[2024] SADC 54

Prosecution: R Counsel: MR B STURM - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: LUCAS JAMES FORD Counsel: MR A GRAHAM - Solicitor: MANGAN EY & ASSOCIATES Hearing Date/s: 18/03/2024, 19/03/2024, 20/03/2024, 21/03/2024, 22/03/2024, 25/03/2024, 26/03/2024, 08/04/2024 File No/s: DCCRM-22-010807 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v LUCAS JAMES FORD [2024] SADC 54 Reasons for the Verdicts of her Honour Judge Sutcliffe 13 May 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CONDUCT – THREATS CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY The accused was charged with two counts of aggravated threatening life (count 1 and count 3) two counts of aggravated assault (count 2 and count 5), and one count of aggravated causing harm with intention to cause harm (count 6). Counts 1 and 2 are alleged to have occurred on 1 March 2022 and the remaining offences on 26 May 2022. The complainant in relation to each count was the accused’s partner or former partner. It was alleged that on 1 March 2022 the accused made a verbal threat to kill the complainant while he drove in a dangerous manner towards a tree and then assaulted her, by suddenly applying the brakes, causing the complainant to hit her head on the window or dash of the car. It is alleged that on 26 May 2022 the accused threatened to kill the complainant while he drove in a dangerous manner. After the complainant left the car and sought assistance, he assaulted her by throwing an object which hit her head and kicked or stomped on her arm, causing it to break. The accused gave evidence denying the allegations. Verdict: not guilty of all counts. Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(3), 24(1), referred to. -- 1 of 44 -- -- 2 of 44 -- R v LUCAS JAMES FORD [2024] SADC 54 Introduction 1 The accused Mr Ford is charged with offences against OM, his former partner. He is charged with two counts of aggravated threatening life contrary to s19(1) of the Criminal Law Consolidation Act 1935 (‘the Act’), (count 1 and count 3) two counts of aggravated assault contrary to s 20(3) of the Act (count 2 and count 5), and aggravated causing harm with intention to cause harm, contrary to s 24(1) of the Act (count 6). Counts 1 and 2 are alleged to have occurred on 1 March 2022 and the remaining offences on 26 May 2022. 2 The relationship between Mr Ford and OM commenced a short time after they met in 2011. It ended in 2022. Between 2011 and 2022 the relationship was on and off again, with extended periods when they were not in a romantic relationship with each other. Prosecution case 3 During the times they were in a relationship, Mr Ford was frequently violent and abusive towards OM, including an occasion on 28 November 2012 when Mr Ford punched, choked, and spat at her. 4 On 1 March 2022 Mr Ford forced OM into his car and drove at speed and in a dangerous manner. Mr Ford told OM he was going to kill her and himself as he drove directly towards a tree on the side of the road and swerved away with seconds to spare before impact, (count 1, aggravated threatening life). Mr Ford slammed on the breaks causing OM’s head to hit the window or dash of the car (count 2, aggravated assault). 5 The allegations were reported to police. In the following months OM remained in contact with Mr Ford. On 26 May 2022 Mr Ford drove OM from her residence to the backyard of an abandoned house on Sandleheath Road, Elizabeth Grove. During the drive Mr Ford drove erratically and at speed and told OM more than once that she was going to die as he swerved towards oncoming traffic (count 3, aggravated threatening life). 6 In the backyard of the abandoned house Mr Ford pulled OM out of the car by her hair. He hit her and told her to run. OM ran to a neighbouring property. She was found hiding behind a car by the occupants and was assaulted. On leaving that property, she was approached again by Mr Ford in his car, who told her to get back in the car. 7 OM walked around the corner to Sampson Road and approached a woman at another house for assistance. Mr Ford approached OM as she stood on the front porch of the house and told her to get back the car. When OM declined, he pulled her, and threw an object, either a plant pot or saucer, that hit her head (count 5, aggravated assault). Mr Ford then stomped on OM’s arm, breaking it (count 6, aggravated causing harm with intention to cause harm). -- 3 of 44 -- [2024] SADC 54 2 Brief outline of the position of Mr Ford 8 Mr Ford gave evidence. It was not disputed that the relationship had been on and off again, that during the relationship he had sent text messages that were abusive and that he had made multiple consecutive phone calls at times in efforts to contact OM. 9 Mr Ford did not dispute that he had punched OM on 28 November 2012 but disputed the context of that assault and denied choking or spitting on OM. 10 Mr Ford collected OM from her parents' house on 1 March 2022 with the intention of driving to a hotel where they were to stay the night. There was an argument that led to Mr Ford ejecting OM from the car on the side of the road. He denied assaulting or threatening OM. 11 On 26 May 2022, he drove OM to the location she described, but he did not assault or threaten her. On Mr Ford’s account, OM’s arm was broken when she was assaulted by someone else in Sampson Road. Elements of the offences Aggravated threaten life 12 Counts 1 and 3 require proof of the following three elements beyond reasonable doubt to prove the basic offence. 1. That Mr Ford made a threat to OM. 2. The threat was a threat to kill. 3. That Mr Ford intended to cause OM to fear that the threat would be, or was likely to be, carried out or was recklessly indifferent as to whether such a fear was aroused. 13 If the prosecution proves those three elements beyond reasonable doubt Mr Ford is not to be found guilty if he proves that, on the balance of probabilities, he had a lawful excuse for the conduct. Aggravated assault 14 Counts 2 and 5 require proof that Mr Ford applied force to OM, that the application of force was the result of a deliberate and voluntary act, and the act was unlawful. 15 In respect of Count 5 only, it is alleged as a circumstance of aggravation, that Mr Ford used or threatened to use an offensive weapon, namely a plant pot or saucer. -- 4 of 44 -- [2024] SADC 54 3 Aggravated causing harm with intention to cause harm 16 Count 6 requires proof that Mr Ford performed an act, that the act was voluntary and deliberate, that OM suffered harm and Mr Ford’s voluntary act caused that harm. Finally, the prosecution must prove that Mr Ford acted unlawfully. Aggravating features 17 The circumstance of aggravation alleged in each count that must be proved is that Mr Ford knew that OM was a person with whom he was, or was formerly in, a relationship with. The issues 18 The issues in relation to each count are whether the act or acts the subject of the charge occurred. The evidence 19 The prosecution relies on the evidence of OM and Ms Charlotte Bridges an eyewitness to events on 26 March 2022, Constable Seppelt, Senior Constable Waites, Senior Constable Justin Joseph, agreed facts, photographs, maps, and screenshots of text messages between Mr Ford and OM. Mr Ford gave evidence and tendered medical records and OM’s call charge records. General directions 20 Mr Ford has the presumption of innocence in his favour. He is presumed innocent until proven guilty by the prosecution beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of an offence. He cannot be convicted on any count unless the evidence relevant to that count proves the elements to that standard. 21 In giving evidence or in putting forward explanations, Mr Ford does not assume any burden of proving or disproving the allegations against him. 22 I must assess the evidence of each witness as to their truthfulness, credibility, and reliability. I must determine whether I can rely upon the evidence given by each witness. I can accept or reject the evidence of a witness in whole or in part. 23 To convict Mr Ford of any of the charges I must find that his evidence can be excluded as a reasonable possibility. If I cannot exclude his account as reasonably possible, Mr Ford must be acquitted. If I do exclude his evidence beyond a reasonable doubt, I must still examine the evidence called on the prosecution case and consider whether it proves the charges to the requisite standard. -- 5 of 44 -- [2024] SADC 54 4 General assessment of OM 24 OM gave a logical, plausible, and coherent account of events the subject of the charges and qualified her answers when she was uncertain about matters. I considered that OM believed she was telling the truth about the events the subject of counts 1, 3, 5 and 6, but there is a basis to consider that her memory is not reliable. I was left with the impression that her account of some events was incomplete, which may be due to a poor recollection of events. I formed the view that some aspects of OM’s evidence were exaggerated and involved some reconstruction. I was unable to determine if that was inadvertent or deliberate. Relationship between Mr Ford and OM 25 The prosecution relied on evidence to establish the nature of the relationship between OM and Mr Ford, including evidence of violence and a specific occasion of violence in November 2012 resulting in OM being injured by Mr Ford. Evidence of violence and the sending of abusive text messages and harassing phone calls was relied on for limited purposes, including to show that it was unlikely that the charged conduct occurred out of the blue and as relevant to the assessment of counts 1 and 3, tending to show that in the context of the nature of the relationship, the threats made towards OM were not empty threats. The evidence was not admitted or sought to be used as propensity evidence. 26 The following matters relevant to the relationship between Mr Ford and OM were not in dispute and I find them proven beyond reasonable doubt based on the evidence of OM and Mr Ford. Mr Ford and OM met in 2010 or 2011 and commenced a relationship quickly afterwards. On 28 November 2012 OM was hospitalised following an assault by Mr Ford. Subsequently contact between OM and Mr Ford resumed while Mr Ford was in custody and serving a sentence for another matter. OM visited him regularly. On his release they maintained contact. From Mr Ford’s perspective, when he was released, they were in a relationship. The relationship was on and off again over several years. There was an occasion when OM told Mr Ford to leave her parents’ house and in response Mr Ford cut up 33 items of clothing belonging to OM. 27 There were extended periods of time when there was no contact between them. During one of those periods, OM was in a relationship with SG. Aggravating feature – relationship 28 That OM and Mr Ford were in some form of intimate relationship in which their lives were interrelated and the actions of one affected the other was not in dispute and was substantiated by evidence from OM and Mr Ford. I am satisfied that at the relevant times, Mr Ford knew OM was a person with whom he was, or was formerly in, a relationship with. Contested matters 29 OM said that during the times they were in a relationship, Mr Ford was violent and abusive towards her, and that Mr Ford would often spit in her face. -- 6 of 44 -- [2024] SADC 54 5 30 Aspects of OM's evidence about the assault that led to her hospitalisation in November 2012 were contested, including the allegation that Mr Ford choked her. 31 There is no corroboration of OM's evidence that on 28 November 2012 Mr Ford choked her. Senior Constable Joseph saw OM in hospital in the evening of 28 November 2012 and had a vague recollection that OM had swelling to her face, injuries to her head and arms, bruising, and was lethargic. 