R v Evans [2007] ACTSC 11 (16 February 2007)

Last Updated: 7 May 2008

R v SETH WADE EVANS

[2007] ACTSC 11 (16 February 2007)

CRIMINAL LAW - Trial by judge alone - counts of assault, threat to kill, dishonestly take motor vehicle - reasonable doubt - acquittal on all counts.

Supreme Court Act 1933, s 68B, s 68C

Criminal Procedure Act 1986 (NSW), s 33

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

R v Massey [2000] ACTSC 107

R v Collins [2004] ACTSC 48

R v Tran [2003] ACTSC 53

No. SCC 163 of 2006

Judge: Connolly J

Supreme Court of the ACT

Date: 16 February 2007

IN THE SUPREME COURT OF THE )

) No. SCC 163 of 2006

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

SETH WADE EVANS

ORDER

Judge: Connolly J

Date: 16 February 2007

Place: Canberra

THE COURT FINDS:

1. on the charge that on 21 May 2006 at Canberra in the Australian Capital Territory Seth Wade Evans did assault Merris Evans, the accused is not guilty.

2. on the charge that on 21 May 2006 at Canberra in the Australian Capital Territory Seth Wade Evans threatened to kill Merris Evans, the accused is not guilty.

3. on the charge that on 21 May 2006 at Canberra in the Australian Capital Territory Seth Wade Evans assaulted Merris Evans and occasioned her actual bodily harm, the accused is not guilty.

4. on the charge that on 21 May 2006 at Canberra in the Australian Capital Territory Seth Wade Evans assaulted Merris Evans and occasioned her actual bodily harm, the accused is not guilty.

5. on the charge that on 21 May 2006 at Canberra in the Australian Capital Territory Seth Wade Evans dishonestly took a motor vehicle, namely, a Toyota Landcruiser with ACT Registration YBA 84S belonging to Merris Evans without the consent of the said Merris Evans, the accused is not guilty.

1. The accused, Seth Wade Evans, has elected for trial by judge alone in relation to an indictment filed on 23 August 2006 alleging five offences said to arise in the course of a dispute with his former wife at Bonython in the Australian Capital Territory on 21 May 2006. He had properly made the election for trial by judge alone in accordance with the provisions of s 68B of the Supreme Court Act 1933 (the Supreme Court Act). On 29 January 2007 the accused pleaded not guilty to the following offences:

Count 1: That he did on 21 May 2006 at Canberra in the Australian Capital Territory assault Merris Evans.

Count 2: Further that on 21 May 2006 at Canberra in the Australian Capital Territory he threatened to kill Merris Evans.

Count 3: Further that on 21 May 2006 at Canberra in the Australian Capital Territory he assaulted Merris Evans and occasioned her actual bodily harm.

Count 4: Further that on 21 May 2006 at Canberra in the Australian Capital Territory he assaulted Merris Evans and occasioned her actual bodily harm.

Count 5: And further that on 21 May 2006 at Canberra in the Australian Capital Territory he dishonestly took a motor vehicle, namely, a Toyota Landcruiser with ACT Registration YBA 84S belonging to Merris Evans without the consent of the said Merris Evans.

2. Section 68C of the Supreme Court Act sets out the procedure to be followed in a trial by judge alone as follow:

68C Verdict of judge in criminal proceedings

A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

3. Similar provisions permitting trial by judge alone exist in other States, and the equivalent New South Wales provision, being s 33 of the Criminal Procedure Act 1986 (NSW), as it then stood, was considered by the High Court in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250. The Court there held that the requirement to set out the principles of law and the findings of fact in the judgment would not be satisfied "merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached" (per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ at 263).

4. There are a series of decisions of judges of this Court, beginning with R v Massey [2000] ACTSC 107 per Einfeld J, to the effect that the requirements imposed by s 68C of the Supreme Court Act are essentially the same as those considered in Fleming, and, accordingly, it is the obligation of a judge of this Court, conducting a judge alone trial, to state each and every legal principle that is applied in reaching a conclusion as to the accused's innocence or guilt. In R v Collins [2004] ACTSC 48, Weinberg J observed at [5] that:

It follows that I am required to set out the general principles that are applicable to this trial, both as to matters adjectival, and substantive as well as the findings on fact on which I rely.

I adopt this approach.

