford

Constable Heading said that a male came out of the house and he was, ‘incredibly aggressive and agitated over something’. Constable Heading said that Constable Richardson spoke with him and he was yelling that they had no right to be there they weren’t allowed to go into his house. Constable Heading said they were trying to explain that they’d been called, and they did not know what was going on and that he needed to calm down and talk with them.

The Prosecutor submitted that these features are well known in family violence context and demonstrates abusive and controlling relationship. This is borne out by the fact that at the time she gave the shower scenario as an explanation of how she was injured she was still in a relationship with him and stated she didn’t want to get him into trouble. At the point of giving her evidence in chief however she was no longer in a relationship and able to tell Police the truth about what happened. Therefore, the evidence in respect of the slapping of her face as being the explanation for the injury is reliable and untainted from the pressure that the Defendant exerted upon her.

The Prosecutor submitted that in relation to the evidence given by the Defendant, he also lied to Police about the shower story. He provided that version the day before Ms Stephens spoke to Police in her recorded conversation.

In his evidence to the court he said the fake story was because Ms Stephens did not want to tell her mother about the kinky sex. In cross-examination it was suggested that he had said at first that was only about what she had to say to her Mother then replied that it was in relation to everyone. I also note that he said that at one point whilst giving his evidence that Ms Stephens spoke to her mother about kinky sex all the time.

The Defendant indicated that he was quite happy to tell anyone how it happened, yet he told the police a lie about how it happened. He said he did this so that his story was consistent with Ms Stephens’ story. I note that he gave his recorded interview before she had spoken to police.

The Prosecutor submitted that if the Defendant had engaged in kinky sex and that’s how the injury occurred, together with the fact that he said they had engaged in this kind of sex previously and he had no issues about telling anyone the truth, it makes no sense that he lied to Police about it. The story about being consistent with Ms Stephens so that it wouldn’t have looked like she was covering up for him makes no sense as he could have told them exactly what occurred. The Prosecutor submitted the more likely scenario is that he was covering up what happened, and she was trying to protect him from getting into trouble.

The Prosecutor pointed out inconsistencies in the Defendant’s evidence in respect of the kinky sex where he said that they had engaged in such activities including choking and slapping yet when he gave evidence about slapping the face he said that was not something that she asked him to do before. Which is inconsistent with his own evidence about her always asking him to do so.

Another inconsistency was that Defence Counsel asked the Defendant if he had slapped other parts of her body during sex on different occasions and he said, ‘absolutely’. The Defendant then changes his evidence from Ms Stephens saying, ‘slap me’, to Ms Stephens saying, ‘can you slap me in the face?’. The Prosecutor submitted that this was inconsistent and contradictory evidence given by him.

The Prosecutor further submitted that the messages in exhibit P7 provide a snapshot of the relationship which clearly indicates that he was exerting pressure over her to lie to Police, to influence Court proceedings, to control her social media and to threaten her. Those matters should be taken into account not only is relationship evidence but also to inform a finding that the Defendant is not a credible witness.

The Prosecutor submitted that the Defendant’s evidence should be rejected particular in relation to consenting to slaps or permission given by her because it was not freely given and was vitiated by her fear of him inflicting further violence upon her.

In respect of consent the Prosecutor submitted that if I accept that she did not consent that is sufficient for me to find that the offence is proven. However, if there is an issue in respect to consent in that regard the Prosecutor submitted that the circumstances of the slapping of the face resulting in a significantly swollen black eye would not fall within a recognised exception within the law for consent to amount to a defence.

The Prosecutor referred to R v Brown [1993] 2 All ER (“Brown”) which address the very issue. The majority in that case established the principle of consent is irrelevant for the charge of assault occasioning actual bodily harm in circumstances whereby the bodily harm is caused in the course of sadomasochistic sexual activity.

Lord Templeton concluded, it would be contrary to public policy and the public interest to extend the defence of consent to the infection of bodily harm in the course of sadomasochistic encounters.

The Prosecutor submitted that in R v Donovan [1934] 2KB 498 is a case where an appellant beat a girl for the purposes of sexual gratification with her consent. Justice Swift found that it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.

The Prosecutor submitted that that decision has been followed by Australian authorities and referred to those authorities in her submissions. Ultimately the Prosecutor submitted that the consideration to be applied is whether it is contrary to public policy and public interest to extend the defence of consent to the infliction of actual bodily harm by the Defendant upon Ms Stephens resulting from the multiple slaps to her face during intercourse.

