# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 3/Section 11

​Section 11 — The Alleged Act of Domestic Violence
Introduction
1968 I have found that the Group 3 articles carry, among other defamatory imputations, the following imputations of and concerning the applicant:
   (a) The Applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7);
   (b) The Applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).
1969 The respondents raise the defence of substantial truth and the defence of contextual truth with respect to these imputations. The Particulars of Truth with respect to the imputations are as follows:
   (130) From about 2014 to 2017 the Applicant held the position of Chair of [the] National Australia Day Council.
   (131) On 26 January 2015 Rosie Batty was awarded the 2015 Australian of the Year. Rosie Batty is a domestic violence campaigner. The Applicant publicly congratulated and supported Ms Batty on her award.
   (132) From about 13 October 2017 to 5 April 2018 the Applicant engaged in an extramarital affair with Person 17.
   (133) On 28 March 2018 the Applicant attended a function for the Prime Minter's [sic] Veterans Employment Awards held at the Great Hall in Parliament House. The Applicant brought Person 17 as his guest to the awards and introduced her as a guest of his employer, Channel Seven.
   (134) During the function Person 17 became intoxicated and fell down the stairs leading into the underground carpark as she was leaving the function.
   (135) After the function the Applicant and Person 17 went to a room at the Realm Hotel. When they were in the hotel room an argument ensued between the Applicant and Person 17 as the Applicant was angry with Person 17 due to her behaviour at the function and his fear that she may have exposed the affair.
   ​(136) During the argument Person 17 said to the Applicant, in substance "my head hurts". The Applicant responded in substance "It's going to hurt more" or "I'll show you what hurt is" and punched Person 17 hard in her left eye with a clenched right fist. Person 17 sustained a black eye as a result of this punch.
   (137) On 30 May 2018, Person 17 approached the Australian Federal Police and complained about being assaulted by the Applicant.
   (138) On 24 August 2018, after seeking legal advice about the process of being involved in a criminal prosecution as a witness, Person 17 decided that she did not wish to proceed with a formal complaint to the AFP and notified the AFP accordingly.
1970 The only Particulars in dispute are paras (135) and (136). As to para (135), I find that there was an exchange between the applicant and Person 17 after the function in a room at the Hotel Realm during which the applicant was angry. The key factual question is whether the applicant punched Person 17.
1971 Shortly after these proceedings were commenced on 15 August 2018, the respondents applied for a suppression order in relation to Person 17's name and any matter which might identify her. Person 17 swore an affidavit in support of the application on 18 October 2018. That affidavit, with some redactions, was said to be relevant to some of the substantial issues in these proceedings, and it was tendered in these proceedings by the applicant. It will be necessary to refer to parts of the affidavit in due course.
1972 I decided that it was appropriate to make a suppression order in relation to Person 17's identity (Roberts-Smith v Fairfax Media Publications Pty Limited [2019] FCA 36). I expressed my conclusions in the following way (at [40]):
   I have considered the evidence carefully, including the various social media posts. It is true, as the applicant submitted, that some of the social media posts do no more than express a point of view, while others are abusive rather than threatening, or abusive and threatening. I take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice (s 37AE of the Act). Nevertheless, I am satisfied that, at this stage, the order sought should be made on the basis that it is necessary to protect the safety of Person 17 (s 37AG(1)(c) of the Act). In reaching that conclusion, I have had regard to the combined effect of the evidence, including, in particular, Person 17's evidence, the Facebook posts and the evidence of the incident involving Ms Stynes and its aftermath. Furthermore, I consider that there is a sufficient risk of threats to, or intimidation of, Person 17 as a proposed witness in the proceedings should her identity be revealed, to justify the order by reference to s 37AG(1)(a) of the Act.
The order I made was as follows:
   1. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (the Act) and on the grounds referred to in s 37AG(1)(a) and s 37AG(1)(c) of the Act, there is to be no disclosure, by publication or otherwise, of information that ​identifies, or tends to identify, the person referred to in the Confidential Annexure to the Defence to Statement of Claim as Person 17.
1973 The date of the alleged assault was 28 March 2018. The relationship between the applicant and Person 17 began on 13 October 2017 and ended on or about 6 April 2018, although events after that date are also relevant. There is a related issue involving the applicant and his then wife, now Ms Roberts. That issue is whether those parties were separated for part of the period (the applicant's case) or living together throughout the period (the respondents' case). I will deal with that issue separately.
1974 The principal witness for the respondents in relation to the alleged act of domestic violence was Person 17. Ms Emma Roberts and Mr John McLeod also gave evidence which was relevant to the respondents' case. Ms Emma Roberts was formerly Ms Emma Roberts-Smith, the wife of the applicant. They have divorced and they entered into a financial agreement under the Family Law legislation on or about 23 February 2021. The applicant filed outlines of evidence of Ms Roberts-Smith in 2019 and the respondents filed an outline of evidence of Ms Roberts in May 2021. In the course of these reasons, reference will be made to a Ms Danielle Scott who was an old school friend of Ms Roberts. Ms Scott was previously known as Ms Scott-Kennedy. Ms Roberts described Ms Scott as her best friend. They were in daily communication with each other (often many times a day) and Ms Roberts was accustomed to confide in Ms Scott. The respondents filed an outline of evidence of Ms Scott in May 2021, but she was not called as a witness. Ms Scott and Mr McLeod knew each other.
1975 Mr McLeod was at one time a security and safety manager at a hotel. Mr McLeod said that he was a member of the Queensland Police Force from 1986 or 1987 to 1992. The applicant said that Mr McLeod described himself as an ex-policeman and private investigator who had contact in intelligence and State and Federal police circles. He met the applicant and Ms Roberts in 2011 and, from his point of view, he and the applicant became friends. Mr McLeod said that he did various jobs for the applicant and Ms Roberts, often mundane such as arranging tradesmen and arranging and picking up tickets.
1976 The principal witness for the applicant in relation to the allegation was the applicant himself. Mr Terry Nichols was a witness with no connection to either side and he gave evidence in the applicant's case and was not cross-examined by the respondents. A statement of an Officer Jack Grosskreutz, who was on security duties at Parliament House on 28 March 2018, was tendered by the applicant without Officer Grosskreutz being required for cross-examination.
​1977 In addition to the oral evidence, a number of documents were tendered, including a large number of text messages which passed between the applicant and Person 17 prior to and after the alleged assault.
1978 The applicant also relies on evidence of his good character with respect to his treatment of women and I take that evidence into account. That evidence is summarised in Section 1 of this Part. I also take into account the other matters referred to in that Section.
1979 I proceed by setting out the events in chronological order and the evidence relevant to those events. Generally, the description of the evidence consists of the account given by Person 17 and then that given by the applicant.
1980 I make two important points at this stage. First, I set out the respective submissions of the parties at some length. The findings are set out in the conclusions (at [2207]–[2226]). Secondly, I refer to evidence of Ms Roberts and Mr McLeod. I deal with the applicant's challenges to their evidence generally in Section 12 of this Part. As I will explain, there are reasons in each case to approach their evidence with caution, but in each case, I accept the substance of their evidence.
The Beginning of the Relationship and Events until the end of 2017
1981 Person 17 met the applicant at a social function on 13 October 2017. She attended the function with her husband and the applicant was present at the function. The applicant's husband left the function to attend to family duties and Person 17, the applicant and others went to a venue in town. Later in the evening, the applicant and Person 17 went to the applicant's hotel room and engaged in sexual intercourse. There is no dispute that the relationship commenced on 13 October 2017. Person 17 said the relationship ended on 6 April 2018 which was the last time she saw the applicant. The applicant does not dispute that the relationship ended on 6 April 2018.
1982 Person 17 described her relationship with the applicant as intense and passionate, fast moving and all consuming. She said that during the relationship, she would see the applicant approximately every 10 days or so, usually at a function at which the applicant was speaking or at least attending. They would then see each other for a period of one or two nights, although on occasions, it was for three to four nights. Person 17 and the applicant communicated over the telephone. Person 17 said that the applicant purchased a telephone to be used only for ​communications with Person 17. Initially at least, they often communicated by using WhatsApp.
1983 Person 17 said that at one point early in the relationship, the applicant told her that he loved her. During the relationship, Person 17 understood that the applicant was still together with his wife.
1984 In late 2017, Person 17 and the applicant stayed at the Star Hotel on the Gold Coast. Person 17 considered that by that point, the relationship was serious and she said that both she and the applicant started to talk about their plans for the long term. Person 17 was aware that the applicant was travelling to Singapore with his family and that on his return, he was to participate in marriage counselling. The applicant told her that he did not intend for the marriage counselling to be successful, but the applicant gave evidence that he did not recall ever saying that. Person 17 said that the applicant told her that he would buy her a pink argyle diamond engagement ring while she was in London with her family, but the applicant denied saying this. Person 17 was travelling to London with her family for a holiday. In the middle of 2017, she made plans to travel to London with her family for approximately three months from January 2018. Person 17 and her family went to London in January 2018, but they did not stay there for a period of three months.
1985 Person 17 prepared a chronology of events in connection with her complaint to the AFP about the alleged assault and that document was tendered by the applicant. It shows that the applicant and his family were in Singapore from 10 January 2018 to 20 January 2018 and Person 17 and her family were in London from 15 January 2018 to 23 February 2018.
1986 Person 17 said that in order for her and the applicant to be able to communicate whilst they were away, the applicant suggested to her that she set up a Gmail account and both of them have the details necessary to log in and they could "log in independently and leave messages for each other in the drafts folder so that the emails didn't go through any server". Person 17 agreed with this suggestion and in late December 2017, she set up such an account. The applicant denied suggesting to Person 17 that she set up a Gmail account, although he agreed that she did set up such an account.
1987 Shortly after 13 October 2017, Person 17 told her husband that she had spent the night with the applicant on that date. However, she said that he was not aware that there was an ongoing relationship until he saw messages on her telephone on 26 December 2017.
​1988 By Christmas 2017, the applicant and Person 17 had started to communicate with each other by the use of Telegram.
1989 The applicant gave evidence that he and his wife separated at the end of September 2017 and that they were separated for a period of approximately six months. The separation was amicable and during the separation, the applicant would sometimes stay in the granny flat or separate quarters in the matrimonial home and, on other occasions, he would stay at Mr Jed Wheeler's house in Brisbane or Mr Neil Mooney's house on the Sunshine Coast. Ms Roberts said that she and the applicant were never separated during this period. As I have said, I deal with this issue separately.
1990 The applicant said that he met Person 17 in early to mid-October 2017 and he commenced a relationship with her. In the initial period, he communicated with her by WhatsApp on his personal telephone.