32 Photographs taken of OM the following day do not disclose any obvious visible injury consistent with OM having been choked, but do show bruising to OM’s face, arms and legs, consistent with the evidence OM gave and Senior Constable Joseph’s observations. In the absence of medical evidence that choking of the kind described by OM must necessarily leave a visible injury, I do not consider that the lack of visible injury in the photographs suggests that OM was not telling the truth or was unreliable. That is notwithstanding that other bruising was caused to OM. 33 Medical records indicate that OM had alcohol in her blood at the time of her admission and had consumed THC at some point, but there is no basis to make a factual finding as to level of alcohol in her system. Nonetheless, that alcohol was detected raises the possibility that OM was intoxicated, which is relevant to the assessment of the reliability of her account. Inconsistent statement regarding the assault on 28 November 2012 34 OM gave evidence that during the assault by Mr Ford on 28 November 2012, Mr Ford referred to a home invasion she had previously experienced. OM initially said the home invasion occurred in 2013, then later in evidence said it must have been 2011. OM said the home invasion occurred within 6 months of the November 2012 assault, and her home had been invaded in October.1 In cross examination OM said she was confused about dates and that the home invasion was something she had put behind her, and she needed to take herself back to that time. OM denied that the home invasion had occurred after the assault on 28 November 2012, and that she was falsely constructing her evidence. I consider the inconsistent statement is a minor one that has no bearing on the assessment of OM's reliability and credibility. It is explicable by the effluxion of time and OM's plausible explanation that she had put the date out of her mind. Lack of detail in account 35 There were some notable aspects of OM's account of the events of 28 November 2012, including a lack of detail of what occurred between being choked and getting up and asking Mr Ford to leave. OM’s rationale for opening the door to Mr Ford to let him back into the house after she had been choked, to prevent him from bashing it down, was at odds with her evidence that she then immediately retreated and barricaded herself behind an internal door. 1 T 43 -- 7 of 44 -- [2024] SADC 54 6 36 On OM's evidence there was no explanation for why Mr Ford would voluntarily leave the house as requested after assaulting her, but then quickly return to assault her a second time. If the account was an honest one, these aspects of her account might be explicable by failings in her memory arising from the trauma of the event, the experience of a blow or blows to the head, intoxication and the passage of time or a combination of these things. 37 OM’s account that she had been assaulted by Mr Ford was corroborated by her documented injuries and Mr Ford’s admission in his evidence that he punched her. Mr Ford's explanation for the assault significantly downplayed his role for the injuries suffered by OM. His assertion that he did not want to fight and was trying to show her that, “that sort of stuff wasn't supporting me” evidenced a complete lack of insight into his culpability. 38 I considered that OM was providing an honest account of events and was recounting events from her memory, which lacked detail. The passage of time, possibility of intoxication and trauma she experienced, means I am unable to be certain that the contested aspects of OM's account of events on 28 November 2012 were accurate, but I am satisfied that the evidence establishes that OM was assaulted by Mr Ford, and she fled the house in great fear seeking help from a neighbour. Text messages exchanged in January 2014 39 Text messages were sent between OM and Mr Ford in January 2014. There was no contest that the first few messages in the conversation were between OM and Mr Ford. Mr Ford denied that the subsequent messages in the conversation, which were threatening and abusive, were sent by him. 40 The messages that Mr Ford admitted sending included the first message that is recorded, telling OM that she was his one in a million and that he loved her. OM responded with a message to the effect that that she was awake to his manipulating ways and wanted him out of her life. Mr Ford replied that would never happen. 41 Mr Ford denied sending the messages that followed, which included abusive and threatening messages. He said that at the time the messages were sent a friend had access to his phone. Mr Ford was aware this person was sending messages and wanted to obtain OM’s address. Mr Ford was interviewed about these messages by police in 2014 and admitted sending two of the messages that in his evidence he denied sending. Those two messages refer to a witness statement provided by OM and one of them refers to OM as a ‘fucking dog’. In cross examination Mr Ford agreed he had sent these two messages. The content of some of the remaining messages containing threats is consistent with them being sent by someone other than Mr Ford. 42 One of the contested messages read, "Ohhh n by the way it ain't fordy...", another read, “…If only you knew who this waz mole!!”. I am not satisfied that those contested, threatening and abusive messages were sent to OM by Mr Ford. -- 8 of 44 -- [2024] SADC 54 7 Screenshots of messages sent between May and August 2021 – P8 43 A bundle of screenshots of text messages and records of missed calls occurring between May 2021 and August 2021 were tendered. I am satisfied, and it was not contested, that the communications were between Mr Ford and OM. It is not a complete record of communications between them in that period, but are a selection made by OM. OM said she created the screenshots to send a record of the communications back to Mr Ford, which was something that she did a lot of the time. Most of the messages from Mr Ford are of an insulting and or abusive nature, in which Mr Ford frequently tells OM he hates her and begs OM to respond. 44 The messages reveal occasions when Mr Ford persistently called OM, including 31 consecutive missed calls on one occasion and more than 50 on another. Mr Ford constantly messaged OM and became increasingly demanding and aggressive when he did not receive a response. That aggression was conveyed by his words and the use of capital letters. An example of this appears at pages 11- 12. I have used initials for anonymity: Message sent on Saturday at 9.56pm "[OM]!!! You fkn kidding me!!?!?!" Message sent on Saturday at 11.08pm “Babe im fucking twisting in my head and I’m gonna absolutely lose my fkn shit in about 5mins!!! IV TOLD YOU WHAT DOING THIS SHIT TO ME DOSE TO MY HEAD AND YOU JUST DON’T GIVE TWO FUCKS DO YOU!??! WHY THE FUCK ARE YOU BEING LIME THIS??” “BABY IM LOSING MY FKN MIND!! IV NEEDED YOU SOO FUCKING BAD SOO ITS GOOD TO SEE YOUR ONLY AROUND WHEN IS SUITS YOU HEY” “[OM]…… I FUCKING NEED YOU ATM” “Please (broken heart emoji) (broken heart emoji)” Message sent on Saturday at 11.50pm “[OM] fkn please” “What have I fkn done gurl” Missed videochat from Main Man on Saturday at 11.51pm “Not even a fkn phone call” (broken heart emoji) (broken heart emoji) “Gave me your WORD babe that you would do this to me anymore” “Please just call me like seriously” -- 9 of 44 -- [2024] SADC 54 8 Missed call from Main Man on Saturday at 11.53pm “Wow look at what you’ve actually put me through” “I hate you for treating me like this” “Fkn hurts sooo much [OM]” Missed call from Main Man on Sunday at 12.00am Missed call from Main Man on Sunday at 12.01am “100% your with [SG]” “Why you even fkn being like this” “[OM] IM FKN LOSING MY MIND!!! IM GONNA FLIP OUT LIKE WTF ARE YOU PLAYING AT??” Missed call from Main Man on Sunday at 12.03am Missed call from Main Man on Sunday at 12.04am “Im coming out to yours! I fkn have to, if you ain’t there im definitely going through cadds ffs your sending me into a mental state” “Just please talk to me [OM]” Message sent on Sunday at 12.06am “Your making me nearly fkn message [B] like cant you see whT your putting me through!!!!! Wtf baby do you even still have a heart??” 45 A text message at page 38 of P8 read: 'Let me guess payday today lol, I won't be getting my shit back, LMAO, cunt. Return my fkn sunnies, licence and that 2.3 PS like now or I'll send coons to your fkn mum's house, mutt'. 46 And the following message read: ‘You think I’m fkn kidding just turn me, you don’t want what happened at Smitty again now do you’. 47 Mr Ford agreed that the message that read, ‘what happened at Smitty’ was a reference to the home invasion OM experienced.2 OM had interpreted the message in that way, as at the time she experienced a home invasion she lived in Smithfield.3 2 T 308 3 T 94 -- 10 of 44 -- [2024] SADC 54 9 48 The text message from Mr Ford at page 44 of P8 read: “IV had dreams about absolutely losing it at you, bashing you till I can’t swing anymore more! Soo I fkn dare you to not have my money [OM] or have my stuff dropped to me, IV tryed n tryed n tryed, even had mum waiting till you got back to me but watta ya know you just fkn ignored me so I’m done it’s all upto you now” 49 This text message, and the ones outlined at paragraph 45 and 46 above, were sent by Mr Ford to OM in relation to items belonging to Mr Ford and a debt OM owed in the amount of about $1,400.4 50 Mr Ford said the message referring to dreams about losing it and bashing OM, was about his dreams and this is not what he wanted to do or convey that he wanted to do to OM. Mr Ford did not agree that if OM did not give money to him, that he was going to bash her. Mr Ford agreed he was venting and was angry.5 I accept Mr Ford was angry and venting but reject the suggestion he did not want to convey to OM that he might harm her. That evidence is contradicted by the plain meaning of the words. Mr Ford threatened OM’s physical safety with the intention of prompting her to repay him. 51 Mr Ford's evidence about many of the messages was to the effect that he was trying to get an answer from OM and he did not mean anything by messages such as "I'm gonna flip out like WTF are you playing at" and "O do you want me to come there now n flip my shit", and they were not threats, but "word vomit". The messages demonstrate that when he made the communications, Mr Ford was focused entirely on his own needs. If Mr Ford’s evidence is to be believed, he had no insight into the likely effect of his communications on OM. 52 Mr Ford's evidence that the messages did not contain threats, contradict the clear effect and meaning of the content of the messages. Mr Ford's obvious intention in sending many of the messages was to emotionally manipulate and threaten OM with the goal of eliciting a response. Mr Ford admitted as much, stating that he was trying to "push her buttons". 53 The messages also evidence Mr Ford's preoccupation with OM spending time with her former partner SG, and that he became suspicious of this when OM did not respond to his messages. Findings about the relationship 54 I am satisfied the evidence establishes the following. 55 The relationship between Mr Ford and OM was volatile. OM received words of affection from Mr Ford that on occasion quickly pivoted to abusive language and threats. I believed OM’s evidence that she was subjected to acts of violence by Mr Ford. I find that violence included an assault by Mr Ford resulting in her 4 T 307 5 T 334-5 -- 11 of 44 -- [2024] SADC 54 10 hospitalisation on 28 November 2012, and on another occasion, that he subjected her to a vindictive act of property damage by cutting up her clothes. There were occasions when Mr Ford attempted to emotionally manipulate OM and occasions when he expressed jealousy and suspicion regarding OM spending time with her former partner when she did not respond to messages. Use of the relationship evidence 56 Relationships and the dynamics within them can be complex and that is particularly the case when violence and emotional abuse occurs within a relationship. It cannot be assumed or expected that a person experiencing violence within a relationship will respond to violence in the same way that might occur in response to incidents of violence that occur between strangers. I bear this in mind in my assessment of the evidence. 57 That the relationship was not an equal, respectful, loving, harmonious one, and that Mr Ford was concerned about issues of infidelity, is relevant to a consideration of whether Mr Ford is likely to have acted in the manner alleged. It is evidence that can render the alleged offending less implausible. 58 From OM’s perspective, her experience of violence at the hands of Mr Ford, and receipt of affectionate messages that quickly changed to abusive ones when he did not receive a response, meant that she knew Mr Ford was capable of sudden changes in mood and was capable of physically hurting her. These experiences and that knowledge can inform an assessment of her behaviour at various times that may otherwise seem implausible. 59 I am satisfied that the evidence has probative value having regard to these issues and outweighs any prejudicial effect it may have on Mr Ford. 60 The evidence outlined has other non-propensity discreditable conduct permissible purposes that are addressed in these reasons. 