PARTIES: ––––

IN THE COURT OF SUMMARY JURISDICTION

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. 21042803

[2011] NTMC 040

BETWEEN:

police

Complainant

AND:

manuel christopher manolis

Defendant

REASONS FOR DECISION

(Delivered 30 September 2011)

Mr Daynor Trigg SM:

1. On 5 August 2011 Manuel Christopher Manolis pleaded not guilty before me to 2 charges. The first of these was as follows:

On the 13^th day of November 2010

At Darwin in the Northern Territory of Australia

1. unlawfully assaulted Jennifer Joan Talbot:

AND THAT the said unlawful assault involved the following circumstance of aggravation, namely:

(i) that the said Jennifer Joan Talbot suffered harm

(ii) that the said Jennifer Joan Talbot was a female and the said Manuel Christopher Manolis was a male

Contrary to section 188(2) of the Criminal Code.

2. Manolis and Talbot had been in a domestic relationship (which Talbot described as “on and off”) for about 20 years. They had at least 5 children together (Manuel Junior aged 16, Ian aged 14, Shaun aged 12, Dennis aged 10 and Alexander aged 7).

3. In addition, Talbot had at least 2 older children named Natasha Grant (aged 23) and Matthew Grant (aged 18). Matthew said that Manolis and Talbot argued a lot.

4. All of these persons lived together in a house at 23 Linde Street Moil.

5. On Saturday 13 November 2010 Talbot was planning to attend a birthday party for a friend. Manolis had an expectation that he also would be attending the party with Talbot. The party had a 1980’s theme. Tiffany Philpott was a friend of Talbot’s and she was also planning on attending the same party.

6. All of the above persons (with the exception of Ian who was at rugby) were present at the house at the time of the incidents that are said to give rise to charge 1 herein. Alcohol had been consumed by a number of the persons present, including Manolis and Talbot. I do not find however that anyone was intoxicated to any significant degree.

7. A verbal argument developed between Manolis and Talbot to the point where the prosecution allege that Manolis:

1) Pushed Talbot forcefully in the back;

2) Later grabbed Talbot in the chest area and forcibly pushed her backwards into some internal louvres;

3) Then lifted Talbot off the ground and slammed her into the same louvres; and finally

4) In the bedroom struck her in the face with his fist or hand.

8. These actions are said to constitute the unlawful assault herein. Accordingly, each of these allegations is a separate issue that I need to consider in order to decide if the prosecution has proved that each occurred beyond all reasonable doubt. Police were called to the house that night, but Manolis was no longer at the house. Accordingly, the only witnesses to the alleged actions that constitute the assault, are some or all of the persons present at the house on this evening.

9. As a general observation I note that provocation is no longer a live issue in relation to charge 1.

10. Before turning to the specific issues herein there are a number of matters that were raised in evidence, that may assist in assessing the reliability of the various witnesses.

11. Firstly, was a screw driver involved, and if yes, how? When Manolis gave evidence he said that when Talbot was standing in the laundry door Talbot had a screw driver in her hand; she tried to stab him in the face with it; he grabbed her wrist; took the screw driver off her; managed to turn her around; and then pushed her back into the laundry with his palms. Accordingly this was a very serious and violent assault allegedly perpetrated by Talbot upon Manolis. However, when Talbot was giving evidence nothing as serious as this was put to her. On the contrary, at T18 this is all that was asked:

Do you remember there being a screw driver being involved at all?---No.

Do you remember ever picking up a screw driver?---That night or?

That night sorry---No, I can’t remember.

Do you remember pointing a screw driver at Mr Manolis at all?---No.

12. Accordingly, nothing so alarming as Manolis was alleging in his evidence. It has moved from a suggestion in XXN of Talbot that she may have “pointed” a screw driver at Manolis to an allegation by him that she “tried to stab him in the face with it”. Further, on the evidence Matthew got between Manolis and Talbot (in what he called the bathroom) and he never referred to any screw driver, nor was he asked about any. Finally, Manuel Junior made no mention of any screw driver being involved at any time, nor was he asked about any, which is surprising given that in XXN the following was said by him:

You saw everything that happened in the laundry?---Yep.

13. Accordingly I find that no screw driver was involved this evening, and I am unable to accept the evidence of Manolis on this topic.