1991 In December 2017, the applicant received an anonymous letter sent to his post office box on the Sunshine Coast (exhibit A34). The letter was in the following terms:
   Dear Ben,
   I can imagine what you were doing with another lady (other than Emma) at Suite 991 Hyatt Regency in Sydney for 3 nights from Sunday 19 November to Wednesday 22 November? People saw you there. Its on your credit card and phone records.
   Why are you risking everything that you have built in your life – your wife/marriage, your daughters/family, your career, your reputation?
   Where is the affair taking you?
   You need to stop and maintain your high standards and reignite your love/marriage with Emma. It is not too late…. yet. Try more marriage counselling. Save your marriage and your family please.
   A friend at 7.
1992 Person 17's chronology of events records that the applicant and Person 17 stayed at the Hyatt Regency on 19 November 2017.
1993 The applicant said he suspected that this letter had or may have come from Person 17 because of the private nature of the information in the first paragraph, but this was not put to Person 17 in the course of her cross-examination. There is no evidence as to the identity of the author. On the face of it, it seems unlikely that Person 17 would write to the applicant urging him to end his affair with her.
​1994 The applicant said that on Boxing Day 2017, he was contacted by telephone by Person 17's husband who said to him that he was aware of the relationship and that Person 17 would be better off with the applicant and that his children would be "better than me". The applicant described the telephone conversation as quite "bizarre".
1995 The applicant, his wife and his children went to Singapore in January 2018. The applicant said that the purpose of the trip for him was to ascertain whether he and his wife were going to maintain their relationship.
1996 The applicant identified four factual disputes between himself and Person 17 about events in late 2017 and early 2018. They are as follows: (1) Person 17's alleged flirtatious behaviour during an evening with a Mr James Hervey and the applicant's alleged aggressive reaction to that behaviour; (2) Person 17's evidence that the applicant had said that he did not intend that his marriage counselling be successful; (3) Person 17's evidence that it was the applicant who suggested setting up a Gmail account; and (4) Person 17's evidence that the applicant had said to her that he was an alcoholic. The applicant submits that the resolution of these issues is unnecessary because however they are resolved, they are too remote from an alleged assault on 28 March 2018. I am disposed to accept Person 17's evidence in relation to these matters in preference to that of the applicant, although ultimately it will make no difference to the result.
The Relationship continues and Person 17 tells the Applicant that she is pregnant
1997 Early in 2018, probably on or around 9 January 2018, an anonymous parcel containing a sexual manual was received by Ms Roberts. There is no evidence as to the identity of the sender.
1998 The applicant and his family returned to Australia from their holiday in Singapore not long after Person 17 and her family had arrived in London. On or about 22 January 2018, the applicant told Person 17 that he had been to his first marriage counselling session with his wife and that he was confused. The applicant's case is that on or about 22 January 2018, he told Person 17 that the relationship between them had no future.
1999 Person 17 sent the applicant a text message on 29 January 2018 at 3.58 pm which included the following statement:
   … I woke up today thinking how exactly one week ago we were having the conversation that changed our lives.
​Person 17 was asked about the meaning of this message and she agreed that on or about 22 January 2018, the applicant had said that he was having second thoughts and that she had the impression that he had decided to stay with his wife.
2000 It is clear from the text messages which passed between the applicant and Person 17 in early February 2018, that Person 17 indicated to the applicant that she was very hurt and at or about this time she started making comments suggesting that she was having suicidal thoughts. The applicant gave evidence that he received a telephone message from Person 17 at about this time to the effect that her children would be better off without her. The applicant received a text message from the telephone of Person 17's husband. He then received a second text message from Person 17's husband. He said that the next message he received was from Person 17.
2001 Person 17 said that on or about 7 February 2018, she did a pregnancy test and the result was positive. Person 17 knew that the applicant was the father and that it could not be her husband because she had not slept with him and, in any event, he had had a vasectomy. Person 17 spoke to the applicant on 9 February 2018. The call was a very emotional one and Person 17 did not tell the applicant at that point that she was pregnant. Person 17 told the applicant that she was pregnant about a week later during a telephone conversation on a Friday night. The following morning, the applicant, who at that time was in New Zealand, contacted Person 17. He asked Person 17 why she was telling him about the pregnancy at that point and he said that he would want "some proof of that".
2002 Person 17 returned to Australia from London on or around 25 February 2018 and she and the applicant planned to meet on 27 February 2018. They met at the Milton Hotel in Brisbane and they talked about the pregnancy. They each agreed that the pregnancy should be terminated. They talked about where the termination should occur and they agreed that it was best for the procedure to take place in Brisbane.
2003 Person 17 then started to have second thoughts about a termination. The applicant became angry and urged Person 17 to book in for a termination. He told Person 17 that if she kept the baby, he would not stay around long term. The applicant denied saying this.
2004 The applicant submits that I should reject Person 17's evidence to the effect that at or about the time Person 17 was having second thoughts about terminating the pregnancy, the applicant said he would not stick around long term. The applicant denied that matter in his evidence and submits that such an attitude is inconsistent with his generally supportive attitude as shown by ​the text messages exchanged between Person 17 and the applicant in early March 2018. I have read those text messages and his attitude may be described as generally supportive. However, the text messages are written in a context of the termination going ahead and Person 17 said that the applicant made his comment about not "sticking around" long term if Person 17 kept the baby.
2005 The applicant said that he told his wife about Person 17 during the holiday in Singapore between 10 January 2018 and 20 January 2018. The applicant said his separation from his wife continued, but that he was trying to work through the relationship with his wife. As I have said, I will deal with this in the context of addressing the alleged separation of the applicant and Ms Roberts. The applicant said that he had indicated to Person 17 that their relationship needed to end.
2006 The applicant said that at some point when Person 17 and her family were in London, she appeared to go missing for a couple of days and her husband contacted the applicant. The exact relevance of this evidence to the ultimate issue is not clear to me.
2007 The applicant said that after this incident, Person 17 contacted him by text message. She told the applicant that she was pregnant. The applicant and Person 17 discussed the matter and decided to terminate the pregnancy.
2008 The applicant agreed that Person 17 sent him some evidence, whether it be a video or a photograph, of a positive pregnancy test.
2009 The respondents submit that "critically" it was not put to Person 17 that she had lied about being pregnant. At the same time, I note that what was put to Person 17 was that she sought no treatment for the miscarriage she said that she subsequently had or any verification that she was pregnant. Further, she was asked in cross-examination whether she was "actually ever pregnant".
Events on 6 March 2018
2010 Person 17 did not arrange a termination. However, she lied to the applicant and told him that she had arranged for a termination to take place on 12 March 2018. Person 17 said that during that period, she had a miscarriage.
​2011 Person 17 and the applicant continued to argue and Person 17 said that she would come to Brisbane on 6 March 2018. She did not tell the applicant that she had had a miscarriage and she let him believe that she was coming to have a termination.
2012 Person 17 said that she suffered a miscarriage on Friday, 2 March 2018 and that it extended over several days. She did not immediately inform the applicant of this fact. She agreed that she wanted him to think that she was still pregnant. She said that she wanted to tell the applicant about the miscarriage face to face.
2013 The applicant submits that Person 17's explanation for not telling the applicant of the miscarriage is inconsistent with the "no holds-barred" frankness and intimacy that characterises the text messages before the Court. The applicant submits that the relevant issue is not so much Person 17's failure to communicate promptly to him the fact of her miscarriage, but rather it is her conduct in actively encouraging him to believe that she was proceeding with a termination.
2014 The applicant and Person 17 were arguing during this period. This can be seen in a number of text messages. An illustration, which is also relevant for another purpose, is the following text message from the applicant on 2 March 2018:
   14:05:43
   Wake up to yourself… I'm trying to mitigate the fallout for you with [redacted]. We can talk about how that looks but you really need to get your shit together or you will be doing it alone. Don't fucking abuse me again because it won't end well!
2015 Further illustrations are messages on 4 March 2018:
   | 7:37:52 | |
   | Applicant: | P17 I couldn't talk yesterday because I wasn't in the right frame of mind. I can't spend hours fighting on the phone and hours texting everyday because it serves no purpose other than to cause you angst and make me depressed, and yesterday I was depressed! I'm happy to help you when you need it but I simply can't deal with the constant bickering and threats back and forth. It does nothing for you or I and quite frankly is only negatively impacting on both our lives. Just let me know what you need for next Monday. … |
   | 11:25:58 | |
   | Person 17: | Please will you call me? I can talk now. You misinterpreted my message. I am sorry. I have been selfish & irrational & wallowing in grief & despair. I know that & I can only hope you understand why. I agree with what you said in your first message. I haven't turned on you. I love you. I'm really worried about you. I don't want you to be ​tormented. I don't want payback. That's why I said what I did this morning. More than anything I want & need you by me side through this – of course I do – I've just been too proud to admit it. But I feel like you just aren't strong & calm enough to help me right now. Although it kills me – I'm trying to make things easier for you by dealing with it myself – that's all. |
Person 17 said, and I accept, that she was in a very poor frame of mind over this period.
2016 Person 17 told the applicant that she was going to have the termination at the Greenslopes Day Surgery and they arranged that he would pick her up from Greenslopes Private Hospital which is nearby. Person 17 caught the mid-morning flight into Brisbane rather than the early morning flight and caught a taxi to the Greenslopes Private Hospital. The applicant was engaged when Person 17 contacted him and they arranged to meet at the Milton Hotel.
2017 Person 17 did go to the Greenslopes Private Hospital on 6 March 2018. She went into the hospital briefly to use the toilet next to the front door. The video taken by Mr McLeod shows Person 17 walking to a taxi and getting into the taxi.
2018 Person 17 said that she had had a miscarriage. In those circumstances, there was no reason for her to be at the Greenslopes Private Hospital for a purpose related to her pregnancy. She said in evidence that she went to the Greenslopes Private Hospital because that is where she had arranged to meet the applicant. The applicant submits that her decision to visit the hospital can only have been part of a plan to "prolong the charade of a need to terminate a pregnancy that didn't exist". The applicant does not appear to challenge Person 17's evidence that at some point she had arranged to meet the applicant at the Greenslopes Private Hospital and those arrangements changed. There is no evidence to suggest that she went to the Greenslopes Private Hospital because she knew that Mr McLeod would be watching her. However, the key point made by the applicant is that on Person 17's evidence, she maintained an arrangement to meet at the Greenslopes Private Hospital and that only made sense if she was visiting the hospital or the day surgery to have a termination. In other words, she maintained the deception that she was undertaking the termination of a pregnancy.
