Published by Geoff Harrison | 7 July 2023
The police policy on Domestic Violence is very much one of zero tolerance. Arguably, the most prevalent charge before the Local Court is s13 (set out below) re Stalking or Intimidation of the Crimes (Domestic and Personal) Violence Act 2007 ('the Act'). This offence is one of specific intent hence, section 428C of the Crimes Act 1900 applies (see: McIlwraith v R [2017] NSWCCA 13 (22 February 2017)). It is unfortunate that this section is not specifically referred to within the Hansard or Explanatory Notes of Parliament when the Bill was passed; as the section is somewhat ambiguous (to the author's mind) as to the operation of sections 13(4) and 13(5) together. In Vella v DPP [2005] NSWSC 897, Hall J at [25] referred to Simpson J's judgment in Meller v Low [2000] NSWSC 75 which noted that in relation to "intimidation":
The word “intimidate” is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct.
Behaviour that has a capacity to intimidate does not in fact intimidate until it has worked its effect in the person to whom it is directed. In other words, intimidation does not occur until the effect is created.
The concept of intimidation is two-fold: It necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has in fact been intimidated.
These comments were in relation to s60 of the Crimes Act 1900 which related to intimidation of a police officer. Section 60 does not have a similar section as s13(4) of the Act which limits the actus reus in essence to the accused's conduct only; as the fears of the complainant are irrelevant. The offence is complete if the accused is reckless in regards to their conduct causing fear to the complainant ie. aware that their conduct is likely to cause fear in the other person. Hence, it would appear that s13(5) re attempting to commit this offence is largely superfluous if the prosecution is not required to prove the complainant has been intimidated in fact. The only possibility for an attempt charge would be if the threat had not been communicated to the complainant however, the offence is also made out if the threat is communicated via a third party: see DPP v Best [2016] NSWSC 261.
The case of R v Steele (set out below) was a judge-alone trial by Haesler J, involving s13 of the Act. In this case, His Honour sets out the legal requirements to be established for the charge of intimidation and his reasoning in terms of applying the evidence to the facts.
Section 14 of the Act relates to knowingly breaching a prohibition or restriction specified in an Apprehended Violence Order. The maximum penalty is 2 years imprisonment and/or 50 penalty units. If the breach is with violence the person must be sentenced to a term of imprisonment, unless the court orders otherwise (s14(4) of the Act). Under section 4A of the Crimes (Sentencing Procedure) Act 1999, if a court finds a person guilty of a domestic violence offence, the court must impose on the person either a sentence of full-time detention or a supervised order unless another sentencing option is more appropriate. Under s4B of the Crimes (Sentencing Procedure) Act 1999, the court cannot impose an Intensive Corrections Order for a sentence of imprisonment unless, the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected.
An interesting section is s14(7) of the Act which provides that, a person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of knowingly breaching an AVO, if the person is a protected person under the order concerned. Hence, a person who is a protected person under the order concerned can act with impropriety.
The relevance of an attitude of forgiveness by the victim is to be treated with exceptional caution in cases of Domestic Violence: see R v Glen [1994] NSWCCA 1 per Simpson J at [21].
Other Resources:
Cases:
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Extracted Legislation:
13 STALKING OF INTIMIDATION WITH INTENT TO CAUSE FEAR OF PHYSICAL OR MENTAL HARM
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
Maximum penalty--Imprisonment for 5 years or 50 penalty units, or both.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
(5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
11 MEANING OF "DOMESTIC VIOLENCE OFFENCE"
(1) In this Act,
"domestic violence offence" means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being--
(a) a personal violence offence, or
(b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or
(c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).
(2) In this section,
"offence" includes an offence under the Criminal Code Act 1995 of the Commonwealth.
5 MEANING OF "DOMESTIC RELATIONSHIP"
(1) For the purposes of this Act, a person has a
"domestic relationship" with another person if the person--
(a) is or has been married to the other person, or
(b) is or has been a de facto partner of that other person, or
(c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
(d) is living or has lived in the same household as the other person, or
(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987 ), or
(f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or
(g) is or has been a relative of the other person, or
(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person's culture.
Note : "De facto partner" is defined in section 21C of the Interpretation Act 1987 .
(2) Two persons also have a
"domestic relationship" with each other for the purposes of this Act if they have both had a domestic relationship of a kind set out in subsection (1)(a), (b) or (c) with the same person.
Note : A woman's ex-partner and current partner would therefore have a domestic relationship with each other for the purposes of this Act even if they had never met.
7 MEANING OF "INTIMIDATION"
(1) For the purposes of this Act, "intimidation" of a person means--
(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or
Note : An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email.
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) conduct that causes a reasonable apprehension of--
(i) injury to the person or to another person with whom the person has a domestic relationship, or
(ii) violence to any person, or
(iii) damage to property, or
(iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or
(d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900 , section 93AC, or
(e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage).
(2) For the purpose of determining whether a person's conduct amounts to intimidation, a courtmay have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
Meaning of "stalking"
8 MEANING OF "STALKING"
(1) In this Act, "stalking" includes the following--
(a) the following of a person about,
(b) the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity,
(c) contacting or otherwise approaching a person using the internet or any other technologically assisted means.
(2) For the purpose of determining whether a person's conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour.
CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT 2007 - SECT 14
14 OFFENCE OF CONTRAVENING APPREHENDED VIOLENCE ORDER
(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.
Maximum penalty--Imprisonment for 2 years or 50 penalty units, or both.
(2) A person is not guilty of an offence against subsection (1) unless--
(a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or
(b) in any other case, the person was served with a copy of the apprehended violence order.
(3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned--
(a) was necessary in order to attend mediation under section 21, or
(b) was done in compliance with the terms of a property recovery order.
(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.
(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.
(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.
(7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned.
(8) A police officer is to make a written record of the reasons for--
(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or
(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9),
if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.
(9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
Note : The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 4A
4A DOMESTIC VIOLENCE OFFENDERS--REQUIREMENT FOR FULL-TIME DETENTION OR SUPERVISION
(1) If a court finds a person guilty of a domestic violence offence, the court must impose on the person either--
(a) a sentence of full-time detention, or
(b) a supervised order.
(2) However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.
(3) For the purposes of this section, a
"supervised order" is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 4B
4B DOMESTIC VIOLENCE OFFENDERS--PROTECTION AND SAFETY OF VICTIMS
(1) An intensive correction order must not be made in respect of--
(a) a sentence of imprisonment for a domestic violence offence, or
(b) an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence,
unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).
(2) If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.
(3) Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.
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R v Steele [2022] NSWDC 603 (2 December 2022)
District Court
New South Wales
Case Name:
R v Steele
Medium Neutral Citation:
[2022] NSWDC 603
Hearing Date(s):
28 November 2022, 29 November 2022, 30 November 2022
Date of Orders:
2 December 2022
Decision Date:
2 December 2022
Jurisdiction:
Criminal
Before:
Haesler SC DCJ
Decision:
Count 1: Guilty of the offence of intimidation.
