District Court New South Wales Medium Neutral Citation: R v Peter Gavranich [No 2] (Verdict) [2018] NSWDC 402 Hearing dates: 3 December 2018, 4 December 2018, 5 December 2018 Date of orders: 06 December 2018 Decision date: 06 December 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Decision of (1) Not guilty specially aggravated break enter and intimidate with dangerous weapon (2) Guilty of aggravated break enter and intimidate knowing person present. Catchwords: CRIMINAL LAW – break and enter circumstances of special aggravation – armed with a dangerous weapon; a rifle – trial by Judge alone – assessing witnesses – an intimidating video message – a threat with a rifle at 2:23AM – no rifle on Police search at 3:15AM – some evidence not disputed – a toxic relationship – disputed evidence – break – dangerous weapon at 6:00AM – an incident at Fairy Meadow – two conflicting versions – accused version rejects – concerns with aspects of complainant's account – belief on balance is not proof beyond reasonable doubt – reason to doubt rifle at Fairy Meadow – no reason to doubt other aspects of complainant's account – prosecution onus – lingering doubt – dangerous weapon present – Accused must have benefit of the doubt – no doubt alternative count Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Firearms Act 1996 Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Evidence Act 1995 Cases Cited: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 Borodin v R [2006] NSWCCA 83 Di Simoni (1981) 147 CLR 383 Houlten v R (2000) 49 NSWLR 383 Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen, (1999) 194 CLR 610 Strickland v Director of Public Prosecutions (C'th) [2018] HCA 53 X7 v The Queen [2014] NSWCCA 273 Fox v Percy (2003) 214 CLR 118 R v Jovanovic (1997) 42 NSWLR 520 RB v R [2016] NSWCCA 62 Category: Principal judgment Parties: Peter Gavranich (Offender) Director of Public Prosecutions Representation: Counsel: Mr Z Khan (For the offender) Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions) Solicitors: Mr M Ward (For the offender) Ms J Azad (For the Director of Public Prosecutions) File Number(s): 2017/00394008 Judgment Introduction 1. At 2:32AM on Saturday, 30 December 2017, Courtney Dunk received a Facebook Messenger video on her mobile phone. The video shows a man is recording what occurs, presumably on his mobile phone. The video shows the man enter a car, sit in the driver's seat and put a key in the ignition. While his face is not shown – the tattoos on his arms are clear. The man takes a shortened bolt action rifle from inside his shorts. He opens the breach and with his left hand tries to place a bullet into the barrel. He struggles to do so. He changes hands and completes the manoeuvre with his right hand. As he does so he says, "you want to fucking push me Courtney? Right let's go. You and your fucking smart arse dog mates. Fucking go. You want to fucking go cunt, lets fucking go". 2. That man is Peter Gavranich. It is not in dispute that Gavranich sent the video intending to intimidate Ms Dunk. It is not in dispute he was in possession of a loaded and shortened firearm. He has accepted his guilt in relation to those matters and will be sentenced for those crimes. It is what happened next that is in dispute. What happened next was the subject of a judge alone trial before me that commenced on 3 December 2018 at Wollongong District Court. Evidence and submission concluded late yesterday, 5 December 2018. I reserved overnight to consider my verdict. A dispute of facts 1. Gavranich and Ms Dunk had been speaking by phone and exchanging text and Facebook Messenger communications for most of the previous 24 hours. By 6AM on the morning of 30 December 2017, Gavranich was outside Ms Dunk's home in Fairy Meadow, just north of Wollongong. Gavranich had been driven there from Nowra. 2. Although they had known each other for a number of years, that relationship had recommenced and firmed just prior to Gavranich's release from custody on 17 November 2017. From that date, the path of love had not run smoothly for either of them. Both used the term "toxic" to describe their relationship. 3. Ms Dunk complains that at 6AM Gavranich came to her door and demanded entry. She refused. He then wrenched a screen from a window, forced open the window and entered her home. There they argued. He produced a bolt action shortened rifle from his shorts and threatened her with it. He then left taking her keys. He returned soon after, using the keys to open her front door. He threatened her again with the shortened rifle. He also threatened to harm Mr Hart, her former partner; the father of her two young daughters. 4. Gavranich was arrested soon after and interviewed by police. He put a different version of events to the interrogating detectives. He said that he did come to Ms Dunk's home that morning but that he was invited inside. He said he left after arguing with her. He said he had no rifle with him. He said he did not directly threaten her. Legal principles 1. The prosecution now allege and have taken on the responsibility of proving beyond reasonable doubt that Gavranich on 30 December 2017, broke into Ms Dunk's home in Fairy Meadow and there committed the serious indictable offence of intimidation in a circumstance of special aggravation; that he was armed with a dangerous weapon, being the bolt action shortened firearm: s 112(3) Crimes Act 1900. Against the possibility that I might not be satisfied beyond reasonable doubt that Gavranich was armed an alternative count is put. It alleges he broke and entered Ms Dunk's home and there committed the serious indictable offence of intimidation. It alleges an alternative circumstance of aggravation; that he knew there was a person present when he broke and entered: s 112(2) Crimes Act 1900. 