5. It is important to restate certain general observations concerning the conduct of any criminal trial, and to remind myself that these must be applied in the case of a trial by judge alone. A statement of general principle made by Gray J in R v Tran [2003] ACTSC 53 at [4]- [5] was adopted by Weinberg J in R v Collins, and with respect I adopt the same observations, being:

I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution, and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence established guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

The Prosecution case

6. The prosecution opened the case on the basis of the case statement previously filed in the proceedings in the ordinary way. The prosecution case is that the accused and Merris Evans had been married in 1999, but divorced a few years later. After the divorce they resumed the relationship and had twin girls who were born in 2004. There was a further separation, but the relationship resumed around Christmas in 2005. They lived at Ms Evans' house at 17 Bottrill Street, Bonython. It is the Crown case that they separated again on 7 May 2006 when the accused moved out.

7. It is appropriate to set out the prosecution case as it appears in the case statement.

At about 2 pm on 21 May 2006, the complainant was at home with her daughters. The accused arrived at the house. Upon his arrival, the accused had a conversation with the complainant at the front door when he told her that he had come to see his children. The complainant agreed to let the accused into the house. The accused entered the house but showed no interest in his children. He spoke to the complainant, tidied up some of his things in the garage and ate and drank. At about 5 pm the accused began to verbally abuse the complainant. The complainant asked him to leave. The accused asked the complainant to drive him. She refused. The accused became angrier and pushed the complainant on her right shoulder. The complainant became fearful of the accused and ran out of the house with the intention of alerting her neighbours, the Bradfords, at 12 Bottrill Street. She ran onto the street and the accused followed her. He grabbed her and punched her (Count 1). The complainant screamed for help.

At this time, Jeffrey Bradford, his mother, Joanne, and his father, Kevin Bradford, were inside their house at 12 Bottrill Street when they heard the complainant screaming. They looked out their front window and saw the accused, whom they recognised, grabbing and punching the complainant, whom they also recognised. They shut their blinds and Kevin Bradford called the police.

After assaulting the complainant, the accused ran off. The complainant went back inside her house and shut the front door. She went to the kitchen and picked up her mobile phone and the landline phone. The accused entered the house and grabbed both phones from her hands. He threw them away from the complainant. He grabbed two black-handled knives from the knife block in the kitchen and held one in each hand. One was bout 30 centimetres long and the other was about 20 centimetres long. The accused, who was standing at a distance of about half a metre from the complainant, pointed the knives at the complainant. He dropped the smaller knife and pushed the complainant onto the floor. He held the larger knife in his right hand so that the tip of the blade was touching the neck of the complainant and said, "I will kill you. I will chop you up into little pieces and bury you in the back yard" (Count 2). The accused held the knife to the left leg of the complainant and made a cut on her left thigh (Count 3).

The complainant was very fearful of the accused and tried to calm him down by saying, "It's all right, we'll be OK". She got up and walked towards the front door with April. Near the front door, the accused grabbed the complainant by her hair and said, "I told you not to mess me around". He pulled her by her hair into the lounge room and pulled her back to the tiled area near the front door. He threw her down onto the tiles and banged her head a number of times on the floor. The complainant tried to get up. The accused kicked the complainant in her side and she fell onto the floor on her left side, with April underneath her. The accused pressed down on the complainant's side and back using one of his legs. The complainant told the accused to stop and told him that April was lying under her and she was being crushed. The accused pressed down on the complainant's side and back with his leg about four times and then stopped (Count 4). He walked into the lounge room.

As a consequence of the alleged actions of the accused, referred to in Count 4, the complainant suffered bruising on her back.

The complainant got off the floor and ran out of the front door. She ran to the Bradford's house and called to them to call the police. Joanne and Kevin Bradford told the complainant that they had called the police. The complainant's daughters, April and Rose, had come out onto the street. A man whose identity is unknown, brought the two girls over to the complainant, who was standing in the Bradford's front yard.

About this time, the accused got into the complainant's vehicle, a white Toyota Landcruiser, which was parked in the complainant's garage. He revved the engine. The complainant and her two daughters were crouching on the driveway of the residence next door to the Bradford's. The accused drove out of the complainant's driveway and drove onto the Bradford's front yard in the direction of the complainant and her daughters. The accused reversed and drove away. The accused did not have the consent of the complainant to take her vehicle (Count 5).

At about this time, Kevin Bradford, Joanne Bradford and Jeffrey Bradford went outside to the complainant and brought her and her daughters inside their house. A short time later, another neighbour, Lynnette Boxall, was leaving her house and was approached by Jeffrey Bradford. He told her that the complainant had been bashed by the accused and that she was recuperating at his house. Ms Boxall went to the Bradford's house and saw the complainant sitting on the Bradford's lounge, crying. She saw that the complainant had a graze on the right side of her back and that she had a small, white indentation on her neck. She also saw and felt that the complainant had a large lump on her head. The complainant told Ms Boxall that the accused had kicked her in the back, that he had held a knife to her throat and told her that he was going to cut her up and bury her, that he had pulled her hair and banged her head on the tiles on her floor, that he had kicked and punched her and that he had said horrible things to her.

