PARTIES: MARIE ALCOCK
v
CHRIS SULTAN SAFFOURY
TITLE OF COURT: Court of Summary Jurisdiction
JURISDICTION: Domestic Violence Act
FILE NO: 20508581
DELIVERED ON: 17 November 2005
DELIVERED AT: Darwin
HEARING DATE(s): 24 August, 8 September & 21 October 2005
JUDGMENT OF: Mr V M Luppino
CATCHWORDS:
Domestic violence – Application for a restraining order.
REPRESENTATION:
Counsel:
Applicant: Ms Hughes
Defendant: In person
Solicitors:
Applicant: NTLAC
Defendant: Not represented
Judgment category classification: C
Judgment ID number: [2005] NTMC 073
Number of paragraphs: 44
IN THE COURT OF
SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20508581
BETWEEN:
MARIE ALCOCK
Applicant
AND:
CHRIS SULTAN SAFFOURY
Defendant
REASONS FOR DECISION
(Delivered 17 November 2005)
Mr V.M LUPPINO SM:
1. This is an application for a restraining order pursuant to section 4 of the Domestic Violence Act (“the Act”). The parts of that section of the Act relevant to the current proceedings are set out hereunder:
4. Restraining order
(1) Where, on an application made in accordance with subsection (2), the Court or the Clerk is satisfied, on the balance of probabilities –
(a) that the defendant –
(i) has assaulted or caused personal injury to a person in a domestic relationship with the defendant or damaged property in the possession of that person; and
(ii) is, unless restrained, likely again to assault or cause personal injury to the person or damage the person's property;
(b) that the defendant –
(i) has threatened to assault or cause personal injury to a person in a domestic relationship with the defendant or threatened to damage property in the possession of the person; and
(ii) is, unless restrained, likely again to make such a threat or to carry out such a threat;
(c) that –
(i) the defendant has behaved in a provocative or offensive manner towards a person in a domestic relationship with the defendant;
(ii) the behaviour is such as is likely to lead to a breach of the peace including, but not limited to, behaviour that may cause another person to reasonably fear violence or harassment against himself or herself or another; and
(iii) the defendant is, unless restrained, likely again to behave in the same or a similar manner,
direction under section 20AB, the Clerk, may make an order in accordance with subsection (1A).
2. The matter commenced by application dated 13 April 2005. The Applicant initially sought and was granted an ex parte order. The matter was set for a hearing after a summons to show cause was served upon the Defendant. The application is based on one allegation of an actual assault as well as a plethora of allegations of behaviour capable of being collectively described as provocative and offensive behaviour as that term is used in section 4 of the Act.
3. The Applicant and Defendant were in a relationship from approximately February 2002 until June 2004. Although there is some dispute about this, for some of that period the parties lived together as de facto partners. The Applicant says that this was for a six month period from June 2003. The dispute as to the duration of the cohabitation is a peripheral matter only. It is clear, and this was not disputed by the parties, that they were in a domestic relationship within the meaning of section 4 of the Act. I so find. I do not think that anything at all turns on the difference in the recollections of the parties as to the length of the period of cohabitation. I am convinced that any disagreement in this context is as a result of a genuine error on the part of either or both of the parties and that nothing turns on that.
4. It is also undisputed that when the parties separated in approximately June 2004, the Defendant went and lived in Sydney returning to Darwin on or about 6 February 2005, which co-incidentally was his birthday. The Applicant alleges that the events leading to her seeking an order under the Act have occurred since the Defendant’s return to Darwin on that date.
5. In summary form the allegations which the Applicant makes and claims to found the qualifying behaviour required by section 4 of the Act is as follows:-
(1) Per the generalised and abbreviated summary in paragraph 3 of the Applicant’s affidavit sworn 13 April 2005 (in evidence as Exhibit 1)
“Following our separation around June 2004, Chris went to stay with his family in Sydney. He returned to Darwin on or about 6 February 2005. From the time he returned to Darwin, he has been continuously harassing me by ringing and text messaging me on my mobile in order to force me into reuniting with him. I have told him numerous times that I do not want to continue our relationship and do not want him to contact me. Despite this, Chris has been ringing and text messaging me on my mobile phone on a daily basis, sometimes more than ten times per day. A number of times when I did not answer my phone, Chris rang and attended Flight Centre at Palmerston where I work.”