14. Secondly, in XXN of Talbot she was asked if she remembered “scratching or pushing” Manolis in the face in the bedroom, and she answered “no”. In his evidence, Manolis again went far further than the allegation put and said that Talbot “tried to scratch his eyes out”. However, Manuel Junior (who was present in the bedroom) only saw Talbot palm Manolis in the face. He went on to demonstrate the action in court, and there was nothing that would support Manolis’ serious allegation. I am unable to accept the evidence of Manolis that Talbot attempted to scratch him in the eyes, let alone tried to scratch his eyes out. I find this evidence to be a gross exaggeration and untruthful.

15. Thirdly, in XXN of Talbot as to what happened in the bedroom she was specifically asked “do you remember pulling his hair?” Her answer was “no”. Presumably this question was asked based on instructions, or a misunderstanding of instructions. However, it was no part of Manolis’ evidence that Talbot at any time pulled his hair anywhere. Nor was it part of Manuel Junior’s evidence.

16. Fourthly, Talbot stated that at some stage she had picked up a piece of curtain pole, and agreed in XXN that it was possible she may have “pointed” it at Manolis. However, when Manolis came to give evidence about the curtain rod he said Talbot stood up; “tried to stab him with that”; he took a step back; he got it off her; and he dropped it. Again a very dramatic incident (again not witnessed by Manuel Junior or anyone else), and different to what was put to Talbot in XXN. I am unable to accept this evidence of Manolis as truthful. I find that he has displayed an ability to exaggerate and embellish the truth.

17. Fifthly, in XXN of Talbot it was suggested to her that after she came in contact with the louvres the first time Manuel Junior was trying to pick her up also. She could not remember him even being there. Again, presumably this must have been based on instructions. But it was no part of Manolis’ evidence or Manuel Junior’s evidence that anything like this had occurred.

18. Sixthly, for matters that will become apparent when I consider issue 1 which I will shortly do.

19. For these reasons I am unable to accept Manolis generally as a reliable or truthful witness, unless his evidence is supported by other evidence in the case.

20. I did not have a similar difficulty with Talbot’s evidence. I found her to be generally credible, but there were aspects of her evidence and memory that lacked precision.

ISSUE 1: Did Manolis forcefully push Talbot in the back which caused her bag to fall and contents to spill out?

21. Manolis gave evidence in his own defence. He made no mention of any such incident either occurring or not occurring. He had sat through the whole of the prosecution evidence and clearly must have been aware of what was alleged against him. His counsel did not ask him to comment on the prosecution evidence on this aspect at all.

22. Manuel Junior also gave evidence in the defence case, and likewise he gave no evidence in relation to this aspect of the allegations. Nor was he asked about it.

23. Clearly Manolis bears no evidentiary burden, and the prosecution must prove their case beyond all reasonable doubt.

24. In closing submissions Ms Hancock submitted that no such incident had occurred, yet, in my view, there was no evidentiary basis for this submission. As noted the defence case was silent on this alleged incident. However, in the prosecution case evidence that an incident had occurred came from 3 separate sources:

· Talbot who said she grabbed her bag to walk outside to front veranda; Manolis shoved her from behind really hard; she nearly fell over; all the stuff came out of her bag; she had to pick up her cards from the ground; she told Natasha to ring the police; and

· Philpott who said Talbot came out the front door with her bag on her shoulder; Manolis or Natasha followed her but she thought it was Manolis first; she heard a “thump or something” like “a body maybe slamming against another body, rugby tackles; she turned and Talbot’s bag was on the ground, had scattered everywhere; Talbot was picking up her cards; Talbot told Natasha to ring the police; and

· Natasha who said Talbot and Philpott were standing out the front; Manolis came to the front and snatched the purse; everything went flying on the ground; Talbot walked back inside.

25. It was not suggested to Talbot in XXN that no such incident had occurred. On the contrary, Ms Hancock suggested to her that it was possible Manolis may have slipped over (T14), but she rejected this suggestion on the basis that there was no water in the lounge room area. At T15 the following was said in XXN:

Q---But even if there wasn’t any water it is possible he could have slipped over. You couldn’t see what he was doing he was from behind?---Yes.