A short time later, the police arrived. Crime Scene Examiner, Leigh Coutts, arrived and examined 17 Bottrill Street. She took some photos of the inside of the house and also photographed the complainant and her injuries. The complainant suffered bruising on the lower right part of her back, bruising on her left shoulder blade and a cut on her left thigh. An ambulance arrived soon after and transported the complainant to hospital.

Some time after 8 pm, the accused arrived at 19 Hackett Place, Hackett, also known as Samaritan House. He spoke to Mr Glen Lang, an employee of Samaritan House and told him that he had had an argument with his wife that afternoon. He went to his room.

At about 11 pm Constable Anthony Martin and Constable David Power attended Samaritan House. They spoke to Mr Lang, who told them that the accused was residing there. They saw a white Toyota Landcruiser bearing ACT registration YBA 848 parked in front of Samaritan House. A short time later they arrested the accused.

8. In his opening address, Mr Thomas, for the accused, indicated that the defence case would be that the accused had attended the premises on the day but had done so by prior agreement. He said that the defence acknowledged that there had been a disagreement between the two parties and that there had been a verbal altercation on the street but not an assault as set out in the first count. He said that the defence case would be that the accused then left the area with a view to getting a bus back to his residence, but then returned to the house. He said that the defence case would be that Ms Evans then made threats and attacked the accused with kitchen knives and that the accused grabbed her and forcibly removed the knives, in the course of which she was knocked to the ground. Mr Thomas said that this explained such bruises and marks as would appear in the evidence. This would be the case in relation to counts two, three and four on the indictment.

9. In relation to the count of dishonestly taking the motor vehicle, Mr Thomas said that the defence case would be that the motor vehicle had been the family motor vehicle, and had always been used by either party without prior permission and that, while it was acknowledged that the accused drove the vehicle that evening, he did so with an honest belief that he had permission to use the vehicle.

The issues in the trial

10. The opening statements of the prosecution and the defence thus established that this would be a trial where there were two competing versions of events. It was a trial that would turn on the facts. If the Crown could establish beyond reasonable doubt that the accused acted in the manner set out in the case statement, the elements of the first four counts on the indictment would be made out, and Mr Thomas did not dispute this. This was not a trial turning on whether actions amounted to assault or assault occasioning actual bodily harm. On the other hand, the Crown acknowledged that while on the version of events foreshadowed by Mr Thomas there was a physical application of force by the accused to Ms Evans, such force would amount to legitimate self-defence and would not amount to a criminal offence.

11. It would be appropriate in such a case with a jury, and in the case of a trial by judge alone to remind myself that the onus of proof always rests with the Crown and the burden of proof is proof beyond reasonable doubt. In a case where the defence goes into evidence with an alternative version of facts, it is important to remind the jury that the Crown must prove its case beyond reasonable doubt and that if the defence chooses to go into evidence and lead evidence of a version of facts consistent with innocence, the Crown must refute this. The jury must be warned, and I warn myself, of the risk of falling into error by proceeding on the erroneous basis of "balancing" competing versions, and determining which version is "preferable".

The course of the evidence

Ms Coutts

12. The first witness was Ms Leigh Coutts, a crime scene investigator with the Australian Federal Police. She was called to prove a set of photographs taken at the scene. She said that she attended at about 10.15 pm at Bottrill Crescent, Bonython, and after being told certain things by Sergeant Gheradello, arranged for a series of photographs to be taken. These photographs were tendered as exhibit 1. They were of various views of the houses and street at the scene, views inside Ms Evans' house, and photographs of Ms Evans, and were extensively referred to by other witnesses. The photographs in the exhibit were numbered.

Ms Evans

13. Ms Evans gave evidence that at the time of the alleged offences she resided at 17 Bottrill Street in Bonython. She said that she had been married to the accused in 1999, and divorced in 2003, but that after the divorce they continued to have a relationship and that they have since had twins born in 2004. She said that the accused lived "on and off" with her and the children "for a period of time" (T 15 line 33).