(2) On 14 February 2005 (Valentines Day) the Applicant alleges that the Defendant unexpectedly approached her in the shopping centre where she worked. She says he was angry. She said she agreed to have lunch with him and that throughout the lunch the Defendant was pressuring her to resume their relationship. The Applicant claims that she repeatedly told the Defendant that the relationship was over, requested him not to contact her and returned a ring he had given her during the relationship.
(3) After the lunch referred to in the preceding sub-paragraph, the Applicant claims that the Defendant followed her back to her office and out to a back room of the office, an area which is not a public area. She claims that the Defendant persisted in pressuring her to resume the relationship.
(4) On Thursday 24 March 2005 the Applicant says that the Defendant was observed sitting at a table across from her workplace. She claims that the Defendant kept her under observation for at least two hours but did not speak to her, nor approach her.
(5) On Wednesday 30 March 2005 the Applicant claims that the Defendant continuously rang her mobile while she was at work. She did not answer her mobile phone and then claims the Defendant rang her work number a number of times. Each time she managed to have another staff member take the calls and she did not speak to the Defendant.
(6) On the same day at around 6pm, when the Applicant walked to her car, she observed the Defendant standing near it. She said that he was angry and chastised her for about thirty minutes. She says that when she unlocked her car the Defendant got into the front passenger seat. Claiming that she felt scared of him and in order to calm him down, the Applicant says that she agreed to drive him into town but that she told him thereafter she wanted him to leave her alone and not to call her.
(7) On the same day the Applicant claims that when she got to town the Defendant became angry when she indicated that she would not call him as he then requested. She claims that he then became very angry, threw a drink can he had out the window and slapped her. She says that she got out of the car, as did the Defendant, but he took her mobile phone and car keys with him.
(8) The applicant says that she then went to the Defendant’s unit and enlisted the aid of his house mate, Jamie Coonan. She said that she asked Coonan to speak to the Defendant and to retrieve her keys. She says that Coonan then sought out the Defendant but came back saying that he was “too wild” and that he was unable to retrieve the keys.
(9) The Applicant says that she then decided to again approach the defendant to get her keys. She says that the Defendant again refused and only agreed once she promised to call him the following Friday as above. Despite that, it still took one hour. She claims the Defendant taunted her with her keys and that on four occasions when she tried to grab them, the Defendant would twist her arm back.
(10) On Thursday 31 March 2005, (the Applicant actually said 1 April 2005 in her affidavit but I am satisfied that is an innocent error), the Applicant says that there was one missed call from the Defendant on her mobile. She says that she changed her mobile phone number on the next day (Friday, 1 April 2005). She says that between 3pm and 4pm that day she observed the Defendant walking near the shops opposite her work. She claims that the Defendant sent a text message to her on Saturday 2 April 2005 but she did not return his call.
(11) The Applicant also alleges that although the Defendant might not then have known where she lived, he has been seen walking around the suburb of Bayview searching for her. She suspects that he believed she then lived in that suburb.
6. Additionally a number of allegations have surfaced at and since the first mention of the matter at Court on 22 April 2005. These are:-
(1) The Applicant claims that at Court on 22 April 2005, the Defendant, through the court bailiff, gave her a photo album. Apparently the Defendant had also asked the bailiff to pass a letter on but the bailiff refused to do so. The Applicant says that the photo album contains some photos of her and the Defendant during the relationship including a photo of her topless.
(2) She claims that at the conclusion of the mention on 22 April 2005, the Defendant followed her and her solicitor out of the court room and waited in the foyer. She claims that he was staring at her. Later she claims the Defendant made a request, through the Applicant’s solicitor, to speak to her. The Applicant then felt the need to have a police officer escort her out of the court building.
(3) The Applicant claims that sometime after that, she discovered her car window had been forced on the passenger side. A few days later she found a ticket stub from the London underground which she had not seen previously. She says that she and the Defendant took a trip to London and used the underground during that trip. She suspects that the Defendant placed that there. Other than that suspicion, there is no evidence to connect the Defendant to that incident.
(4) At the next Court mention on 3 June 2005 the Applicant claims that, through her solicitor, the Defendant requested to speak to her to attempt to resolve the matter. She claims that her solicitor was told by the Defendant that he had “things” to show the Court that would humiliate her. The Applicant says that she declined the request. She claims that the Defendant sat close behind her in court on that occasion.