2. The elements of the offence that must be proved are not in dispute. There is no dispute an incident took place at Fairy Meadow on the morning of 30 December 2017. "Broke," means "forcibly gained access." It is enough that a closed window was opened. "Entered," means what it says, that is, "went inside." "Dwelling house," is a house, flat or apartment where somebody dwells, that is, where somebody lives or resides. A rifle is a "dangerous weapon" 3. "Intimidate" means, conduct amounting to harassment or molestation of the person, or conduct that causes a reasonable apprehension of injury to a person or of violence or damage to any person or property. The conduct must be done with the intention of causing the person to fear physical or mental harm. A person intends to cause fear of physical or mental harm if they know that the conduct is likely to cause fear in the other person. As a matter of law, intimidation is a serious indictable offence: s 4 Crimes Act 1900: ss 7(1) & 13 Crimes (Domestic and Personal Violence) Act 2007. 4. Section 7(2) Crimes (Domestic and Personal Violence) Act 2007 reads: "For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour." Course of Conduct and context evidence 1. I must be cautious in applying s 7(2). No tendency notice was served: ss 97, 99 &101 Evidence Act 1995. The Crown do not ask that I employ tendency reasoning. As I understand it, they submit s 7(2) allows me to have regard to that all that was said and done by Gavranich on the 30 December 2017, including what occurred before he entered the Fairy Meadow home at 6AM, in order to understand and determine what happened in that home after Gavranich's entry. 2. In order to understand and put in context the specific allegations, it was necessary for me to hear and have tested matters personal to the relationship between Ms Dunk and Gavranich. It was necessary for me to have regard to what was said and done in the days before Gavranich arrived at the home in Fairy Meadow. 3. Again I must be cautious, I cannot substitute evidence of Gavranich's conduct, alleged or admitted, on any other occasion for proof of his guilt of the specific charge before me. I cannot, and do not, use this relationship evidence as a general disparagement of the character of the accused, such as by concluding that the accused was, 'the type of person who would do this kind of thing'. It is, however, necessary I understand the relationship between Ms Dunk and him in order to give context to what is alleged. 4. I must focus on the evidence that relates to the specific allegation, the subject of a count, and assess all of the evidence. At all times I must bear in mind that the prosecution, who bring the case, have the onus and obligation of proving each element of the count or its alternative to the very high standard of beyond reasonable doubt. Gavranich has no onus of proving his innocence. Assessing witnesses 1. For most people, giving evidence in a trial is not common, and may be a stressful experience. I do not jump to conclusions based solely on how a witness gives evidence. I am aware that people react and appear differently. Witnesses come from different backgrounds, and have different abilities, values and life experiences. There are many variables. I must take care. 2. The manner in which witnesses give evidence may not be the only, or even the most important, factor in my decision. The impression made by a witness cannot replace formal evaluation of what is said by reference to all of the evidence and what was said. To this extent, assigning too much probative value to "common sense"- my experience of other situations; a witness' confidence; a witness' demeanour, or a witness' ability to survive cross-examination, can lead to error. 3. I must assess each critical witness' credibility; in particular the witness' ability to observe or remember facts and events. Care must be taken to put aside biases and prejudices and to avoid prejudgment. Here, the accused in his evidence displayed a deplorable attitude to Ms Dunk. He is not on trial for his beliefs, although they do inform my understanding of what and why he acted as he did on 30 December 2017, he is not to judged or punished for his attitudes to women. 4. In Fox v Percy (2003) 214 CLR 118, the plurality cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Their Honours noted scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. 5. Judges are: "[e]ncouraged, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical." At [30]-[31], 1. I must look to the evidence at trial and inferences properly drawn from the evidence and ask; does it rationally affect my assessment of the probability of the critical facts in issue in this trial? Accused's evidence 1. The accused gave evidence. He assumed no obligation of proving his innocence in doing so. I must consider what he said. If that evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence or any essential fact that it must prove, then I am bound to bring in a verdict of "not guilty". In other words, I do not have to believe the accused was telling me the entire truth before he is entitled to be acquitted. If there remains a reasonable possibility that the version presented by the defence is true, as to an element, then the Crown has failed to prove his guilt beyond reasonable doubt. 2. There is a critical conflict between the evidence of Ms Dunk, the complainant, and the evidence of the accused. I cannot avoid asking the question: who is to be believed? It is essential, however, that I ensure that if the answer to that question is adverse to the accused it is not taken as concluding the issue. Again, I go back to the Crown's onus of proof. Even if I prefer the evidence for the prosecution, I cannot convict unless I am satisfied beyond reasonable doubt that the evidence establishes the elements of each count to the high standard required. Even if I reject the evidence of the accused, I cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. It would be wrong if guilt or innocence turned upon a simple choice between two inconsistent versions. 