2019 The respondents submit that Person 17 is not to be criticised for not disclosing the termination of the pregnancy by miscarriage in the highly traumatic and emotional circumstances prevailing until she met with the applicant. There is force in that, but the difficulty is that I am not satisfied she would have disclosed the true position had she not been pressed to do so by the applicant.
​2020 Person 17 said that she and the applicant had a conversation in a hotel room at the Milton Hotel. The applicant wanted Person 17 to explain why she did not get the early morning flight. The applicant said to Person 17 that he had access to the Virgin flight manifest and knew that she had taken a different flight. The applicant also knew that she had not had a termination that morning and he said that if she was not even pregnant, then she might as well leave immediately. The applicant showed her a video on his telephone of the Greenslopes Day Surgery showing a different woman coming in and out of the surgery. The video also showed Person 17 at the Greenslopes Private Hospital getting into a taxi. The applicant had a pregnancy test and asked Person 17 to perform the pregnancy test in front of him. The test did not work and the applicant took Person 17 to a nearby shopping centre where another pregnancy test was purchased. Person 17 performed that test in front of the applicant and it returned a positive result. The applicant asked Person 17 whether she had had the termination performed in Townsville. Person 17 was upset and she said yes. The applicant then said he would get the CCTV from Townsville. Person 17 was crying and told the applicant what had really happened, that is to say, she told him that she had had a miscarriage. Person 17 said that at first, the applicant was sympathetic.
2021 Person 17 and the applicant had dinner that evening in a restaurant at the hotel and during the dinner the applicant said things to her to the effect that he was a good friend to have, but not someone she would want to get on the wrong side of. The applicant told Person 17 that he could gain access to her bank accounts if he wanted to.
2022 Person 17 said the applicant gave her an example of an army friend who had been able to create a false apprehended violence order (AVO). The applicant asked Person 17 whether she had checked her Telegram messages. Person 17 did not have her telephone with her and it was in the hotel room. Person 17 later checked her telephone and found that the original message chat thread involving messages between the applicant and Person 17 had been deleted. Person 17 asked the applicant how he did that and what was he doing, and the applicant replied that Person 17 should not be keeping the messages and that she should get rid of "that stuff".
2023 This then is Person 17's account of events on 6 March 2018. As I will explain, the applicant denied a number of these matters. Before examining his evidence, it is necessary to refer to the evidence of Mr McLeod.
2024 Mr McLeod confirmed that he took the video of Person 17 outside the Greenslopes Private Hospital which was tendered in evidence. The circumstances in which that occurred were ​described by Mr McLeod as follows. The applicant contacted him saying that he had a surveillance job that he wanted Mr McLeod to do for an executive at Channel 7. He wanted a video taken of a woman entering and leaving the Greenslopes Day Surgery. He gave Mr McLeod the flight details for the woman. The conversation between the applicant and Mr McLeod took place shortly before the woman the applicant was referring to was due to arrive. Mr McLeod went to the airport. He was in contact with the applicant by the use of an App. The woman was not on the particular flight, nor the next flight and at that point, Mr McLeod received a message from the applicant to say that she was at the clinic. Mr McLeod said that he has not kept any of the relevant messages. Mr McLeod went to the Greenslopes Day Surgery. That is where the terminations are carried out. He had a photograph of the woman which he had received from the applicant. He was watching the one and only entrance to the Greenslopes Day Surgery. However, the woman did not arrive. He said that he sat there for several hours before he received a message from the applicant saying that the woman was about to come out. The Greenslopes Private Hospital is nearby and Mr McLeod believed that the woman had gone to the wrong hospital. He decided to go to the Greenslopes Private Hospital which was only a couple of minutes away. He took a video of the woman and he sent it to the applicant. In early 2020 or the first half of 2020, he provided the video to Ms Danielle Scott. The applicant paid Mr McLeod $1,500 for his surveillance services.
2025 The video shows a woman walking a short distance to a taxi with a trolley bag, the size ordinarily taken as carry-on luggage on an aeroplane. The woman does not appear to be restricted in any way and there are no visible bandages on her arms. The woman lifts the bag to place it in the back seat of the taxi. The woman is Person 17 and the location is the area in front of the Greenslopes Private Hospital.
2026 The applicant said that he did not believe that Person 17 was pregnant. He asked Mr McLeod to help him identify whether Person 17 was, in fact, pregnant. He asked Mr McLeod to attend the Greenslopes Private Hospital and he provided Mr McLeod with a photograph of Person 17 and a description of her. The applicant said that he felt that he was being manipulated by Person 17 in circumstances in which she had told him she was pregnant shortly after he had said that the relationship between the two needed to end. Mr McLeod took a video of Person 17 leaving the Greenslopes Private Hospital. Person 17 was able to walk normally and pick up her own bag. Person 17 arrived at the Milton Hotel to meet the applicant as had been arranged. The applicant said that he noticed a change in her appearance. She looked quite frail and had a type of bandage or band aid on her arm that is used after a cannula is inserted into the arm.
​2027 The applicant said that he thought he was being manipulated and, in those circumstances, he asked Mr McLeod to attend the clinic with a view to confirming whether Person 17 was pregnant. The applicant submits that Mr McLeod's characterisation of Person 17's movements in and about the Greenslopes Private Hospital as expressed in the following text message is a correct characterisation of her movements. Mr McLeod said in a message to Ms Scott on 20 October 2018 the following:
   She thought someone was picking her up so she had to be there. She fucked up on the hospital. Instead of going to the procedure clinic, she went to green slopes hospital which I have a voice recording of them saying they don't do that procedure. She told others that she had just had the procedure and needed picking up thinking they would come. I knew she wasn't at the clinic as I and two others that work for me sat off the clinic for 6 hrs. So I thought, she's fucked up and is down at greenslopes. So we bolted down there and I filmed her getting into a cab
2028 Although it is not likely to make a significant difference, it seems to me more probable that the applicant engaged Mr McLeod for the purposes of satisfying himself that Person 17 had had a termination, rather than that she was pregnant in the first place.
2029 The applicant submits that there is no plausible reason for him to wish to conceal the video in circumstances where it was not simply proof that Person 17 had not had an abortion, but it also showed her behaving in a very peculiar manner.
2030 The applicant said that he and Person 17 had a conversation in the hotel room in the Milton Hotel. The applicant formed the view that Person 17 was not telling the truth and he showed her the video taken by Mr McLeod. Person 17 said that she did not have the procedure and that she had had it in Townsville. The applicant said that Townsville did not have a clinic (he said that he did not actually know whether that was the case or not) and Person 17 finally told the applicant that she had had a miscarriage. The applicant said that at that point, he had three stories from Person 17 as to what was actually going on.
2031 There is clearly a dispute between Person 17 and the applicant as to what was discussed in the hotel room at the Milton Hotel on the afternoon of 6 March 2018. The applicant said that the only evidence he saw of a completed pregnancy test was that sent to him electronically and he denied telling Person 17 that he had the Virgin flight manifest for her flight earlier that day. I accept Person 17's evidence as to the two pregnancy tests carried out, including the fact that the first one did not produce a result. I also accept her evidence that the applicant told her that he knew that Person 17 had not been on the earlier morning flight because he had access to the Virgin flight manifest. In my opinion, that conduct is consistent with the applicant engaging a ​private detective to act secretly in undertaking surveillance of Person 17 and the events at dinner that night. Also, I note in this context, that Ms Roberts said the applicant had told her that he was sure Person 17 was pregnant because he was with her when she bought the pregnancy test, although he was not with her when she did the actual test.
2032 On the other hand, the fact is that Person 17 continued to deceive the applicant about how her pregnancy had been terminated. After seeing the video, she asserted that she had had the termination done in Townsville. He said in response to that that she had better be able to show him proof of that and that he would get the CCTV from Townsville. She broke down crying and told him what had really happened. As I have said, it is not at all clear to me that she would have revealed the true position and if so, when she would have done so.
2033 The respondents ask the Court to conclude that the applicant deliberately concealed the video because it would show that he had Person 17 under surveillance and that would reflect poorly on him.
2034 The facts relevant to this submission are as follows: (1) the respondents issued a Notice to produce on 15 December 2020 to the applicant seeking, inter alia, any video of Person 17 taken on or around 6 March 2018; (2) the applicant's solicitors responded on 2 February 2021 and again on 11 February 2021 by saying, subject to an exception not presently relevant, that the applicant no longer held native film of the material requested in the Notice to produce; (3) in October 2018, Ms Scott obtained from Mr McLeod a copy of the video of Person 17 and provided it to the applicant; and (4) the video was produced by the applicant's solicitors on 30 April 2021 with the explanation that until he received the outline of Ms Scott on or about 12 April 2021, he was unaware that he was in possession of a copy of the video (in that the video was apparently stored in a folder of financial records as well as one of the six USBs that he subsequently consolidated in or about August or September 2020). The respondents submit that the applicant had the video to disprove any assertion by Person 17 that she had an abortion and that Person 17's outline of evidence served on 31 May 2019 made it clear that that assertion was not being made, the video was only damaging to him as showing that he was the type of person to have his lover secretly filmed and, in those circumstances, he decided to deliberately conceal it.
2035 The applicant said that he had dinner with Person 17 on the evening of 6 March 2018 and they discussed the best way to end their relationship. The applicant felt that he was being manipulated. He did not know whether Person 17 was pregnant and she had sent him text ​messages "around suicide", as the applicant put it. Person 17 did not want to end the relationship.
2036 There is a dispute between the applicant and Person 17 as to what was said at dinner on the evening of 6 March 2018. The applicant denied saying to Person 17 that he could get into her bank accounts and telling her a story about the obtaining of a false AVO. As I have said, the applicant gave evidence that they discussed the best way to end the relationship. The respondents submit that that is unlikely in light of the fact that they continued to see each other on further occasions. The applicant's response to the respondents' submission is that it ignores the human element in circumstances where it is plain that from 22 January 2018, "the relationship was expiring, albeit slowly".
2037 It was in the context of the applicant saying that he had never threatened Person 17 that the meaning of the text message of 2 March 2018 at 2.05 pm was raised. The terms of that message are set out above (at [2014]).
2038 The respondents submit that this is a threat and it formed part of a course of controlling and intimidatory behaviour by the applicant towards Person 17. The applicant submits that this is overemphasising the words used and that a suggestion that if a particular thing or behaviour is not stopped, it will not end well, is "scarcely unknown in human discourse and most unlikely to be a threat of violence".