The Prosecutor submitted that to find that consent affords a defence in this case would amount to, ‘inventing a defence of consent for violent encounters which breed and glorify cruelty’ (per Lord Templeman in Brown).

In this case, where the Defendant hit his partner at least four times with significant force causing 8/10 pain resulting in significant swelling to the eye and a haematoma to the eye, the prosecutor submitted that there was no compelling reason to deviate from the authority on this issue.

Defence

Defence Counsel succinctly submitted that there were three primary issues for determination. Those were, whether the Court could be satisfied that the conduct subject to the first two counts occurred beyond reasonable doubt. Further, whether there was consent to the conduct comprising count three and whether at law a person can consent to actual bodily harm.

Defence Counsel has accepted that there were factual circumstances which were not in dispute. Those factual circumstances were that there was a party at the Defendant’s home on 25 March 2017 to celebrate the complainant’s birthday. There were a number of friends of Ms Stephens’ and one friend of the Defendant in attendance. There was a barbeque and alcohol was consumed by both Ms Stephens and the Defendant. A number of the guests used the spa which was situated outside of the house. One of those guests was Mr Marshall. The Defendant raised an issue with the complainant about footsies with Mr Marshall.

Defence Counsel outlined the evidence of the complainant and said in respect of count one Ms Stephens had consumed a lot of alcohol, she was seven on a scale of 1 to 10 for drunkenness.

Defence Counsel pointed out that she indicated in her recorded interview with Police that she didn’t remember a lot of what had happened, that she was drunk. Counsel also pointed out that she had dry hair when the police arrived which is inconsistent with her hair being pulled into the water.

Defence Counsel pointed out some issues in relation to her evidence in the Police interview and cited issues of credibility in relation to the complaint about the head being pulled under the water.

Defence Counsel noted Ms Kulas did not see exactly what happened in the spa although she could see that something was happening under the water and was not sure whether it was a playful thing or something else. Defence Counsel noted that Ms Proudfoot said that Ms Stephens was sitting next to the accused whereas Mr Marshall says she was sitting in the lap of the accused.

Defence Counsel submitted that given the inconsistencies between Ms Proudfoot, Mr Marshall, and Ms Froome I should reject the evidence of the complainant and accept the evidence of the Defendant because I could not be satisfied as to what exactly occurred. Counsel also submitted that I should find him not guilty as I would remain in doubt over what occurred in the spa that evening and could not be satisfied beyond reasonable doubt of the assault charged.

In relation to the second charge, that he pushed her head under the water in the spa, citing that the Prosecutor submitted that the evidence is corroborated by Ms Kulas, Ms Proudfoot, Mr Marshall and Ms Froome. Defence submits that I would not be satisfied with Ms Kulas’ evidence and it was confusing and would leave the Court in doubt as to what she had seen and what she had inferred from what she had been told.

Defence Counsel cited conversation between Ms Proudfoot and the Defendant where she asked what was going on and his response was ‘what do you mean’, Counsel submits that is inconsistent with someone who is violently assaulted his partner in front of people.

Defence Counsel cited the evidence of Ms Froome who said she did not see the hair being pulled but heard Ms Stephens saying ‘stop it’ concluded that her hair had been pulled. Ms Proudfoot also said that they had spoken about the incident in the following days as well as at the time of the incident.

Defence Counsel submitted that Mr Marshall gave evidence that he saw the defendant grabbed Ms Stephens’ ponytail and pull her head back slightly but did not think anything of it. He said he saw the Defendant get out of the spa go inside briefly when the Defendant returned, he seemed agitated. Defence Counsel submits that Mr Marshall’s evidence corroborates the evidence of the Defendant to the extent that there was a quarrel, a physical movement, the Defendant got out of the spa went inside and later returned.

Defence Counsel submitted that the evidence of Ms Stephens, Ms Kulas, Ms Proudfoot and Mr Marshall are in conflict. For example, who was in the spa and who got out. Counsel submits that I should have doubt as to what occurred in the spa and therefore find him not guilty.

In respect of count three being the assault occasioning actual bodily harm, the Defendant concedes that he did cause the injury to Ms Stephens and he did so during the course of sexual intercourse. The Defendant refutes that he intended to cause harm or that he was reckless about causing such harm.