61 This evidence of discreditable conduct may not be used to reason that Mr Ford has a tendency towards violence or is of bad character generally, and is therefore the sort of person who is more likely to have committed the charged offending. I have not used the evidence in that prohibited way. Other discreditable conduct evidence 62 There was evidence about drug use, that Mr Ford served a period of imprisonment for an offence, conduct in contravention of an intervention order, Mr Ford's participation in the drug court program, that he sought and received money from the Australian Tax Office (‘the ATO’) in questionable circumstances, driving while disqualified, the use of stolen vehicles and associates of ill repute. OM gave evidence that after 1 March 2022 Mr Ford made an implied threat of consequences if she did not drop the charges and that on 26 May 2022 he hit her after he pulled her out of the car. -- 12 of 44 -- [2024] SADC 54 11 63 I have not used any of that evidence to reason that Mr Ford is of bad character and is therefore the sort of person who is more likely to have committed the offences. Matters not in dispute 1 March 2022 64 Mr Ford drove OM and caused her to leave the car on Deuter Road. What took place during the drive is contested. 65 I find the following matters relating to 1 March 2022 proven beyond reasonable doubt based on the uncontested evidence of OM, Mr Ford and the agreed facts. 66 Mr Ford drove to OM's parents’ house where OM was living, in a white Toyota Corolla. OM got into the front passenger seat. 67 Mr Ford drove from Pellew Road and turned right onto Heaslip Road, passing the train line and then turned right onto Waterloo Corner Road. Mr Ford turned left onto Port Wakefield Road and then into Deuter Road. During the journey there was a conversation about SG, OM's former boyfriend. Events near 1-8 Deuter Road, Selecta Homes and Building Solutions 68 On Deuter Road, Mr Ford reached across OM and opened her passenger side door. Mr Ford demanded that OM get out of the car and pushed her out. The degree of force used is contested. After OM was out of the car, Mr Ford drove away. 69 Prior to 1 March 2022, there had been occasions when Mr Ford had left OM outside the car and driven away, and then later returned to collect her. 70 OM entered the office of Selecta Homes, in a state of distress seeking help. Within a short time, Mr Ford arrived and on being unable to enter and told that OM was inside by a sales consultant, Mr Kassara, he became aggressive, yanked at the door handle and demanded that OM come out. Mr Ford left after being told that if he pulled on the door handle one more time, police would be called. The details of this incident, which are not contested, are set out in further detail in these reasons. 71 At 7:37 pm Probationary Constable Joshua Quigley attended the office. Mr Kassara met police at the office door. OM was sitting in the waiting room and appeared visibly upset. She was not wearing shoes and had dried mud on her knees and feet. She had no visible injuries. 72 On 2 March 2022, Police located the Toyota Corolla hatchback driven by Mr Ford on 1 March 2022. It was parked in the vicinity of Mr Ford's address. It had dirt marks to the rear and damage to the driver's side door panel. -- 13 of 44 -- [2024] SADC 54 12 26 May 2022 73 Mr Ford collected OM from her parents’ house and drove to an abandoned house in Sandlehealth Road, Elizabeth Grove. Mr Ford left her there and drove away. He returned a short time later and followed her to a front porch of a house in Sampson Road. What occurred during the drive from OM's parents’ house, in the backyard of the abandoned house and on the front porch of a house in Sampson Road is contested. 74 I find the following matters proven beyond reasonable doubt based on the following uncontested evidence of OM, Mr Ford, an eyewitness Ms Bridges and a video that she recorded. 75 Mr Ford drove to OM's parents’ house in a black SUV, Land Rover Discovery (‘the Land Rover’). OM got into the front passenger seat. 76 From there, Mr Ford drove to an abandoned house in Sandleheath Road where Mr Ford’s children used to live with their mother. Mr Ford drove down the side of the house and into the backyard. Mr Ford drove out of the backyard and left without OM. 77 OM walked down the driveway of the neighbour’s property and hid behind a car. A man emerged from the house and confronted OM. He asked what she was doing in his yard. A woman emerged and yelled at OM. The woman was much larger than OM. The woman threw OM against a corrugated iron fence that separated the two properties. OM was assaulted by the woman. 78 The woman's forearm went under her chin as she was thrown. OM was punched to the back of the head. The back of OM's head hit the fence and OM landed on concrete, on her right side. Precisely how OM came to be on the ground and the nature of the impact was contested. 79 After initially driving away from the abandoned house, Mr Ford returned and found OM shortly after she walked out of the driveway of the house where she had been assaulted. Mr Ford drove alongside her as she walked down Sandleheath Road and turned a corner and down Sampson Road. As he drove alongside OM, Mr Ford asked her more than once to get into the car. He asked what the woman had done to her. OM was hysterical. 80 OM approached a house in Sampson Road and asked for help. Sampson Road and Sandleheath Road run parallel to each other, and the house OM approached was approximately to the rear of the abandoned house in Sandleheath Road. OM knocked on the door and was told to leave. 81 Mr Ford parked the car on the grass verge and approached OM at the front porch. Mr Ford told OM to stop being stupid and to come back to the car. He spoke calmly. OM did not go back to the car. I am satisfied that OM did not want Mr Ford’s help. -- 14 of 44 -- [2024] SADC 54 13 82 Mr Ford returned to the car and then back again to OM at the porch. 83 What occurred at the doorstep of the front porch on this occasion is in dispute. OM was distressed. 84 Mr Ford walked away from OM. By this time, Mr Ford’s friend Dylan had arrived. The two men walked to Mr Ford’s car and drove away. 85 Constable Seppelt attended Sampson Road in Elizabeth Grove at about 10:50am and met OM, who was in distress and appeared to be in pain. She was crying, cradling one of her arms in her other arm, wearing a pink jumper, and had dishevelled hair. An ambulance was called. 86 Mr Ford returned in the Land Rover and Constable Seppelt saw it arrive in the street from the southern side. It stopped briefly, conducted a U-turn then departed. The vehicle did not travel past Constable Seppelt but he was close enough to have observed whether it had a popped tyre. He did not notice a popped tyre or any smoke discharging from the vehicle. 87 Charlotte Bridges lived across the road from the house in Sampson Road where OM had sought assistance and recorded a video from her front bedroom window. It shows Mr Ford leaving the premises and walking to the Land Rover with his friend Dylan. Mr Ford is wearing a black puffer jacket and Dylan is the person wearing white shoes and a Calvin Klein jumper. 88 OM was treated at the Lyell McEwin Hospital by Dr Tong at about 2.45pm on 26 May 2022. Dr Tong noted that OM had visible swelling at her mid forearm (the arm is not identified), limited movement of her right upper limb, a fracture to her right forearm and soft tissue swelling on her right foot. Issues for determination 89 The issues for determination are whether the relevant acts that are the subject of the charges occurred. There is no contest that conduct of the kind, as described by OM, would establish the remaining elements of the offences. Findings regarding count 2 90 At the close of the trial the prosecution acknowledged the sparsity of evidence in relation to count 2 and conceded that the evidence could not support a finding of guilt beyond reasonable doubt. In cross examination OM said she believed her head hit the window or the dash, and that as she was not wearing a seat belt her whole body would have come forward. As OM expressed uncertainty about what occurred, and made a significant inconsistent statement related to this topic that is detailed later in these reasons, I find Mr Ford not guilty of count 2. Importance of OM’s credibility and reliability 91 OM's evidence on the contested issues was uncorroborated. Photographs of the white Toyota Corolla taken on 2 March 2022, showing some external damage -- 15 of 44 -- [2024] SADC 54 14 and visible dirt on the windows and are not strongly probative of the issues relevant to 1 March 2022. The photographs show damage to the driver’s side door, which is unexplained. There was no evidence, other than OM's, that would permit an inference to be drawn that the visible dirt on the vehicle was a result of Mr Ford driving the vehicle in the manner described by OM on 1 March 2022. 92 An eyewitness, Mr Bridges, corroborates some aspects of OM’s account, but her view was obscured. Ms Bridges did not see the alleged conduct the subject of counts 5 and 6. 93 There was no evidence as to the presence of an item or items such as pot plants or pots in the vicinity of the front porch where the conduct the subject of counts 5 and 6 is alleged to have occurred. There is no medical evidence as to whether OM suffered a head injury, and the agreed facts relating to OM's broken arm do not assist in determining the mechanism of the break. There was no other medical evidence relating to OM's broken arm or photographs of other injuries. 94 The prosecution case turns on me being satisfied beyond reasonable doubt that OM’s evidence was truthful and reliable in relation to the charge being considered, and that her evidence excludes Mr Ford's account as a reasonable possibility. 1 March 2022 Events leading up to the drive OM’s evidence 95 Mr Ford was calling her phone in the morning on Snapchat while she was sitting with her mum at her parents' house at Penfield where she lived. She did not answer until right before she went outside where Mr Ford was parked. 96 OM knew Mr Ford was outside as she could hear the car, and saw it parked out the front through the window. She grabbed a cigarette and went outside to the car.6 No one was with Mr Ford. 97 In cross examination OM said her account about the phone calls was incorrect, and that she had mistakenly been describing contact from Mr Ford that occurred in relation to the events of May 2022.7 98 In cross examination OM said before arriving, Mr Ford sent aggressive threatening text messages and initially said she did not recall any phone calls.8 Later she said there was no conversation, but agreed there were two brief phone calls. OM disagreed there was an arrangement for Mr Ford to pick her up. Mr Ford was "hammering her phone". There was call after call and message after message. 6 T 50-51 7 T 120 8 T 121 -- 16 of 44 -- [2024] SADC 54 15 99 In cross examination OM said she did not recall any conversation about an intention to go to the Mawson Lakes hotel.9 100 It is not implausible on OM’s account that she went out to meet Mr Ford despite having ignored his attempts to contact her. Her previous experience in receiving a bombardment of calls and text messages10 meant OM had no basis to think Mr Ford would stop trying to contact her if she ignored him. On her account, Mr Ford’s arrival at her door without an invitation was an escalation in his efforts. It is plausible that OM went outside to meet him to de-escalate matters. Mr Ford’s evidence 101 Mr Ford attended OM’s house to collect OM. Arrangements had been made for the two of them to spend the night at the Mawson Lakes Hotel. Staying in hotels was a regular occurrence. Mr Ford received monthly payments between February 2022 and May 2022 from the ATO by completing a GST refund statement, and ultimately accrued a payable debt of $98,000. Mr Ford spent the money he received on his children, himself, cars, hotels, and drugs. Mr Ford also spent money on OM, buying her designer sunglasses, and spending time in hotels with her. The drive from OM’s house to Deuter Road OM’s evidence 102 Mr Ford was angry. OM was standing at the front passenger side of the car. Mr Ford got out, pushed her around, and told her to get in. She got in the front passenger side.11 In cross examination OM agreed she had not told police when she provided a statement on 2 March 2022 that Mr Ford pushed her into the car. The failure to mention this is an inconsistent statement, but I do not consider it is material. 