26. This answer was not clarified, as in my view, it should have been, as there was more than one aspect to the question. Accordingly the “yes” could be an affirmative response to any of the following suggestions within the question:

· even if there wasn’t any water it is possible he could have slipped over; or

· You couldn’t see what he was doing; or

· he was from behind; or

· all of the above.

27. I am unable to give this question and answer any forensic weight.

28. Further, whilst Ms Hancock was suggesting in closing submissions that no such incident occurred, her XXN was suggesting that such an incident had occurred, but any contact was “accidental”. Presumably this was intentional. As noted Manolis gave no evidence of any such incident, and therefore offered no explanation of accidental contact.

29. It was never suggested to Philpott in XXN that no such incident had in fact occurred. The only suggestion to her (which she agreed with) was that she did not in fact see any physical contact between Talbot and Manolis.

30. Likewise, it was never suggested to Natasha in XXN that no such incident had in fact occurred. She was only cross-examined in relation to subsequent events.

31. It is clear that the evidence of the 3 prosecution witnesses is not wholly consistent with each other. However, there are some aspects that are clearly consistent between all 3:

· Talbot was carrying her bag/purse;

· Talbot’s bag fell to the floor and the contents spilled out;

· Manolis was in the immediate vicinity of Talbot at the time; and

· Manolis (whether by direct evidence or implication) had a direct involvement in Talbot’s bag falling to the ground.

32. On the evidence before me I have no reason to reject the evidence of Talbot (and accept) that she was forcefully pushed from behind by Manolis. She denied the suggestion in XXN that this could have been accidental, and Manolis gave no evidence about the incident, which I find beyond all reasonable doubt did occur.

33. I therefore find beyond all reasonable doubt that on 13 November 2010 at the Moil house Manolis intentionally made forceful contact with the back of Talbot; forcing her forward; causing her bag to fall to the ground and the contents to spill out. I further find that the contact was an assault (the direct application of force) and that it was unlawful (as it was without authorisation, justification or excuse).

ISSUE 2: Did Manolis forcefully push Talbot into some internal louvres?

34. Manolis said in his evidence (T52-53) that:

· Talbot grabbed the bowl of butter that was on the table and threw that at him;

· The butter hit him on the shoulder;

· She then had a curtain rod (about 900mm long);

· She tried to stab him with it;

· He ended up taking that off her;

· he turned away but then turned back

· Talbot had grabbed a ceramic bowl that had ice in it;

· Talbot tried to hit him over the head with it;

· He grabbed her wrists;

· They were standing up struggling for a good couple of seconds;

· They had moved about a metre and a half during the struggle;

· He heard a smash, the bowl has dropped behind Talbot;

· Talbot grabbed his shirt (but in XXN at T58, he said she grabbed me by the neck);

· They both hit the ground;

· They ended up next to the louvres where their bedroom was;

· He got up and asked Talbot to get up.

35. Accordingly, Manolis raises the defence of defensive conduct (section 29 of the Criminal Code). Having been raised it is necessary for the prosecution to negative it beyond all reasonable doubt. In addition, Manolis raises the excuse of unwilled act or accident (section 31 of the Criminal Code) and accordingly the prosecution bears the onus of proving beyond all reasonable doubt that he:

· Intended to push her into the wall/louvres; or

· Foresaw that as a possible consequence of his conduct, and an ordinary person similarly circumstanced would not have proceeded with that conduct.

36. Manuel Junior was in the room at the time. His evidence was (T62) that:

· Talbot grabbed the butter off the table and tried to hit Manolis with it;

· She reached for the big glass bowl with the ice and water in it;

· She tried to swing that at Manolis;

· Manolis blocked her arm;

· The glass bowl was on top of both their heads;

· Manolis pushed his arm forward;

· Talbot started walking backwards a bit;

· The bowl slipped out of her hands and smashed behind her;

· She slipped up on the water;

· As they fell her back hit the bottom of the wall just beneath the louvres;

· Manolis then got up.

37. There are a number of consistencies with this evidence and that of Manolis himself. The points of distinction are:

· Manuel Junior says that Talbot tried to hit Manolis with the butter, whereas Manolis says he was actually hit;

· Manuel Junior makes no mention of any curtain rod being involved at all (even though he said in XXN (T65) that he was only 2 to 3 feet away), whereas Manolis says that occurred between the butter and the bowl of ice;

· Manuel Junior doesn’t describe any physical grabbing between Talbot and Manolis at any stage (either by the shirt or neck);

· Manuel Junior doesn’t say how Manolis came to end up on the ground.