Count 2: Guilty of the offence of intimidation.
Count 3: Guilty of the offence of aggravated break and enter and commit a serious indicatable offence.
Catchwords:
CRIME – Intimidation - Aggravated Break and Enter
CRIMINAL PROCEDURE - Trial - Judge alone - Reasons of trial judge - conflict of evidence - reasons for accepting prosecution witness – reasons for rejecting accused’s evidence - each element proved beyond reasonable doubt
CRIMINAL PROCEDURE - Trial - Judge alone -
domestic violence - fundamental principles applied - assessing witness in “one and one” evidence cases – pattern of domestic violence behaviour- tendency reasoning – intimidation- intention - knowledge that conduct is likely to cause fear – break - consent or implied permission to enter
Legislation Cited:
Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Criminal Procedure Act 1987
Evidence Act 1995
Cases Cited:
Fox v Percy 2003) 214 CLR 118; [2003] HCA 22
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Kempe v Webbe [2003] ACTSC 7
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
McIlwraith v R [2017] NSWCCA 13
R v BA [2021] NSWCCA 191
R v Grant (2002) 55 NSWLR 80; [2002] NSWCCA 243
Category:
Principal judgment
Parties:
Benjamin Steele (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr J Lang (for the accused)
Solicitors:
Bannisters, Lawyers (for the accused)
Mr A Tonks (for Director of Public Prosecutions)
File Number(s):
2021/00221485
JUDGMENT
Introduction
1. Benjamin Steel was committed for trial for three serious offences:
Count 1: That he, between the 27th day of July 2021 and the 28th day of July 2021, at Bombala in the state of NSW, did intimidate [the Complainant] with the intention of causing her to fear physical or mental harm: s 13 Crimes (Domestic and Personal Violence Act 2007.
Count 2: That he, on the 29th day of July 2021 and the 28th day of July 2021 at Rosemeadow and elsewhere in the state of NSW, did intimidate [the Complainant] with the intention of causing her to fear physical or mental harm: s 13 Crimes (Domestic and Personal Violence Act.
Count 3: That he, on the 30th day of July, at Bombala in the state of NSW, did break and enter the dwelling house of [the Complainant], at [XX], and then in the said dwelling house did commit a serious indictable offence, namely, intimidation in circumstances of aggravation, namely, he knew that there was a person present within the said dwelling house: se 112(2) Crimes Act 1900.
2. After receiving legal advice, Mr Steele waived his right to a trial by jury and elected for a trial by judge alone. The Director of Public Prosecutions consented to that course.
3. On Monday 28 November 2022, the Indictment was presented at Bega District Court. Mr Steele said he was not guilty of each count. The trial continued until Wednesday 30 November 2022, when I reserved until today to consider my verdicts.
4. Portions of the evidence were presented by way of Agreed Facts, s191 Evidence Act 1995: Exhibits A and Exhibit B. I heard from the complainant who gave evidence, first via a Domestic Violence Evidence in Chief (DVEC) conducted on 31 July 2021 and then in chief.
5. A 000 recording was tendered: Exhibit C. I received photographs of missed calls, copies of text messages and call records: Exhibits D, E and L. Also exhibited were photographs of the door to the premises, the operating Apprehended Domestic Violence Order (ADVO), the lease agreement for the Bombala house and a receipt for a hotel room in Casula relating to Count 2: Respectively Exhibits F, K, H and G.
6. I also received as Exhibit J the Local Court facts sheet for a 2019 incident. This evidence’s use was limited pursuant to s 136 Evidence Act 1995 on the basis it may be unfairly prejudicial. It was tendered only for the purpose of determining whether the accused’s conduct amounted to intimidation, as a court may have regard to any pattern of violence, constituting a domestic violence offence, in the person’s behaviour: s 7(2) Crimes (Domestic and Personal Violence) Act. It cannot be used as evidence in any way going to the character of the accused or as part of any tendency reasoning, should I apply that reasoning process.
7. I heard from two police officers; Senior Constables Wolf and Outram.
8. There was a defence case. The accused gave evidence. He also tendered photographs of the rear door of the premises and a camper trailer: Exhibits 1 & 2.
9. As the trial was conducted without a jury I have a duty, not to just return verdicts but also to expose clearly and, if possible, succinctly, my reasoning process. I must include in my decision fundamental propositions, principles of law and any necessary warnings or cautions that apply and, thus, operate to guide my evaluation of the evidence. I am required to summarise the crucial arguments of the parties, formulate the issues for decision and resolve all issues of law and fact that need to be determined in order to justify the verdicts reached.
The offences provisions
10. Section 13 Crimes (Domestic and Personal Violence) Act 2007 provides relevantly:
(1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence.
(2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship.
(3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person.
(4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm.
11. A s13 offence is one of specific intent by reason of both the intention specified in 13(1) and the knowledge specified in s13(3). Subsection (1) cannot be read in isolation from subsection (3). It is sufficient to satisfy the intent identified in subs (1) if the accused “knows” that his or her conduct is “likely” to cause fear (of physical or mental harm) in the other person. Intent can be proved by proof of particular knowledge:” McIlwraith v R [2017] NSWCCA 13 at [30] & [31].
12. Accordingly, applying both s13(1) and (3), before I can convict of a count involving intimidation, I must be satisfied beyond reasonable doubt that the accused intimidated the complainant with the intention of causing her physical or mental harm. I can reach that conclusion if it is proved beyond reasonable doubt that the accused did the act knowing that his conduct was likely to cause fear of physical or mental harm in the complainant.
13. “Knowledge” or “intent” can be inferred from conduct, or from the circumstances in which an act is done. R v Grant (2002) 55 NSWLR 80; [2002] NSWCCA 243 at [18].
14. “Intent” and “intention” are very familiar words; here they carry their ordinary meaning. Intention may be inferred or deduced from the proved facts and circumstances. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time. In some cases, a person’s acts may themselves provide the most convincing evidence of their intentions. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.
15. In the context of this trial “intimidation” of a person means relevantly:
(a) conduct amounting to harassment or molestation of the person, or
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or
(c) conduct that causes a reasonable apprehension of—
(i) injury to the person ...., or
(ii) violence to any person: s 7(1) Crimes (Domestic and Personal Violence) Act 2007.
16. I can “for the purpose of determining whether a person’s conduct amounts to intimidation, have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour:” s 7(2) Crimes (Domestic and Personal Violence) Act.
17. Section 112 (1) and (2) Crimes Act provides relevantly that:
(1) A person who—
breaks and enters any dwelling-house or other building and commits any serious indictable offence therein....is guilty of an offence and liable to imprisonment for 14 years.
(2) Aggravated offence
A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation. A person convicted of an offence under this subsection is liable to imprisonment for 20 years.
18. The “serious indicatable offence” particularised in Count 3 is “intimidation” s13(1) Crimes (Domestic and Personal Violence) Act.