The Defendant’s version was that he often engaged in rough sex with her which included choking and slapping other parts of her body and it was on this occasion that Ms Stephens asked him to slap her face and he did so four times. It was submitted that her evidence was when asked whether she consented to the slapping she said, ‘quite possibly, I probably would have said yes’, and, ‘like, I felt like I probably gave him permission’.

Counsel submitted that the Court should consider the following matters and reasonably accept the evidence of the Defendant. Those matters are; the time passing between the alleged event and the making of the complaint to Police, the version of events given by Ms Stephens to the Police in March 2017, her lack of disclosure that rough sex was a common part of the relationship to provide context and where she agreed that they often engaged in rough sex. The existence of these circumstances, on the Defence submissions, make it more likely that the complainant asked to be slapped during intercourse in the context that there had been a history of them having rough sex. Further, that because there was an exchange between the Defendant and Ms Stephens as to the question of whether she ‘liked that’ would give rise to a defensive reasonable mistake that is that the complainant was consenting to the slaps.

In relation to whether the Court might find that the first slap was without specific consent but the others were consented to, the difficulty of assessing which slap caused the injury is a live issue.

Defence Counsel referred to consent where actual bodily harm is inflicted. Defence Counsel referred to the decision in Groessler, the issue was whether a person can consent to actual bodily harm in a circumstance of sexual interaction. Defence Counsel submitted that they can.

Defence Counsel gave two examples of where actual bodily harm could occur without express consent. First, was where a woman’s hymen is broken. The other is where two people engage in sexual intercourse on a rough surface causing injury to the person in bottom position. Further counsel submitted that the decision in Brown does not apply to normal practices of the 21st-century citing the movie ‘50 shades of grey’ is to demonstrate his point.

Defence Counsel submitted that public policy has changed over the last two decades. Defence counsel submitted that Brown can be contrasted with Wilson where a husband branded his initials into his wife’s buttock with a hot knife. The Court considered that to be instigated by the wife, relatively minor and analogous to a tattoo.

Defence Counsel further cited that Lord Justice Russell said, ‘consensual activity between husband-and-wife in the privacy of the matrimonial home, is not… normally a proper matter for criminal investigation’.

Defence counsel submitted this is exactly the case of consensual activity between two consenting adults in the privacy of their own home and therefore there is no public policy to prohibit the conduct. Defence Counsel sought to distinguish Wilson with R v Stein [2007] VSCA 300 (“Stein”) where a risk of death arose in that case. That of course would have significant public policy implications.

Defence Counsel referred to the case of R v McIntosh [1999] VSC 258, a Victorian case. That case the court considered the position in Australia, England and Canada. Ultimately, Justice Vincent said that it is not of itself contrary to law for people to engage in activities described as bondage or sexual sadomasochism. Further activities which involve the application of physical force whilst accompanied by real risk of even quite serious injury does not of itself render that activity unlawful. Further, His Honour pointed out that apart from some special circumstances which the law has guarded carefully, and which are not present here, no recognition will be accorded to the consent of an individual to the infliction of significant physical injury upon himself or herself.

Defence Counsel submitted that essentially where the level of harm has not reached a significant threshold and the complainant requested that particular behaviour then there is no need to determine the issue of consent as there was lawful activity between consenting adults.

In reply the Prosecutor submitted that in respect of the issue of whether Ms Stephens hair was dry when Police arrived, there is contrary evidence that Ms Kulas observed the head to be wet as a result of the Defendant pulling Ms Stephens hair. Prosecuting Counsel submitted that there was at least an hour between the time of the hair pulling incident and when Police arrived at the residence.

The Prosecutor relied on the evidence where it showed that the hair pulling incident occurred at around 11:20 PM on 25 March and the Police arrived at 12:33 AM on 26 March. It would appear acting Sergeant Bedford arrive at 12:40 am. The Prosecutor also noted that the officer said that Ms Stephens was steady on her feet, her speech was clear and she was able to confers with her and she could not smell alcohol upon her and she did not appear to be under the influence of intoxicating liquor.