(5) On the next mention on 8 June 2005, the Applicant claims that when she entered the court room and sat in the public area, the Defendant, who had been sitting well away from where she eventually sat, moved and sat closer to her and that she felt intimidated by this.
(6) On the next mention of the matter on the 8 July 2005 she said that while the Defendant was sitting at the bar table and waiting for the Court to resume, he turned and looked straight at Jamie Coonan, who was then sitting immediately next to her, gesturing with a CD and that he said “happy memories”. The Applicant said that she felt that this was directed at her and that the Defendant looked straight at Coonan only to avoid any suggestion of a breach of the order.
7. The last mention of this matter in the court before the actual hearing commenced was on the 8 July 2005. At that time it appears that a resolution of the case was apparently reached on the basis that the Applicant would withdraw the application, would give an explanation of her reasons for seeking an order and the Defendant would give a formal undertaking in terms of the orders sought. It appears odd that the Defendant would require an explanation before resolving the matter. I would have thought that the reasons she sought an order were evident from the documentary material. Nonetheless, the Applicant gave her explanation simply saying that she sought an order because the Defendant had hit her and that she did not want anything further to do with him. In what appears to be quite a farcical charade on the part of the Defendant, he then refused to accept the explanation and refused to give the undertaking. The matter was thereupon set for hearing. It is quite clear from the court file that Mr Bradley CSM, who presided at Court that day, was under the impression that the matter had otherwise been resolved on the basis described.
8. The Applicant also testified as to matters going to the mental state of the Defendant. She claims that the Defendant suffers from mental instability and depression and that on one occasion (around October 2003) the Defendant was admitted to Cowdy Ward. She says that around that time he was very aggressive towards her as well as to other persons. Extracts of the Defendant’s patient notes at the hospital, produced on subpoena, were put in evidence. Relevant extracts are:-
REASON FOR ADMISSION: Brought in by Police. Had stopped the car by the fruit & Veg cart near Palmerston. Picked up the Fruiterer’s large butcher’s knife and started to get aggressive. Refused to put knife down. Chased fruiterer and his 2 young daughters into the bush.
PROGRESS WHILST IN HOSPITAL: Initially in JRU. Was given droperidol on first night and it took 7 men to hold him down. Settled within the week and was transferred to Cowdy and then extended ONL attending Cowdy during the day.
9. Some evidence of convictions of the Defendant for criminal offences was also put in evidence. The Applicant claims that during the relationship, the Defendant told her that he had been convicted of an offence involving rape, that he was and that he served a prison term for that offence. She said that the Defendant denied that he was actually guilty despite the finding. She says that the Defendant told her that he managed to serve the bulk of the sentence in less onerous circumstances in a psychiatric ward by pretending that he was mentally ill at the time. Some admissions (see paragraph 34) were made about this by the Defendant in his evidence.
10. Cross-examination of the Applicant by the Defendant was quite revealing. It was telling to note the smiles, smirks and intimidating looks incessantly directed at the Applicant by the Defendant. I contemplated the use of section 20AD of the Act enabling me to have an unrepresented Defendant, as was the case here, direct questions in cross-examination through the bench. The Applicant was willing to proceed as normal and I allowed that. However, I warned to the Defendant about his conduct and specifically on more than one occasion, I told him to ask his questions without smiles and smirks. That conduct however persisted despite my directions and warnings. It persisted right through to the time he made his closing submissions.
11. A number of interesting matters were revealed in cross examination of the Applicant. These were of interest for varying reasons. I set these out below. The first few were of interest as they are actions which were somewhat inconsistent with the Applicant’s apparent wish to end the relationship and they were all matters which the Applicant omitted in her evidence in chief.
(1) The Applicant conceded it was possible that she may have sent a text message to the Defendant on his birthday, which was 6 February 2005, the date that the Defendant returned to Darwin from Sydney.
(2) The Applicant agreed that she picked the Defendant up from the airport when he returned from Sydney on 6 February 2005.
(3) The Applicant agreed that after she picked the Defendant up from the airport that she and the Defendant stopped, talked, hugged and kissed on route, that they then drove around, that he stayed with her that night and that they then had sexual relations.
(4) The Applicant agreed that in the next few days she picked the Defendant up from where he was staying, that they went shopping together, that later they went to the beach where they chatted amicably, kissed and hugged.