103 OM got in the car and sat in the front passenger side, with her legs out of the car and feet nearly on the ground.12 104 Mr Ford returned to the driver's seat, sped off and said that she was going to die that day and he was going to kill her.13 In cross examination OM agreed she did not wear a seat belt because she wanted to get out of the car if the opportunity arose.14 105 The speed limit along Pellew Road is 80kmph. OM estimated Mr Ford's speed as over 100kmph.15 9 T 129 10 Exhibit P8 11 T 51 12 T 52 13 T 52 14 T 132 15 T 52 -- 17 of 44 -- [2024] SADC 54 16 106 OM pleaded with him. She mentioned her kids and begged him to stop.16 Mr Ford drove from Pellew Road and turned right onto Heaslip Road, driving erratically, at about 120kmph to 130kmph, in an 80kmph zone.17 107 They passed the train line and Mr Ford repeated that he was going to kill her, and she was going to die. 108 OM gave the following evidence: "So we passed the train line and we - he just kept repeating himself that he was going to kill me, I was going to die and - sorry, he was going to kill himself and he was going to take me with him and we were heading straight for a tree, and he was on the dirt road, like, the side of the road, so we had gone from being on the road and he was swerving, heading straight for a tree, and then-."18 109 Mr Ford went off the road when he was saying that they were going to die.19 110 Mr Ford was in a rage, grabbing her face, telling her over and over that she was going to die as he drove towards the large tree, along the dirt off the road at about 120kmph to 130kmph an hour. OM begged him to stop, asking him "what about my kids" and also reminded Mr Ford about his own kids.20 Mr Ford was angry that she had mentioned his son.21 111 If Mr Ford had not pulled back onto the road, they would have hit the tree within seconds.22 They were driving straight towards the tree, with seconds to spare and when about 1 to 2 metres away from the tree, he pulled back on to the road.23 Later in evidence OM said it was no more than 10 metres away from the tree.24 112 OM assumed as they drove towards the tree and Mr Ford said he was going to kill her, that that was how she was going to die that day, by crashing into a tree. She believed Mr Ford scared himself by the near miss. After pulling back onto the road Mr Ford was angrier.25 113 Mr Ford swerved back onto the road and drove on the opposite side of the road and was speeding.26 114 He drove at speed to the end of Heaslip Road then turned right onto Waterloo Corner Road.27 As he went through the roundabout that intersected Heaslip Road 16 T 52 17 T 53 18 T 53 19 T 53 20 T 55 21 T 55 22 T 52 23 T 55 24 T 57 25 T 54 26 T 54 27 T 56 -- 18 of 44 -- [2024] SADC 54 17 and Waterloo Corner Road he did not slow down.28 He turned left onto Port Wakefield Road and continued to drive at speed29 and then onto Deuter Road. Mr Ford’s evidence 115 Mr Ford denied speeding during the journey, driving towards a tree, or abruptly breaking. Heaslip Road is in an industrial area and the build-up in traffic at knock off time meant he would have travelled at the speed limit. Mr Ford also held some concerns about the legitimate origins of the car he was driving.30 The car was new, with lane and breaking assist, and if a seat belt was not worn an alarm would sound.31 116 As he drove along Heaslip Road, he confronted OM about text messages he had received from SG. SG had messaged him, asking why Mr Ford was seeing OM, as he (SG) and OM were in a relationship. In cross examination Mr Ford said this message was received a couple of days before 1 March 2022 which read, ‘why are you seeing O?’.32 Mr Ford agreed he thought that SG and OM may be sleeping with each other. It was not the reason he went to OM’s house on that day, but it was on his mind.33 117 Initially Mr Ford just mentioned it to OM and OM “threw it off”. Mr Ford went to show her that he had proof, and OM “threw it back into my face about when I was cheating with Amber”.34 118 Mr Ford was not upset until OM denied it, when he had proof that she was lying.35 Mr Ford said the text message, “Why are you seeing O?” was not proof, and he wanted to hear what she had to say.36 Mr Ford said OM denied sleeping with SG and he showed her the message. 119 OM spoke about a time he had cheated on OM. There was an argument. OM may have reached for his phone and may have grabbed his shirt. Mr Ford put the phone between his legs. 28 T 59 29 T 59 30 T 258 31 T 258 32 T 315 33 T 317 34 T 319 35 T 317 36 T 318 -- 19 of 44 -- [2024] SADC 54 18 Events on Deuter Road OM’s evidence 120 When Mr Ford turned into Deuter Road, he slowed down to about 10kmph, leaned over, opened the door, pushed her to move her out of the car and told her to get out of the car. Mr Ford said, "Get the fuck out of my car".37 121 OM begged Mr Ford to stop. She did not want to get out of the car because she was thinking it would end up being an argument on the side of the road and it would be like previous times when he would kick her out and she would need to get back into the car.38 122 OM was pushed out and she fell on her knees into the dirt in a side drain. Her feet became stuck in the mud, and she lost her thongs. 123 In cross examination OM denied that the conversation in the car about SG was about SG sending messages to Mr Ford. OM did see SG from time to time as they had the same circle of friends. She denied that she challenged Mr Ford about women she thought he had been sleeping with, hitting him while he was driving, and pulling his clothes.39 124 OM agreed that Mr Ford reached across her and opened her passenger side door.40 OM did not willingly open the car door to jump out while it was moving.41 OM did not want to get out of a moving car. She knew it would end up being a fight on the side of the road and it would be like other times, with Mr Ford driving alongside her, he would kick her out, she would get back in and it would be back and forth.42 125 I am satisfied there were previous occasions when arguments led to OM leaving the car, and then getting back in again. OM’s evidence about that was corroborated by Mr Ford who said this had happened previously. 126 It is understandable that OM would not want to get out of a moving car, but it is difficult to accept that OM remembered that she was reluctant to get out because she would need to return to the car. That evidence is irreconcilable with OM’s evidence that she did not wear a seatbelt so she could escape as quickly as she could. There is no basis to consider OM thought the immediate danger had passed, as her distress and reaction to Mr Ford appearing at the Selecta Homes and Building Solutions office a short time later is consistent with a belief that she remained in imminent danger, and there was no evidence of an intervening event. I do not consider that OM deliberately provided a false account of her thinking at 37 T 60 38 T 60 and T 132 39 T 131-2 40 T 132 41 T 133 42 T 132 -- 20 of 44 -- [2024] SADC 54 19 the time she left the car, but there is some risk that her recollection about being reluctant to leave the car involved a false reconstruction. 127 OM denied there had been an argument about being unfaithful, resulting in Mr Ford pulling over to kick her out.43 It was put to OM that as far as she was concerned, Mr Ford picked her up and behaved in the manner described without a reason, as far as she could tell. 128 OM gave the following evidence:44 Q You weren't aware of anything you'd done to provoke him into threatening to drive you into a tree, were you. A I didn't provoke Luke to do that, no. Q As far as you're concerned, he just picked you up and then did that straight away without a reason that you could see. A There were plenty of reasons. 129 It would be surprising if Mr Ford did not say something either before or during the drive to OM about why he was angry or why he threatened to kill her, but the absence of that detail does not necessarily mean that OM was inventing a story or was being evasive. The absence of this detail is potentially explained by an incomplete memory of events or the lack of direct questions on the topic. In cross examination direct questions occasionally elicited further details than what OM provided in her evidence in chief. An example was when OM agreed that her former partner SG had been mentioned during the drive, something she had not mentioned in her evidence in chief. Regardless of whether it was due a poor memory or a lack of direct questions, OM’s evidence of events during the drive and the circumstances that led to her leaving the car left me with the impression that OM had not provided the full picture of what had occurred. 130 The prosecution opened its case on count 2 by stating that after the conduct the subject of count 1, Mr Ford slammed on the breaks, causing OM's head to hit the window, and that he sped up and did it again, causing OM's head to hit the window a second time. The manner of breaking the second time was charged as the act of aggravated assault. 131 OM did not give evidence of this account in chief. In cross examination OM said she believed her head hit the window or the dash, and that as she was not wearing a seat belt her whole body would have come forward. OM agreed she had told a police officer on 1 March 2022 that Mr Ford hit the brakes and her legs hit the dash “a bit”. Body worn footage of this conversation shows that OM was asked if she was assaulted. OM was seated in the backseat of a car. OM took time to answer, and rubbed her knee as she said her leg or legs hit the dash a bit. OM 43 T 133 44 T 133 -- 21 of 44 -- [2024] SADC 54 20 agreed in cross examination she had then given a statement to police on 2 March 2022 and said that Mr Ford slammed on the brakes twice and her head hit the window. 132 OM explained that she did not mention her head hitting the window or dash to police on 1 March 2022, because at the time she was not in a normal state of mind and was in shock. 133 I bear in mind that minor inconsistencies can be expected in circumstances when a witness gives an account soon after a traumatic event. Nonetheless I consider this inconsistency is probative of OM’s reliability and causes me some disquiet about her honesty. On OM’s account, her head colliding with the dash or window occurred in circumstances where Mr Ford was driving more than the speed limit and when she was not wearing a seat belt. Being thrown from the car seat into the window or dash following sudden breaking while travelling at speed can be expected to be a significant, memorable event. It is a very different experience from a slight shifting in the seat resulting in a minor impact of the knees contacting the dash. 134 OM’s uncertainty in her evidence, being a belief about what occurred, is difficult to reconcile with the two irreconcilable statements she made to police and is not readily explained by a faded memory, or a memory clouded by trauma. It is possible that OM was unintentionally reconstructing events, meaning there is a risk that her account of her head hitting the dash or window is an honest memory of something that did not happen, but I am unable to exclude the possibility that OM knowingly exaggerated her account to police on 2 March 2022. This is a matter that has caused me to scrutinise OM’s evidence very carefully. Mr Ford’s evidence 135 Mr Ford said by the time he reached Port Wakefield Road he considered they were not going to spend a pleasant night at the hotel and pulled over and demanded that OM get out.45 Mr Ford did that because ‘because it wasn’t going anywhere’. OM refused to get out. Mr Ford leant over and opened OM’s passenger door.46 OM was trying to stop Mr Ford from opening the door as he tried to get her out of the car. Mr Ford unbuckled her seat belt. OM did not get out the car.47 136 Mr Ford said after he unbuckled the seat belt, he “was coaching her to get out”. The car was stationary. In cross examination Mr Ford said that the force he used to move OM out of the car was no more than an encouragement, being a motion to her right shoulder to ‘just get out’.48 Once OM was out the car Mr Ford drove away.49 After five minutes Mr Ford cooled down and felt bad for leaving 45 T 254 46 T 254-5 47 T 255 48 T 322 49 T 255 -- 22 of 44 -- [2024] SADC 54 21 OM so far away from home and returned to where he had left her. OM was not on the side of the road when he returned.50 Events at Selecta Homes and Building Solutions office OM’s evidence 137 OM attended a nearby yard with offices. She went to every door, knocking and banging and looking for help. She found an unlocked office and ran inside and fell to her feet. There was a man inside and she begged him for help.51 Agreed facts 138 The following events are proven by agreed facts. OM entered the office of Selecta Homes. The man she approached was Mr Paul Kassara, a sales consultant for Selecta Homes. OM was crying and shaking. Mr Kassara did not observe any injuries on OM. A few minutes later Mr Ford drove into the car park and stopped about 10 metres from the entrance of the office. OM became hysterical. She got up from the couch and ran to hide. Mr Ford approached the front door of the office. He grabbed the door handle from the outside and tried to open it. He said