19. “Circumstances of aggravation” means circumstances involving the alleged offender knowing that there is a person... in the place where the offence is alleged to be committed: s105A (1)(f) Crimes Act.
Elements
20. The prosecution must prove each element of the offence against the accused beyond reasonable doubt. Here the parties narrowed the issues to be determined. The critical elements are:
For Count 1, whether it can be proved beyond reasonable doubt that the acts said to constitute intimidation occurred?
For Counts 2, whether it can be proved beyond reasonable doubt that the text words relied constitute intimidation. And, whether if they do, it can be proved beyond reasonable doubt that the accused had necessary state of mind – that is, that he knew his words and actions were likely to cause the complainant to fear physical or mental harm?
For Count 3, whether it can be proved beyond reasonable doubt that the words and actions relied on constitute intimidation? And, if they do, it can be proved beyond reasonable doubt that the accused had necessary state of mind – that is, that he knew his words and actions were likely to cause the complainant to fear physical or mental harm?
Further, whether the prosecution can prove beyond reasonable doubt that the accused broke into the premises and did not enter pursuant to an actual or implied right to do so?
Other Key Directions
Onus:
21. he most important direction in any criminal trial is this: the accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I have no reasonable doubt the prosecution has proved its case, that is; each element of the offence charged. If the prosecution fail to meet that high onus, or, if I have doubts about their case, Mr Steele must have the benefit of any reasonable doubt and I must return a verdict of not guilty.
Assessing witnesses
22. For most people giving evidence in a trial is not common and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values, and life experiences. There are many variables - I must take care - the way witnesses give evidence may not be the only, or even the most important, factor in my decision.
23. It has been suggested lies were told both by the complainant and the accused. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue. It is for me to decide what significance those suggested lies have in relation to the issues arising in these trials, but I give myself this warning: do not follow a process of reasoning to the effect that just because I find the accused told a lie about something, that is evidence of his guilt of the charges before the court.
24. Here given the evidence is primarily “oath on oath”, resort must be had to my assessment of each critical witness’s apparent credibility and demeanour; as I must attempt to resolve conflicts in their testimonial evidence and many “facts” about what occurred between them are challenged. I do not overstate my capacity to make determinations of a witness’s truthfulness based on how they look or present. But, I have had the opportunity to observe any flaws or idiosyncrasies in the way the complainant and the accused gave evidence and their demeanour in the courtroom.
25. Here there was some other material evidence to provide objective measures about what was said. I note Lord Atkin’s maxim, as quoted in Fox v Percy;
“an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.” Fox v Percy 2003) 214 CLR 118; [2003] HCA 22 at [30].
26. In making my determinations I focus on incontrovertible or unchallenged or objectively established facts, contemporary materials, and the apparent logic of events. I then evaluate the conflicting testimonial evidence against those matters, before resort is had to credibility and demeanour findings, to resolve conflicting testimonial evidence.
Cautions
27. The complainant did not tell anyone about the alleged incidents said to found Counts 1 and 2 before the 000 call on 30 July 2021. Her delay in complaining does not necessarily indicate that the allegation that the offence was committed is false: s306ZR Criminal Procedure Act 1987.
28. Part of the complainant’s evidence was given by the playing of a DVEC. I remind myself that this is a normal procedure and that I cannot give the evidence any more or less weight than if it had been given in person. I certainly do not in any way take the fact that a DVEC procedure was adopted against the accused.
29. Evidence reveals that the accused committed domestic violence offences in 2019 and was on parole at the time of the present allegations. He was refused bail. There is also evidence he was in possession of a small quantity of marijuana. I caution myself not to reason that; these matters reveal something about his character making it more likely he offended as alleged. His presumption of innocence of the present charges should not be undermined.
30. Evidence was lead about other acts said to give context to the specific counts and enable a proper understanding of the existing relationship between the accused and the complainant. It was also led on the tendency issue, to which I will soon refer. The evidence had that limited purpose, it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
31. I must not substitute the evidence of the other acts for evidence of the specific allegations contained in the charges in the indictment. That other evidence was admitted primarily for the purpose of placing the complainant’s evidence towards proof of the charges into what the prosecution says is a realistic and intelligible context. By context I mean the history of the conduct by the accused toward the complainant as she alleges it took place and to enable the complainant to give a coherent account of the whole of the accused’s alleged conduct.
32. Given that the onus of proof remains on the prosecution throughout I should examine the complainant’s and each prosecution witnesses’ evidence very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial. The evidence of each witness must be considered in the light of all the other evidence at trial.
33. If when considering the complainant’s evidence there are features of that evidence which may affect my assessment of its reliability, or, if I entertain a doubt as to the truthfulness, believability or reliability of her in relation to one count or an important aspect of her evidence, I must take that doubt into account in assessing the truthfulness or reliability of her evidence with respect to other counts.
34. In closing Mr Lang, Counsel for Mr Steele, submitted that I would not accept what the complainant said – because she lied in her evidence. He said that she had a motive to tell such lies. He submitted that those lies affected her credibility. He said I would find she lied because the accused had disappointed her and upset her because he had been arrested while on parole and was going back to gaol, causing her significant inconvenience.
35. I will make up my own mind about whether she was telling lies but my task does not include speculating about whether there is some reason why a key witness would make up a story. Nor does it mean I must accept her evidence unless the accused shows why she lied. The onus of proof must never be reversed.
The Accused’s evidence
36. Mr Steele gave evidence in his defence. He had no obligation to do so. I can use that evidence in my assessment of whether the prosecution have proved its case against him or not.
37. If, having considered that evidence, and the submissions of both counsel in relation to it, I accept what the accused says, I must acquit him. If, having considered that evidence it remains a reasonably possible version of events I must acquit him. However, there is no obligation on the accused to persuade me to accept the evidence he has given. It remains for the Prosecution to satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of the facts including his state of mind.
38. Even if I reject everything he says, that doesn’t resolve the issue. I must put his evidence to one side. I must then consider what evidence I do accept and ask; does it prove a count to the high standard of beyond reasonable doubt? Again, I remind myself, in a criminal trial the onus of proof does not shift.
The Evidence
39. The evidence must be considered as a whole. Some of the evidence is direct – some, such as what the prosecution alleged was the accused’s state of mind, is based on my drawing inferences.
40. Some evidence was not in dispute - some of it was hotly contested. In evaluating the evidence at trial, I can use my life experiences, training, and experience as a lawyer and a judge. As part of my fact-finding process, I can make value judgments.
41. Where circumstantial evidence is relied on, I cannot as a matter of law, find the accused guilty on a count unless I am satisfied beyond reasonable doubt that there is no reasonable explanation of the evidence, other than the guilt of the accused. However, if a hypothesis said to be consistent with innocence puts an incredible strain on human experience, I am entitled to be sceptical.
Inferences
42. As I must be satisfied of the guilt of the accused beyond reasonable doubt, I should be extremely careful about drawing any inference adverse to him. This includes any inference about his state of mind at a relevant time. I must carefully examine all the evidence in relation to all the relevant circumstances and examine any possible inference to ensure that it is a justifiable inference. I must not draw any inferences against the accused from the direct evidence unless it is the only rational inference in the circumstances.