3. The requirement that I avoid reversing the onus of proof applies to propositions put to Ms Dunk suggesting that not only she had lied about a rifle being taken to her home but putting reasons why she had lied. I cannot conclude the case against the accused is proved on the basis that he has not provided some positive answer to that question: R v Jovanovic (1997) 42 NSWLR 520; RB v R [2016] NSWCCA 62. The evidence at trial Evidence by consent 1. By consent I received: 1. Exhibit A: A disc containing the short Facebook message video sent at 2:32AM, 30 December 2017, described above at [1]. 2. Exhibit B: Screenshots of the last 24 hours of text and Facebook messages between Gavranich and Ms Dunk. They detail the often contradictory nature of the relationship and the stated intentions of both Gavranich and Ms Dunk. As the other evidence at trial makes clear, I must be cautious in taking a face value everything said in those messages. They were personal communications and not intended to be dissected in a court. 3. Exhibit C: A summary of those messages. 4. Exhibit D: A report from a police ballistics expert, Senior Constable Scott. It had not been intended that he be called but he did give evidence. He confirmed his written opinion that the weapon in the Video was a single shot bolt action rifle that could only have one cartridge at a time in its breach or chamber. It could not be loaded with more than one cartridge. 5. Exhibit E: Gavranich's phone charge records. Those records are not in dispute. They tell me when Gavranich's phone was used and the numbers called and the numbers of those who contacted him. They also tell me, very roughly, his general location at those times. Reference is made in the exhibit to phone tower locations. I told counsel I was familiar with the general area: s 144 Evidence Act 1995. I do not know the exact location of the phone towers. There was no expert evidence called to enable me to discern the exact or even approximate location of Gavranich from those records. In the absence of that evidence, I will not speculate about exactly where he was unless it can otherwise be verified. 6. Exhibit F: Crime Scene Officer Hollands' statement and a series of photographs of Ms Dunk's home at Fairy Meadow. Hollands took photographs of the scene and fingerprint impression at various locations. 7. Exhibit G: A screen shot and other records from the phone of James Hart. 8. Exhibit H: COPS record of search of Gavranich and others at North Nowra 3:15AM, 30 December 2017. The narrative of events after recording $600 was found in Brooke Taylor's handbag, concludes, "Nothing further of interest located." Later however when describing the searches of Ms Taylor and Ms Renee Baillie, as against each of them is recorded, "Located drug paraphernalia in VOI [vehicle of interest]." The narrative of events makes no record of these items. 9. Exhibit J: Statement of Senior Constable Baihn. Senior Constable Baihn was the first policeman to speak to Ms Dunk. She told him of the video message and said he "broke into her house and held a rifle to her face." 10. Exhibit K: Statement of Leading Senior Constable Buffett. Compared fingerprint and palm impressions take from the window, architrave, and fly screen and compared them with Gavranich's. He concluded Gavranich was identified as the source of those prints. 11. Exhibit L1 & L2: Disc and transcript, Electronically Recorded Interview with Suspected persons (ERISP) 31 December 2017. That ERISP is part of the evidence in this trial. I must give it appropriate weight and consider it in context with all of the other evidence before me, including Gavranich's evidence of what he said to the police was true. 12. Exhibit M: Photographs of the accused on arrest. 13. Exhibit N: Map of Nowra area. 14. Exhibit 1: Satellite Map of Bomaderry. Courtney Dunk 1. I heard first from Ms Dunk. She told me of how she came to meet Gavranich; how she corresponded with him and spoke to him while he was in custody at the South Coast Corrections Centre, Nowra. On the night he was released she stayed with him at his mother's house in Nowra. She said such was his controlling and threatening behaviour that while she still loved him she was so exhausted and unsettled by his behaviour toward her. She said he was, "too demanding;" their relationship became "toxic" and she did not feel safe. 2. On 29 November 2017, she told Gavranich it was over and went to Queensland. She blocked his calls and changed her phone number. She told me that she heard that he had been making threats to her family and Mr James Hart the father of her daughters. She rang him and asked him "please don't." In order to keep the peace she resumed contact with him. 3. On Wednesday, 27 December 2017 she returned to Fairy Meadow. Gavranich came over that night and stayed. She said she had many conflicting feelings but that what he said and did that night hurt her emotionally. She said that despite his controlling behaviour she still loved him. 4. She gave an account of what happened at her home on the morning of 30 December 2017. She and Gavranich exchanged the text and Facebook messages set out in Exhibits B and C. She received the Facebook video threat involving the loaded rifle at 2:32AM: Exhibit A. At about 6AM Gavranich was at her front door. There is a lockable screen door and a front door with a large glass panel that is not locked. He was yelling, "let me in". He went around the back but she did not let him in. He returned to the front of the home where he ripped off the fly screen near the front door, forced a window and jumped through. He pulled a rifle out of his shorts. He told her she's just a "shit talker". The rifle was old and silver with "a silver stick with a ball". It was 30 to 40 cm long. Gavranich was waving it and moving it from hand to hand. He demanded to know who else was there. 5. Ms Dunk said at that point she did not know what to think. Gavranich grabbed her face in his hand and forced her to look at him. He then then let her go and went looking through the house asking, "who the fucks here… I'm gonna kill em". 6. She then went out the back patio to smoke. He followed her. He came and sat across from her. She sat on the seat and rolled a cigarette. She said, "he had the rifle and took the bullets out and reloaded bullets in there in front of me". 