2039 The difficulty with the applicant's submission arises because of his explanation in evidence of what he meant by the phrase that it would not end well. The applicant said that what he meant by the phrase was that he would probably leave Person 17. There is an obvious tension between this suggested meaning and the submission made that the relationship was expiring from 22 January 2018. In the circumstances, I do not accept the applicant's explanation. Furthermore, I consider that he was threatening, in a general way, adverse or unpleasant consequences to Person 17, although not necessarily physical consequences.
2040 There is a dispute between the parties about the alleged question by the applicant of Person 17 at the dinner as to whether she had checked her Telegram messages. She later did so in the hotel room and there was a conversation between the two of them about what she ought to be keeping on her telephone. The applicant denied this conversation and said that he was "very confident" that Telegram could not delete messages on other people's telephones at that time.
​2041 The applicant asks the Court to find that no Telegram messages were deleted by him at or about this time and in that context he refers to the 130 pages of messages from 23 December 2017 to 6 April 2018 and submits that the message thread appears to be continuous. In the alternative, he submits that he has not carried out any inappropriate conduct in relation to deletion of messages. That is a different proposition. He submits that even if he did delete messages, he could only have done so by using some kind of facility on Telegram that users were entitled to avail themselves of. He submits that the notes that Person 17 made on 7 March 2018 are consistent with this proposition. He submits that there is no suggestion the applicant actually physically took Person 17's phone and tampered with it in any way. The applicant submits that Person 17 knew in 2018 of the existence of a function that facilitated remote deletion of messages. For example, Person 17 told Ms Roberts on 6 April 2018 that she had been "screenshotting" the messages that had passed between herself and the applicant in circumstances where the applicant thought that the messages had been deleted. She took a screenshot of a message because she thought the applicant would delete it.
2042 This last submission by the applicant is curious. It is put in the alternative to a submission that the applicant did not delete messages as Person 17 alleged. It seems to be a submission to the effect that his behaviour in doing so was not inappropriate because Person 17 knew that he was doing it. This ignores the plain terms of Person 17's notes made on 7 March 2018:
   I know I shouldn't be surprised but what you did with Telegram last night freaked me out! I didn't sign up for that sort of thing.
2043 The applicant submits that the messages comprising the 130 pages in exhibit A150 do not appear to be in the same form as messages which constitute a saved thread in two respects, namely that the "RS" in the version of the Telegram messages in the possession of the police (see exhibit R276) is "deleted account" in the 130 pages in exhibit A150 and the heading "saved messages" in the police version does not appear in the 130 pages in exhibit A150. On the other hand, as the respondents pointed out, the times on the right hand side of the messages are different.
2044 Although there is force in the applicant's observations, it is clear having regard to the context in which he mentioned the Telegram messages and the notes Person 17 made the following day, that he had manipulated Person 17's Telegram messages in a way she did not desire and which frightened her.
​Person 17 makes notes on her telephone on 7 March 2018
2045 Person 17 felt uncomfortable about what the applicant had said about the Telegram messages and on 7 March 2018, she made a note on the Notes App on her telephone dealing with the deletion of the Telegram messages from her telephone. The note reads as follows:
   At the risk of setting things off again, which I really, really don't want to do … I understand why you need to delete at your end … but can you please let me decide what I do & don't keep on my own phone?! Whether it's good for me or not I actually do like to look back on old messages, photos etc. I know I shouldn't be surprised but what you did with Telegram last night freaked me out! I didn't sign up for that sort of thing. It's unfair because I don't get to do it to you & I wouldn't even if I knew how! Promise me you won't go through my phone or do that kind of thing again? I really don't like it. I'm not from your world & I don't have a public profile. No-one is interested in me. If you're worried that they might be then help me set up my phone better.
The metadata in Person 17's telephone for this message was checked in the course of her evidence and it revealed a time stamp of 7 March 2018 at 6.13 pm.
Person 17 goes to Brisbane on 13 March 2018
2046 The next time Person 17 met with the applicant was a week later in Brisbane on 13 March 2018. On the morning upon which she was travelling to Brisbane, Person 17 contacted a Ms Sue Newton by telephone. Ms Newton was a friend and a police officer with the Queensland Police Service. Person 17 had lunch with Ms Newton on that day. She told Ms Newton that the applicant had had her followed and had somehow been able to delete messages from her telephone. He had issued what Person 17 considered to be veiled threats. Person 17 said that she was worried because such behaviour was not normal. Ms Newton advised Person 17 to end the relationship.
2047 At about this time, Person 17 and the applicant had a telephone conversation about an occasion when Person 17 and her family were in London and Person 17 left her family and her husband was looking for her. The applicant told Person 17 that he had accessed data on her telephone to find out where she was. By the time he had done that, she was back with her family "so he knew that I was safe".
2048 A number of text messages passed between the applicant and Person 17 on 13 March 2018 and they included a message from Person 17 to the applicant at 12.18 pm to the effect that she hoped she was not being "shadowed today" with a laughing emoji followed by messages later in the day from Person 17 indicating a desire to have sexual intercourse with the applicant and stating her love for him. These messages and an apparent inconsistency between their tone and ​effect and Person 17's apparent concern with the applicant's abnormal behaviour were put to Person 17 and she said that she was in love with the applicant and concerned about what he was doing at the same time.
2049 The applicant submits that the pregnancy and the termination and the events on 6 and 13 March 2018 respectively are remote from the alleged assault on 28 March 2018 in Canberra. The applicant submits that one matter in that area which is of relevance is that Person 17 was prepared to lie to the applicant about important matters concerning their relationship. She was prepared to do so at length until she was caught and further denial and prevarication became impossible.
2050 The applicant submits that other than the following of Person 17 by Mr McLeod, the other allegations of Person 17 of controlling behaviour (the threat in email dated 2 March 2018, the applicant's statement about access to Virgin flight manifest, pregnancy tests, the threat at dinner on 6 March 2018, the applicant's statements about access to bank accounts and obtaining false AVOs and the deletion of text messages) should not be accepted. Furthermore, if the applicant had not arranged for Mr McLeod to follow Person 17, it is likely the applicant would never have known the truth. The applicant submits that, in any event, even if the other matters did occur, such matters are not remotely probative of a tendency to commit an assault. The alleged assault occurred weeks later and there is no rational connection between it and the alleged earlier events so as to suggest that it demonstrates that the applicant assaulted Person 17.
The Alleged Assault on 28 March 2018
2051 Person 17 met the applicant in Brisbane on Sunday, 25 March 2018 and they flew to Canberra the following day. This was the week before Easter.
2052 On Wednesday, 28 March 2018, Person 17 and the applicant went to the Australian War Memorial where the applicant was giving an interview. After that and a short stay in their hotel room, they went to lunch at the Pialligo Estate Winery. They were at lunch for approximately two and-a-half hours. Person 17 said that she had a cocktail and the two of them then shared two bottles of wine with the applicant drinking most of the first bottle. They returned to the hotel and had another drink. They then went upstairs to get ready for the function at Parliament House, being the Prime Minister's Veterans Employment Awards. They were picked up at approximately 5.00 pm to 5.30 pm that evening. There were two masters of ceremonies for the function and the applicant was one of them. Person 17 was required to sit on a different ​table from the applicant. She sat next to the Veteran Affairs Minister and Vice Admiral Ray Griggs. She was drinking and talking to the men on either side of her. The applicant was looking at her and his demeanour indicated that he was disapproving of her conduct. She said he was subtly shaking his head as if to say, "What are you doing".
2053 Person 17 admitted that she was quite drunk by the time she and the applicant left the function. The applicant left first. Person 17 then went out and asked a man whether he could help her find the applicant and the carpark. Person 17 and the man walked out the main doors. Person 17 fell over whilst walking down a set of steps. She said that she fell two or three steps onto the landing and hit her head. In addition, she said that she hit her left thigh because there was a large bruise on that part of her body on the following day. She denied that at the site of where she hit her head she had swelling between "the size of half a golf ball and half a tennis ball". She does not remember a great deal from that point. Her head was sore. The applicant appeared and took her to the carpark. There were security people around.
2054 There is brief security camera footage of Person 17 and Mr Nichols passing through the security area at Parliament House, of Person 17 and Mr Nichols walking across the Great Verandah towards the elevators and the stairs where Person 17 tripped and fell, and of the applicant escorting Person 17 down the stairs shortly after she had fallen. It was tendered in evidence. It does not add a great deal to Person 17's evidence. As I have said, she admitted that she was quite drunk by the time she tripped and fell.
2055 Mr Nichols is employed by GM Defence UGL Pty Ltd which he described as a large Australian industrial company covering a range of services, including mining, rail transportation and defence. Prior to that employment, he was employed by Rheinmettal Defence Australia and, prior to that, by Boeing Defence Australia. He had been a commissioned officer in the army for 20 years.
2056 Mr Nichols attended the dinner at Parliament House on 28 March 2018. Rheinmettal Defence Australia had nominated a veteran who was in their employment for an award on that evening and Mr Nichols was at the dinner representing the company. Prior to 28 March 2018, he had not met the applicant and he did not speak to the applicant until after Person 17 had tripped and fallen.
2057 Mr Nichols left the dinner at about 9.30 pm. He said farewell to some friends and was walking back towards the entrance of the Great Hall when a lady approached him and asked him if he ​knew the applicant. Mr Nichols saw the applicant had exited the building and was walking across from left to right towards where the prearranged transport was down in the basement carpark. Mr Nichols told the woman he had seen the applicant and he said that he would take her to the applicant. Mr Nichols noted that the woman was unsteady and quite slurred in her speech at the time and he said that he was concerned that she would not be able to meet up with the applicant safely. Mr Nichols escorted Person 17 from a point in the foyer of Parliament House and they walked towards the stairs. There was a lift near to the stairs and he asked the woman if she would like to wait and take the lift. He was concerned about her ability to navigate the stairs. Person 17 declined the offer to wait for the lift and she was halfway down the stairs by the time Mr Nichols got back to the top of the stairs. Towards the bottom of the first flight of stairs, she lost her balance and fell forward onto the stairs and down to the platform. Mr Nichols said that she fell somewhere in the vicinity of six stairs. He described Person 17 landing forward, "left side of the front of her body, head first down the stairs, feet up the stairs". He heard a "terrible thud" when she impacted on the stairs. He noticed a very large haematoma on the left side of her forehead above the eye which he assumed was a direct result of her landing head first on the bottom of the stairs or the landing itself. The haematoma had not been there prior to the fall. Person 17 said that she was "okay" and that she just needed to see the applicant. A Federal police officer came towards the top of the stairs. Mr Nichols asked for help.