Evidence Summary
43. The accused and the complainant met in 2016. Their son was born in 2018. They also lived with her son from a previous relationship. In 2019 they married.
44. In August 2019 a series of domestic violence incidents occurred including; threats to kill, reconciliation demands and then an assault and further threat to kill, using a fork. After his guilty pleas to several domestic violence related offences the accused was gaoled. He was paroled in December 2020. An Apprehended Violence Order was made.
45. In April 2021, the Apprehended Violence Order conditions prohibiting contact between the two were removed, although the order continued subject to standard conditions.
46. In 2021, Mr Steele obtained work in the Sydney CBD. He had an address at his parent’s home in Rosemeadow. He would however also spend time at Bombala. The circumstances of, and periods of time spent at, Bombala were in dispute.
47. In June 2021, the accused, the complainant and the two children spend time at a hotel in Casula, Sydney. What was said and done there is in dispute.
48. On 27 and 28 July 2021, the accused was with the complainant in Bombala. What was said and done there is in dispute.
49. Mr Steele then drove to Sydney. On the evening of 29 July 2021, he was arrested for being in possession of a small quantity of marijuana. On his arrest he contacted the complainant. He has a text conversation with her: Exhibit E.
50. At 9:38 pm he writes, “I really need my wife to talk to me right now.” She replies, "I can't talk right now babe I love you I just don't have anything to say right now.”
51. He writes, “please don't do this.”
52. She replies. “I'm not doing anything I just need a little bit.” He says, “please talk to me.”
53. He tells her he, “needs” her, and he is “struggling”. He asks that she not be “childish” and to answer the phone.
54. She replies, “I'm not being childish I just don't know what to say to you right now."
55. He accuses her of turning her back on him. She responds, " I'm not turning my back on you what you do affects us all”. Soon after she says, “I just need some time to process.”
56. Thereafter she stops responding but his texts continue. The speak of his need for her and his need for her to respect him. He says he's going “fkn insane.”
57. He then writes:
“I'm not going to message or call you again I will not put up with this from you... I'm already disappointed and mentally struggling here and you shit down when I need you most I'm fuckn gutted you're treating me this way....Wwwwwhhhhhhyyyyy the fuck are you doing this to me Fukn why I need to talk to my fuckn wife fuckn stop it pleeeeeseeee Fukn talk to me... I'm going to go fucking crazy very fucking shortly I'm telling you now shit going to get real... please I need you.. please I... please.. I'm driving there now... I don't want to come like this I can't stop shaking.”....
58. The texts’ content is not in dispute, although what was meant and intended is.
59. In addition to the texts, there were over 20 unanswered calls from the accused to the complainant.
60. At about 2:45 am on 30 July 2021 Mr Steel entered the home at Bombala and what was said was recorded by a 000 operator. How he entered the premises and his entitlement to do so is in dispute. While what he said was recorded his intent and state of knowledge about whether his conduct was likely to cause fear was very much in dispute.
61. At the beginning of the 000 call the complainant’s distress is obvious. She tells the operator, “He said, two days ago, he’s gonna put a bullet between my eyes... he’s trying to get into the house please hurry.”
62. Throughout the call she is crying and sobbing. She says, “he's broken in.” And as she sobs the operator tells her, “stay with me. “
63. The accused can be heard saying, “are you OK, talk to me... I was worried about you... are you alright.”
64. As she sobs, he says, “what's up, if you want me to go, I'll go.”
65. She replies, “please go.” He does not go but says.” I'm trying to check if you're alright, are you OK? Speak to me, are you alright?... Why what's wrong” She says again, “now I need you to go.”
66. She asks, “how did you get in a door, it was locked it was locked”. He replies, “it was open. It was open. I just pushed it and it opened... Are you alright? What's wrong babe, talk to me are you OK?” She answers, “no” and continues to sob asking again that he leave
67. She asks him to leave over 20 times in an 8-minute period.
68. He says at one point, “We're married; we live together.” She replies, firmly, “We don't live together, you need to go. I need you to leave my house.”
69. At all times the accused appears calm. He does not raise his voice. No verbal threats are made. At one point he touches her, and she says, “don’t touch me.” There is no hint that the touch was hostile.
70. He asked several times, “What's happening? He asks her, “has someone died or something... what's happened... I'm fucking really worried what's wrong? I'm here to help you.”
71. He asked for an explanation, and sobbing she tells him, “I need you to go please I don't want to talk please go.’
72. Eventually he left and she walked him to the door.
The complainant’s evidence
73. The complainant’s initial account came from her DVEC interview with police the afternoon of 30 July 2021. She told the interviewing police about the history of her relationship and how after the accused was released from gaol, she allowed the variation of the ADVO so that he could come to Bombala and visit the children. She was asked about the previous 6 weeks. And she said that their arguments had escalated.
74. She told police about an argument at the Casula hotel and how he had pulled out a knife and said to her he wanted her to call the cops so they would come and shoot him. She said after that she decided, “I would try and play it cool and get what I can on him, so we don't have to go through this again.”
75. She also said that he had seen messages on her X-box from some random people and that he didn't like it. She said “that's when he got really angry, he told me to stay the fuck away from him. He packed his things and said he was leaving.”
76. At one stage he followed her and said, “if I fuck up he's going to put a bullet between my eyes... and he's going to come back and saw my head off”.
77. She said she told him she wanted him out of her house but when she went to open the door, he kicked it shut. She said she tried to “calm things down wanting everything to stay cool as she knew he was leaving on the Thursday.”
78. She said, after he left the next thing she heard was when he called her in tears saying he was sorry about being arrested. He was upset and angry. She said she told him she didn't want to talk to him. She gave a short account of the texts she received including “the shits about to get real...I'm on my way down there.”
79. She waited up, unsure if he was going to come. Soon after she went to bed, she heard his car pulling up in the driveway. She called the police. She said while she was on the phone, he was knocking on the door, but she didn't answer. Then, she said, she heard him go around though the side gate. He then barged the back door open, breaking the lock, and has come into her house. She showed police the back door and the nail that he had used to repair it on an earlier occasion. She said the house was “all latched up” when she went to bed.
80. She said she kept asking him to “please leave.” She said she was scared to get up at first but after she did, she got him to leave.
81. She gave more details about the Casula incident and provided the content of the messages from her phone.
82. In cross examination she was asked about a supplementary statement made which revealed she had told a lie about that incident to Family and Community Services (FACS) workers.
“Q. What about the hotel incident did you lie about?”
A. I told FACS that it was just an argument and nothing else happened.
Q. So, did you tell FACS that a knife had been produced by then?
A. No.” At TT 70
83. She was asked whether he lived at Bombala or if he was on the lease. She said “no” and that he had never been on the lease.