14. She said that the parties had resumed a relationship living together from Christmas 2005, but that she ended this two weeks prior to the incident of 21 May 2006. She said that at around 2 pm "Mr Evans knocked on my door and I opened the door and I asked him how - why he was here and he said he was here to see his little girls". In cross-examination Ms Evans said that she was not expecting the accused to arrive that day (T 57 Line 45), but after being pressed in cross-examination and being shown transcript from the committal proceedings, acknowledged that she had there said that the defendant had rung her that morning and said that he wanted to come around "to collect some stuff" and that she indicated "that was fine" (T 62 line 32). The transcript shows that it took some time for Ms Evans to make this concession, that she was clearly bound to make, given her evidence below, and that at one time she said, when being tested as to her memory, that she had recently been diagnosed with post-traumatic stress syndrome and that one of the symptoms was memory loss (T 58 line 35).

15. While little turns on this in one sense, Mr Thomas made the point that Ms Evans' version of the accused turning up unexpectedly as given in chief was quite incompatible with her earlier evidence which she was bound to acknowledge as being true.

16. She said that some time after his arrival she put the girls to sleep, and she also went for a sleep. The accused later gave evidence to the same effect, although he said that he helped in putting the girls to bed. It is common ground that at about 4.30 pm she came back out and an argument developed between them.

17. Ms Evans said that the accused was abusing her verbally and demanding to be driven back to his residence, which she refused to do. She said that the verbal abuse continued until she ran out of the house "to get to the neighbours to call the police" (T 21 line 5). She then described the incident that is said to amount to the first count on the indictment. It is appropriate to set out the evidence in relation to this allegation in full:

So you said you ran out of the house to go to your neighbours? --- Yes.

What happened then? --- Then Seth came out and ran after me across the road and he struck me down on the road. He - he tackled me like a footballer would. And then I was on the road ...

Just to stop you there. When he tackled you, which direction were you facing? --- I was facing with my head going across to the neighbours' because that was where I was off to and my feet were spread across the road.

And when the accused tackled you? --- Yes.

Where was he in relation to you?--- He was on top of me. And when I turned around and tried to kick him off with my left leg, but I couldn't.

...

You say he tackled you? --- Yes.

Is it the case that - well I withdraw that. Were you - did you remain standing when he tackled you? --- No, I was laying in the middle of the road and he was hitting me and punching into me.

And how was he doing that? --- In my back with his fist and he even ...

Now - sorry, just to stop you there --- Sorry.

Which fist was it? --- It would have been his right fist.

And how many times did he hit you with his fist? --- A number of times I can't remember. It would've been more than once but I can't remember how many it was. But I know it was more than one.

And whereabouts on your body was he hitting you with his fist? --- He was hitting me on my upper back. And then I turned over.

Just to stop you there. Are you able to say what time of day it was that that occurred, the tackling onto the road? --- Well it was around - well it was just getting dark.

Were the streetlights on at the time?--- I think they may have been.

How long did the hitting go on for? --- On the road, the hitting - for about five minutes and I tried to push him off and I got off ...

Just to stop you there. Apart from trying to push him off - well I withdraw that. How did you try and push him off? - I tried to kick him with my left foot, my left leg and I also tried to punch him with my hand, but it didn't work. It didn't help.

Which - you've indicated your right hand. Is that the hand that you used to try and punch him? --- No, it was my left hand because I was laying on my right side on the road and I had to use my left side, my left leg and my left hand.

When you were lying on your right side on the road - M'mm.

And the defendant was hitting you - in relation to you how was he positioned? --- He had gotton back onto his knees.

So in effect he was kneeling? --- Kneeling. He was kneeling.

When that was going on, what, if anything, did you say? --- I just called out. I called out for the police, I didn't say anything to him, I just said "Help, help someone get the police".

How long did you call out for? --- Probably about one minute, two minutes.

What happened then? --- And then he got off me. He called me a "drama queen" and then he got off and then I got up and I ran over to the neighbours and he walked up the street.

18. Ms Evans says that after being "tackled like a footballer" (T 21 line 22) and kicked and punched on the ground she began to yell for help, and the accused then got off her and walked away (T 22 line 44). This is of significance, because the only independent witness who claims to have witnessed an assault (as opposed to observing the accused and Ms Evans arguing in the roadway) claims that they heard the yells, and then observed the assault, which is inconsistent with Ms Evans' evidence.

19. Ms Evans says that the accused walked away at this point, and she ran to a neighbour's house and asked them to call the police. She then returned to her house. She says that she was in the kitchen with two phones in her hands when the accused "burst in" (T 26 line 24 ff), took the phones away from her and began abusing her. She says that he then picked up two knives that had been in a knife block on the kitchen bench (T 27 line 25) and approached her. She says that he then held a knife at her throat, and said "This is going to be an interesting night. I'm going to chop you up into little pieces and I'm going to bury you in the backyard" (T 29 line 20). She says that the knife left a mark on her throat, and that she was terrified. This is said to constitute the threat to kill.