7. He pointed the rifle at her head. It was only centimetres away from her head. At that point she felt "numb." She didn't know how to feel. 8. Gavranich then made a telephone call. She heard a woman's voice. He said, "pick me up in three minutes". She got upset and said, "what the fuck, is a girl picking you up". 9. He left, hitting the table and knocking its glass top to the floor. He took her keys from a hook in the kitchen saying, "I'll be back". 10. Soon after, he did come back. He was going through the house looking for her phone. The rifle was still in his hand. She poured herself a drink. He hit it from her hand. She told him, "get the fuck out". He took a beer from the fridge, then pointed the rifle at her. They were near the front door. She said, "don't do it". He pointed the rifle at her leg saying, "you think I won't". He flinched. She thought he was going to shoot her. He did not fire but said, "say goodbye to your precious James - he is dead". [James Hart] This didn't worry her as she did not believe he knew where Mr Hart lived. Gavranich then left. 11. She rang Mr Hart and told him, "Peter was just being here with a rifle. He is coming to kill you – he is on his way to your home". 12. Mr Zaid Khan, counsel for Gavranich, cross-examined Ms Dunk. He took her through the brief relationship between herself and the accused. She accepted that she wanted an exclusive relationship and she wanted the accused to be devoted to her. 13. Mr Khan took her to the apparent tension between her complaints about Gavranich's behaviour towards her and her expressions of affection for him. She told him that things moved from one extreme to the other constantly. She said "at the same time the truth is I still loved him". 14. Mr Khan took her to the history of events from when she returned from Queensland to Wollongong on Wednesday, 27 December 2017. That night he came to her home in Fairy Meadow. He stayed. She said that during the night he received a phone call from some women. He went to help them but then he came back. He left early. She dropped him at the train station. She had some trouble remembering when she next saw him but it appears that there was also a visit on the Thursday night. 15. Mr Khan then asked her about the communications set out in Exhibit 3. She agreed that throughout the night and following day she and Gavranich had been texting - some of the texts were examined in detail. She told Mr Khan that while there were threats, those threats were contradicted by Gavranich saying he loved her too. She accepted the proposition that she wanted to be his priority. She did not accept that she was angry at him rather she said she was disappointed and upset and feeling a lot of emotions. She then conceded that one of those emotions was anger. 16. Mr Khan took her to a number of examples from the text conversation where Gavranich had not "come through" with what he had promised her. She said "I wanted to believe he would come and spend time with me" When asked, "it disappointed you?" she said "I wanted him to follow through. I felt like a bit of a doormat". 17. Mr Khan then put the defence case to her. That case corresponded to what Gavranich had told police in his ERISP on 31 December 2017. Ms Dunk did not agree with the defence chronology of events nor many of the details. It was put to her that she had refused to open the front door but she had opened the back door to him. It was put to her that no rifle was ever produced. She agreed that Gavranich received a call from a woman and that he left through the front door. It was put that the door was not locked? Ms Dunk responded it was and that as she was frightened she had also locked the window. 18. Mr Khan put to her that all of this is untrue. She said it was true. She accepted that she didn't call the police straightaway. She said she did call Mr Hart, her sister and her father. She accepted that she did send text messages after the incident. In particular that at 6:57AM she texted "I want you to come back" and then "just cuddle". She agreed he responded "come get me" and she then suggested that she would but had failed to comply with that request. Earlier she had told the Crown prosecutor that she did send this text but that she did so because she was scared of him hurting Mr Hart and she wanted to calm him down so someone wouldn't get hurt. 19. Mr Khan had Ms Dunk confirm that she saw Gavranich take two bullets out of the rifle and then reload them. He asked: "Q. You say that a bit later on when you were sitting on the back patio with him you saw him load two silver gold bullets in it? A. Yeah. Q. When that occurred he was sitting right in front of you, wasn't he? A. Yes. Q. You could see this happening very clearly? A. I took a glance, I was - I didn't really want to concentrate on that. Q. Well, you-- A. I went out there to have a cigarette. Q. It was a bit more than a glance wasn't it, Ms Dunk? Didn't you give some evidence earlier on that you saw him take two bullets out-- A. Yeah. Q. --and then reload it with two bullets? A. Yes. Q. Well that's more than a glance isn't it? A. Okay, yes. Q. No, Ms Dunk, it's the words that you have used. You have said that you didn't really look at it that long you just took a glance-- A. Okay I— Q. --I'm suggesting to you-- A. Sorry, I just, yeah. Q. I'm suggesting to you that that is not accurate because you told Madam Crown that you were looking at it long enough for you to see him take two bullets out of the rifle and then reload it with those same two bullets? A. Yes. Q. So you were looking at it for quite a period of time longer than merely a glance? A. Not at that exact moment, but throughout the whole time he was there he had the rifle on him-- Q. I'm not asking you about that, I'm asking you about on the patio, that's what we're talking about at the moment. A. Okay. I had my head down more than I was staring at that rifle. Q. But long enough to see the things that you told Madam Crown about? A. Yes. 1. It was put to Ms Dunk that she invented the story about the rifle and that what she was describing, both to the police in her statement and to me in evidence, was really just repeating what she had seen on the Facebook Messenger video that had been sent to her. She responded, "it was in the video as well". 