84. She said in the period after he went to gaol, she had never given him keys or given him permission to come back into the house; specifically she had given him no permission that night. She was asked about how he had behaved towards her prior to the last six weeks she said, “he was very convincing that he had changed and I'm trying; sweet I guess.”
85. When asked, how did that make her feel, she said, “I don't know I was always sort of on edge just kind of waiting I guess just from his history but I wanted to believe him so I kinda let my guard down.”
86. In the evidence in chief given in court, she said he would visit weekends but she gave me no indication this was every weekend, and that proposition was not put to her. She said the accused was there in July and that he questioned her about a random message that appeared on her X-box screen. She said he accused her of seeing another man and threated to “put a bullet through her eyes” and to “saw her head off.” She said she tried to calm things.
87. She said on another night he had shown her a video on his phone from a group chat on Facebook of a women being stabbed by her partner.
88. She said that after he left on the 29 July 2021, he called in the evening using Facetime to have his regular talk with his son. Later that evening and into the morning she received the texts about him being arrested.
89. In cross-examination she was asked about the texts. She accepted that the messages themselves weren’t really that scary to her at the time, but she did accept that when he turned up, that was what made her think that “Maybe that’s a little bit more serious or concerning than I initially thought”.
A. They were confronting but he had made similar threats before and not shown up, so I wasn’t entirely sure if he was actually going to come or not, so I sat up for quite a few hours thinking, you know, “He might come, he might not”.
Q. And you've used the word "confronting", if I can just ask for some clarification about that? You say "confronting" in its ordinary meaning but you didn't think that at the time you received the messages that you were actually at a risk of being physically harmed by him at that point that you received those, did you?
A. He stated that he was going to go crazy, so I don't - I don't know if he was going to show up or not. Upon him showing up, I thought, "yes, this is going to be physical and he is going to hurt me." At TT 41.
90. She said she waited up but as he hadn’t arrived by about 2am she went to sleep. She woke and heard his car pull up. She called 000. Then he banged on the front door before going around the house through side gate and then breaking open the locked door. She said she did not show him the phone until she got up as he went out to the front door, although he detoured briefly in the kitchen.
91. She told me that although she had thought about it she had no memory of Constable Wolf visiting her home on the 29 July for an ADVO welfare check.
92. Constable Wolf gave evidence he did make such a check.
The accused’s evidence
93. Mr Steele gave evidence. He told me that after the ADVO was relaxed, he would spend every weekend at Bombala, often arriving early in the morning. He said he had a house key from before he went to gaol but that he never had to use it, as the house was rarely locked.
94. He said that he had booked the Casula hotel but he could not say why it was booked using his Rosemeadow address rather the Bombala address where he said he was living. He said the two had argued but there was no yelling and they tried to keep it calm because the kids were there. He said no knife had been produced and no threats were made.
95. He said he did see a message on the X-box and that it upset him so much he went to leave. But he stayed because she begged him not to go and told him she loved him and to come to bed.
96. He said that he moved the mattress from the bedroom into the lounge at Bombala as he would not sleep in a bedroom she had shared with other men. He denied ever threatening her, although he admitted he was angry.
He said, “I said to her, “We’re meant to work through all this. Just all these things keep popping up.” I said to her, “I've had enough.” I said, “If you don't get your shit together, I'm going to take this kid and go around Australia without you.”
97. When asked how she responded he said, “she was upset to start with. She - she sort of composed herself and stopped crying and she looked at me and she said, “I'll make sure that doesn't happen.” TT 108.
98. He said that following his arrest he was concerned he would go back to gaol and that he was worried about how that would affect the complainant. He said that he was worried about her too: I was concerned for her. She was in - pretty down at that time as well. And I thought that, you know, she may do something silly.TT120.
99. He was asked in chief, what did you mean by the text words, “I’m goin fucking insane”? He said “Just had a thousand things running through my head at the time. Yeah, I just, like, literally just - I felt like my - I just couldn’t gather my thoughts. Just everything was up in the air. TT 121.
100. Mr Lang also asked about the words, “I’m telling you now shit going to get real.“ What shit was going to get real? He replied, “I was possibly going back to prison. I was just trying to stress the fact to her that I possibly could go to gaol. At that point in time, the detectives were still talking to me on the side of the road. I didn’t know what was going to happen.” TT 124.
101. He said that when he sent the texts, “Well, hopefully in my mind we could have spoke about it, possibly worked it out instead of over the telephone and things like that. Just checking that she's okay.”
102. When asked, “Did you understand one way or another from her messages whether you felt like she wanted to talk to you at that time or not?” He responded, “She was still saying, “I love you,” and I just - I just - yeah. I wasn't 100% sure.”
103. He said that he had driven straight to Bombala, only stopping for fuel. He said when he arrived, he got straight out of his car and left it running. He did not take his keys, rather he knocked on the front door and when she did not answer he went through the side gate to the back door, which he opened using the handle. It was not locked.
104. He said that he had tried to fix it about two years before but made it worse and that the door often blew open in the wind.
105. He said he went into the room where she was in her bed as is recorded in the 000 call. At transcript 128 -130 the following is recorded:
106. Mr Lang:
Q. How did she appear physically in terms of the way that she looked on her face? I’m not asking you to tell me what her state of mind was, but in terms of her facial appearance how did she appear?
A. She was upset.
Q. Why do you say that you think she was upset?
A. She was, sort of, sobbing.
Q. Was she crying or not crying?
A. Yeah, she was crying.
Q. “When you walked into her room, did you think about how that might make her feel?
A. No.
Q. Was her apparent emotional state something that you expected or not?
A. No, I didn’t expect that.
Q. What were you trying to achieve by walking into her room?
A. To see if she was all right.
His Honour:
Q. You used the words, just then, “Seeing she was okay”.
A. Yep.
Q. What did you mean?
A. I was seeing if she was - like physically and mentally okay.
Mr Lang then asked:
Q. During any time from when you arrived at the property to when you left the property at Bombala, were you intending to make her scared of being physically or mentally hurt?
A. No, the complete opposite.”
107. He was cross-examined about this incident.
Q. You asked her if she was okay...Because you knew that she was scared. Didn’t you?
A. No. I actually sat on the floor and was looking up to her as she was sitting on the bed. We were talking... Well, I was trying to talk to her, I guess.
Q. And she asked you to leave many, many times? ...And you didn’t?
A. No.
Q. And you just stayed in the house?
A. Yep.
Q. And you knew that being in the house was scaring her because she was crying?
A. Not at that point. I thought there might be something more. I wasn’t 100% sure what was actually - what her frame of mind was.
Q. She was crying and her voice was quavering. You heard her as she spoke to you?
A. Yep.
...
Q. And you remained in the house, and you refused to leave. Didn’t you?
A. Well, I was trying to talk to her. It all happened so quick.
Q. And you knew that remaining in the house was scaring her?
A. I didn’t think that at the time.
Q. And you knew that you weren’t welcome at the house that evening, which is why, when you pulled up, you left you car engine running. Isn’t it?