2058 Mr Nichols described the injury to Person 17's face as "a large egg, half an egg, sort of, on this part of the forehead". It was a short distance above the left eyebrow and it was quite sizeable.
2059 Mr Nichols went off to find the applicant. He saw the applicant and called out to him. He told the applicant what had happened. The applicant said "Thanks, mate" and walked off.
2060 This was the evidence of Mr Nichols and, as I have said, he was not cross-examined by the respondents.
2061 Officer Grosskreutz of the AFP was performing security guard duties at the main front entrance of Parliament House on 28 March 2018. The other person performing security guard duties was Officer Hayden Walker. Officer Grosskreutz prepared a report of the incident involving Person 17 in an email dated 17 August 2018. That email was tendered without objection and Officer Grosskreutz was not required for cross-examination.
2062 Officer Grosskreutz said the following:
   About 9.50pm I was performing static duties at the Main Front Entrance of Parliament House with Hayden Walker. About this time a function that had been occurring in the Great Hall was ending and all of the attendees were exiting the building and heading downstairs to the public underground carpark, including Ben ROBERTS-SMITH.
   About 9.55pm a blonde female exited the building. The female appeared to be fairly intoxicated; she was unsteady on her feet, struggled to keep her head up and was reaching out to the wall for stability as she walked. A member of the public who was in the same vicinity as her commented on how drunk she was and that she should take her heels off before she walked down the stairs in case she fell.
   At this same time I noticed a potential mental health consumer pacing back and forth near the mosaic area at the front of Parliament House, and left the area near the stairs to go and talk to him.
   Almost Immediately after I began towards him I heard a loud thud from the stairwell area, so I turned around and headed back towards the stairs to see what had happened. When I arrived at the top of the stairs I could see the female that I had previously observed to be unsteady on her feet, lying face­down on the stairwell landing.
   Myself and Hayden walked down the stairs and helped her to her feet. As she got to her feet she was extremely unsteady and was struggling to stand in the one spot without assistance from me, so I put my arm out and held her left arm to ensure that she didn't fall over. As she attempted to fix her hair and her clothing, I observed a some bruising and swelling on the left hand side of her forehead. The swelling would've been between the size of half a golf ball and half a tennis ball and located above her left eye.
   I also observed her to have bloodshot eyes, and she was struggling to look straight at me. I couldn't determine whether this was as a result of intoxication or her head injury, so I began to ask her questions in an attempt to ascertain the extent of her injury.
   I asked her what her name was and who she attended the function with, to which she replied that she was there "with Ben ROBERTS-SMITH". As she was answering those questions she began to cry and apologise profusely for falling down the-stairs, stating that she was embarrassed for causing a scene.
   She also attempted to walk away from me and continue down the stairs, which I prevented her from doing in case she fell down again.
   About this time I offered her medical attention, which she denied. Due to the fact that there was no one else in the area that appeared to be part of her party for the night and I didn't believe she could reasonably take care of herself, I asked Hayden to go and get an ice pack while I remained on the stairwell with her. Whilst Hayden left to ask security for an ice pack, I attempted to ask her who else she was with the event with, in order to see if I could locate them and place her in their care. She didn't give me an answer, instead she continued to apologise and state that she was embarrassed.
   I then asked her where she was staying, and she stated that she couldn't tell me because "she was having an affair"'. I informed her that I only needed to know where she was staying in case I needed to get in contact with the hotel to speak with someone that she was staying with, however she still wouldn't answer my question.
   A short time later ROBERTS-SMITH walked up back up the stairs and met myself and the woman on the landing. I asked him if she was attending the event with him, to which he replied that she was. I then explained to him that she had fallen down the stairs, and that she had refused medical treatment, and subsequently asked him if he would like her to receive medical treatment or if he was happy for her to be placed in his care. He responded that he was happy to take care of her, and then he left back ​down the stairs towards the car park with her, helping her walk down the stairs to ensure that she didn't fall.
   Once they had made it to the bottom of the stairs and turned the corner out of my sight I proceeded back up the stairs to the security point and met Hayden. I informed him that the woman had left in the care of ROBERTS-SMITH.
2063 There was a difference between the applicant and Person 17 about the amount of alcohol Person 17 had consumed prior to attending at the dinner. The applicant gave evidence that Person 17 consumed a bottle of wine at lunch and had a couple more drinks in the hotel room. It seems to me it is unlikely that either the applicant or Person 17 has a recollection as to the precise amount of alcohol consumed by Person 17 before they left for the dinner. Even if the evidence supported a precise finding, it will not assist in resolving any particular issue in this case because on any view, Person 17 had consumed a reasonably substantial amount of alcohol before attending the dinner. She herself, in reporting to the doctor on 29 March 2018, referred to 28 March 2018 as a long wine tasting day. In any event, it is only half the story because she continued to drink during the function and how much she consumed is unknown.
2064 There was a dispute between the parties as to whether Person 17 took a Valium tablet on 28 March 2018. The applicant said that he saw Person 17 taking a Valium tablet each day prior to 28 March 2018. Person 17 said that she did not take any Valium tablets whilst she was in Canberra. This issue appears to have arisen because the applicant gave the following evidence in his evidence-in-chief as to the reason he did not take Person 17 to the hospital after she had fallen:
   Why didn't you go to the hospital?---At that point, Person 17 had already indicated she didn't want to go. And, secondly, my feeling on it was it was more intoxicating than the bump on her head, because I had seen her – what she had drunk that day, and also the fact that she had taken the Valium before we left the Realm Hotel to go to the event, which at the time I saw that didn't mean anything to me other than now. It could be a complication.
2065 A little later, the applicant said, in explaining the reason he had looked inside Person 17's handbag in the hotel room the following:
   I then went to get a photo of the drugs that I had just mentioned, because I didn't know what they actually were or how strong they were. I just knew it was a – a Valium type drug. And I thought that may be relevant if emergency services turned up, or if I did need to call an ambulance I would need to identify the drugs that she had taken.
2066 Not only did the applicant take a photograph of the blister pack containing the Valium tablets, but he also looked through and photographed private notes made by Person 17 of and ​concerning the relationship. These notes are of the most private nature. I will return to examine the applicant's explanation for undertaking these activities.
2067 Person 17 agreed that she was quite drunk by the time she and the applicant left the function and in cross-examination she agreed that she was very drunk. She agreed that she had dropped a glass of champagne during the course of the evening and that she had told Vice Admiral Ray Griggs that she was having an affair with the applicant.
2068 Person 17 said that she thought that Mr Nichols was "trying to pick me up" and the applicant submits that this is evidence of the extent of her inebriation and poor memory of events. It seems clear that Mr Nichols was trying to help, but even so, I do not think Person 17's misinterpretation of this event adds very much.
2069 The applicant gave evidence that Person 17 was extremely intoxicated and not really coherent. He said that she could not string words together and the only things she could say to him were simple one word answers and/or that her head hurt. He said that he put his arms around her to steady her and carry her effectively down the stairs towards the vehicle. I make two observations about this evidence. First, insofar as the applicant relies on the third part of the video comprising exhibit A158, that video shows the applicant guiding, not carrying, Person 17 down the stairs. Secondly, I refer to the evidence of Officer Grosskreutz to the effect that Person 17 kept apologising for making a scene which suggests to me that Person 17 had at least some insight into her behaviour at the time.
2070 Person 17 was put in the back seat of the car on the left hand side and the applicant sat in the front passenger seat. There was some discussion about whether she should be taken to hospital. Person 17 said that she thought she should be. The driver offered to take them to the hospital emergency centre, but the applicant said no, that they would go back to the hotel and he would look after her. They went straight to their hotel room. The applicant was very angry with Person 17. He was shaking her shoulders and he said to her:
   Fuck, [Person 17], what the fuck have you done?
2071 The applicant said to Person 17 that she was "all over" the other men at the dinner and that they would know that she and the applicant were having an affair. He said that she had made a big scene as they were leaving. He said that he had let her into his world and had trusted her and she had treated the occasion like a high school formal. Person 17 said that she knew that she had behaved badly. She told the applicant that her head was hurting and asked if they could ​just go to bed and forget about it. She was moving towards the bedroom area. The applicant was pacing around and getting angry with Person 17. Person 17 said that this went on for a while. She then described the assault in the following terms:
   And I – I had his hands, and I was saying, like, "Please, let's just go to bed and forget about it." And then he punched me with his right fist on the left side of my face, and I – I went back. I think that there was, like, an ottoman type thing at the end of the bed. I went back onto that. Ended up lying on the bed. And I just lay there still, because I – I didn't know what he was going to do next. And then I heard him go round the side of the bed into the bathroom. And that's all I remember.
Person 17 elaborated on that description by saying that in response to what she said, the applicant had said words to the effect "It's going to fucking hurt more" or "I will show you hurt" before he struck her.
2072 The next thing that Person 17 remembers is waking up in the night and going to the bathroom. Person 17 noticed that she was naked. Person 17 said to the applicant that her head hurt and that she wanted to go to hospital. The applicant said that she would be fine and that he would look after her and they went back to bed. Later still that night, Person 17 and the applicant woke up and had sexual intercourse.
2073 The applicant's account of events on 28 March 2018 was as follows.
2074 The applicant and Person 17 were in Canberra on 28 March 2018. They went to the Australian War Memorial and then to the Pialligo Winery for lunch. The applicant said that each of them would have consumed a bottle of white wine. They then went back to the Hotel Realm and the applicant said that he stopped drinking because he was a joint master of ceremonies for the Prime Minister's Veterans Employment Awards that night. Person 17 had a couple of drinks in the hotel. The applicant arranged for Person 17 to obtain a ticket to attend the dinner.
2075 At the dinner, the applicant stayed at the head table for most of the night. At the end of the dinner, he went to Person 17 and said that the car was booked and that he would meet her out the front. The applicant walked out of the Great Hall, through security to the forecourt. He waited at the front of the forecourt for Person 17 to join him. He said that he stood there for 15 to 20 minutes. He went back inside. Person 17 was still talking to other people. He said that in the end he went back in twice. When Person 17 finally did leave, he said that he saw her walking through the main doors of the Great Hall towards security with a drink in her hand. She was asked by the ushers to put the drink down. The applicant went to let the driver of the car know that they were there. He was talking to the driver when a man approached him and ​said there was a woman on the stairs who had fallen. The applicant went back inside, up the stairs from the forecourt basement to the forecourt. He arrived at the middle landing and there were two Federal police officers holding Person 17 against the wall. Person 17 had a significant bump on the top of her left eye. She was extremely intoxicated.