20. She agreed in cross-examination that she knew this was a serious matter, that she told police what had happened, and that a specimen tape was placed on her neck and the area was photographed (T 79 line 24). Yet she maintained that the photograph of her neck was taken on the wrong side (T 79 line 35 ff and T 82 lines 15-20). She maintained that the injury to her neck was visible to police on the left side of her neck (T 82 line 20), but the forensic officers by mistake took a photo of the right side of her neck. She maintained that her neighbour, Lynette, saw the mark on her left side (T 79 line 44). When she came to give evidence, Mrs Lynette Boxall clearly stated that Ms Evans complained of the knife being held to the right side of her neck.

21. There was no medical evidence as to any knife marks on her neck from ambulance officers or any medical staff from the Canberra Hospital.

22. Ms Evans says that after this the accused "scarred my leg and drew blood on my leg" (T 31 line 7) and that he then "flicked" the knives down on the board (T 31 line 12) and walked back into the lounge room. The cut to her leg is said to constitute the charge of assault occasioning actual bodily harm.

23. Ms Evans then described a serious of assaults that are said to have occurred in the house before she exited and which are said to constitute the fourth charge of assault occasioning actual bodily harm. She says that she was dragged by the hair across the room and back again (T 33 line 30). She says that the accused was then on top of her pushing her head down several times onto the tiled floor (T 34 line 7). She described this also as "hitting" her head on the tiles (T 35 line 8). She says he then kicked her about three times (T 36 line 20). He then left, and as she heard the car going, she says she ran out of the room and over towards her neighbours' house.

24. She said that as she was running across the road an unknown man whose car was parked by the neighbours' house took her children "and gave them over to me". No one was able to identify this person, who did not give evidence (T 37 line 30). In any event on this version he would not have seen any of the alleged assaults. Ms Evans then gave evidence of her fears as the car drove over the Bradfords' lawn, but this is not the subject of any charge.

25. These are allegations of a very serious assault. Ms Evans conceded in cross-examination that at the time of the incident she would have been about five foot three inches and weighed about 47-48 kilos, and that the accused was around six feet tall, and weighed over twice as much as she did. The allegation is that the accused rugby tackled her onto a bitumen road and then hit and kicked her for some minutes. Photographs in exhibit 1 showing bruising to her back were identified (T 90 line 4) as being caused by the later assaults, being the assault occasioning actual bodily harm. In cross-examination Ms Evans was unable to explain why there were no other injuries caused by this incident, although she did say that there were grazes which were not shown in the photographs.

26. In later cross-examination going to the presence of a cut to her leg, it was put to Ms Evans that the clothes in which she was photographed showed no signs of being cut, although she said that those were the clothes she was wearing at the time of the incident (T 94 line 22). When pressed about this, her evidence was that at the time of the knife incident and at the time of the first incident, she was wearing only a dressing gown over her underwear (T 94 line 37). She said that she was in her dressing gown until after the police arrived, and that she then went and changed while her neighbour watched her children (T 96 line 22). It would follow from this that the tackle onto a bitumen road, where she was then lying on the road being struck by this much bigger man occurred when she was only wearing a dressing gown, and yet there is no evidence of injuries sustained, in what is charged by the Crown as a common assault only. None of the neighbours gave evidence of Ms Evans changing from a dressing gown to the clothes in which she is photographed in, and to the extent that they could describe her clothing, it was consistent with her clothes in the photograph.

27. There were no expert medical reports, nor indeed any medical evidence at all, as to the nature of the injuries said to have been sustained in the first count or any of the allegations of assault.

Mr Kevin Bradford

28. Mr Kevin Bradford is a neighbour who resides diagonally across the road from Ms Evans. He says that on the evening at about 5 pm he heard a noise by way of "shrill screaming" (T 123 line 10) and looked out of the window and saw "Seth and Merris arguing in the middle of the road". He said that "She was on the ground and Seth was standing over her" (T 123 lines 18-24). He said that he only looked for a couple of seconds and then closed the curtains.

29. He said that he asked his wife to call the police, and that Ms Evans then came to the door and asked them to call the police. He said that some time later the accused came to the door and said words to the effect of "Do I know where he's coming from" (T 125 line 8). Mr Bradford said that he did not understand this comment, and said that the accused then left.

30. He then gave evidence of seeing the four-wheel drive in the front yard, which then left, and of Ms Evans attending the house.