2. She admitted that there had been a pattern of behaviour between herself and the accused: fight – abuse – make up - start again. She said however that that night it went too far. 3. Mr Khan again asked "you wanted above everything else to be his priority". She responded, "a priority… I wanted him to care". 4. It was put that she was happy to see him that morning. She responded, "no that's ridiculous". 5. Mr Khan then returned to the accused's version of events. It was put that she had seen the car at the front. She denied this. It was put that she had not locked the front door. She denied this. It was put that she was angry. She said that was part of it but that was nothing new, it still hurt her. I was put that she had used cocaine that night. She denied this. She accepted she had told Gavranich in the texts that she had been drinking and that drugs had been mentioned but she explained she had not drunk alcohol or taken drugs that night and morning. She denied the proposition that after he left the house he returned soon after and entered through the window after removing the fly screen. 6. Ms Dunk did say that one reason for sending the texts was, "I knew it would get to him." 7. It was put to her that she had given a false version of events because Gavranich had hurt her by letting her down and because he had not treated her well and had not followed through with his promises. It was put that she was upset because he had been taken to the premises by another woman and he had left with her. It was put that she had made up the story to teach him a lesson, and to get back at him. She said, "no." James Hart 1. James Hart gave evidence that he had only met Gavranich on one brief occasion when he called in to the Fairy Meadow home to drop his children. He had however, received an abusive text message on the 12 December 2017 while Ms Dunk was in Queensland: Exhibit G. He said he spoke to Ms Dunk twice on the 30th after the incident. When he first spoke to her at 6:28AM she was "anxious…all over the shop… emotional …distraught." She told him Peter broke in by coming through a window. He was looking for someone and that he put a rifle to her head. She then said that she was concerned as he [Peter] was looking for him. Hart said he told her to get out of the house; to go to the police and that he was not concerned about the potential threat as he didn't think Gavranich knew where he lived. The second conversation occurred after Ms Dunk had gone to her fathers. Senior Constable Watters 1. Senior Constable Watters gave evidence of how at 3:15AM in Bombaderry he sighted a car turning left from West Bunderra Street onto the Princess Highway, He and officer Riley pulled over the car, driven by a Ms Baillee. Gavranich was in car, so too was another lady, Brooke Taylor. Each occupant was searched; so too was the car. They were all later strip-searched. A torch Taser belonging to Ms Taylor was found a court attendance notice was issued to her. Ms Baillee was similarly given a CAN for being a disqualified driver. There is no reason to doubt the search was a thorough one. Senior Constable Watters had no recollection of searching a bag other than Taylor's, where a sum of money was found. He said he would normally record all the items searched. 2. Constable Watters said he spoke to the accused on 4 January 2018 and asked him about the rifle Gavranich denied ever taking the rifle to Fairy Meadow; he said he had left it at Culburra. Ms Baillee lives in Culburra. Senior Constable Watters said there were thorough searches, vehicle and personal, and no firearm was found Senior Constable Crooks 1. Senior Constable Crooks was the officer in charge. Through him was tendered a fingerprint report and the accused ERISP. He told me he spoke to Gavranich. He advised him to surrender to police. He said Gavranich went to Nowra police station on the 31 December 2017, where he was interviewed and arrested. 2. Senior Constable Crooks was taken to the call charge records. He confirmed that Ms Dunk's phone number ended in 720 and that the accused's phone entered in 488. The defence 1. Peter Gavranich gave evidence. He agreed with Mr Khan's suggestion that his relationship with Ms Dunk was rocky and toxic. He denied the allegations and said that what he had told police in his interview was the truth. He said when he became aware of the allegation he handed himself in. He agreed that at 4:33AM and 4:37AM he had received and read texts from Ms Dunk saying, "don't come here". When asked, "then why did you go?" he replied "previous experience over the last two nights I'd be allowed in… And everything would be good the same as before". He was asked "did you go intending to intimidate her?" He replied, "no." 2. He said that when he got to the front door he called her. Then he knocked. She was happy and quiet but she did not open screen door. He ran around the back. He said that was in case someone had run out the back door. He said, "I ran around the back to catch her out cheating. I didn't believe her" but he found nobody. He said she let him in the back door. He said he was not upset that he had come down and that he went through the house looking for both her phone and to see if someone was there. He said when he got a call from the woman who had driven him there she got abusive and tried to kick him. 3. He said he took some of his property put it in the bag he had brought there and then went out to the car that was waiting on the street. He then went back to the house to talk to her. He saw her using cocaine. When he left, he took her house keys because, as he entered the back door, he saw that she was locking the front door. When she did this, he had assumed that she was closing up the house so that they could spend time together and not be interrupted. 