2076 The applicant said that Person 17 could not speak in a coherent fashion. The applicant took Person 17 to the car and he put on her seat belt. The applicant asked the driver if there was a hospital nearby. He asked Person 17 how she felt and she said that her head hurt. He asked her if she wanted to go to a hospital and she said no. The applicant said that he did not take her to a hospital because Person 17 had indicated that she did not want to go. Further, his feeling was that she was more intoxicated than feeling the effects of the fall. He had seen what she had drunk that day and, in addition, she had taken a Valium tablet before they left the hotel to go to the event.
2077 On arriving at their hotel room, the applicant put Person 17 on the bed and at that point, she completely passed out. He ordered ice and undressed Person 17 and put her in the bed. He placed ice on the bump above her left eye.
2078 The applicant said the next time he spoke to Person 17 was when he woke her up the next morning so that she would be ready to catch her flight to return home.
2079 During the night, the applicant checked Person 17's vital signs. He took a photograph of the blister pack containing the "Valium type drug". He said that he flicked through a notebook she had in her bag looking for a schedule of drugs or some indication of anything else that may have impacted on her physical state at that point. He saw some handwritten notes that pertained to him.
2080 The applicant said that he did not strike Person 17 on 28 March 2018 or at any other time. He said that he did not sleep during the night of 28 March 2018. He said that he did not say anything to the effect that her head was going to hurt a lot more.
2081 The applicant submits that Person 17 is a liar and a fantasist. He did not assault her on the evening of 28 March 2018 or at any other time. She has lied about the assault, other events on the evening and events said to have happened on other occasions.
​The Following Day
2082 Person 17 and the applicant were due to catch an early flight the next morning. The applicant woke Person 17 up at approximately 5.00 am. He had packed her bag and laid out her clothes and he had charged her telephone during the night. The applicant showed Person 17 photographs on his telephone that he had taken and they were photographs of Person 17 lying naked in bed. He asked her whether he needed to keep these photographs. Person 17 did not say anything. As I have already said, Person 17 said she did not take any Valium tablets during the time that she was in Canberra.
2083 The applicant submits that Person 17's evidence to the effect that on the following morning the applicant showed her photographs on his telephone of her lying naked in the bed should be rejected. In the draft statement she gave to the police, she said:
   22. … He showed me photos that he'd taken of me lying in bed with my clothes removed and with an ice pack on my head. I believe he was trying to show me that he was looking after me.
2084 The applicant submits that the photographs referred to in this paragraph are the photographs of Person 17 in bed covered with an ice pack on her head. It follows that Person 17 did not tell the police about the threat concerning the photographs of her naked in bed. The applicant submits that this story is, in any event, improbable in that the applicant would not have achieved anything by threatening Person 17 in this way because Person 17's husband already knew about the affair.
2085 The applicant summarised the probability of his case and the improbability of the respondents' case. He referred, on the one hand, to his reputation and character as described by witnesses he called as part of his case and, on the other, the fact that Person 17 was drunk and had already sustained an injury in the same place where she later said she was punched and that she reported to at least three people (the doctor, Ms Roberts and the mother of Ms Roberts) that her injury was caused by the fall within 10 days or so of 28 March 2018.
2086 On the flight home, Person 17 and the applicant sat separately from each other. Whilst they were waiting in the airport, they did not talk very much. When they reached the Brisbane Airport, the applicant said to Person 17 that what happened "for us now" was going to depend on what she said to her husband when she got home. The applicant asked Person 17 what she was going to tell her husband about what had happened the previous night. The applicant asked ​her whether she remembered what happened in the hotel room and she said no. The applicant then said to her something like: "Good girl, you know, you hurt yourself when you fell over".
2087 Person 17 said that the reason she said to the applicant that she could not remember what had happened the previous night was because she was afraid what the applicant would do if she did not say that.
2088 Person 17 said that the applicant told her that she needed to tell her husband that she was drinking alone in her hotel room in Brisbane and took some medication to help her sleep. She got up later in the night to go and get some food and during that, she fell down stairs and suffered an injury to her face. The applicant said that Person 17 needed to tell her husband that he, the applicant, was not with her.
2089 There is a conflict in the evidence about the conversation between the applicant and Person 17 concerning what Person 17 was going to say to her husband. The applicant said that he said to Person 17 that her husband was going to think that he, the applicant, had struck her and that she should tell him that she had fallen down the stairs and that they had been together. He said that Person 17 reacted to that suggestion with unhappiness because she had not told her husband that she was with the applicant at that time. Person 17 agreed that the applicant had said something to the effect that her husband was going to think that he, the applicant, had struck her. However, she did not agree that he said that she was to tell her husband that she had fallen down the stairs and that they were together. She said that the applicant said to say that he was not there.
2090 The applicant submits that Person 17's account is inconsistent with her concession that the relationship was effectively over the previous night. Person 17 agreed that the applicant told her and she agreed that the relationship was over after the events on 28 March 2018 in Canberra. In those circumstances, there would be no reason for the applicant to say (as per Person 17's account) "what happens for us now" or words to that effect. The applicant submits that the answer to the suggestion by reference to Person 17's evidence that he was effectively coaching her, is that Person 17 had, in fact, fallen on the stairs and injured herself. That is true, but the difficulty with the submission is that it does not explain why he said (assuming he did say) "Good girl, you know, you hurt yourself when you fell over".
​2091 Person 17 sent a message to her husband to the effect that she had a black eye and a little later she sent a photograph of her face to him. Person 17's husband asked her whether the applicant had done that to her.
2092 Later that day, that is on 29 March 2018 commencing at 9.47 am, the applicant and Person 17 exchanged the following messages:
   | Applicant: | I hope your head feels ok… are you leaving soon? |
   | Person 17: | Thanks. It's actually killing me. I feel awful. I board in half an hour. I made a drs appt for this afternoon. I spoke to [redacted] & sent him a photo. He reacted exactly how you predicted. I think he believes me but is a bit sceptical. |
   | Applicant: | I thought he would, what did you say? Does he think I did it? |
   | Person 17: | Yeah he did to begin with & he didn't believe that I'd fall down stairs. I just told him what we talked about. |
   | Applicant: | Did you say I was there at all |
   | Person 17: | No. I said I caught up with you earlier in the week but you had to go away for work. He was really worried I was by myself all night after such a bad fall & can't understand why I didn't call him or someone else for help. |
   | Applicant: | Just say you didn't realise until you woke up as it has swelled. Also say you were embarrassed call him |
   | Person 17: | Yeah I said that last night I thought it was only a bit swollen up where I'd knocked it so I put some ice on it & fell asleep not realising until this morning how serious it was. I've some other bruises – including a massive one on my thigh on the same side of my body – which will hopefully make the falling story more believable. I think having my period will also work in my favour in terms of convincing him I wasn't with you. |
One matter which can be clearly inferred from this exchange of messages is that Person 17 told her husband that she was not with the applicant.
2093 Person 17 saw a doctor later that afternoon. Her regular doctor was not available and she saw another doctor at the practice. The doctor asked her whether someone had hit her and she said that she had fallen over when she was drunk. She said that the reason she gave that information to the doctor was that she did not want to open a "can of worms" by saying that someone had hit her and, in that context, she referred to, among other things, the social relationship between her husband's business partner and the doctor.
​2094 The medical report of the visit to the doctor by Person 17 records the visit as having taken place on 29 March 2018 and the reason for the visit as "Fall down stairs". The injury reported is a "banged head above and lat [lateral] to the left eye" when the patient tripped and fell down some concrete steps. The immediate aftermath is described as "got big egg" which had almost completely subsided (90%). Person 17 seems to have admitted to being "fairly drunk" at the time of the fall and to have conveyed to the doctor that the level of alcohol intake ("a long wine tasting day") was an exceptional event.
2095 After Person 17 had finished at the doctor, the following exchange of text messages between the applicant and Person 17 took place at 2.40 pm and 3.11 pm respectively:
   | Person 17: | I just finished at the doctor. He said the black eye will be around for 3-4 weeks & will likely get worse & spread further down my face! Otherwise all ok. If I go backwards in the next couple of days he'll do a scan but that's very unlikely. |
   | Applicant: | [P17] I'm really glad to hear that your injuries are not worse and that you'll be better soon. I was legitimately worried last night which is why I stayed up but I'm sure that ice helped to some degree. I'm not going to bullshit you [P17] your behaviour has given me real cause to think and I'm a little in shock myself. Apart from putting yourself in a dangerous situation I found it really disrespectful and inappropriate. In saying that however I acknowledge you have apologised and I accept your apology. |
2096 The applicant was taken to his exchange of text messages with Person 17 on 29 March 2018 in his evidence-in-chief. He said that Person 17 had told him that she did not know what to tell her husband. He said that it was evident to him that because of her injury, Person 17's husband may have thought that he had struck her. The applicant suggested to Person 17 that she should tell her husband that she had fallen down the stairs and that she was with him at the time. Person 17 was not happy with the idea of telling her husband that she had been with the applicant.
2097 The applicant was asked in his evidence-in-chief about the passage in a text message he sent to Person 17 on 29 March 2018 at 9.53 am as follows:
   Does he think I did it?
2098 The applicant explained that he sent this message because, as he put it, a woman walking around with a big bruise on her head, the applicant assumed that her husband would feel that something "untoward had happened".
​2099 The respondents place considerable weight on the chain of text messages on 29 March 2018 commencing at 9.47 am. Those messages are set out above (at [2092]). The respondents refer to and rely upon, in particular, the applicant's message at 9.52 am "does he think I did it?" and Person 17's response at 10.08 am which includes:
   … I've some other bruises – including a massive one on my thigh on the same side of my body – which will hopefully make the falling story more believable…
(Emphasis added.)
2100 The applicant, on the other hand, submits that these messages are completely neutral in terms of whether or not an assault had occurred. The word "story" is not necessarily a reference to a fictional account. Furthermore, none of the messages are inconsistent with circumstances in which Person 17 tripped and fell down stairs and suffered bruising to the left side of her forehead (as happened) and she did not want to say that she was with the applicant on that particular night. Further, it is plausible that the applicant's husband may think that Person 17 had been assaulted by the man she was having an affair with, namely, the applicant.
2101 The applicant submits that the previous point is even stronger when coupled with Person 17's apology on 31 March 2018 at 5.25 pm as follows:
   Please don't punish me. I'm already hurting – physically & mentally. I know it's my fault & I hate that I can't change what happened. I really need to know what you're thinking & where we stand.