In respect of the actual bodily harm, the Prosecutor submitted that fictional movies such as those referred to by Defence Counsel are not demonstrative of current societal values. The Prosecutor submitted that the film faced significant public criticism for its betrayal of abusive relationships, sexual violence and it is troubling take on the issue of consent. The Prosecutor submitted that it is important to recognise that sensationalised and salacious material such as that portrayed in the movie is not a contemporary phenomena.

The Prosecutor submitted that the Court must consider public policy in the context of current society values. It noted that family violence is strongly condemned and is at the forefront of issues being tackled by the criminal justice system.

The Prosecutor submitted that it would be contrary to public policy to enliven a defensive consent where actual bodily harm is inflicted in the context of relationships characterised by family violence. The Prosecutor submitted that the clear unequivocal evidence from Ms Stephens was that she did not want to be hit by the Defendant, but she was simply too scared to say no.

In relation to the reference by the Defence Counsel to Lord Justice Russell is in Wilson, the Prosecutor points out that firstly the question of consent is an indirect issue in this case and secondly the emphasis placed on the words, ‘normally’, demonstrates those circumstances envisaged by His Honour where there would be circumstances where even activity properly consented to may be a matter for criminal investigation.

Prosecuting Counsel submitted that the level of harm caused was significant in so far as she suffered pain on a scale of 8/10 and with serious bruising. Clearly that area of the body is a vulnerable part. Whilst it was conceded it was not comparable to the torture in Brown it certainly satisfies the definition of actual bodily harm.

There were multiple open hand slaps to the face by a male sitting atop a female in close quarters. There is no doubt that it was as a direct result of that action that Ms Stephens suffered injury. The prosecutor reiterated that Ms Stevens did not request slaps to be made nor did she consent to them. The Prosecutor noted that even in the recent decisions in Stein and Neal v The Queen [2011] VSCA 172 the Victorian Court of Appeal adopted the reasoning in Brown

In relation to the submission by Defence Counsel that the Prosecution took no issue in respect of choking during sex and slapping of her buttocks. Prosecuting Counsel disputes that and said such prior conduct was irrelevant to the current charges and accordingly was not addressed by the Prosecutor on the issue of consent or injury.

The Prosecutor also submitted that they disagree with the characterisation of Defence Counsel that past incidents were agreed activities. The Prosecutor submitted that in answer to a question by Defence Counsel as to whether she requested to be choked by Defendant and did not ask him to stop, Ms Stephens indicated that she disagreed with that proposition when asked whether there were occasions when she had requested him to choke her during intercourse she said ‘no’.

Defence Counsel further asked her that she had never asked him to stop choking her during intercourse and she said she disagreed with that proposition because she had asked him to stop. Further when asked by Prosecuting Counsel whose suggestion it was on 26 March to slap your face she said the Defendant ‘just did’.

On the prior occasions when he tried to choke her, slap her and the like, she never told him to stop but she did not want him to hit her and certainly not across the face. It has not been conceded by Prosecution that there was ever agreed activity of choking during sex or slapping.

Decision

Having regard to the evidence I have summarised above, I have also noted the demeanour of each witness. I had the opportunity to observe Ms Stephens in the evidence in chief interview and also before me. I found her to be an impressive witness. I did not observe her to hesitate or to obfuscate when giving her account. I observed her to concede where appropriate. I note as did the Prosecutor that she never wavered in relation to the cause of the injury to her eye, nor did she in relation to the hair pulling event.

The civilian witnesses including Mr Marshall gave cogent evidence and I accept their evidence. The Police Officers gave their evidence in an appropriate manner. I found them to be very professional, both in the way they handled the interview with the Defendant and in relation to the whole incident including at the house on 26 March.

Even if I were to believe the evidence of those witnesses, I must also consider the evidence of the Defendant. The Defendant gave evidence before me. I warn myself that I must treat his evidence as I would any other witness. I must also warn myself that the defendant does not need to prove anything. It is for the Prosecution to prove each element of each offence beyond a reasonable doubt. I bear that in mind in my deliberations. If after having considered all of the evidence I find myself in doubt as to an element of the offence, then I must acquit the defendant on that charge. That is to say, if I am persuaded that there is a reasonable doubt as to any element of the offence I must acquit.

I also note that in considering the evidence of the witnesses including the Defendant, I can accept all or part of the evidence I can accept some and reject other parts of the evidence.

I turn now to the evidence. I will deal with the spa incident first.