38. Manuel Junior was not shaken in XXN. Whilst he agreed that he was “close” to his father, that would not necessarily mean that he might not also be close to his mother. Nor does it necessarily follow that he would be prepared to tell an untruth to help his father.

39. The only evidence in the prosecution case about this incident comes from Talbot herself, as none of the other witnesses saw this incident, but did hear a “crash”. She said the incident with the pole happened in the bathroom/laundry earlier on. Next she says the throwing of the butter occurred before she grabbed her bag and the incident of the push occurred (as referred to above as issue 1); and it was after she returned inside that Manolis followed her; as she turned to face him; he grabbed her with 2 hands in her chest area; and shoved her into the window frame; the whole of her back hit the frame; and her head hit the wall.

40. This is a criminal matter and the prosecution bears the onus of proof beyond all reasonable doubt. It is possible that Manuel Junior’s evidence is not truthful (but it is equally possible that it is), but he was not shaken in XXN, and I am unable to reject it. I am therefore not able to be satisfied beyond all reasonable doubt that issue 2 occurred as alleged by the prosecution.

ISSUE 3: Did Manolis lift Talbot up and then throw/slam her into the same internal louvres?

41. In his evidence Manolis thought he tried to pick Talbot up “once” but she was too heavy; so he “put” her back down on the ground again. According to Manuel Junior he saw Manolis grab Talbot by the shoulder; tried to pick her up; but she wouldn’t get up; he tried “a couple of times” then he just left her. In XXN he went on to suggest Manolis was trying to get Talbot off the floor “another 3, 4 times”.

42. In her evidence Talbot said that she was lying on the floor and Manolis was standing over her screaming; telling her to get up; he grabbed her and was trying to pull her up; he lifted her; then slammed her back into the window again; with force.

43. By this stage Natasha had come into the room. Her evidence was that Manolis was standing over Talbot; he was yelling at her; he picked her up; he slammed her against the window; it was a hard slam; Philpott came in and said the police were on their way; and Manolis left.

44. Accordingly the evidence of Talbot and Natasha is consistent, and the evidence of Manolis and Manuel Junior is consistent. It is not possible that both versions can be correct. One version must be false, and deliberately so. Is there any other evidence to assist resolve this conflict? Talbot said she had bruising that came out a few days later on her back, shoulders and hip. The only witness who gave evidence of seeing any bruising was Natasha again, who saw “big bruising on the side of her back”. So this does not help to resolve the conflict.

45. As noted earlier, I was not impressed with Manolis as a witness of truth, but here his evidence is supported by Manuel Junior and I have no proper basis not to accept him. Likewise I do not reject the evidence of Talbot or Natasha either. That being the case I am simply unable to solve the conflict on the evidence on this issue. Accordingly, the prosecution have failed to prove this issue beyond all reasonable doubt.

ISSUE 4: Did Manolis hit Talbot in the face in her bedroom?

46. It was the evidence of Talbot, Manolis and Manuel Junior that all were present in the bedroom; Talbot was sitting there; Manolis came in; and Manolis hit her in the face.

47. Talbot said she felt a blow under and around her right eye, and she wasn’t sure if it was a fist, or a hand, or a slap or something. I found this evidence to be highly credible, and indicative of her not trying to make it worse than it may have been.

48. Manuel Junior said that Manolis “slapped” Talbot.

49. Manolis said he “sort of gave her a slap in the face and I told her to wake up”.

50. So clearly all the evidence confirms that Manolis did hit Talbot in the face in the bedroom. As noted earlier, provocation is not available, so has self defence been raised?

51. It was suggested to Talbot that she pushed Manolis away. She couldn’t remember doing that but was pretty sure she didn’t as she “wouldn’t go up against him when he is agitated”. Manuel Junior gave evidence that he saw Talbot palm Manolis in the face, and demonstrated an action in court whereby she would be pushing Manolis away from her. As noted earlier Manolis embellished his evidence and falsely suggested Talbot tried to scratch his eyes out. This did not happen. I find that Talbot was not attacking Manolis. At best (or worst) she was pushing Manolis away from her (whether forcefully or otherwise). Accordingly, there was no occasion for Manolis to need to defend to defend himself from Talbot. I find beyond all reasonable doubt that he was not acting in self defence.