2102 The applicant places considerable reliance on Person 17's report to the doctor on the following day and the fact that there is a reference to the fall, but no reference to the alleged assault. The applicant submits that the absence of a reference to an allegation of assault is significant and that, at that point, Person 17 had not invented the allegation. He submits that Person 17's reason for not reporting the assault is unconvincing. Person 17 said in evidence that her reason for not doing so was because of her links, including her family's links, with the practice. She said that she did not want to go into any of that and she just wanted to make sure she was okay. The applicant submits that she could have visited a different medical practice whether in her home city or in Brisbane.
2103 The applicant submits that Person 17's apology should not be discounted in this case by the application of some principle that victims typically blame themselves for the violent behaviour. The applicant submits that such an approach is unsupported by the evidence and each case must be assessed on its own facts. He points to the fact that at the time Person 17 was an ​independently wealthy married lawyer in her 30's who lived in a different city from the applicant with whom she engaged in an entirely voluntary extra-marital affair and that she had "agencies".
2104 Person 17 said that on 30 March 2018 (i.e., Good Friday), Person 17 told her husband that the applicant had hit her. Person 17's husband did not give evidence in the case.
Events on 3 April 2018
2105 Person 17 said that the applicant contacted her by telephone on Tuesday, 3 April 2018. The applicant and Person 17 agreed that they needed to end their relationship. Person 17 said that she wanted to see the applicant one more time because she did not want the relationship to end the way it had been left after the trip to Canberra.
2106 The applicant submits that Person 17 had an obsession with him and that her conduct towards him involved serious dishonesty and her allegation of assault was a by-product of her obsession with him. She was seeking to re-establish their relationship or seeking revenge on the applicant for leaving the relationship, or both. The applicant submits that Person 17 is not a witness of credit.
2107 A major aspect of the applicant's challenge to Person 17's credit was her alleged fabrication of the incident on 3 April 2018 involving a man on the beach.
2108 Person 17 gave the following evidence in cross-examination of an event on 3 April 2018:
   What was the significant event?---Earlier that morning, when I had gone for a walk on the beach near my house, I was approached by a man who had photos of Ben and I – or it looked like Ben and I – having sex in a hotel room.
   You said somewhere else that you recognised the photographs had been taken from outside the windows of the Milton Hotel, didn't you?---That's how it appeared.
   I beg your pardon?---That's how it appeared.
   Yes. A place – a hotel where you had stayed on seven, eight occasions; correct?---I don't know how many, but, yes, numerous times.
   Yes. And what did this man who had the photographs of you and my client having sex on his phone say to you?---He said to me, "You've been seeing Ben Roberts-Smith." He showed me the photos and he said that I was to tell Emma about this ….. or the photos would be made public.
   You see, that's the explanation you gave to the Federal Police, isn't it, for why you went to see my client's wife on 6 April; that's the explanation you gave them, isn't it?---I gave them multiple explanations.
   You didn't anything to the AFP, did you, about it being necessary to bring the affair to ​an end by telling his wife, did you?---I don't know.
   Yes. I'm going to come back to this incident on 3 April in some detail a bit later on, Person 17. But, for now, I just want to suggest to you that it is a complete fabrication; that's correct, isn't it?---That's not correct.
2109 The applicant contends that Person 17 has given different versions of this incident as follows:
    (1) Paragraph 29 of the draft statement Person 17 gave to AFP officers on 30 May 2018 is as follows:
   On Tuesday 3 April 2018, I was approached by a man walking on the beach near my house. The man showed me two photographs of Ben and I naked in a room at the Milton Hotel in Brisbane. The photos looked as though they had been taken from outside the room through the window. The man told me to tell Ben's wife about the affair otherwise the photos would be made public. I would describe the man as big possibly 190cm tall, strong build, Caucasian, tanned with short dark hair. He was wearing a long sleeved dark T-shirt and blue jeans. He spoke with an Australian accent. I felt terrified.
    The summary by Detective Sergeant Cato is as follows:
   On 3 April 2018, while walking on the beach at [redacted] she was approached by a male who shoved two photographs at her. The [sic] recognised them to be photographs of BRS and herself naked in a bed at the Milford Hotel Brisbane during an earlier night together. The male warned her to tell his wife about the affair or the photographs would be made public.
    (2) The chronology which Person 17 prepared for the AFP contains a brief reference to the incident as follows:
   Tuesday 3 April
   Approached about photos/telling Emma.
    (3) Person 17's evidence to this Court in cross-examination wherein she said, inter alia, that the photographs appeared to show the applicant and herself up against a glass window having sex She thought it was the Milton Hotel because that is the only location in which she had sex with the applicant in that position. Person 17 also appeared to agree that it was one explanation she gave for visiting the applicant's wife on 6 April 2018.
2110 Person 17 gave evidence that she spoke to the applicant on Tuesday, 3 April 2018. The applicant said that they needed to end their relationship and that it had become "sort of like toxic and bad – bad for both of us and dangerous for both of us". Person 17 said that she agreed with that, but she went on to say that she would like to see him one more time because she did not want things to end the way they had after the Canberra trip. She agreed in cross-​examination that she had pleaded for one more night and that she had wanted to see him as soon as possible.
2111 The applicant refers to the messages passing between Person 17 and the applicant on 3 and 4 April 2018 and, in particular, the following messages:
   | Applicant: | You should get a room at the Airport Novotel in case I late and so you have some where to stay. I will also get one there! I still don't understand what you need to discuss but in any case why can't you just focus on being there? |
   | Person 17: | Why there? Aren't you coming from GC? Are we not going to stay together? … |
   | Person 17 | Sorry but I don't get why you want to stay there? I just assumed we'd go to Milton or Sofitel? … |
There is no reference by Person 17 to the incident involving the man on the beach. Person 17 appears to be enthusiastic about seeing the applicant one more time.
2112 The applicant asks the Court to infer that there is no indicia of coercive control by the applicant and that it was Person 17 who was pursuing a further night with the applicant. Her explanation that she was in love with him and in fear of him at the same time should be rejected. The applicant submits that the standard of proof remains the balance of probabilities and all of her cumulative decisions and actions must be assessed by that standard.
2113 The applicant made a further submission. He relies on the improbability of Person 17's husband allowing her to see the applicant again on 5 April 2018 in circumstances where she told him that she had been assaulted by the applicant. The evidence of Person 17 was that she told her husband of the assault over the Easter weekend which was between Friday, 30 March 2018 and Monday, 2 April 2018. Person 17 also said that she told her husband that she was going to see the applicant "one last time". Person 17 said that her husband was worried about her going to see the applicant. Person 17 agreed her husband was in good health and available to give evidence. There was no explanation as to why he was not called to corroborate Person 17's evidence that she told him about the assault over the Easter weekend. The applicant submits that the Court should draw a Jones v Dunkel inference that his evidence would not have assisted the respondents. I am not convinced a Jones v Dunkel inference should be drawn or, even if it should, that it advances the matter. I refer to the discussion of the relevant principles in Section 1 of this Part. First, I am not convinced that Person 17's husband was a witness the respondents would be expected to call. Secondly, I am not convinced that even if this be wrong, an inference that he would not have assisted the respondents' case takes ​the issue very far. The permissible inference is not that his evidence would have been positively adverse to the respondents' case.
2114 The applicant points to a text message Person 17 sent to the applicant on 4 April 2018 which he submits is consistent with joking about a recent accident. The text message was sent at 6.56 pm and is as follows:
   Ok, thanks. It'd be nice to go out .… if you can live with the stares at my black eye! What time did you book for? Let's try & talk before then so we can just enjoy it.
This text message is followed by a winking emoji.
Events on 5 April 2018
2115 The applicant and Person 17 saw each other at the Novotel Hotel at the Brisbane Airport on 5 April 2018. They had a drink and then dinner. The applicant said to Person 17 that she was like "crack" and that he would find it very difficult to give her up. He also said that as long as they were on the same page, Person 17 had nothing to worry about. However, the applicant said to Person 17 that if she did anything stupid or turned on the applicant, he would burn her house down and "it might not be you that get's hurt, but people that you love and care about". The applicant then showed Person 17 photographs from the hotel in Canberra and photographs of her diary or notebook and photographs of cards from inside her purse. The applicant and Person 17 spent the night together and had sexual intercourse.
2116 The applicant's version of events was that in early April 2018, the applicant spent one last night with Person 17 at a hotel at the airport in Brisbane. He had a conversation with her before flying to Canberra. She said she did not need to be at the airport that early. The applicant left the hotel and went to the airport lounge. When he came out of the airport lounge he saw Person 17 standing at the end of the corridor at the front of the airport lounge. The applicant asked Person 17 what had changed and she said that she had changed her flight.
2117 The applicant said that what, in fact, occurred was that Person 17 hired a car and drove up to the applicant's matrimonial home and when the applicant landed in Canberra, he received a message from his wife saying that Person 17 was at the matrimonial home.
2118 The applicant referred to the exchange of telephone messages between himself and Person 17 on 6 and 7 April 2018.
2119 The applicant said that the next time he heard from Person 17 was a month later. Person 17 wanted him to contact her and the applicant said that "he had her contacted" by Ms Scott.
​2120 There was a dispute between the applicant and Person 17 about the conversation that took place during the evening of 5 April 2018. The applicant denied the "crack" statement and the "burn the house down" threat. He denied showing Person 17 any photographs.
2121 I note that the police report in relation to Person 17's visit to the police station on 8 April 2018 refers to the fact that Person 17 reported that she was scared that the applicant was going to burn her house or access her bank account. That contemporaneous, or near contemporaneous record, supports Person 17's account.
2122 The applicant submits that it is improbable that the applicant would take photographs of her bank cards in order to threaten her. It is said that it is "wildly improbable" that he would threaten to steal money from the bank account of an independent wealthy lawyer. Whatever the probabilities, the fact is that Person 17 reported to the police on 8 April 2018 that she was scared the applicant was going to access her bank account.
Events on 6 April 2018
2123 Person 17 said that she decided that she had to put an end to the relationship or she was never going to be free of the applicant. While he was in the shower in the morning of 6 April 2018, she looked at his driver's licence and noted his address. He went to the airport ahead of her. She then went to the airport and checked in. She then decided that she needed to end the relationship. She went to the applicant's matrimonial home on the Sunshine Coast to tell Ms Roberts about the affair. She spoke to Ms Roberts' mother and Ms Roberts. She did not tell them that the applicant had hit her in the face. She said that she had fallen down stairs when she was drunk.