A. No. That’s not why.
108. He said he had left and driven to Moree.
Tendency Evidence
109. The prosecution allege, that on the evidence I accept, I will find that Mr Steele had a tendency to act in particular way. That is:
(1) A tendency to make threats of physical violence to the complainant.
(2) A tendency to make threats of physical violence to the complainant over the telephone
110. In discussion I indicated that I regarded point 2 as a particular, not a separate, tendency, and a particular of little weight. Mr Lang was content for the matter to proceed on that basis and the Crown focused on point 1. Mr Lang, says that while tendency (1) could be a relevant, tendency (2) is not made out, as one instance of a phone threat does not make a tendency.
111. The Crown case is that tendency (1) is demonstrated by the 2019 offences in Exhibit A and was revealed in the evidence of the complainant about the current counts and related but uncharged acts from 2021. And that tendency was manifest when each of the counts in this trial occurred, in particular Count 1.
112. The prosecution say that I will be satisfied of both the general and specific tendency and that the accused acted on it, making it more likely that he committed each of the offences charged in the indictment. In their submission the acts are all substantially similar and occurred in such similar circumstances that it shows that Mr Steele had a tendency to act in a particular way alleged.
113. If the Prosecution established the evidence proves this tendency; it may be used in proof of all the counts. They rely on what is agreed in Exhibit A and what the complainant said about events which related to individual counts which if I find them proved could establish the tendency. That proved tendency could, in turn, be used by me when considering other counts have been proved beyond reasonable doubt.
114. Here the defence too say Exhibit A is relevant but for a completely different reason. Mr Lang submits that the evidence given at trial was tainted by the complainant’s motive to end the relationship and prevent him taking their son and go off around Australia without her. Mr Lang concedes the general tendency might be established if I looked only at the 2019 agreed facts but in context says that I would give no weight to the prosecution’s assertions. Rather, I would accept as a reasonable possibility that the complainant has used the earlier incident to create falsely a suspicion against the accused by taking innocuous incidents and creating a pretence, that matched the earlier incidents. The earlier incident thus are a pretext and a distraction.
115. He also notes the necessary caution derived from IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [60]- [64], that the source of the fresh allegations is the complainant herself.
116. I remind myself that I cannot find the accused guilty of any charged offence unless after considering all the evidence relevant to a charge I am satisfied of his guilt of that charge beyond reasonable doubt
117. In making my determination I can have regard to all the other evidence in the trial to reason by way of inference or deduction, except for exhibit J whose use has been limited. If there are other reasonable explanations available these must be considered. Further, even if I accept one or more allegations it would be wrong to reason that just because Mr Steele has done some things, he was more likely to have committed the offences charged.
118. I don’t work backwards and presume a tendency. Rather, I go to the evidence, examine it carefully or scrutinise it carefully. Before I can use the evidence of other proved acts and the fresh evidence at trial of other uncharged acts and the counts themselves in relation counts in the way the prosecution asks me to use it I must make two findings.
119. The first finding is that one or more of those acts occurred. In making that finding I do not consider each act in isolation but consider all the evidence and ask whether I find a particular act relied upon took place. Here obviously exhibit A is admitted.
120. Second: If I do find one or more of those acts alleged occurred, then I must go on to consider whether, from the act or acts I have found occurred, I can then infer that accused had the tendency alleged. If I cannot draw that inference, then I must put aside any suggestion that Mr Steele had the tendency alleged or acted on it.
121. That an inference could be drawn is not the test - if there are other alternative inferences reasonably available, inferences that are consistent with the accused being innocent - then the prosecution has not proved its point.
122. The evidence must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offences charged.
Submissions
Prosecution
123.
124. Mr Tonks, solicitor, for the Director of Public Prosecutions, submits that the complainant’s version of the offences was the more compelling and that I would, after carefully analysing all the evidence, reject the evidence given by the accused.
125. He submitted that I would find the complainant was reliable and credible as she gave a straightforward, consistent and honest account. She did not embellish nor did she waiver under cross examination. She made appropriate concessions and was at all times trying to be accurate, even when she could not recall some facts, such as a visit by Constable Wolf.
126. By contrast, he suggested, the accused was evasive, non-responsive and at times unwilling to accept even agreed facts, for example, when he described his state of mind in 2019. Another example given was when the accused tried to give the impression that when he left the premises, after the matters the subject of Count 3, that the complainant was OK, when, clearly, she wasn't. He said the accused took every chance to minimise his culpability.
The prosecution relies upon all the evidence against the accused to show a “pattern of behaviour” or a “pattern of violence constituting domestic violence offences.” Here that evidence operates in two related but distinct ways; as evidence going to the alleged tendency and for the purpose of determining whether the accused’s conduct amounts to intimidation, applying s 7(2) Crimes (Domestic and Personal Violence) Act.
127. They submit that the tendency asserted has been established by a combination of evidence starting with the admitted material about 2019 in Exhibit A and including the complainant’s evidence about two episodes, not the subject of a count; the first, at Casula when a knife was produced to her, and the second, when a video depicting the murder of a woman was shown to her by the accused.
128. In relation to Count 1, they note the concession made by the accused that he had seen material on a screen associated with an X-box, and submit that, that anger was manifest by the threats made They also relied upon the concession made by the accused that he had refused to sleep in the same bedroom as the complainant because other men had been with her in that room.
129.
130. Mr Crown said I could have regard to the admitted tendency in support of these propositions, as death threats had been made in 2019. And those threats had been apparently triggered by far more mundane reasons than what had angered the accused this night; and that I would reject his denials.
131. In the prosecution’s submission, the tendency evidence is of particular importance to Count 1, given the similarities involved in both incidents. And it, together with other evidence, makes it significantly more likely the facts making up the elements of the offences charged are proved beyond reasonable doubt.
132. In relation to Count 2 he took me to two of the critical texts sent which he said established beyond reasonable doubt the accused state of mind and the offence charged. He submitted when I looked at all of the proved circumstances, including the relationship and background of violence, and the phone records - the “bombardment” of messages - and what they contain, and the two critical passages, only one conclusion was available; the accused knew that it was likely those texts would cause the complainant to fear physical or mental harm.
133. In relation to Count 3 Mr Crown submitted I would accept that the accused had arrived in Bombala in the early hours of the morning, banged on the front door, forced open the rear door and then despite repeated requests that he leave, harassed the complainant. His attendance followed on the texts the subject of Count 2.
134. Mr Crown submitted that I would find the accused did not have a key to the premises and that his apparent calm demeanour in the 000 call did not mean that he was not standing over the complainant or that his presence was not scaring her. His harassment continued despite her continued request that he leave and her obvious state of distress.
That the accused asserts he was not the cause of that distress, he said, cannot be accepted. That the accused asserts he did not the know his actions had caused that distress, he said, cannot be accepted. In the prosecution’s submission, the only available conclusion was not just that she was scared of the accused but that he knew that his being in the house was making her scared.