to Mr Kassara something like, "where is she" or "is she in there". Mr Kassara said to him, "yes she is here and she is very upset. It would be best if you left." Mr Ford became very aggressive and started to yank at the door handle to try to get inside. The tone of his voice changed. He was extremely agitated and volatile. He demanded that OM come outside. Mr Kassara told him that if he pulled on the door handle one more time, he would call police. Mr Ford’s evidence 139 Mr Ford drove to the Selecta Homes yard which was the only business that was open,52 and became aggressive when OM did not come out after he tried to open the door.53 He became aggressive thinking about the night that was planned and that “It’s resorted to this again”.54 Mr Ford left. He had contact with OM again within one week.55 140 In cross examination Mr Ford said when he tried the office door at Selecta Homes his state of mind was calm,56 and he did not know whether OM was in the office. Mr Ford denied leaving and returning and pulling on the door handle again.57 Mr Ford denied yanking on the door handle aggressively or that he was aggressive, he just went to slide it.58 50 T 255-6 51 T 61 52 T 256 53 T 256 54 T 256 55 T 256 56 T 322 57 T 324 58 T 324 -- 23 of 44 -- [2024] SADC 54 22 141 Mr Ford wanted to get into the office because he felt bad for leaving OM on the side of the road. He did not agree it was obvious OM wanted to get away from him. 142 When asked why he yanked on the door handle, Mr Ford said he was not sure.59 143 Mr Ford agreed that he decided to leave, on being told that either OM’s mum or police had been called. Mr Ford did not agree he was worried about police being called, but he knew OM was safe. Mr Ford was concerned about his driving as his licence was disqualified.60 Mr Ford was not concerned about being arrested for doing anything wrong, but he was not going to hang around when police were going to be there.61 144 It was submitted by the prosecution that Mr Ford's evidence provided a potential motive and explanation for his behaviour, namely that Mr Ford believed OM might be having an affair with her former partner, SG. 145 While that is a possible explanation, I have significant concerns about Mr Ford’s credibility and reliability, that are set out later in these reasons. OM in cross examination agreed that during the drive there was a conversation about her former partner, but she did not say what that conversation was about. OM was not asked an open question about this. She disagreed that she accused Mr Ford of being unfaithful. 146 While it might be the case that Mr Ford was jealous at the time he collected OM, there is an insufficient basis to make that factual finding. 147 Mr Ford’s evidence on the reasons he pushed OM out of the car and the explanation for his behaviour was unsatisfactory. Mr Ford’s account about his conduct at the door at the Selecta Homes office was at odds with the agreed facts that after yanking on the door handle, he became agitated and volatile and demanded that OM come out. His account significantly underplayed his behaviour. 148 It might seem counterintuitive that Mr Ford became aggressive at Selecta Homes because he was thinking about and regretting the ruined plans, in circumstances where on his own account, the situation was one of his own making. His aggressive behaviour and demand that OM come out from the Selecta Homes office was inconsistent with a genuine feeling of regret and responsibility for leaving OM on the side of the road or a desire to reconcile. But it does not necessarily follow that Mr Ford was dishonest about his thinking at this time. Mr Ford’s conduct and his evidence about it was consistent with him having a complete lack of insight into his behaviour and his responsibility, an expectation 59 T 325 60 T 327 61 T 327 -- 24 of 44 -- [2024] SADC 54 23 that OM should comply with his demands, and him becoming infuriated when his demands were not met. 149 On Mr Ford’s account, OM attended at Selecta Homes seeking help from a stranger, in extreme distress and hid from Mr Ford, due to an argument about an ex-boyfriend and having been abandoned on the side of the road, something which she had experienced previously and had resulted in her returning to the car. 150 Mr Ford’s evidence does not account for OM’s heightened distress, or her desperation to avoid him. 151 I accept Mr Ford’s explanation that he returned to look for OM after he calmed down. That evidence is consistent with him having lost control of his emotions, and once the anger subsided, returning for OM. I am satisfied that Mr Ford then became aggressive when he was unable to extract OM from the Selecta Homes office. Contact between OM and Mr Ford between 1 March 2022 and 26 May 2022 OM’s evidence 152 Following the incident on 1 March 2022, OM did not have contact with Mr Ford for a couple of weeks.62 153 Mr Ford then contacted OM by phone. She was unsure of the mode of contact but thought it was probably by text message.63 They resumed daily contact and then saw each other in person. Usually that occurred at the end of her parents’ street. 154 OM felt intimidated and anxious about catching up with Mr Ford. She met with him despite feeling that way, as she feared that if she did not see him, it would be worse for her.64 Mr Ford said things to her along the lines of, "Do you want me to go to gaol?" and "If you don't drop these charges, you know what's going to happen”, "Don't you love me?", "How can you do this?", "No one will ever love you like I do". Mr Ford’s evidence 155 When contact resumed between OM and Mr Ford, they stayed at various hotels including two different hotels in North Terrace over a four-day period. 65 156 Mr Ford did not have a bank card, so he regularly transferred money to OM to be withdrawn. On one occasion towards the end of March he transferred $1000 plus $200 for the cost of the hotel room. They spent the night and were intimate together. When he woke OM had left, without withdrawing money for Mr Ford.66 62 T 62 63 T 63 64 T 63 65 T 256-9 66 T 257 -- 25 of 44 -- [2024] SADC 54 24 157 Prior to collecting OM on 26 May 2022, Mr Ford had spent two nights at his friend Amber’s house. He crashed out there because over the four days spent in hotels with OM he had used drugs.67 26 May 2022 Events leading up to the drive OM’s evidence 158 Mr Ford tried to call her early, around 8.00 am to 8.30 am. She believed he called her on Snapchat. OM said Mr Ford was "blowing up her phone" and kept calling. She received messages from Mr Ford telling her, "[T]o get the fuck outside otherwise he would drive his car through my bedroom window".68 OM was sitting with her mum when she received these messages. OM did not reply to the messages but waited until her mum was out of the room and went outside.69 159 Mr Ford was alone in the Land Rover, parked at the driveway, on the road. 160 OM got into the passenger side, sitting half in with her legs out of car. Mr Ford told her to close the door. He kept saying "why are you being a fucking weirdo". Mr Ford could see that she was anxious about getting into the car with him.70 OM was wearing black jeans, thongs, and an adidas jumper. 161 As with OM’s account of events on 1 March 2022, it is not implausible that OM went out to meet Mr Ford despite having ignored his attempts to contact her and despite her fears. OM’s previous conduct in meeting Mr Ford at the end of her street and in coming out on this occasion and getting into his car, is consistent with an awareness and fear of Mr Ford’s capacity for sudden change if she failed to respond. As with OM’s evidence regarding 1 March 2022, her previous experiences of receiving a bombardment of calls and text messages71 meant OM had no grounds to think Mr Ford would stop ‘blowing up her phone’ if she ignored him. On OM’s account, Mr Ford threatened her with violence if she did not come out. OM knew from previous experience that he was capable of physically hurting her. In those circumstances, it is not implausible that OM would go out to meet him. Her conduct in coming out to meet him is consistent with an intention to manage the risk of escalation. Mr Ford’s evidence 162 Mr Ford woke to discover messages received from OM. The first message asked how he was, and later messages called him a dog. Mr Ford rang OM and arranged to collect her. OM transferred money to him for petrol. He put petrol in 67 T 261 68 T 64 69 T 64 70 T 65 71 Exhibit P8 -- 26 of 44 -- [2024] SADC 54 25 the Land Rover and drove to OM’s house. He messaged her after pulling up at the front that he had arrived.72 163 At this time Mr Ford believed that OM had received money in the sum of $19,000 from the ATO from lodging a claim for GST. OM told him in the vehicle that she had received the money.73 164 Mr Ford collected OM with the intention of going to score drugs. OM texted someone but he did not know who it was. On route it became apparent they would need to wait half an hour to source drugs.74 Driving to Sandleheath Road OM’s evidence 165 Mr Ford drove off to Elizabeth Grove. On route, Mr Ford drove erratically at a speed between 120kmph to 130kmph in an 80kmph zone. 166 As Mr Ford drove along Pellew Road he said, "You are actually going to die today" and he said this more than once. Mr Ford turned onto Heaslip Road then onto Waterloo Corner Road. Two to three times Mr Ford drove onto the opposite side of the road at a time there was oncoming traffic.75 Mr Ford was angry about text messaging ex partners, but she was unsure about this. In his evidence, Mr Ford said there was an argument about ex partners, but this occurred later, in Sandleheath Road. OM said Mr Ford was travelling at about 120kmph to 130kmph including when he was travelling on the opposite side of the road. Oncoming traffic swerved and beeped horns. Mr Ford came within 10 metres to 20 metres of oncoming cars before swerving onto the correct side of the road.76 167 OM begged Mr Ford to stop and he repeated, at least two or three times, that he was going to kill OM, as he drove along Heaslip Road.77 168 Mr Ford turned left onto Waterloo Corner Road. The traffic was more congested, but Mr Ford was speeding and overtaking traffic. Mr Ford turned left off Waterloo Corner Road into what she believed was Commercial Road which became John Rice Avenue. 169 As Mr Ford drove along John Rice Avenue he drove up onto the footpath into foliage, side swiping two trees. OM thought a tyre popped on the gutter. Mr Ford continued to speed. In cross examination OM said she was not sure if tyres had popped on the Land Rover but there was smoke coming from the tyres, so she 72 T 263 73 T 263-4 74 T 264 75 T 68 76 T 67 77 T 68 -- 27 of 44 -- [2024] SADC 54 26 thought that one of the tyres had popped. OM was surprised the vehicle made it to Sampson Road as it was "stuffed".78 170 It was submitted that OM's reliability was undermined by the lack of evidence corroborating her account that the Land Rover had a popped tyre. There was no support for OM's evidence that the vehicle driven by Mr Ford on 26 May 2022 had suffered a popped tyre, was emitting smoke or was generally in a bad condition. Constable Seppelt, who attended later at Sampson Street, believed he was close enough to the Land Rover to have seen a popped tyre and did not observe one. I do not consider this raises a significant issue relevant to OM's credibility, given that in cross examination OM said she was not sure the tyre was popped, but assumed it may have as there was smoke coming from the tyres. Mr Ford’s evidence 171 He did not speed during the drive or swerve away from oncoming traffic. It would have been peak morning traffic and banked up.79 Backyard of abandoned house in Sandleheath Road OM’s evidence 172 Mr Ford turned into Main North Road, left into Hogarth Road and right into Sandleheath Road. Mr Ford stopped outside an abandoned house. OM recognised this house as one where Mr Ford’s children previously lived with their mother.80 173 Mr Ford drove through the closed side gates. OM said, "the gates were closed, but he smashed through them in the car".81 174 Mr Ford drove into the backyard which had overgrown wet grass. He drove around so that the Land Rover was facing the house. 175 Mr Ford told her to open the gates for him. OM did not do this straightaway as she was scared. Mr Ford was on the phone to someone and was stressing about the police. She could hear sirens.82 176 If Mr Ford had driven in the manner described by OM, it is plausible that Mr Ford would be concerned about the risk a member of the community had reported his manner of driving. Taking the car off the road would assist in avoiding detection. 