(5) When questioned as to the number of times she claims that the Defendant called her at work, she said three to four times. This is in sharp contrast to her affidavits where she said that there was an occasion where he called approximately ten times in the one day.
(6) The Applicant agreed that she went to Africa for work purposes late in February 2005 and agreed that on her return that she telephoned the Defendant to tell him about a very distressing incident that occurred during that trip. She denied however that the Defendant had to comfort her on the occasion which followed where they got together to discuss the incident. This is of interest as I query why she would do this if she did not want the relationship to continue as she claims. On the evidence this must have occurred after Valentines Day, the day the Applicant claimed she repeatedly told the Defendant that the relationship was over and requested that the Defendant not contact her (see subparagraph 5(2) above).
(7) Although denying the suggestion that the slap referred to in her evidence was an “accidental nudge”, the Applicant agreed however that that incident was the first and only time that she alleges the Defendant hit her.
(8) In relation to the events of 30 March 2005 (referred to in sub-paragraphs 5(5)-5(9) above), the Defendant put that the occasion was a “happy” one and that he was only being “playful”. The Applicant would not accept this. Likewise the Defendant put that the can of drink was only thrown as a joke (although later in his evidence in chief he said that it was thrown out normally and because he had consumed its contents). The Applicant refuted that saying that it had been thrown with a lot of force.
12. Apart from some events which, dependant on the timing could arguably be said not to not fit well with the Applicant’s claim to wanting to have ended the relationship, the Applicant was unshaken and remained consistent in cross examination. This was despite very taxing, incessant and often tedious questioning, often on apparently on important issues. The Defendant went through the Applicant’s affidavit paragraph by paragraph and questioned her in relation to almost every aspect of it.
13. Two of the Applicant’s fellow employees were called to give evidence. The first was Narelle Piper. Her evidence in chief comprised her affidavit sworn 6 July 2005 which became Exhibit 3. She knew the Defendant independently of the Applicant. Her evidence was simply to confirm that sometime in late March or early April, she saw the Defendant sitting at the Subway outlet opposite the workplace of the Applicant, that he was not eating any food at the time, that he was just sitting there facing the direction of the workplace. She also confirmed something which the Applicant also said in her own evidence namely that the Defendant often called the Applicant at the workplace. She recalled one specific occasion where the Defendant asked her to tell the Applicant that it was someone else, because, as the Defendant explained “she won’t talk to me if she knows it’s me”.
14. She also confirmed that sometime in early April, the Applicant came to work upset and had said how the Defendant had jumped into her car, taken her mobile phone and grabbed her while he was talking to her. She also said that the Applicant had told her that she had driven the Defendant to his place as he would not give her back her phone and that he held on to it until early the next morning.
15. The second work colleague called was Samantha Brabazon. Her evidence in chief comprised her affidavit sworn 6 July 2005 which became Exhibit 4. She simply confirmed seeing the Defendant at the workplace on Valentines Day 2005. She said that on that day she also noticed the Defendant follow the Applicant into the back room of the workplace and she confirmed that the back room was not an area open to the public.
16. She also stated that sometime before April 2005, she noticed the Defendant sitting on the Applicant’s car in the car park at the workplace. She also confirmed that, sometime after this, she saw the Defendant walk past the workplace and the Applicant became upset when told of that.
17. Cross examination of both of these witnesses achieved nothing. Neither was shaken in their evidence, nor was there any real challenge to their evidence as to relevant events. In the end, as their evidence in chief was in affidavit form, their attendance could have been dispensed with.
18. That concluded the case for the Applicant. The Defendant then gave evidence. He confirmed that on his return to Darwin on 6 February 2005 that the matters he put in his cross examination of the Applicant (refer sub-paragraphs 11(1) to 11(4)) had occurred.
19. He had a different recall to that of the Applicant in relation to the events occurring on Valentine’s Day (see sub-paragraphs 5(2) and 5(3) above). He said that on that day he and the Applicant had lunch together but he said that the Applicant offered him a lift back into town and that they went out to dinner that evening at a Thai restaurant. He said they had “a great night”.