4. After she used cocaine, he took a beer from the fridge and left through the front door. She was upset and crying. She said, "you see what happens when you leave". She locked the door and because of concern for her, he returned. He saw her distressed. He saw her fall to the ground crying. She then went very still. Panicking, and fearing she had overdosed, he pulled the fly screen from the door, forced the window and went to her. She was alright, so he left. 5. He then told me about how he had arranged for a friend, a neighbour of his friend Ms Baillee, to come to bring the rifle and bullet to Ms Baillee's home in Culburra. He made the video at Ms Baillee's. He sent it immediately. He said the rifle and bullet were then returned. 6. He explained how he got a lift with Ms Baillee to Tomago to pick up Ms Taylor. Ms Baillee was intending to take her to Shellharbour and he was intending to catch a train from there to Fairy Meadow. He said he was still constantly trying by Facebook messages to arrange a lift all the way from others. He said that Ms Taylor changed her mind about going to Shellharbour. They were just cruising around Bomaderry when they saw the police do a U-turn behind them and realised they were to be stopped. He said at that time his intention was to be dropped at Bomaderry train station. He said he was beside the road talking to police for about an hour and while he was doing so he was trying to organise another lift. He said he eventually succeeded: A woman he knew with two friends picked him up from near where the police had stopped him. They then went to a nearby garage on the Princess Highway. He paid $50 for petrol and they drove to Fairy Meadow. 7. When cross-examined, he agreed that he had sent a text message that morning involving an implicit threat about Ms Dunk's cousin, Rebecca. He did so, "to get a reaction." He said the threats in his texts, including the video with the rifle, were sent because he didn't like Ms Dunk associating with other men. As in her texts she had indicated that she was associating with other men, he believed her. In her texts, she had led him to think she had men over that morning. This made him angry. He said he had always intended to go back to Fairy Meadow that morning if he could arrange a lift. He told me, if men were there he would fight with them but that Ms Dunk was safe. He said, "I'd go for the men not her - I love her - she is a woman". 8. He agreed that at 2:25AM he had received a text saying, "no boys going to bed." He said that when he got to the door she was happy, not afraid and that he did nothing to intimidate her. When asked "do you have a short fuse?" He said, "I don't believe so." He said the texts and video were, "empty threats." He said "I don't know what I was thinking – sending the message." He agreed with that his plan was for Courtney to think it was real. 9. Madam Crown explored with him what occurred when he got to Fairy Meadow. He said his purpose was to see if people were there but that he went there just to talk to her. He sought to explain why he had taken the keys but said that despite her text he believed she still wanted him to come to Fairy Meadow. He said they were still talking on the phone while he was with the police by the side of the road. He said if she was that scared she would never have let me in. Initially he said that Mr Hart was not mentioned that evening. He later agreed that he did, when leaving, say, "I'll bash James". He insisted throughout that he had not broken in. Rather, he'd been invited in. he reiterated that he had never had a rifle at Fairy Meadow. Submissions Madam Crown 1. Madam Crown asked me to reject everything said by Mr Gavranich. She submitted that all of the evidence indicated that the relationship was one where he exercised control over her by way of fear and intimidation. She said Ms Dunk was a credible truthful witness who had not "sugar-coated" her own behaviour and had accepted responsibility for her own actions. The video and texts she said showed the length Gavranich would go to, to threaten and intimidate her. This behaviour she said was continued when he got to the home in Fairy Meadow. His behaviour there, particularly with the rifle. was similar to that which he displayed in the video. This part of Ms Dunk's evidence she submitted was not a concoction. 2. It was submitted that when I added up all the evidence of it, and the concessions made by Gavranich in cross-examination - her story, all made sense - his story was implausible, unbelievable and discredited. Examination of the texts indicated he knew what he was doing; that what he was doing was intended- he went there, and while there, intimidated her. And that, after the offence, he was well aware he had done something wrong. His version to police and me, particularly his version of the break, was she said "absurd." Mr Khan: 1. Mr Khan in response submitted Ms Dunk was "a woman scorned" who had been emotionally let down by Gavranich and was again disappointed by his behaviour at her home after she had invited him in. Accordingly, she had drawn on the material from the video to transpose what she had seen in order to implicate him in a serious offence. He said Ms Dunk was evasive because at a number of levels her decision to allow him to enter her home that morning was not rational. But then, he said, many aspects of the relationship were not rational. 2. He submitted that an examination of the texts both before and after the incident indicated that the relationship involved both trust and betrayal; both love and anger. He said I should be very cautious about taking the texts out of context. There were also telephone calls that day. The texts, he said, had to be viewed in the context of this admittedly toxic relationship and in context with Ms Dunk's concession that one reason for sending the texts was, "I knew it would get to him". 