In relation to the spa incident two offences of assault upon Ms Stephens were charged. The Prosecutor particularised the first offence as the restraining of Ms Stephens after the Defendant accused her of ‘playing footsies’ with Mr Marshall. The Defendant is said to have, whilst Ms Stephens was sitting on his lap, locked his legs around her and then grabbed her arms behind her back in order to restrain her. He is said to have whispered ‘slut’ and ‘whore’ to her. The second charge occurred following this restraint in that the Defendant grabbed Ms Stephens’ hair and pulled it.

In relation to that incident, Ms Stephens gave evidence that she did not touch the feet of Mr Marshall, yet the Defendant reacted locking her and grabbing her arm, he then pulled her hair sufficiently to put her face in the water and wet her hair. That evidence was corroborated by Ms Kulas and also Mr Marshall, at least to the hair pulling. I am satisfied that Ms Stephens said ‘stop it’ out loud and became very upset. That was corroborated by Ms Proudfoot who saw a movement of Ms Stephens head, consistent with the Defendant pulling her hair, and observed Ms Stephens to be very upset. I also note that Ms Kulas noticed that something was going on in the spa, but she could not see because the spa was going. As a result of that incident the party essentially broke up.

The Defendant denies that he pulled Ms Stephens hair at all. The Defendant says that she was sitting on his lap and he pushed her off and got out of the spa. That evidence is in contradiction to all of the other evidence about that issue.

In relation to what happened next there appears to be little variation. Ms Stephens went into the bedroom and then the ensuite bathroom with her friends. She was extremely upset. Her friends wanted her to go with them, even Mr Marshall remained because she had alerted him to the fact she was scared. The Defendant said he wanted to speak to Ms Stephens and told everyone to leave and ultimately, they did, except for Mr Marshall who was trying to placate the Defendant.

I note that the Defendant never told Mr Marshall why he was angry with him and did not give him a chance to deny the incident.

Police were called and arrived very quickly once they received the radio call. Police were trying to assess the circumstances. I note the defendant; at least on the Police view was very aggressive and agitated. Police were advised about what happened at the party and when it had been decided that no charges would be laid they asked all of the party goers to leave.

Constable Heading said she did not observe Ms Stephens to be intoxicated when she was speaking with Police. Ms Stephens also told police that she wanted to leave and how could she do so with her children. Police offered her assistance in that regard. The Defendant then came out and told police to leave and that ‘she’ was coming inside with him.

Constable Richardson was given the impression when observing the conversations between Ms Stephens and Police that when the Defendant was around Ms Stephens was hesitant to speak to them in relation to the Defendant.

Constable Richardson also suggested that given the angry demeanour of the Defendant it would be better if they spent the rest of the night apart. A short time later she came up and said he had asked her to tell Police to leave.

It is clear on the evidence before me that the Defendant was angry and aggressive. That had been his demeanour from the time of the spa incidents until Police left. I note that he denied being aggressive. I reject that evidence.

I am also satisfied that he was trying to control Ms Stephens, particularly as she wanted to leave but felt she could not.

The third charge of assault occasioning actual bodily harm is largely agreed in that the Defendant admits that he hit Ms Stephens four times, each time harder than the one before it. It is also agreed that the cause of the injury (black eye and swelling to her face) was caused by those slaps.

What is not conceded is a lack of consent by Ms Stephens. A further issue was identified as to whether Ms Stephens could consent to the injury even if she did consent to the application of force. For reasons given below I do not need to decide that issue.

I turn to the evidence of the Defendant. I observed the recorded interview and also made notes as to his demeanour in his evidence before me. I found on both occasions that he was difficult, obtuse and obfuscating in his answers and explanations. As an example, in both the interview and before me he would not directly answer questions, appearing to want to control the narrative of those questions. I noted that I had to on several occasions tell him to answer the question as asked.

I also found him to be untruthful and to contradict himself. As an example he gave evidence that the reason he and Ms Stephens made up the story about the black eye occurring in the shower was because she did not want to explain kinky sex to her Mother, yet just moments before in his evidence he said that Ms Stephens and her Mother discussed everything including kinky sex.

I also found it to be unbelievable that Constable Richardson would say the words attributed to him by the Defendant. Constable Richardson accepted that he said that if something happened to Ms Stephens the police would be back. He denied getting up in his face and that would have been difficult given he was outside the window. I note the Defendant denies the window incident.