31. In relation to the alleged assault, Mr Bradford only said that he saw the two persons arguing on the road, which is consistent with both versions of what occurred on the evening. Counsel for the Crown quite properly conceded that this evidence was neutral in this regard.

Mr Jeffrey Bradford

32. Mr Jeffrey Bradford is the 16 year old son of Mr and Mrs Bradford. He said that he heard a scream and looked out of the window, and saw "Merris and Seth in the middle of the road" (T 134 line32), and that "Seth was holding Merris by the back of the head" (T 134 line 35). Again, it seems to me, this evidence was neutral, in that it is consistent with both versions of an argument on the road.

33. He also gave evidence that he saw the accused get into the four-wheel drive later that evening, and drive the vehicle over the lawn. He insisted that the garage door was open and he observed the accused enter the vehicle (T 143 lines 10-14). This is in conflict with the accused's evidence that the garage door was closed, and that he opened the door when he was in the vehicle using the remote opening device.

34. Counsel for the Crown also made the proper concession that Mr Bradford's evidence going to the first allegation of assault was neutral, as he only really observed an argument on the road, which is consistent with both versions.

Mrs Joanne Bradford.

35. Mrs Bradford was the only witness who gave evidence of observing any actual assault by the accused on Ms Evans. She says that after hearing screams she looked out the window and observed the accused "hitting" Ms Evans. She says that they were both standing, and she observed him hit her "probably about twice" (T 153 line 33).

36. In cross-examination, Mrs Bradford adopted a very hostile tone with Mr Thomas. All the other witnesses generally agreed that at the time of these events the light was failing, but it was still possible to see. Mrs Bradford seemed to adopt a hostile tone from the point at which Mr Thomas took her to earlier evidence in the committal proceedings in which she had agreed that it was getting "darkish". She later asserted that the sun was still above the mountains at the time of her observations (T 182 lines 23-37), even in the face of a document showing that official sunset for the date was some 6 minutes past 5. The hostile and non-cooperative tone is apparent from the transcript from about page 163 onwards and culminates with repeated answers of "I don't know". As the time for the adjournment approached, Mrs Bradford said that she wanted to go as "I've had enough here". I explained that she would be required to attend to complete her cross-examination, and her response was that "you might have to lock me up". She then left the court in an apparently angry state.

37. After she left the court I raised with counsel her unusual attitude and her indication that she did not wish to cooperate further. I said that it would be very helpful if the Crown was in a position to know what attitude she was going to take at the resumed hearing, and requested that they let Mr Thomas know as soon as possible. It emerged on the resumed hearing that Mrs Bradford, on leaving the court, went to the office of the Director of Pubic Prosecutions to claim her witness allowance and that as she was leaving Mr Clark, for the Crown and Ms Kent (the instructing solicitor) were returning and they requested that she speak with them. Although some criticism was made of this by Mr Thomas, it seems to me that they were acting not only with propriety, but in accordance with my request that they ascertain her attitude to communicate this to both the Court and Mr Thomas.

38. The meeting assumes some importance, because on the resumed hearing Mr Thomas asked Mrs Bradford whether she had been told that she was an important witness, and she denied this, as well as denying that she had been told that as she was an important witness the accused could not get a fair trial if she did not attend (T 188-189). I am in fact satisfied that Mr Clark did, properly, tell Mrs Bradford this and this was recorded in a file note made by Ms Kent and provided, properly, in the unusual context of the course of Mrs Bradford's evidence, to Mr Thomas.

39. I was left with considerable and grave doubt as to Mrs Bradford's veracity as a witness due to her attitude in cross-examination and her hostility and resistance to acknowledge clear issues. I note also that she acknowledged that she had been in Ms Evan's presence at the hospital when the police took a statement from Ms Evans (T 205 line 5). To this extent, she was fully aware of allegations made by Ms Evans.

40. I note also that Mrs Bradford's evidence was of hearing yells, and then observing an argument with both the accused and Ms Evans standing, and the accused hitting Ms Evans. The version of events given by Ms Evans was that she had been tackled on the road and brought to the ground, and that the punching occurred while she was on the ground and the accused was standing above her. So the evidence of Mrs Bradford is inconsistent with this.

41. I should observe that Mr Clark made the proper concession that I should approach this evidence with some caution. Mr Thomas, understandably in the face of the nature of the cross-examination, made the submission that I should reject Mrs Bradford's evidence altogether.

Mrs Jacqueline Dennison.