177 OM heard Mr Ford telling someone to hurry up and come and get him because of the car. OM believed this was related to the condition of the car and whether it could be driven out. 78 T 148 79 T 336 80 T 70 81 T 71 82 T 71 -- 28 of 44 -- [2024] SADC 54 27 178 Mr Ford got out of the car first. OM believed that he pulled her out by her hair. OM was on her knees on the ground. Mr Ford hit her in the head, because she was emotional and stressed, which stressed Mr Ford.83 179 Mr Ford then told her to run. OM pleaded with Mr Ford to stop. 180 OM remembered thinking that she did not want to run because she had thongs on her feet, her feet were wet, and she thought he would run her over. That account struck me as unlikely to have been invented. It had the hallmarks of a person thinking through their options and making a risk assessment of falling in wet conditions. 181 In cross examination OM said she had been beaten around the head by Mr Ford for a substantial amount of time.84 OM agreed she had never mentioned that she had been in punched in the head by Mr Ford in her police statements,85 but would have mentioned it to her parents, her daughter and her partner.86 I direct myself that to the extent this was a prior consistent statement or statements, it does not make OM’s evidence more likely to be true. 182 I treat the failure to mention in her police statements that Mr Ford punched her to the head as an inconsistent statement. It is one thing not to mention a singular blow, which might be understandable in the context of having experienced a traumatic event and the trauma of the assault or assaults that OM says followed. However, that OM did not mention to police that she was beaten around the head for a substantial amount of time is a significant matter relevant to OM’s reliability and credibility. This omission adds to my concern that OM has reconstructed events and provides a further reason to examine OM’s evidence carefully. Mr Ford’s evidence 183 Mr Ford drove into the backyard of the abandoned house in Sandlehealth Road to kill time and to get the car off the road. He was worried about being found by police in the car, which he should not have been driving. 184 The back gates were slightly open, but the Land Rover would not clear the gap. He used the vehicle to gently bump the gates open. He did not want to scratch it as it was a nice car, and he did not want people to hear. 185 After he parked, there was a discussion about Mr Ford’s whereabouts over the last few days. Mr Ford told OM he had been with his friend Dylan and asked OM to send him the money she had agreed to send back to him, as he was broke.87 83 T 72 84 T 105 85 T 143-4 86 T 144 87 T 266-7 -- 29 of 44 -- [2024] SADC 54 28 186 A message popped up on the display screen of the car to Mr Ford from Amber. Mr Ford was worried about the lie he told OM about staying with Dylan, when the truth was that he had stayed with Amber. OM looked at Mr Ford with ‘the filthiest look’, accused him of lying and was very angry. There was a scuffle over his phone as OM tried to grab it. Mr Ford sat on it to prevent her from viewing the message.88 187 Mr Ford asked OM to send the money she owed to him, so he could leave. Mr Ford told OM to get out of the car. When OM did not get out, Mr Ford leant over, opened her door and OM got out.89 188 Mr Ford drove away intending to see Dylan who lived not far from Target Hill Road with his mother. He sent a message to Dylan advising he was on his way. Before he got there, he returned to Sandlehealth Road to see if OM wanted a lift home or to see if she was alright, as he felt bad for leaving OM so far from home.90 On Mr Ford’s account, when he drove away abandoning OM, he had OM’s phone and thongs in the car.91 189 In cross examination Mr Ford said that at this time OM owed him $5,000 and that amount had been agreed. He brought it up two or three times during the conversation in the backyard of the abandoned house.92 OM told him that she would transfer it, but he brought it up more than once as he did not understand why she could not transfer it while they were sitting in the car. He denied getting angry about it because OM agreed to pay it.93 190 Mr Ford denied getting out of the Land Rover at all in the backyard and denied becoming angry at any point on 26 May 2022.94 191 There is some support for Mr Ford’s evidence that he wanted OM to send him money. OM gave evidence that later, in Sampson Road, he asked her to transfer money to him. 192 Mr Ford’s evidence on the topic of why he ejected OM from the vehicle was unimpressive. It defies logic. 193 It is absurd that Mr Ford would eject OM if he was worried about OM’s suspicions and his lie about his whereabouts, trusting that OM would repay him the $5000 she owed him, while planning to abandon her a long way from home, without her phone, which presumably was what Mr Ford was expecting her to use to transfer the money when they were both in the car. 88 T 268 89 T 268-9 90 T 269-70 91 T 274 92 T 333 93 T 334 94 T 336 -- 30 of 44 -- [2024] SADC 54 29 194 There was no explanation on his account for why OM would readily leave without her thongs and phone, or why he expected OM to abide any agreement to pay money to him, when on his own account he treated her in such an appalling manner. 195 Mr Ford’s evidence that he was not overly concerned about the debt is unlikely, given he said he was so broke that he needed OM to transfer money to him for petrol when he drove to collect her, and the much smaller debt of $1,400 had prompted him in 2021 to threaten OM. Events next door to the abandoned house in Sandleheath Road OM’s evidence 196 OM pushed the gates open so Mr Ford could get the Land Rover out and made a run for it. Mr Ford drove out of the driveway and turned right. 197 OM ran to the next-door neighbour's house. The garage door was up so she entered. There were a couple of cars in the driveway. OM hid behind the last car under the garage, looked towards the street and saw Mr Ford drive slowly past.95 198 A man came out of the house and confronted OM. He asked what she was doing in his yard. OM tried to say that she needed help, when a woman came out behind him and yelled at her. The woman then threw her against a fence and assaulted her. 199 The woman grabbed her around her shoulder and her neck and threw her against the corrugated iron fence that separated the properties.96 OM experienced pain in her head but nowhere else. 200 The woman's forearm went under her chin as she was thrown. The back of her head hit the fence and she landed on concrete, on her right side.97 OM agreed that the woman punched her to the head.98 201 After the assault she got to her feet, ran out of the yard, and turned left. Mr Ford had driven back and drove alongside her. He told OM to get back in the car. Mr Ford was stressed and urging her to get back in the car before the police arrived. He asked what the lady had done to her and told her to stop being stupid.99 OM denied that she told Mr Ford that a lady had hurt her. OM was cross examined about how she contacted the ground when she was assaulted by the woman on Sandleheath Road. OM agreed the woman's forearm went under her chin. The 95 T 73 96 T 76 97 T 76 98 T 105 99 T 77 -- 31 of 44 -- [2024] SADC 54 30 woman did not grab her and throw her into the ground; she had been thrown up against the fence and rebounded from the fence to the ground.100 202 OM agreed that she gave a statement to police on 13 June 2022 in which she said the woman hit her with her right arm which got her under the chin, and caused her to fall back into the fence, and then, "she grabbed me with both hands by the back and front of my jumper and threw me to the ground". OM was initially reluctant to agree that her statement described two separate actions. OM said she probably remembered the events that way at the time but maintained that the woman had essentially thrown her to the ground, because she threw her onto the fence. This was a concession that her memory of how she fell is different to what had it had been at the time she gave the statement. The difference in the recollection is potentially explicable by the effluxion of time and the traumatic nature of the event. It is an inconsistency that affects my assessment of OM’s reliability. Her answers on this topic indicated a lack of awareness that her memory may now not be accurate. It adds to my concern about OM’s reliability and is another reason to approach OM’s evidence with caution. 203 OM was spoken to by Constable Seppelt at the scene while she was seated in a police vehicle. The conversation was recorded on body worn footage. OM can be heard speaking, but her face is not visible. The tone of her voice was distraught. OM was experiencing great difficulty in speaking smoothly. Her breathing was ragged, consistent with being in a state of panic. OM said, "He told me to open the fence so that he could get the car out and um, I run next door, for help, and the lady, punched me, the lady came out of the house, and she punched me in the back of my head and stuff and and hurt my arm". 204 Constable Seppelt then asked, "So she did, over there?". OM said no, it was the house next door to the one behind. Constable Seppelt asked if OM knew who lived in that one. OM did not know anyone in the area. 205 It was put to OM in cross examination that she had said, "she hurt my arm". OM disagreed and said she did not hear this or say this. OM insisted that she did not say 'hurt my arm' in the context of anything to do with the woman in Sandleheath Road. 206 I have carefully reviewed the body worn footage. I am satisfied that OM told Constable Seppelt that the lady who assaulted her, hurt her arm. There was no break in her speech that suggested she was discussing two separate incidents. OM was plainly talking about the woman on Sandleheath Road, not Sampson Road, and was giving a sequential account of events. This account is inconsistent with her evidence that she did not suffer any pain or injury to her arm in Sandleheath Road. 207 It is relevant when assessing this inconsistent statement that OM was experiencing significant distress at the time. I also bear in mind that OM responded 100 T 101 -- 32 of 44 -- [2024] SADC 54 31 rationally to the officer's question to correct a misunderstanding about where the assault on Sandleheath Road occurred. The inconsistency relates to an important issue. It is a matter that has caused me some disquiet about OM’s honesty and adds to the need to scrutinise her evidence very carefully. 208 OM denied putting her arms out to break her fall after being pushed into the fence by the woman at Sandleheath Road. OM said she fell to the ground after rebounding from the fence, landing on her right side. She said it happened within three to four seconds.101 There is no basis to make a finding beyond reasonable doubt as to how OM landed, but as a matter of common sense if she was falling from rebounding from the fence, or from being thrown down and was conscious, it is likely that OM would have instinctively tried to break her fall. I am not satisfied that OM’s account about the assault and how she came to be on the ground is reliable. 209 OM’s evidence on this topic, in combination with her unequivocal denial that she had said the woman had hurt her arm, raises the possibility that OM was reconstructing her evidence about how she fell, to avoid a suggestion her arm was injured at Sandleheath Road. I considered that OM was either subconsciously or deliberately reconstructing events. 