The Defendant denied that he was controlling Ms Stephens. I found that assertion implausible. Everything about his behaviour points to that conclusion. For example, the text messages he sent her telling her what to do, threatening her with DOCS if she did not. Further, the control over her Facebook, emails and phone accounts as well as his behaviour when police attended on 26 March.

The Defendant told Ms Stephens (in Facebook messenger) that he had deleted people he did not want her to be friends with. The Defendant even knew the number of friends she had and that she had new friends and that he did not approve. That together with the constant contact in relation to speaking to police to drop charges, as well as when she tried to end the relationship, he would constantly contact her even going to her work to persuade her to return. All of these factors point to the conclusion that he was exerting control over her. I am satisfied that he had exerted considerable control over her.

Having considered the evidence in relation to the slapping during sex on the 26 March I am of the view that the Defendant was the controlling force in that regard as well. I am satisfied that she was too scared to tell him to stop. That was clear from her evidence because she said if she had it would have been worse. Ms Stephens had experienced violence at his hands and she knew from experience that if she said anything other than what he wanted to hear it would be worse for her. I accept that evidence.

These are all features of a woman who is in a controlling relationship. In my view she was a vulnerable woman in a toxic controlling relationship. I am aware that in those circumstances it is difficult to leave the relationship. Ms Stephens also said in relation to why she made up the shower story, that she was in a relationship with him and did care about him and did not want to get him into trouble.

Further I am satisfied that he was the instigator of the videoing of intercourse. I note that it was never suggested to Ms Stephens that she instigated it for the purpose of ‘live streaming porn’. That was his version when he gave evidence before me. I reject that assertion for the same reasons I have found above.

In relation to the slaps, Ms Stephens rightly conceded that she did not say no after the first slap; however, the further slaps made her dizzy and she could not recall whether she said stop.

I am satisfied that she did not consent to the application of force for the reasons I have given. Ms Stephens and the Defendant gave evidence that she had not been slapped on the face before. Ms Stephens denied that she asked the Defendant to slap her. Ms Stephens said that after the first slap she turned her head away and buried it into the pillow. That evidence was not challenged. That is not the actions of someone asking to be slapped hard for sexual gratification. That evidence is consistent with Ms Stephens not consenting to the slaps. The unchallenged evidence is that the Defendant did experience sexual gratification inflicting those slaps upon Ms Stephens. Ms Stephens was never asked if she experienced sexual gratification. According to Ms Stephens evidence it was extremely painful.

In respect to the assault occasioning actual bodily harm, I am satisfied that the defendant applied force unlawfully upon Ms Stephens. I reject the Defendants evidence that it was at Ms Stephens request that he slapped her.

I am further satisfied that there was no consent to the application of that force. Having considered the circumstances of the slapping and the relationship of controlling behaviour between the two, I am satisfied that the defendant was reckless as to whether Ms Stephens consented to the application of force and I am satisfied that he inflicted that force regardless.

I find charge 2696 of 2018 proven.

In relation to the hair pulling in the spa. I am satisfied to the requisite degree that the hair pulling occurred as Ms Stevens said. I am satisfied that it was an unlawful application of force without Ms Stephens consent. I reject the Defendants evidence in that regard and prefer the evidence of Ms Stephens, Ms Kulas, Ms Proudfoot and Mr Marshall.

I find charge 3574 of 2017 proven.

In relation to the restraining of Ms Stephen, by locking her legs and grabbing her arms and placing it behind her, I prefer the evidence of Ms Stephen. To some extent that evidence was corroborated. That being that something was happening under the water. I note that the Defendant said she was on his lap when the assault is said to have taken place. It was directly after that he pulled her hair and she said stop and he got out. I have concluded that the Defendant was less than truthful in giving his evidence when he denied anything happened, I reject his denial in relation to this charge. I note the defendant says that nothing happened in the spa in contradiction to several other witnesses. I am satisfied that the defendant applied unlawful force to Ms Stephens, and I am satisfied that she did not consent to that application of force.

I find charge 3573 of 2017 proven.

I certify that the preceding four hundred and eight [408] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Special Magistrate Hunter OAM.

Associate: Monique Marie Munro

Date: 7 January 2020

[2020] ACTMC 1

07 February 2020