42. Mrs Dennison is another neighbour. She says that she was cleaning her house and heard some screaming (T 211 line 7) and looked out and saw the accused and Ms Evans standing on the road arguing. She said that they were standing very close, and Ms Evans was yelling "don't come near me, don't touch me" (T 212 line 1). She agreed that the sun had set but it was still daylight (T 214 line 40).

Mrs Lynette Boxall

43. Mrs Boxall is another neighbour. She did not see any disturbance on the road, but apparently was told something by Mr Bradford (T 216 line 37). Mrs Boxall has a senior first aid certificate and says that she sought to provide assistance to Ms Evans, who was in a distressed state. She said that she had been told by Ms Evans about being pulled about the room by the hair and having her head hit on the tiled floor. She examined Ms Evans' head and observed a lump (T 219 line 7). This is the only evidence of any injury to her head. Mrs Boxall also said that she was told about a knife being held to Ms Evans' throat, and that Ms Evans pointed to the area where this had occurred. She said "The right side was very red, and I noticed a small white indentation where she was pointing when she said "he had the knife to my throat" (T 219 line 14). This is significant because in cross-examination Ms Evans sought to assert that the police had been somehow mistaken in photographing the right side of her neck, when she said that the knife was held to the left side.

44. She had some memory of Ms Evans wearing the clothes in which she was later photographed when she first saw her in the lounge room (T 225 line 38).

Constable Power

45. Constable David Power gave evidence that on the evening of the incident he was directed to attend premises in Hackett, being Samaritan House, and that when he arrived he noticed the white Landcruiser parked "out the front of Samaritan House" (T 231 line 37). He then had a conversation with the accused.

Constable Michael Patching

46. Constable Michael Patching gave evidence that he conducted a record of interview with Ms Evans at the Canberra Hospital and that during this record of interview Mrs Joanne Bradford was in attendance (T 234 lines 10-15).

Mr Seth Evans

47. The accused gave evidence in his own defence case. I would of course give a jury the appropriate direction that there is no onus on a defendant to prove anything, and that a person charged with a criminal offence is under no obligation to give any evidence.

48. I also made the observation that in his evidence-in-chief he described the incident in the kitchen where he says that Ms Evans approached him in a threatening manner with the knives and he struggled with her and pushed her to the ground. He said "and she lost her balance and she was on the ground, and I spun right out about that. I've never done anything like that in my life, Your Honour" (T 247 line 30).

49. Again in cross-examination when the violence he was said to have inflicted was put to him he said, "I don't do that sort of stuff" (T 274 line 5). It seemed to me that the accused was in effect putting his good character into evidence as being a person who does not engage in acts of violence towards a domestic partner. I clarified this with counsel, and they were both of the understanding that this was the case. Mr Clark did not put any prior criminal record in relation to violence to the accused, although the accused did acknowledge that he had on a prior occasion done some damage to a door.

50. It seems to me that the accused would accordingly be entitled to a clear direction in relation to having put his character into evidence, and there being no prior criminal convictions put, the jury would be entitled to consider the improbability of his having committed the offence alleged.

51. The accused gave his evidence in a clear and controlled manner and impressed as being truthful. He made what appeared to me to be appropriate concessions and at some points clearly confused certain aspects of the chronology of events of the evening, but in a manner consistent with error and lack of rehearsal.

The directions to be given

52. I would give a jury, and would give myself, the standard directions as to burden and standard of proof, modified by the direction going to the accused choosing to give evidence and the fact that he had put evidence of his character. I would remind the jury that questions of fact were theirs to determine and that, for the Crown to succeed, they must be satisfied beyond reasonable doubt of all of the elements of each offence. I would remind them that, if at the end of the day, they could not say that they did not have a reasonable doubt, even if there was a grave or heavy suspicion, that would not be sufficient to convict. I would remind them that, as the accused has given a version of events consistent with innocence, the Crown must disprove this hypothesis.

53. In relation to the elements of the offences, I would give directions as to threat to kill, assault occasioning actual bodily harm, and dishonestly taking a motor vehicle.

54. I would say that, on the version of the facts alleged by the Crown, they could be satisfied that the elements of the first four offences were made out. I would say that, on the version of events given by the defence, there was no assault or threat to kill as alleged in counts one, two and four, and that the incident described by the accused when he says he forced Ms Evans to the ground, and incidentally into cupboards or shelves as he was cross-examined as to the mechanism of the struggle (T 272 lines 15-20) was, although amounting to an assault in that it involved a non-consensual infliction of force to the person, justifiable self-defence as it was, on his evidence, for the purpose of disarming Ms Evans.