52. This conclusion is, in my view, further supported by some other evidence in the case. In his evidence, Manolis suggested that after he “sort of slapped” Talbot; Manuel Junior jumped “in between” them and said “Dad, it’s not worth it, you had better leave”. The intention of this evidence was, in my view, to create the impression that there was mutual aggression between Manolis and Talbot (hence the stepping between them to break it up), and the words were suggestion some blame on Talbot. However, I reject this evidence as untrue, and deliberately untrue. The evidence of Manuel Junior was materially different. He said:

· He stepped in (not between them, but rather….);

· He grabbed Manolis in a bear hug (if there was mutual aggression, this would have left Manolis vulnerable to attack by Talbot, which did not happen, and is consistent with the actions of stoppoing the aggressive party);

· He lifted Manolis’ feet off the ground and carried him out the back (which) is wholly consistent with him stopping Manolis from assaulting Talbot further); and

· He told Manolis “that’s enough now, leave it” (which is consistent with Manolis being the aggressor, and him telling him to stop).

53. I find beyond all reasonable doubt that Manolis forcefully slapped Talbot in the area of her right eye as he was angry at her. He was not acting in self defence but out of anger.

54. In summary on charge 1, I find Manolis guilty of this charge by forcefully pushing Talbot in the back (causing her bag to fall and spill); and by forcefully slapping her in the face. I find both actions were unlawful, as being without authorisation, justification or excuse. I further find that at the time Manolis was a male and Talbot was a female. I further find that as a result of the slap Talbot suffered harm namely a tiny cut on the right side of her top lip and soreness where he hit her. I do not find that the harm was sufficient as to interfere with her health.

55. I now turn to consider charge 2.

56. The second charge that Manolis pleaded not guilty to was:

On the 15^th day of November 2010

At Darwin in the Northern Territory of Australia

2. being a person against whom a DVO was in force, engaged in conduct that resulted in a contravention of a Domestic Violence Order

Contrary to Section 120(1) of the Domestic and Family Violence Act.

57. On the day following the incidents that led to charge 1, Talbot attended the police station to request a domestic violence order. As a consequence, police arrested Manolis on Sunday 14 November 2010, issued a police DVO against him, and served him with this order at the police station. The persons named as protected persons in the order were (Talbot, Matthew, Natasha, Ian, Shaun, Dennis and Alexander). The relevant orders stated as follows:

From 5:00pm on 14/11/2010 the Defendant is now restrained from directly or indirectly:

1. approaching, contacting or remaining in the company of the protected person/s

2. approaching, entering or remaining at any place where the protected person/s is living, working, staying, visiting or located

4. and must vacate the premises located at 23 Linde Street, Moil forthwith.

58. Pursuant to the served PDVO Manolis was then summoned to appear in Darwin CSJ on 17/11/10 at 9:00am to show cause why the orders should not be confirmed.

59. The police allege that the day after he was served with the PDVO, Manolis returned to his house address (in breach of the order) and stayed there overnight whilst various of the protected persons were in the house (in further breach of the order).

60. It was the evidence of Matthew that on Monday 15/11 Manolis came home to the house (about 1530 or 1630) as if nothing had happened. He was there and Ian was there. Next day when he woke up he found Manolis asleep in Talbot’s room.

61. Manuel Junior confirmed that on the Monday night he was at home and Manolis came home and stayed the night at the house. He said that Ian, Matthew, Shaun and Dennis (who were all named as protected persons on the order) were all there as well.

62. Ian also gave evidence. He said on the Sunday he was at home with his three younger brothers, his sister and Matthew. He didn’t know where Manolis was. But on the Monday Manolis was there with his sister and three younger brothers.

63. Accordingly, the clear evidence is that Manolis breached the PDVO by returning to the house, and by being in the company of some of the protected persons.

64. The way that XXN of the police witnesses proceeded seemed to be suggesting that Manolis may not have understood that he couldn’t go back to the house (T48). However, on the evidence before me (including his own evidence), I find that he was fully aware of this.