20. Although there was some common ground with his version of the events occurring on 30 March 2005 and with the version of events of the Applicant (subparagraphs 5(5) to 5(9)), the Defendant said that those events occurred on an occasion when he and the Applicant had earlier had lunch together at the Duck’s Nuts. As he described it, this must have been after the Applicant’s return from Africa because he said that on that occasion the Applicant described the distressing event that occurred during that trip. Leaving aside that temporal discrepancy for the moment, the Defendant however said that he took her mobile phone as a joke and that he gave it back to her after about fifteen minutes. He said that this occurred while they were walking back from the Duck’s Nuts to his home. For a reason which was not clear, he claims that he and the Applicant walked back to his home despite the fact that the Applicant’s car had been parked at Duck’s Nuts. Curiously, he said that they then walked back to Duck’s Nuts, got the Applicant’s car and that she then drove him back to his home. He said that on their arrival at his home another girl, Erin, was waiting for him and that the Applicant became jealous. Despite that, he said that he and the Applicant then parted company amicably, and that he asked her to call him on Friday about retrieving his bicycle which had apparently been left at the Applicant’s mother’s home.
21. He said that he called the Applicant on the following Thursday when he did not hear from her and that he was surprised that she had not called him. Given that he was not expecting a call from her until the Friday, it is unclear as to why he should have been surprised by the absence of a call or why he felt the need to call her before the Friday.
22. In relation to the allegation of the slap, the Defendant maintained that they were only playing around. He insisted that the Applicant was playfully climbing all over him. He denied slapping her. He said that all he did was nudge her away playfully when she came at him. He claims that she was laughing at the time. He said that this occurred during their walk back from Duck’s Nuts.
23. The Defendant’s evidence on this became even more confusing when he then claimed that the occasion he had just described in his evidence was in fact not at the time that he had said but had occurred at another time. It was not clear whether he was referring to an earlier or a later occasion. He agreed that on that occasion he was upset for separate personal reasons and not at, or because of, the Applicant. He said that he and the Applicant went out to the Hogg’s Breath Café. None of that had been put to the Applicant.
24. He said that nothing in the Applicant’s two affidavits were true. He claimed that the Applicant had bad-mouthed him to her work colleagues for a period of over eight months. He did not put this to Piper. He did put this to Brabazon but she had not worked with the Applicant for as long as that period. She said she was unaware of any instance of the Applicant speaking ill of the Defendant as he suggested.
25. At this point the Defendant made a ridiculous assertion namely that the Applicant somehow had planned to take out a restraint order all along. He asserted that this was her way of letting the world know that she was now available! Later in evidence he claimed that the Applicant was obsessed with him and it was she that wanted to restore the relationship, not him. He denied that the Applicant was scared of him. These later assertions are an unlikely scenario to say the least and entirely inconsistent with my impression of the Applicant or the evidence overall. They are quite frankly, ludicrous. Another ridiculous assertion occurred when the Defendant was insisting the Applicant was enjoying herself when he was being playful with her phone and keys. He ventured a theory that the reason why the Applicant claimed otherwise was not so much that she did not want to be in a relationship with him but that she knew that she would have too much of a good time if she remained with him and that she could not handle that. I thought that was an extraordinary claim. He then went on to say that the Applicant wanted a relationship with him but that she, knowing that he did not want a relationship, the application for a Domestic Violence Order was in some unexplained way, her way of dealing with the situation!
26. I was most unimpressed by the gratuitous attempt made by the Defendant to demean the Applicant. In her evidence the Applicant had referred to being in her “office” on one of the occasions when the Defendant was alleged to have been stalking her. This is quite an innocent and generalised description of her workplace, yet the Defendant chose to point out that the Applicant does not have an office and that she only works at a counter. He added that she was lying about having an office and was attempting to “big note herself”.
27. Some cross examination of the Defendant was directed at attempting to reconcile his rather confusing evidence as to the sequence of events after his return to Darwin from Sydney. That partly assisted but did not fully resolve that confusion. I thought the questions were put logically, fairly and in a way that was easy to follow. However, that did not manage to resolve the uncertainty. I formed the view that the Defendant was evasive in his answers and I suspect that he was deliberately attempting to confuse the position.
28. Overall the Defendant was very unimpressive and particularly in cross examination. I thought it was particularly telling that when it was put to him that he had rung the Applicant many times on her birthday on 26 March, he said that he could not recall, all the while with a big mischievous smirk on his face. He was not only unconvincing but it suggested that he was not taking his evidence seriously and was being coy.