210 It was put to OM that when she referred to the blow to the head when she was speaking to Constable Seppelt, she can be seen on the body worn footage in the reflection of the car door handle, touching her head. OM viewed the footage and said she saw herself tuck her hair behind her ear. The video is unclear, as the image shown is a small reflection of OM, which shows little detail. It shows OM making some movements with her arm and hand that are consistent with nervously moving her hair around on both sides of her head and then at the time she refers to a blow to her head, she makes a similar movement, but which is also consistent with being a touch to the back of her head. There was little basis for OM to be confident about what she was doing at this time, and it would be surprising if she specifically remembered tucking her hair, but her evidence on this topic did not cause me to be concerned about her reliability or credibility generally. OM was not avoiding the suggestion that the woman hit her head. Mr Ford’s evidence 211 He returned to Sandleheath Road and parked on the road across the driveway of the abandoned house and the driveway of the house next door. His friend Dylan had messaged him and called. At this time Mr Ford sent to him his location, so he would know where he was. 212 When OM emerged from the driveway of the house adjacent to the abandoned house, she was crying hysterically in a way he had not heard her cry 101 T 98-9 and T 105 -- 33 of 44 -- [2024] SADC 54 32 before, and she was holding her arm. OM said that a lady hurt her. Mr Ford asked her more than once what had happened and asked her to get in the car. 213 Mr Ford’s description of OM’s demeanour is corroborated by Ms Bridges who observed OM a few moments later when OM turned into Sampson Street, but it is doubtful that OM told Mr Ford she had hurt her arm. The only reason OM could have for telling Mr Ford that the woman had hurt her arm, is if she wanted his help. OM did not want help from Mr Ford. Events in Sampson Street OM’s evidence 214 From Sandleheath Road, OM walked around a corner and after passing one or two houses,102 she saw a woman check a letter box and move into the house. OM ran to the door of that house and asked for help.103 215 OM thought she scared the woman, as she ran up to the door frantically begging for her to call police.104 The woman did not open the door and did not want to call police. Mr Ford parked up at the front of this house, on the footpath of the road. 216 Mr Ford told her to stop being stupid. OM gave the following evidence. A Yes, he did. He came up to where I was and, again, he was telling me to stop being stupid, 'You're being silly. Come on, babe, get back in the car', you know, and then the people - the lady was, yeah, she was telling me to 'Get back in the car with your boyfriend and go home’. 217 OM said to the woman that Mr Ford was going to kill her and she did not want to get back into the car with him. Mr Ford then argued with her, telling her to unlock her phone and to send him money. He told her they had to go, and that she was being silly.105 218 Mr Ford’s friend then arrived, who OM knew as Dylan, and as "Dilza".106 Mr Ford and Dylan went to look at the Land Rover, while OM stood by the front door whispering to the woman, begging her to let her in. The woman let her into the house. The woman's boyfriend who was there, told the woman to remove OM. OM said he was going crazy at the woman, and they did not want to call the police. OM called her mum from her mobile. Her mum answered just as Mr Ford and Dylan bashed on the front door, demanding that they get OM out of the house, saying that they were going to run through their house.107 102 T 77 103 T 77 104 T 77 105 T 78 106 T 78 107 T 79 -- 34 of 44 -- [2024] SADC 54 33 219 OM asked for the door to be opened and said she would go out. OM did not want the people in the house to be hurt. She went outside and Mr Ford tried to pull her off the porch, for her to go with him. 220 OM struggled. Mr Ford was pulling her arm, trying to pull her in the direction of the car, and OM pulled back.108 OM said because she was pulling back, he was able to grab and pull her, and slammed her into the ground.109 221 Mr Ford threw a plant pot, or plate that the pot was sitting on, at her head.110 OM indicated it hit the top rear of her skull towards the right side. OM felt dazed and exhausted. She was lying on the ground in the corner of the porch and pleaded with Mr Ford to stop. Mr Ford stood in front of OM and snatched her phone from her hands. He screamed at her, demanding that she unlock the phone. 222 OM said that she was curled up like a ball in the corner when Mr Ford,111 ".. held on to the wall, one side of the wall, of the verandah, like, sort of - and took two steps back and then he - then he kick- then he stomped on my arm."112 223 OM indicated the impact was to her right forearm. OM said it was one of the most excruciating pains she had ever felt in her life and that she heard a crunching gravel sound.113 224 In cross examination OM said at the time she was curled in a ball in the corner of the front door and a wall, turned to her left, her arms were covering her face and head, with her forearms touching.114 225 Mr Ford spat in OM’s face and walked away.115 She did not see where he went. 226 OM was screaming. She was then taken across the road at the invitation of a woman who offered to sit with her until police and an ambulance arrived. I am satisfied that this occurred and the woman was Charlotte Bridges. 227 OM said she suffered a broken forearm, black eye, and bruising on her back and her arms and continues to experience daily pain from her injuries. 228 In cross examination OM said after Mr Ford had taken her phone from her hands, he demanded that he send her money. OM said Mr Ford was not yelling the entire time they were on the porch but he was yelling and being aggressive. 108 T 81 109 T 81 110 T 79 111 T 82 112 T 80-1 113 T 81 114 T 159 115 T 82 -- 35 of 44 -- [2024] SADC 54 34 Charlotte Bridges’ evidence 229 Ms Bridges lived on Sampson Road, Elizabeth Grove, opposite the house where OM sought assistance. She gave evidence of seeing and hearing an altercation between a woman, and a man at the house. The man emerged from a black SUV. I am satisfied based on the description she gave of the male that this man was Mr Ford and the black SUV was the Land Rover. Ms Bridges described the events that she saw through her window, which was covered with a flyscreen. A portion of events was filmed by her on her mobile phone. 230 Around 10:00am Ms Bridges was in bed watching TV. She heard yelling outside her window which faced the street and looked out. She saw a woman wearing black ¾ length leggings, a black shirt, and thongs. I am satisfied based on the description she gave and the events that followed, that the woman she saw was OM. 231 OM was screaming and walking down the street, asking for help. OM walked across the road to Ms Bridges' neighbour’s house and knocked on the door and asked for help. Ms Bridges heard her say, ‘please help me’, as she watched from her window. OM was crying and incoherent. 232 Ms Bridges saw the Land Rover drive past quickly, turn around and then park at the front of the neighbour’s house. Mr Ford emerged from the driver’s side, went to the passenger side, and rummaged around. Mr Ford walked up to OM and asked her to get back into the car. He asked what she was doing and told her to calm down. His manner of speaking was calm and to the effect of "get back in the car, this is stupid." 233 OM was quiet and not moving. Ms Bridges’ description of OM was compelling. She gave the following evidence: "It was more what she was doing not what she was saying, like when a dog is scared, stays pretty still...she sounded scared about getting back into the car." 234 Mr Ford returned to the Land Rover and sat in the driver's side, then returned to OM, telling her in a very aggressive, short tone, to "Get the fuck in the car". 235 OM yelled "go away". 236 A white car driven by an older woman drove past. A shorter male emerged from that car and stood towards the end of the driveway at the neighbour’s yard. Mr Ford spoke to this man and then returned to OM. Ms Bridges heard OM screaming to be left alone and could hear a physical altercation. She heard OM and Mr Ford making grunting noises and saw OM being pulled by Mr Ford’s arm. Ms Bridges could not see OM's face or body, or Mr Ford’s face, but she could see Mr Ford's arm pulling OM's arm, and OM pulling her arm back.116 OM remained on the doorstep throughout the incident. She did not see anything else but heard OM 116 T 189, 191 -- 36 of 44 -- [2024] SADC 54 35 yelp and scream out in pain117 and then saw Mr Ford walk away and meet the other man at the end of the driveway. 237 Ms Bridges drew a description of the relative positions of OM and Mr Ford when she witnessed these events. It depicted OM on the doorstep and Mr Ford off the doorstep, and to the right of it. 238 As Mr Ford and the other man left, Ms Bridges recorded them on her mobile phone from her window. After they got into the Land Rover and drove away Ms Bridges walked across the road and approached OM. OM was crying, shaking, and said to her, "I think I broke my arm." For the reasons set out below I am satisfied that Ms Bridges was a reliable, credible witness. I am satisfied that OM said words to the effect that she thought she broke her arm, which is inconsistent with her evidence that Mr Ford broke her arm. OM was likely to have been in shock and did not know Ms Bridges. It is possible that OM blamed herself or may not have been willing to say that Mr Ford broke her arm, but the inconsistency is on an important topic and adds to the need to scrutinise OM’s evidence carefully. 239 The video recording was made through the window and the beginning portion shows it is through a wire flyscreen. It shows two trees on the far-left side of the video image and a smaller bushier tree to the right of those. The recording captured background sounds, including birds. Nothing can be heard which can be attributed to OM. In the recording Mr Ford and Dylan can be seen walking away from the house towards the Land Rover. Their body language is unremarkable. Ms Bridges said the doorstep where the incident occurred was behind the bushier trees, but she was able to see the Mr Ford's arm pulling on OM's arm which she described as a “tug of war” motion. 240 In cross examination Ms Bridges said she did not notice any smoke coming from the car or a popped tyre, just that it was driving fast.118 She did not recall the exact words that were used when Mr Ford first approached OM and spoke to her but recalled the gist of it.119 She recalled OM saying either "get off me" or "let go of me". 241 Ms Bridges agreed she had given a statement on 28 August 2022 and did not mention seeing a physical struggle, and the first time she mentioned this was during a conversation with the prosecutor on 15 March 2024. She was asked if the events were fresher in her memory in August 2022 than they are now. Ms Bridges gave the following evidence: "Yes and no. Yes 'cos a lot of the details of what I remember them saying are a lot clearer back then, but then like more instances, like it was a bit of a crazy situation in the beginning, so I wasn't remembering everything 'cos I was just saying like the footnotes.” 117 T 189 118 T 192 119 T 195 -- 37 of 44 -- [2024] SADC 54 36 242 Ms Bridges agreed she did not remember, when giving the statement in August 2022, seeing Mr Ford pull OM’s arm. When she was first called about attending court, she replayed everything that happened so she would know what to say and know what happened.120 She denied assuming that Mr Ford had assaulted OM. She had assumed that OM fell and injured herself from the pull and shove, which is what she heard OM had say, that she thought she broke her arm. She did not assume that Mr Ford punched her, or that OM punched him.121 Ms Bridges said there were no other altercations that she remembered afterwards and did not recall later on if Mr Ford punched OM. 243 Ms Bridges was asked if the statement in August 2022 was more accurate than her memory in March of 2024. Mr Bridges gave this evidence: A I'd say they're the same amount of accurate because I don't remember seeing the faces and the bodies, and so I didn't think it was necessary to put it in my first statement because it was just arms pulling each other. Q Sorry, arms pulling each other. A Yeah, and at the time I didn't really know what was important to give in a statement so I didn't think that was important. Q Did you see the male's hand at all. A Not clearly. I just know that I saw the jacket, because it is still a little far away, so - and I do wear glasses. Q Were you wearing glasses at the time. A Yeah, yeah. Q Did you see the male's arm grab the upper arm of the female. A Like the wrist sort of area. Her Honour: I'll just read in there that Ms Bridges indicated the top of the wrist. Q Wrist/forearm. A I can't verify if it was the top or the bottom half of the wrist, I just know it was the wrist. 244 I do not consider that Ms Bridges' failure to mention the 'tug of war' motion in her statement to police undermines her reliability, given her explanation that it was a detail she recalled in the context of having reflected on events in preparation for attending court and it was not something that she considered important to mention at the time. The similarity in the description with the action described by 120 T 198-9 121 T 200 -- 38 of 44 -- [2024] SADC 54 37 OM excludes the possibility that by coincidence Ms Bridges has invented this aspect of her account or has falsely recalled it. There is no suggestion of collusion. 