55. At the end of these directions I would consider the evidence. I am of the view that I would be left with a reasonable doubt, and would acquit on all counts. Given the clear difficulties with Mrs Bradford's evidence, the factual question of what did happen essentially comes down to the evidence of Ms Evans and the accused. Ms Evans was most reluctant to make any concessions in cross-examination, and was quite inconsistent as to certain matters when pressed, such as the side of her neck at which she says the knife was held, the clothing that she was wearing and as to whether there was a prior arrangement for the accused to visit.

56. Aspects of her evidence were so extreme that they were difficult to accept and reconcile with the evidence of the injuries sustained. Her description of being rugby tackled to the road, with the accused then kicking and punching her from on top, while only wearing a dressing gown over undergarments, seems hard to reconcile with the injuries photographed. She acknowledged that the accused is much taller than her, and is twice her weight. I am of the view that there remains a reasonable doubt as to the elements of the first count on the indictment, as the hypothesis put forward by the accused, that there was an argument on the road but no violence, is consistent with the independent witnesses, and has not been refuted in the Crown case.

57. In relation to the second, third and fourth counts, I am also left with a reasonable doubt as to whether the accused threatened her with the knife, assaulted her with the knife by way of leaving a mark on her neck and a cut on her leg, and engaged in a long process of dragging her around the house and striking her head on a ceramic tiled floor. I again would be left with concerns at the extent of the violence described and the lack of any real evidence of injuries, save for Mrs Boxall's evidence of observing a lump on her head. I would be left with a real doubt as to whether the accused could have dragged her around a room and repeatedly beat her head on a hard floor, given their respective strengths, and not leave any real injuries. I would be left with a real doubt about the knife to the throat incident given that Ms Evans maintained in cross- examination that the police photographs of her neck were to the wrong side, whereas Mrs Boxall was clear that the complaint and the redness and mark that she saw was to the right hand side, which was as photographed.

58. I would be concerned that there was no real medical evidence as to the nature of the injuries sustained which, according to the photographs and Mrs Boxall's evidence, would be equally consistent with the accused's version of a struggle for the knives.

59. I would be troubled by Ms Evans' evidence that after threatening her and cutting her with the knives, the accused threw or "flicked" the knives into the knife block. The accused said that after Ms Evans dropped the knives he recovered them so that they would not be a danger to the children, and pushed them into the knife block. They are photographed both standing upright pushed into the wood of the knife block in the photographs. The accused in cross-examination said that it would have been a "circus trick" to have thrown the knives with such precision, and I would be troubled by this.

60. I would have a reasonable doubt as to counts 2, 3 and 4, and would acquit.

61. In relation to the final count, of taking the motor vehicle, I would give a warning to myself in relation to uncharged acts. A number of the witnesses gave evidence about the vehicle being driven across the lawn of the Bradfords' residence in what they took to be a threatening manner towards Ms Evans. The accused said that he was annoyed as he drove the car, and knew that he was driving it over their lawn, but denied that he knew that Ms Evans was on their premises at the time. He has clearly not been charged with any such offence.

62. He has been charged with taking the vehicle dishonestly and without consent. He clearly took the vehicle, and his defence was that he believed that it was still a family vehicle, and that in the context of the relationship he was entitled to use it.

63. I note that Ms Evans was cross-examined extensively on this point, and she acknowledged that over the years the relationship had been off and on, and that he had always used the car as a family vehicle. Although she maintained that she had made it clear to the accused that he no longer had consent to use the vehicle, it was put to her that, "Whenever the relationship changed, that when one party moved out, the issue about the car simply lies there. That is, nothing is ever done about the car, the car is still the family car. That's correct isn't it?". To this she replied, "Well, it depends on which way you look at it" (T 65 line 45). The accused's evidence was precisely to this effect, that he still believed that the relationship could be ongoing, and that the implicit approval to take the vehicle was still there. I note that the vehicle was parked in plain view outside the premises of Samaritan House when the police attended that evening, which would seem inconsistent with a dishonest or furtive taking.

64. I would at the end of full consideration of the evidence in relation to the vehicle, be left with a reasonable doubt, and would acquit on this count.

65. The result is that I would be left with a reasonable doubt in relation to all counts, and would, in accordance with my duty, and the duty that I would direct the jurors to, enter a verdict of not guilty in respect of all counts.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 16 February 2007

Counsel for the Prosecution: Mr M Clark

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Defence: Mr R Thomas

Solicitor for the Defence: Mr Paul Edmonds

Dates of hearing: 29 and 30 January 2007 and 6 and 7 February 2007

Date of judgment: 16 February 2007