29. More relevantly, he was inconsistent in his answers to questions in cross examination. On more than one occasion he claimed that he was not sure of events that he had earlier either agreed with or denied with comparative certainty. He even denied a matter which he himself had put to the Applicant in his cross examination of her. When this was pointed out, he attempted, very unconvincingly, to retract or qualify his answer.
30. Nonetheless, when pressed, he seemed to agree on some of the events which coincidentally the Applicant said occurred on the occasion when she claims to have been slapped. For example, he ultimately agreed that he had taken the Applicant’s phone and or keys and had walked to the vicinity of the Asti Hotel. He conceded also that Jamie Coonan came to him. These concessions themselves are inconsistent with the Defendant’s description of the events occurring at that time (see paragraphs 20 and 23 above). It was put to him that this was the same day that he had laid in wait at the Applicant’s car in the car park. Although he agreed with that proposition he refused to accept that it was the day he had sat in the car which was also the day he had thrown the can of drink. Although admitting that he threw the can of drink he maintained that was not in anger but because he had consumed the contents. He denied being angry because the Applicant had indicated an intention to terminate the relationship and he denied that he slapped her on that occasion. He agreed however that this was the same occasion as when he said he accidentally nudged the Applicant.
31. The Defendant’s answers to questions in cross examination of the events occurring since the making of the ex parte order were entirely unconvincing. His denials of behaviour which, in my view, was clearly intended to intimidate the Applicant were hollow and unconvincing. This was particularly so in relation to the occasion referred to in sub-paragraph 6(6) above. He initially claimed that the CD in question only contained video of himself and Jamie Coonan but shortly afterwards conceded that the Applicant was also in the video. When asked whether the CD was in his possession at the time for use in court, he conceded that it was not. He said that he only had it with him in court for the “memories”. I thought that explanation was total rubbish and was simply designed to mask his true purpose namely, to intimidate the Applicant.
32. His answers to cross examination as to the events at Court on 8 July 2005 (see paragraph 7) when, after agreeing to resolve the matter on the basis of an undertaking and an explanation by the Applicant, he refused to give the undertaking when he was unhappy with the explanation as given, only confirmed my earlier suspicion that his actions on that occasion were a farce.
33. Cross examination as to his criminal record also proved very revealing. He agreed that on 20 May 1998 he was convicted of assault with intent to rape. He agreed that he appealed that conviction and his appeal was unsuccessful. He claimed that in that case, as was the case with the Applicant here, the “victim” lied. He agreed that at some time during the relationship he told the Applicant that he pretended to be mentally ill so he would not serve his time in gaol. He both agrees that he said that to the Applicant and he agrees also that that is what occurred. He claimed that he feigned mental illness to the prison doctor. He said that he was aware that the prison doctor was then to report to the court and he acknowledged that by misleading the prison doctor he was misleading the court on that occasion. In what was nothing short of a glaring attempt to retract from a very awkward situation, and notwithstanding his very specific and direct answers to questioning on the point, he then attempted to retract from the situation by saying that he was stressed at the time and that perhaps he was truly mentally ill.
34. The only witness called by the Defendant in fact mostly corroborated the Applicant’s version as to the most significant aspect of the Applicant’s case. That relates to the events on the night of 30 March 2005 when the Applicant alleges the Defendant was angry, slapped her and then refused to return her car keys and mobile phone for many hours. That witness was Jamie Coonan. He is independent at least to the extent that he is apparently a friend of both the Applicant and the Defendant. It was clear to me that he was attempting to maintain objectivity and fairness without preferring one side or the other. Indeed he was called as a witness by the Defendant who clearly regarded him as a friend. The Defendant obviously had confidence in Coonan as a number of times throughout the hearing and when confronted with evidence which he disputed, he said words to the effect of “Jamie will say what happened”.
35. There was some confusion in Coonan’s evidence as to the sequence of events. He was of the view that the Applicant and the Defendant were out having a good time together after the incident of 30 March 2005 referred to in the preceding paragraph. That is the only part of his evidence which could arguably support the Defendant. Inferences might be drawn from that evidence, if accepted that the second limb of section 4 of the Act was not satisfied. The Applicant could not be said to be too concerned about the preceding events if she were prepared to subsequently again go out with the Defendant. It would also cast considerable doubt on her claims of feeling intimidated by the Defendant and of being in fear of the Defendant. It would also cast significant doubt on the impact of the events on 30 March 2005 given that on her version that was the first critical event leading to her decision to seek an order. It would also bring the reliability of her evidence and her credibility into question. However, I am convinced that Coonan must be wrong on that aspect. In saying that I do not believe that it casts any doubt on the rest of his evidence.