135. He submitted that I would reject any assertion by the accused that he was domiciled at the home, implied or actual. Rather, he said I would find he had no consent or permission to enter the premises that night and that I would find that earlier permissions to enter had been specifically arranged and there was no general consent to enter, let alone force entry.
136. He said this was obvious and would have been obvious to the accused by the doors of the house being locked and the fact no prior arrangement for his attending the premises had been made.
137. He said the trip to Bombala that morning was not because of the accused’s concerns about the complainant but followed up on the texts the subject of Count 2. Her messages, and then refusals to respond to his messages, making it obvious he was not wanted or welcome. Her obvious distress and repeated requests he leave, taken in context with the established pattern of violence and his tendency, proved that assertion by the accused that he had no knowledge of the harm being inflicted on her was, “without substance.” And any assertion by the accused that he did not know his presence scared her and was the cause of her distress, must be rejected.
138. He concluded by submitting that a close examination of all the evidence supported my finding each count had been proved beyond reasonable doubt.
Defence
139. Mr Lang, for Mr Steele, took me through the directions required and the evidence. He asked that I give full weight to the “cogent” and “compelling” evidence of the accused, which was “consistent” and “not self-serving”. Rather, he submitted that the accused had been very frank in accepting the seriousness of the 2019 matters and that in the past he had had trouble controlling his temperament.
140. It was submitted that in his evidence in chief and under cross-examination Mr Steele had volunteered matters against his interest. For example; he told me how upset the X-box incident had made him. Mr Lang submitted that I could not, at the very, least exclude the possibility that what the accused had told me was true.
141. He said the complainant, on the other hand, had lied. And, admitted she lied about the Casula incident when talking to FACS. He submitted that I would consider she had demonstrated her motive to lie in the DVEC and her other evidence.
142. She lied, he said, because she was upset about the accused’s arrest, which had let her down. TT 71 & 72. His said that her motive was obvious from what she told the police at the start of the DVEC, “I decided that I would try and play it cool and get what I can on him.” Those words he submitted supply one motive to lie as on the complainant’s own account, that evidence shows an intention to bolster a claim that would be made to police, with a view that he will be forcibly separated from her and their child.
143. He said when I examined the chronology of events from April 2021 it would be clear the accused was living at the Bombala home and that he had a key, although he did not have any need to use it. He said that he had permission and consent to enter the Bombala home as he lived at the premises, and nothing had changed the status quo. When he was there, he was free to come and go.
145. He took me to Kempe v Webbe [2003] ACTSC 7, which notes that a person may have more than one residence. He said the ordinary arrangements between the accused and the complainant meant the accused was domiciled at the Bombala house, on weekends but spent time in Sydney while working. A person can have multiple residences. And, if was his residence, he could not have broken into it.
146. Even if it were not his residence Mr Lang submitted a pattern had developed which showed the accused had consent or permission to enter; just as he had when he returned to the home early Saturday mornings, after working during the week. Mr Lang took me to R v BA [2021] NSWCCA 191 at [10] - [13]:
“It is the scope of the permission, rather than whether or not the entry is forcible, that is determinative... better characterised as the scope of the consent – that defines whether or not a forcible entry is, or is not, a “break”.”
In any event he said a review of the 000 recording would show what the accused said and how he said it was not contrived; there being no evidence he knew what was said was being recorded. Rather, what was recorded was an honest expression of his intentions. If he had intended to intimidate her more would have been revealed. And, critically, when I reviewed what was said and, importantly, how it was said, it could not on any view amount to intimidation. Scrutiny of the 000 call recording he said, would also reveal no sound of the accused entering and “barging” through the back door as alleged; another example of the complainant embellishing her account.
147. He submitted that I would have doubts about the context incident at Casula, as although the accused accepted the two argued when at the hotel, there was no support for the complainant’s assertion that voices were raised and she was yelling and screaming. A police investigation revealed there were no incidents reported by hotel staff.
148. He submitted I would doubt that that the alleged threats and the showing off the “murder video” occurred. He noted no attempt was made to seize and review the contents of the accused’s phone.
149. He put emphasis on the accepted fact the complainant did not complain of earlier events until the 000 call. In particular, that she did not take up an opportunity when Constable Wolf came to her premises on the 29 July 2021 to tell him of those incidents or what had occurred over the preceding days. He said this delay was indicative of invention, following the disappointment at the accused arrest and breach of parole.
150. He took me to other reasons why I would reject her version of events in relation to the uncharged acts and each count. In relation to Count 1 he said the accused’s account was logical and credible, particularly his evidence she asked him to stay after he threatened to leave. He noted that there was no corroboration of the video incident.
151. So far as Count 2 is concerned he submitted that the evidence at TT 41 (see above at [74]) was a complete answer to the charge. The complainant’s evidence was that she only started to feel scared, which is the relevant aspect of the intimidation, when the accused showed up at Bombala the morning after the date specified in Count 2.
152. He submitted that s13(4) had limited work to do in the fact situation here, particularly when I looked at the context and objective quality of the texts said to found Count 2. That evidence does not, he said, “evince a state of mind where the accused knew, actually, not a question of recklessness or wilful blindness, but actually knew that what he was saying and doing was likely to cause her fear of physical or mental harm.”
153. In relation to the asserted tendency and pattern of violence, he submitted that while the 2019 incidents had been admitted they had relevance, not as showing a tendency but to explain how the complainant’s assertions used those past incidents to provide the strata on which the false allegations were made, giving them an apparent plausibility close scrutiny would reveal to be false.
Consideration
154. Understandably in a case that relies on acceptance of a complainant’s version and rejection of the accused’s account before a count can be proved beyond reasonable doubt, both counsel raised aspects of the evidence that might undermine a witness’s credibility. I remind myself again of the onus of proof and that my decision is not a question of whom I prefer: Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 per Brennan J.
155. The accused’s demeanour in his texts was in stark contrast to his apparent calmness in the 000 recording. In that recording I could detect no overt threatening tone.
156. When giving his evidence in Court he appeared calm and direct. He had trouble with some answers, particularly in explaining his state of mind, but at no stage did he concede any act that might have revealed either an intention to intimidate or a possible recognition that his actions were likely to cause the complainant to fear physical or mental harm. On those points he was adamant. He did make appropriate concessions - that they argued at Casula and that he was angry following the X-Box incident.
157. He told me that whatever had occurred in 2019 that state of mind did not continue in 2021. No matter how angry he was with the complainant that anger did not manifest itself in the threats said to have been made at Casula or after the X-box incident.
158. He said when he sent the texts he was worried about her and this was one of the many thousands of things going through his mind; but that at no stage did he intend to intimidate by those texts, to the contrary, his concern was for the complainant and the impact on her of his possible return to gaol.
159. He said that he showed his concern for her by his actions on arriving at Bombala. And this is evident from the questions he asked in the 000 recording.
160. I did not believe him. His evidence was contradicted by objective facts before the court, including the accepted tendency evidence which revealed when angry make threats to kill, and the text messages. They were not demonstrative off concern for anyone other than himself. And the passages, "I will not put up with this from you” and ”I'm going to go fuckn crazy very fukn shortly I'm telling you now shit going to get real,” could carry no other meaning in context than a threat to the complainant.