245 Ms Bridges did not think that Mr Ford had his arm on OM's shoulder, trying to pull her away. At the time she heard OM yelp, Mr Ford and OM had moved out of her vision as OM fell backwards and Mr Ford moved in the opposite direction that she fell.122 She did not see OM being kicked or spat on or a pot plant being thrown. Mr Ford’s evidence 246 After OM sought help from the woman in Sampson Road, Mr Ford told OM to stop being silly, stop being stupid, and to get in the car, and that he would help if her arm was hurt.123 247 OM told Mr Ford that her thongs and phone were in the car. Mr Ford returned to the car to look. Mr Ford denied assaulting OM. He said he grabbed OM around her shoulder or maybe around the waist, coaching her, saying, “this is stupid, let’s go”. She was not willing to go.124 248 Mr Ford’s friend Dylan then arrived and encouraged Mr Ford to go back and get OM. Mr Ford walked back to OM and asked, “are you gonna come, will you jump in the car, let’s go babe”. When OM refused, Mr Ford left with Dylan who drove. The car was not damaged in any way.125 249 After Mr Ford relayed the gist of events to Dylan, Dylan told Mr Ford they could not leave OM at the house. When they returned, police were present, and they left. 250 The following day Mr Ford drove to Port Hughes in the Land Rover. There was no smoke coming from the rear of the car, and the tyres were not damaged.126 251 In cross examination Mr Ford said he did not become angry at any time on 26 May 2022. He did not agree that he was more aggressive or angry the second time he approached OM at the porch in Sampson Road. He did not hear OM yelp127 although it was possible she made a noise and he did not hear it. Detailed assessment of OM 252 It was suggested that the lack of detail in important aspects of OM’s evidence indicated she was not candid. In her answers, both in her evidence in chief and in 122 T 202 123 T 274 124 T 274-5 125 T 276 126 T 276 127 T 336 -- 39 of 44 -- [2024] SADC 54 38 cross examination, OM responded directly to the questions that she was asked. OM rarely volunteered additional information or elaborated without prompting. 253 An example of this is the following evidence given in cross examination128 Q Didn't he have to reach across and open the door for you. A No, he didn't have to do that. Q You opened the door. A No, I did not. Q So when you’re on Deuter Road, who opened the door for you to get out. A Lucas. 254 Some apparent gaps in the evidence are potentially explained either by the lack of a direct question or because OM’s memory is incomplete. 255 OM’s account about Mr Ford’s threats to kill her on 1 March 2022 and 26 March 2022 was missing contextual detail. If OM’s account of the drive on 1 March 2022 is true, it is probable that OM’s memory is incomplete. It is unlikely that Mr Ford would have acted in the way OM described without providing some information to OM about why he wanted to see her, and why he was threating to kill her. It is unlikely that after these events, Mr Ford would then suddenly force OM out of the car without explanation or an intervening event. I did not form the impression that OM was deliberately withholding information, but I consider there is a real risk that there were gaps in OM’s memory. 256 OM’s account about the threats made by Mr Ford and the manner of his driving on 1 March 2022 was logical and coherent. There were no inconsistent statements relating to what was said or the sequence of events. The evidence was not implausible. While it might be considered unlikely that OM could be mistaken about Mr Ford threatening to kill her and his manner of driving over the extended period that she described, the possibility that OM exaggerated the manner of Mr Ford’s driving and the nature of her impact with the car which was the subject of count 2, deliberately or otherwise, in combination with the likelihood her memory is not complete, raises doubt as to the reliability of her account regarding count 1 and her reliability generally. 257 The same considerations apply to the lack of explanatory detail in OM’s account of the driving and the threats on 26 May 2022. The possibility that OM was reconstructing events regarding the assault by the woman in Sandleheath Road and the assault in the backyard of the abandoned house are further significant matters that undermine OM’s reliability generally. 128 T 132 -- 40 of 44 -- [2024] SADC 54 39 Detailed assessment of Ms Bridges 258 Ms Bridges was a careful witness who explained the limits of her observations which were obscured. She differentiated in her account between what she heard, what she saw, and what she assumed. Ms Bridges paid close attention to what was unfolding outside her window. I considered Ms Bridges' to be a credible witness and that her evidence was reliable. Detailed assessment of Mr Ford 259 Mr Ford's reliability concerning his intentions and motivations was seriously undermined by his efforts to explain away abhorrent, abusive messages and harassing repetitive messages and calls to OM as being no more than simply sounding off and attempts to contact OM. 260 His evidence regarding the circumstances that led to OM leaving the car on both 1 March 2022 and 26 May 2022 was inherently improbable for the reasons I have addressed. 261 Mr Ford’s evidence about the period between 1 March 2022 and 26 May 2022 does not account for why, after OM provided on his version a false statement to police about him relating to events on 1 March 2022, he willingly resumed contact with OM and spent time with her in hotels and trusted her with his money. 262 Mr Ford’s evidence of events of 26 May 2022 does not account for why OM did not want his assistance and preferred to seek assistance from a stranger or strangers, when it was apparent to OM that those persons did not want to assist her. 263 It is implausible that Mr Ford did not hear OM yelp or scream as described by Ms Bridges, who heard OM from the across the road inside her house. 264 On Mr Ford's account there was no reason for Ms Bridges to film him leaving. That Ms Bridges recorded Mr Ford leaving is consistent with her having witnessed something that concerned her. I do not consider it was possible that the act of putting an arm on OM's shoulder or waist could have been mistaken by Ms Bridges as the pulling of arms. 265 In combination these matters, and others identified in these reasons, significantly undermine Mr Ford's credibility and reliability. I did not believe Mr Ford’s evidence. I bear in mind that Mr Ford does not bear an onus of proof. The central inquiry lies not in my personal preference for a particular version, but rather, has the prosecution proved its case beyond reasonable doubt. A rejection of Mr Ford’s evidence does not assist in proof of the prosecution case. I must return to the prosecution witnesses to determine if I am satisfied beyond reasonable doubt of OM’s evidence. It is her evidence on which the prosecution case rests. It is satisfaction of her evidence which is required if there is to be a finding of guilt. -- 41 of 44 -- [2024] SADC 54 40 Observations/Findings 266 I find that Mr Ford did and or said something that caused OM to become very fearful and distressed during the drive on 1 March 2022. OM’s account of the threats made by Mr Ford during the drive on 1 March 2022 was plausible. 267 I find that on 26 May 2022 Mr Ford abandoned OM at Sandleheath Road and that he behaved towards her in a way that justified OM taking refuge next door, and then seeking help from an unwilling stranger and refusing to accompany Mr Ford in Sampson Road. Counts 1 and 3 268 I consider that OM believed the events the subject of counts 1 and 3 occurred the way she recounted them and that it is probable that Mr Ford threatened OM in the way she described. My uncertainty about the reliability of OM's evidence generally, bearing in mind the burden on the prosecution, means I am left with a doubt about the accuracy of her account. The evidence is not capable of proving beyond reasonable doubt what was said by Mr Ford, the context in which he said it and therefore his intention. Counts 5 and 6 269 It is unlikely that OM would invent a brutal assault occurring on the doorstep of another person's house, in circumstances where she knew other persons were present. She could not have known whether those persons would provide a statement or give evidence. 270 Her account of her position at the time she said Mr Ford kicked or stomped on her was not inherently implausible. Her account of feeling dazed from her head being hit with an object and her description of the pain from the kick and the sound was realistic and logical. Her account was substantially but not entirely corroborated by Ms Bridges. 271 I accept Ms Bridges' evidence that she heard Mr Ford speak aggressively and demand that OM return to the car. I find that after Mr Ford returned to the Land Rover and approached OM a second time at the porch on Sampson Road, he spoke to OM in a very aggressive, short tone and demanded that she get into the car, and that OM yelled at him to go away. 272 I am satisfied that Mr Ford pulled OM’s arm to force OM to leave the porch and go with him to the car. I am satisfied that shortly after Mr Ford released OM’s arm, OM screamed out. 273 Two possibilities arise that must be excluded on the prosecution case relevant to a consideration of whether the evidence proves that Mr Ford kicked OM and if so, whether he caused the fracture: that OM’s arm was broken when OM fell or was thrown on the porch and the possibility that OM’s arm was broken in the assault on Sandleheath Road. -- 42 of 44 -- [2024] SADC 54 41 274 The agreed facts relating to the injury suffered by OM do not exclude the possibility that the fracture to her right arm was caused by falling on an outstretched arm or hand. There are no particulars as to whether one or both bones in the forearm were broken, where the fracture occurred, or the extent of the fracture. The need to avoid stereotypical assumptions about family violence 275 The suggestion that Mr Ford’s body language as he walked towards the Land Rover was consistent with someone dealing with an irrational person and then giving up, was an invitation to find that it is unlikely that a person can appear calm and composed following an act of violence. It was an invitation to assess the significance of Mr Ford’s demeanour by reference to the stereotype of an out of control, agitated aggressor. The causes of family violence are notoriously complex. There is no basis to assume that a calculated act of violence, executed to achieve retribution or control must be accompanied by outward signs of agitation in the moments following the violence. 276 It is not implausible or unlikely that a person can be, or appear to be, composed, during or immediately after an act of violence. In any event, little weight can be placed on Mr Ford’s unremarkable physical demeanour in determining if he assaulted OM, as I am satisfied that only moments before he walked to the car, he had acted towards OM in an aggressive manner. 277 I do not consider that an inference can be drawn from Dylan’s unremarkable body language depicted in the video footage, in the absence of evidence establishing what he saw. Lack of corroboration/inconsistent account 278 Ms Bridges did not hear or see anything that corroborates OM's account that Mr Ford threw an object at her, and stomped or kicked her. The absence of corroboration from Ms Bridges about this is potentially explained by Ms Bridges’ view being obscured. It is possible that Ms Bridges did not see Mr Ford throw an object at OM, because at the time, OM was on the ground which obscured Ms Bridges’ view. A kick towards OM while she was on the ground may not have been seen by Ms Bridges for the same reason. 279 On Ms Bridges’ account, OM yelped at about the time that OM and Mr Ford were moving away from each other. Ms Bridges said that this sound happened as OM moved and potentially fell backwards. There was no other ‘yelp’ or scream after OM appeared to fall to the ground and Mr Ford moved in the opposite direction. Mr Ford walked away after OM yelled out. What Ms Bridges saw and heard is consistent with OM calling out or ‘yelping’ at the time OM said she was slammed into the ground after her arm was pulled and the possibility that her arm was broken because of her fall. Ms Bridges’ account cannot be dismissed, as she was listening and watching carefully. -- 43 of 44 -- [2024] SADC 54 42 280 Although it is possible Ms Bridges was mistaken about the sequence of events, the lack of corroboration of OM’s account, and my concerns regarding OM's reliability generally, means I am not satisfied beyond reasonable doubt that Mr Ford threw an object at OM which hit her head and I am not satisfied beyond reasonable doubt that Mr Ford kicked or stomped on OM's arm, causing it to break. Findings 281 Count 1: Not guilty 282 Count 2: Not guilty 283 Count 3: Not guilty 284 Count 5: Not guilty 285 Count 6: Not guilty -- 44 of 44 --