3. Mr Khan said considering their history and how despite being emotionally let down, she had continued the relationship He submitted I could not discount the assertion that she had let Gavranich into her home that morning. 4. As to the rifle; he said when, I consider her evidence in relation to it, I could not be satisfied there was a rifle there that morning. Her description of what occurred on the patio did not match the type of single shot bolt action rifle described by Senior Constable Scott. Rather, and tellingly, her description fitted too neatly with what appeared to be happening on the video. He suggested to me, as he had to Ms Dunk in cross-examination, that she was transposing what she had seen. He said she was evasive about drug and alcohol use and that her evidence was contradicted by text messages both before and after the event. 5. He submitted, given that she had collapsed inside the house behind a locked door. That Gavranich's evidence about how and why he entered the house was reasonable and could not be discounted. 6. He noted that Gavranich was not in possession of a rifle at 3:15 AM. And, that there was no evidence to suggest that he had any opportunity to get the rifle prior to his arrival at Fairy Meadow. 7. Accordingly, Mr Khan submitted that I would have doubts, serious doubts, about whether there was a breaking; about whether there was intimidation and about whether there was a rifle at Fairy Meadow. Critical Witnesses Peter Gavranich 1. I did not accept Gavranich was attempting to give me a true and accurate version of the events of 30 December 2017. I could not accept anything he said unless it was supported by other objectively verifiable evidence or corresponded with evidence given by Ms Dunk. His sense of entitlement toward Ms Dunk coloured everything he said. He showed no insight into his behaviour towards her. He sought to excuse inexcusable behaviour. It is clear to me that he has sought to reconstruct events to meet the charges against him. He appeared to be making some parts of it up as he went along. He was irrational, angry, frustrated and at time nasty that night. He was concerned only for himself. 2. On many peripheral matters he was caught out. His explanation for his behaviour that night made no sense even allowing for the complex and volatile relationship he found himself in. I have no doubt that he wished to and did intimidate Ms Dunk. Courtney Dunk 1. Ms Dunk was involved in a relationship with a jealous and possessive man. She knew this but she also allowed the relationship to continue because she loved him. She knew how to get a reaction from him and she did attempt at times to deliberately park reactions from him. She wanted him to care for her and not be selfish. There is nothing to indicate that she invited or encouraged threats of violence. In fact, all the material is to the contrary. 2. There are some aspects of her evidence however that caused me concern. Her description of the firearm said to be at Fairy Meadow does match very closely what is shown in the video sent to her that morning. This includes the illusion of multiple bullets shown in the video. Her texts to Gavranich after the incident show no apparent concern about a rifle. 3. Her complaint that a rifle had been pointed at her was made immediately. That shows consistency and is evidence of the facts asserted: s 60 Evidence Act 1995. Her texts after the incident are however inconsistent with that asserted fact. 4. There is objective evidence that Gavranich did not have a rifle at 3:15 AM. There is no evidence other than Ms Dunk's assertions that a rifle was present at Fairy Meadow. She did have an entirely understandable reason to suspect that Gavranich's access to a rifle put her at risk. His behaviour towards her at 6:00AM was criminal and she had reason to fear him and what he might later do. She complained of that fear immediately. She also had real reason to fear he might harm Mr Hart. 5. I remind myself that if I have doubts about the veracity and accuracy of her account or if I am inclined to a view that false evidence may have been given those concerns must lead to caution when assessing the truthfulness or reliability of all her evidence; that is, her evidence generally. 6. Had this been a civil trial I would be satisfied on balance of probabilities of everything she told me was true. That some aspects of it may not be accepted beyond reasonable doubt when considered with all the other evidence and the Crown's onus does not mean I totally reject everything she said, particularly if it is supported by other objective material - I can give it as much weight as it deserves. Determination: 1. Having rejected Mr Gavranich's account I must go back to what the Crown has or have not proved beyond reasonable doubt. 2. I have no doubt that Ms Dunk did not want Gavranich to attend her home that morning. Her text messages could not have been clearer. 3. I have no doubt that she did not invite him in. She locked the door against him. He, by his own admission, ran around the back because he was jealous and feared someone was in the house. To suggest that she then opened the back door to him and then allowed him to search her home defies credibility. 4. I have no doubt that Gavranich forced his way into the home through the window. His explanation about why he entered later makes no sense and was deliberately constructed to account for the obvious damage to the window and fly screen. 5. I have no doubt that his behaviour in her home that morning satisfies all the tests for intimidation to be proved beyond reasonable doubt. His behaviour in entering her home, in holding her face, in treating her and her property as he did amounted to harassment and molestation of her. It did cause her to apprehend injury. That apprehension in all the circumstances was reasonable. 6. Mr Gavranich intended to cause her to fear physical or mental harm. He knew this despite his protestations to the contrary. That is the only conclusion that could be drawn from the texts and the video sent that morning and his behaviour inside the house, which was entirely consistent with that stated intention. 