36. To recap the evidence as to those key events on that date, subparagraphs 5(5) to 5(9) set out the Applicant’s version of those events. Paragraphs 20 to 23 set out the Defendant’s version, albeit that his version is very confused. The Applicant alleged that the Defendant was very angry. The Defendant refuted this and said he was playful and joking at all times. The Applicant alleges that the Defendant taunted her with her keys and phone. The Defendant, albeit claiming that this was on another occasion, (and I think he is wrong in that), says that this was occurring playfully and that the Applicant was also playful. The Applicant alleges that he angrily threw out his drink can. The Defendant said there was nothing abnormal about that and that it was only thrown out as it was empty. The Applicant alleges that the Defendant slapped her. The Defendant says that it was no more than an accidental nudge in the course of the playful banter.
37. Although Coonan confirmed that he was surprised when the Defendant was served with an order, (something was I found curious in light of his later evidence confirming the Applicant’s version of events on 30 March 2005), and although he said he had never seen the Defendant harass the Applicant, he confirmed that on the night of 30 March 2005 that the Applicant came to his premises (the premises he shared with the Defendant) and asked for his help. He confirmed that she looked upset. He said that the Applicant then told him that the Defendant had hit her and taken her keys and would not give them back. He said that he sought out the Defendant. He said that he found the Defendant sitting at the corner near the Asti Hotel. He said that he was not able to console the Defendant. He confirmed that he told the Applicant that he was not able to calm the Defendant down and that he was “too wild”. These are all matters which the Applicant had spoken of in her evidence.
38. Jamie Coonan therefore corroborates the Applicant’s version of the events of the critical incident on 30 March 2005. The Defendant’s claim that he was playful at all times on that occasion is directly contradicted by Coonan’s evidence which supports that of the Applicant on that issue. In my view the Defendant cannot simply be mistaken despite the confusion generated by his evidence as to the sequence of events.
39. As can be seen from the foregoing discussion the Defendant failed to impress me at all as a truthful or reliable witness. Even leading aside his poor demeanour, his admitted history of misleading the court for personal gain and the significant discrepancies in his evidence makes it a relatively simple task to prefer the evidence of the Applicant to that of the Defendant. There were some issues with the evidence of the Applicant (see paragraph 11 above). However if I accept the Applicant’s evidence that she would happily have remained friends with the Defendant, and I do, this ultimately and largely reconcile those issues. In any event the few minor issues with the Applicant’s evidence really become insignificant when viewed against the faults in the Defendant’s evidence and the extent of corroboration of the Applicant’s version as to material matters.
40. In the end my conclusion is that the Defendant is either deliberately evasive or deliberately attempting to confuse the evidence or he is simply a very poor historian. Either way, he is an unreliable.
41. For the foregoing reasons I reject the Defendant’s evidence wherever it contradicts that of the Applicant, which I accept in its entirety. As such there is ample acceptable evidence to satisfy me to the requisite standard that the Defendant has assaulted the Applicant (the slap on 30 March 2005) and has also behaved in a provocative way towards the Applicant (the intimidation and the stalking as alleged).
42. Section 4 of the Act also requires me to be satisfied that there is a likelihood of a repeat of that or similar conduct absent a restraint. In accepting the evidence of the Applicant, I accept also the evidence of events occurring since the ex parte order was served on the Defendant. The persistence of his conduct in attempting to intimidate the Applicant satisfies me of the very real need for an order. I have expressed my doubts as to the motive of the Defendant however, and despite his protests to the contrary, in my view it is he who cannot accept that the relationship is over. I think that he cannot accept that it was the Applicant who terminated the relationship. In light of that, in my view there is a likelihood of a repeat by the Defendant of the offending behaviour by the Defendant absent a suitable restraint order.
43. As such the Order of the Court is that the Restraint Order be confirmed for a period of 12 months from today.
44. I will hear the parties as to any ancillary matters.
Dated this 17th day of November 2005.
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V. M. LUPPINO
STIPENDIARY MAGISTRATE