65. Constable Wooton clearly stated in his evidence that:

· He read out the conditions of the order and made sure he acknowledged and understood those conditions;

· He also informed him of the return to court date;

· He explained to him that he was not to approach, contact or remain in company of any of the protected people, which included via phone, mail, text message, fax, email or any other form of communication;

· He explained that he was not to approach, enter or remain in any place the protected persons are living, working, staying or visiting;

· He explained that he must vacate the premises located at 23 Linde Street, Moil;

· Manolis’ response was that he understood the conditions;

· Manolis raised concerns about the children being on the domestic violence order;

· Manolis also raised concerns about not being able to return to 23 Linde Street as that was his normal place of address;

· He explained to Manolis that it was only a temporary thing and that it was being returned to court and he could explain it to the magistrate;

· Manolis definitely understood that he was not allowed to go there until it was returned to court;

· He told Manolis the consequences of going to that address would be he would be placed under arrest for breaching a domestic violence order.

66. I accept the evidence of Wooton. In his evidence Manolis said:

“Well the officer that was here first time, he said what he said,and then I said to him, I said “well I got all my kids at home, them boys. If I go back after I leave here and if the mother is not there, I will be staying there until my court date on Wednesday” because Alex and Dennis and Shaun was there, when I come out of the police station. And that is what I told the police officer because my – they are my responsibilities regardless of what anybody says, and if the mother wasn’t there well I had to take responsibility.”

67. There are a number of things to note about this evidence, Firstly, contrary to what his counsel suggested in XXN of Wooton there was no misunderstanding by Manolis. On the contrary this passage makes it clear that he knew he wasn’t to return to the house but was intending to ignore it. Secondly, this conversation, or nothing like it was put to Wooton.

68. I find that Manolis was fully aware that he was not to return to 23 Linde Street, but he deliberately chose to go straight back there after he left to police station. This was a deliberate and intentional breach of the order. He decided to go there “regardless of what anybody says”. In effect no-one was going to tell him what to do.

69. It also appears that Manolis was suggesting that Alex, Dennis and Shaun were there when he went back. But this is contrary to the unchallenged evidence of Talbot that when she knew Manolis was at the police station she went back to the house and got the younger children and she, Alex, Shaun and Dennis and Natasha stayed at her mother’s that night. I reject the evidence of Manolis and accept the evidence of Talbot on this.

70. If the defendant is attempting to raise a defence of emergency (section 33 of Criminal Code) I find that it has been negatived beyond all reasonable doubt.

71. A further surprising piece of evidence came from Manolis on this topic. He said that when he came back from the police station:

· Manuel Junior was there;

· He was told that Talbot was at “nana’s”;

· He asked Manuel Junior to pass a message to Talbot, and he agreed to do so;

· The message was “can you go tell her that if she is not going to come back until Wednesday if it’s alright to watch these boys”;

· When Manuel Junior came back he was told “Mum said it was alright for you to stay here”;

· But after the court case on that Wednesday, that was when I was supposed to leave and that is when they put the DVO on me.

72. This evidence is surprising for a number of reasons. Firstly, Manuel Junior was not asked about, nor did he give any evidence to suggest that any such conversation took place either with Manolis or Talbot as alleged, or at all. Secondly, Talbot was not asked about, nor did she give any evidence to suggest that any such conversation took place with Manuel Junior as alleged, or at all. I therefore reject the evidence of Manolis in this regard and find that no such conversations occurred.

73. In any event, Talbot could not have authorised Manolis to breach the DVO, and I find she did not purport to in any event.

74. If it be suggested that in this piece of evidence Manolis was suggesting he thought the DVO was only effective after the Wednesday, I reject that as untrue. In other parts of his evidence he made it clear that he did know he was not allowed to go back to his house, but he simply ignored that.

75. I find the defendant guilty of charge 2 by deliberately breaching the PDVO, by immediately returning to his house and remaining there over the next few days, and in company of some of the protected persons. I find these breaches were deliberate.

76. I will hear both counsel on the question of penalty and any other matters.

Dated this 30th day of September 2011.

_________________________

Daynor Trigg

STIPENDIARY MAGISTRATE