161. When he returned to the Bombala home, if he had any concern for the complainant,. he would not have banged on the door nor entered in the manner he did. His assertion he had a key but never used it was unbelievable. If he had a key and he was concerned for the complainant on arriving at 2:44 am he would have used it.
162.
The door was recently broken open at an earlier crack which he had repaired. To suggest otherwise, given the photographs of the door and the cracks in it which were obviously recent, was 163. one example of him failing to accept and trying to excuse his actions.
He said that when he sent the texts a thousand things were going through his mind. It is impossible, given their context and clear words, to accept that one of those things was not a desire to intimidate the complainant.
164. The words he used in the bedroom were not genuine, there was only one reason why the complainant was sobbing and crying and asking him to leave - she feared him and feared physical and mental harm from him. His assertion that he did not know this, could not be accepted and had no rational or reasonable foundation. Despite his demeanour in court, I did not believe he was telling the truth and I reject his evidence about his intentions and state of mind in relation to each of the contested events entirely.
165. The complainant gave in the 000 recording a contemporaneous account of what was happening and the reasons for calling police. She raised immediately the matter the subject of Count 2 and the urgency of her need for assistance was made manifest. She was not dissembling. She was not inventing to provide ammunition to end the relationship. Her fear was evident to all who heard it, except it appears the accused. It was powerful evidence and supported by what she told me in the witness box.
166. She was not undermined by cross examination. I do not except the submission that having volunteered that she lied to FACS that lie damaged her credibility. To the contrary, I accept that the lie was another manifestation of her underlying fear of what the accused was capable of.
167. No one from the Casula hotel heard any disturbance from the room occupied by the complaint and the accused and the two children. They complainant says that she did scream and yell. The accused said they argued but they kept things calm because of the children, so too did the complainant. I do not accept that this apparent discrepancy is sufficient to significantly undermine the complainant’s credibility.
168. The failure to examine the accused’s phone deprived the complainant’s account of the “murder threat” of corroboration but it does not undermine her account; in any event that was not subject of a charge, nor was it required to be proved beyond reasonable doubt.
169. I accept that the complainant has no memory of the welfare check by Constable Wolf and that her failure to complain and her delay in complaint requires careful consideration, however it is not unusual in a domestic relationship for a party not to report matters. This can occur out of fear or hope that things might change for the better, as the complainant explained here. It was the 000 call that led to her spontaneously revealing matters that lead to the history of the relationship being ventilated.
170. The complainant’s evidence was well supported by objectively verifiable facts, including the events of 2019, the lease of the premises, the sleeping arrangements, the appellant’s admissions about his anger and how he felt about the X-box incident, and the damage to the door and the 000 recording.
171. Having rejected the accused’s assertions as to his acts and state of mind I am still required to critically examine the evidence in relation to each count and ask; has the prosecution proved each critical element beyond reasonable doubt?
172. In each matter I am satisfied beyond reasonable doubt that the accused intimidated the complainant with the intent of causing her to fear physical or mental harm. I reach that conclusion because I find beyond reasonable doubt that that the accused did act knowing that his conduct was likely to cause fear in her.
173. That “Knowledge” or “intent” was inferred from his conduct, and from the circumstances in which the act of intimidation occurred.
174. In reaching that conclusion I take into consideration that he had tendency continuing since 2019 to threats of physical violence to her. His other acts, other than 2019, provide convincing evidence of his intentions. Her distress and fear were the obvious and an inevitable consequence of his acts, which were deliberate and considered and done with the aim of achieving that specific result.
175. In each matter his conduct constituted “intimidation,” being:
(a) conduct amounting to harassment or molestation of the complainant, or
(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that caused the complainant to fear for his or her safety, or
(c) conduct that caused a reasonable apprehension of injury to the complainant; with whom he had a domestic relationship.
176. The accused’s acts provide convincing evidence of his intentions. His actions and behaviour formed part of a pattern of domestic violence offences. In each count I find that the accused knew that his conduct was likely to cause fear of physical or mental harm in the complainant.
Count 1
177. The evidence I accept reveals that the accused was angry and upset about the complainant having slept with other men while he was in gaol. That anger was triggered by something he saw on the X-box screen. In those circumstances he made the threat to kill in the explicit terms set out by the complainant. I am fortified in that determination by my findings in relation to the other two counts and his tendency as revealed in Exhibit A.
178. I have carefully considered the submission for the defence that Exhibit A simply provided ammunition for a false allegation, and I reject that suggestion entirely as being inconsistent with all of the evidence I have accepted.
179. The words used and their context satisfy each element of Count 1 to the high standard required.
Count 2
180. The text messages speak for themselves. Their context, where the accused was expressing his anger and frustration, indicate they were intended to intimidate. That the complainant on receiving them said that she was not immediately concerned is not an answer to the charge.
181. Section 13(4) is in my view intended to cover this exact situation. The fear does not need to be contemporaneous with the threat to satisfy the provisions of s 13. That fear only became manifest when the possibility the threat might be carried out was revealed when they accused car pulled up Bombala. But that does not mean intimidation was not intended. In any event here as a result of the texts the complainant was put in a situation of anxiety as she waited, anticipating that the threat would be acted on. That state of anticipation still caused her fear as she waited awake late into the morning anticipating his arrival.
Count 3
182. The accused’s prior permission to enter the home could not encompass a right to enter when a door was locked against him. In this case I find as a fact that both the front and rear door were locked and that he did not have a key. He never held a key after the door locks were changed. He broke through the rear door, although little force would have been required, given it was already damaged. He knew she was in the premises
183. He entered to fulfill the threats, which had been made in the texts and not out of concern for the complainant. He has sought to justify his actions at that time, but that concern was not reflected by his actions.
184. I accept that apart from his unwanted presence he said nothing overt to threaten or intimidate the complainant while beside her, as she cowered in her bed, but his presence and his persistence in staying with her despite her distraught condition and her repeated requests he leave at the very least amounted to harassment of her.
185. He was intimidating her, and he knew it, as that was his intention – harassing her and by his presence causing her to fear physical or mental harm. His actions in banging on the door, forcing entry and coming into her room and then ignoring her repeated requests to leave, demonstrated behaviour the exact opposite of that which he expressed at the time, and still maintains. He says he did not know his actions would be likely to cause her harm. I do not believe him.
186. His actions speak louder than words. He was not concerned for her alone, his concern was only for himself. His actions demonstrated entitlement and the control he exercised over her.
187. Each element of Count 3 has been proved beyond reasonable doubt.
Verdicts
188. Count 1: I find Benjamin Steele guilty of the offence of intimidation.
189. Count 2: I find Benjamin Steele guilty of the offence of intimidation.
190. Count 3: I find Benjamin Steele guilty of the offence of aggravated break and enter and commit a serious indicatable offence.