7. Although, I have no doubt that the offence intimidation was committed in the house by his behaviour towards Ms Dunk and by his entry into the premises, possession of a rifle was not necessary to establish that this offence was committed. Nor was it necessary for me to have regard to the texts and other messages sent before entry into the home to make that finding. That said, those texts and messages reinforced my conclusions as to his state of mind at the time and the level of apprehension felt by Ms Dunks. 8. There is only one conclusion that I could reach: He intended to intimidate her and he broke and entered her home with that intention. 9. There is only one aspect of the Crown case that has caused me concern: was he armed with the rifle at Fairy Meadow? Findings of Fact - Armed with a dangerous weapon 1. At law, the rifle shown in the video is a dangerous weapon: s 4 Crimes Act 1900 & s 4 Firearms Act1996. 2. The rifle was at Culburra at 2:23AM. 3. Gavranich left Culburra intending to go to Fairy Meadow: The texts are clear and unambiguous on that point. 4. The 2:33AM texts and video could have been sent from Culburra. Exhibit E page4/49 shows a start location of Red Rock and South Nowra. I can't simply accept Gavranich's assertion he was at Culburra but it was Ms Baillee's home address and she was the driver of the car: COPS entry Exhibit H. I can't reverse the onus so it remains possible Gavranich was in Culburra when it was sent. 5. The rifle was not with Gavranich when he was stopped by police at 3:15AM. 6. He and the vehicle were thoroughly searched. The COPS entry, Exhibit H makes this clear. There was no reason for police to record a bag was searched if nothing was found in it. He had his bag with him at Fairy Meadow. 7. He did not expect to be searched. The search was a thorough one. If the rifle had have been in the car, I am satisfied it would have been found. 8. He had no opportunity to dispose of the rifle just before the car was pulled over by police 9. There is no evidence he left the area where police stopped him until at about 4:49AM his phone is near Gerringong: Exhibit E, page 9/49. There is no evidence he returned to Culburra. 10. Although he made calls and Facebook requests from Nowra there is no evidence the rifle was brought to him. 11. The texts sent at the time of the video say, "you don't even care I'm doing what the video showed." 12. She responds, "Don't come here." 13. I have to ask myself: If he was going to Fairy Meadow with the rifle that was at Culburra, why wasn't the rifle with him in the car? 14. His messages after 2:32AM when he says "You don't even care that I'm doing what the video showed" Exhibit C page 5 do not mention the rifle. 15. Ms Dunk does say at 2:55AM "Ur apparently in Nowra, then ur in bed, oh then ur in town, now ur in a car with a gun…very inconsistent stories…of course I think ur full of shit that u have ever spun…leave me alone. Its not worth it… go out run a muck whatever… I'll be doin the same" 16. At 3:56AM Ms Dunk sends a text, "U arrested?" 17. Obviously, he had told her of the police stop. There is then a series of texts saying he is coming to her home and threatening to burn it down. At 4:46AM, he texts, "Well I'll see u soon." The rifle is not mentioned. 18. At 5:11AM his text reads "Got picked up cunt cya soon please have as many of your dog mates there ok" She responds "No one is with me anymore. Relax….U better not bring the gun." He responds "Nearly at Shellharbour". 19. The video, Exhibit 1, requires close observation before it can be seen that only one cartridge is placed in the breech or chamber. It is easy to misinterpret and "see" two bullets being loaded. As Detective Scott made clear, the rifle could not have two cartridges in it chamber. 20. The video, Exhibit 1, shows Gavranich with the rifle in his shorts. This same position is how Ms Dunk describes it when she says she first saw it. In her evidence about what happened on the patio, Ms Dunk speaks of seeing two bullets being loaded. 21. The incident was a short one; Gavranich calls from outside the home at 5:53AM. Ms Dunk texts Gavranich after the incident at 6:18AM, "Don't do it." Ms Dunk was concerned that after Gavranich left that he would hurt Mr Hart. That time interval leaves little time for the patio incident she describes and everything else both (to some degree) accept happened in the house. 22. Ms Dunk's first concern was the threat to Mr Hart. Both she and Gavranich agree a threat of some sort was made toward him. She calls Hart immediately. She says Gavranich had a gun. 23. Her next text at 6:48AM is "I love you come back we can work it Out… I didn't hook up with anyone." While she says she sent this text because she was scared for Mr Hart, its content is inconsistent with what Mr Hart had told her and any real concerns about a gun. 24. Gavranich's behaviour toward her that morning was appalling. She knew he had a rifle. He had threatened her and he had threatened to harm Mr Hart. She had seen the rifle and seen it loaded in the video. All this provided her with both a motive to exaggerate what had occurred and details about the rifle when she spoke to Mr Hart and later the police. 25. That no rifle was found by police at 3:15AM leaves open a possibility Gavranich did not have it in Nowra and did not have it in Fairy Meadow. Given the high standard of proof required it is not enough to say I preferred the evidence of Ms Dunk, a reasonable doubt remains on that element of Count 4. 26. As to the other elements and the elements of the alternate Count 5, as should be obvious from these remarks, I have no reasonable doubt that Gavranich broke and entered Ms Dunk's home at Fairy Meadow; there, he intimidated her and when he entered, he knew she was there. Verdicts 1. Counts 4: Not Guilty 2. Count 5: Guilty. 3. Upon that verdict and the because of guilty pleas entered formally at the beginning of the trial the accused is convicted of counts 1, 2, 3 and 5. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 17 December 2018