2124 Person 17 identified text messages with the applicant sent on 6 April 2018. Those messages were as follows:
   | Applicant: | (8:02 am) I'm glad we got to see each other [Person 17] … You will be ok… you can work through it… you don't need to dwell on the past anymore… (11:50 am) You have been holding this over me since last year… what have you done, this is outright blackmail. |
   | Person 17: | (5:51 pm) No. It most certainly is not blackmail. I'm not asking for or expecting anything from you. (6:20 pm) Please don't waste your time with intimidation or payback either. The benefit of seeing what you were capable of a few weeks back & knowing the threats you've made to me since is that I immediately put in place "insurance" in the event that anything should ​happen to me or my family. I know you will blame me but I hope you'll also remember that we're in this position because of what we've BOTH done. (6:20 pm) What I did today wasn't planned & it's not something I ever thought I would do but I believe I made the right decision. I know you're angry but I did it for your own good. Some day I hope you'll see that & be thankful. If you love Emma & genuinely want to fix your marriage then it needed to come out. She deserves the truth & she was never going to get it from you. You've been lying to everybody & it's time to stop. To quote your message to me from this morning – I know you will be ok & you will work though [sic] it. Your marriage is strong & you love each other. Tell her everything, take responsibility for your actions, deal with your own issues & ask for forgiveness. You & your marriage will be better off in the long run. (6:21 pm) And if the media finds out it will not be from me or anyone associated with me. As far as I'm concerned it's a private matter & I truly hope it remains that way for everyone's sake. |
2125 Person 17 explained that the reference by her in the second of the messages set out above to seeing what the applicant was "capable of a few weeks back" was a reference to everything that had happened since 6 March 2018 when she had met the applicant in Brisbane and that he "had me followed, threatened me, done things with my phone, right up until what had happened the previous week in Canberra".
2126 The applicant submits that Person 17's explanation about the meaning of the text message is plainly false.
2127 Person 17 denied that the reference to what had happened a "few weeks back" was a reference to events on 6 March 2018 concerning Person 17's visit to the Greenslopes Private Hospital. It was put to her that the reference to a "few weeks back" could not include what had happened on 28 March 2018.
2128 Ms Roberts and Person 17 each gave an account of what occurred at the matrimonial home on 6 April 2018. The applicant submits that their evidence is mostly consistent, but to the extent there are contradictions, the version of Ms Roberts should be accepted. The reason the events are said to be significant is that they include Person 17 providing an explanation about the cause of her black eye which is inconsistent with the allegation of an assault.
2129 Ms Roberts' version of what occurred was as follows. Ms Roberts asked Person 17 to remove her sunglasses. Ms Roberts saw Person 17's black eye and asked her what had happened to her face. Person 17 said she had fallen down a set of stairs at Parliament House when she was drunk at the end of March. She said that she had fallen down stairs at Parliament House at the ​Prime Minister's Veterans Employment Awards and that that had happened last week. Person 17 kept touching her bruised eye and she said that it was because of "this" that the applicant did not want to see her anymore and that he did not want to see her because she got so drunk and embarrassed him when she fell down the stairs. Ms Roberts said that Person 17 had two telephones with her. On one telephone she could see that Person 17 was receiving text messages from the applicant. Ms Roberts observed that each time Person 17 received a message from the applicant, she "screenshot" the message. Ms Roberts asked Person 17 why she was doing that. Person 17 said to Ms Roberts that she had kept all of the applicant's messages and that the applicant did not know that and thought that they had all been deleted.
2130 Person 17 gave evidence that Ms Roberts' mother and stepfather arrived at the family home before Ms Roberts arrived and that Ms Roberts' mother asked her what had happened to her face. Ms Roberts' mother suggested that the applicant had done that to Person 17. Person 17 denied that and said that she had fallen down stairs in the previous week when she was drunk. Person 17 gave evidence that Ms Roberts' mother said that that had not happened and that she had seen injuries like that before. The applicant submits that the evidence should not be accepted and that it is inconsistent with the subsequent conversation between Ms Roberts and Person 17 for which her mother was present, at least in part. He submits that the respondents' submission that silence by Person 17 in response to a question by Ms Roberts' mother means that Person 17 did not want to continue the lie the applicant was imposing upon her, but she was also too scared to disclose the truth, stretched credulity.
2131 The applicant submits that the explanation Person 17 gave for not telling the truth about the injury to her eye should not be accepted. Person 17 said that she had gone to the matrimonial home to make sure that that was the end of the affair. She did not want to say anything more than what she had "because I just knew I would then be targeted by him". That explanation for not mentioning the assault should not be accepted because the relationship had ended and both parties knew it and Person 17 would not have gone to the matrimonial home if she was genuinely frightened about being targeted by the applicant.
2132 The applicant submits that Person 17's true motive for visiting the matrimonial home was an attempt to end the applicant's marriage so that she could restore their relationship or, at the very least, to take revenge on the applicant for ending the relationship. The applicant submits that those are the only plausible explanations for Person 17's conduct in contrast to the explanations put forward by Person 17.
​2133 The applicant submits that the text message which Person 17 sent to the applicant on 6 April 2018 at 6.20 pm does not in any way advance the respondents' case that the applicant assaulted Person 17. This message is set out above (at [2124]).
2134 The applicant submits that a number of matters should be noted about this message. First, and this has already been referred to, the message refers to the benefit of seeing what the applicant was capable of "a few weeks back". That cannot be a reference to the alleged assault because a few weeks back from 6 April 2018 is about 23 March 2018. The alleged assault is said to have occurred on 28 March 2018. On the applicant's case, the reference is likely a reference to the applicant having Person 17 followed by Mr McLeod on 6 March 2018. However, that creates the same difficulty, this time with the applicant's submission as "a few weeks back" is not one month ago. Secondly, the message refers to Person 17 having put in place insurance and yet Person 17 admitted in cross-examination that there was no insurance and that was "just something I said".
2135 The applicant points to the message Person 17 sent shortly after at 6.21 pm on 6 April 2018 as follows:
   And if the media finds out it will not be from me or anyone associated with me. As far as I'm concerned it's a private matter & I truly hope it remains that way for everyone's sake.
The applicant submits that late in May, Person 17 herself approached the media making that statement meaningless.
Events on 8 April 2018
2136 Person 17 said that at around this time, she made an attempt to report the assault to the police. She did not want to do that. She was afraid that no-one would believe her and she blamed herself for what had happened. Nevertheless, she went to a police station in her area. The documents reveal that this was on 8 April 2018. She asked to speak to a senior person. She was not able to speak to a senior person and so she gave them some details without disclosing the name of the perpetrator whom she described, according to the police report, as a "high profile military person". The police report of the Queensland Police Service was tendered in evidence. It records that Person 17 reported that Person 17 had recently ended an affair with a high profile military person and had told his wife. She told the police that she was worried about what the person may do, including burning her house or accessing her bank account. She ​wanted the police to obtain CCTV footage at the hotel to prove the affair, but absent a name, the police were not prepared to act.
2137 The applicant drew attention to a number of features of this police report. There is no reference in the report to the applicant assaulting Person 17. Person 17 reports to the police that she was having an affair with a high profile military person and she was asking them to obtain CCTV footage at a hotel to prove that she was having an affair with the person. The applicant submits that this is a strange thing for Person 17 to do in circumstances in which she had 130 pages of text messages which contain a number of references to sexual activity and, in addition, Person 17 had retained the envelopes holding the hotel key cards for the nights they had spent together. Person 17 said that she did not retain the key cards deliberately and that it just happened that she still had the key cards. Person 17 said that she asked the police to try and obtain CCTV footage from the Hotel Realm, but that she had not done so for the purpose of proving that she was having an affair with this person. In other words, the statement in the police report that she requested police obtain CCTV footage at a hotel was correct, but not the statement that she did so to prove that she was having an affair.
2138 The applicant submits that there is nothing in the police report which indicates that Person 17 made an allegation that she had been threatened. She spoke only of her own fears and she did not mention the man on the beach or his threat.
2139 The police reports were tendered by the respondents in Person 17's re-examination. In her evidence-in-chief, Person 17 referred to the visit to the police station and said that she wanted to speak to someone senior, but she could not get past the person on the desk. The applicant points to the statement in the police report that, in fact, advice and referral were given. Furthermore, the applicant submits that if Person 17 had really wanted to speak to a senior police officer, she could have spoken to Ms Newton. When this matter was put to Person 17 in cross-examination, she said that Ms Newton did not live in the same town as her.
Events on 20 April 2018
2140 On 20 April 2018, Person 17 made an approach to her local police station. A police report of the Queensland Police Service in relation to this visit was tendered in evidence. Again, Person 17 would not provide the name of the "high profile military person" and that led to a similar result. Her concerns as recorded in the police report were that the person had her bank details and "can externally remote into her phone and emails".
​2141 With respect to Person 17's visit to the police station on 20 April 2018 and the police report relating to that visit, the applicant makes the same submissions as he did in relation to the earlier police report. There is no reference in the report to an assault. There is no suggestion that she sought an appointment with or was told that she was unable to speak to, a senior officer. Person 17 asked the police to run a telephone number to see if it was registered to anyone as she believed the high profile military person was using burner phones to contact her. In cross-examination, Person 17 said that the reference to burner phones was a reference to the previous burner phones he used. She agreed that the applicant had broken off contact with her. The police report suggests that the applicant is attempting to make contact at that time. The applicant submits that the only probable inference to be drawn is that her attempt to get the police to run a number was part of a means to re-establish contact with the applicant. It is not clear whether Person 17 admitted in cross-examination that she had not asked to see a senior police officer on 20 April 2018.
2142 On the same day, that is 20 April 2018, Person 17 made a further attempt to contact the applicant. She was told by her husband that there was a big news story coming out about the applicant and she assumed it was about the affair. She was worried about that. Person 17 telephoned the applicant's executive assistant and asked her to pass on a message to the applicant. The message was the password to the Gmail account.
2143 The applicant's executive assistant sent an email to the applicant on 23 April 2018 advising him of the telephone conversation with Person 17 on 20 April 2018. The following excerpt is the relevant part of this email:
   This is how the conversation went:
   I am sorry for calling you but I have no other choice as Ben appears to have changed his mobile number and I can't get hold of him and I need to urgently get a message to him.
   Leonie: Ok what is the message?
   Can you please call him with this message as I cannot have a paper trail.
   Leonie: Ben is busy at an event at the moment.
   Yes I know he is speaking in Brisbane, I wanted to fly down there today but I couldn't get a flight. I need to get this message to him.
   Leonie: What is the message?
   You need to tell him "Switzerland 2018" he will know what that means. You need to tell him that "someone has the story and I am getting threatened and I am frightened and I need Ben's help".
   ​Leonie: This all sounds a bit confusing to me.
   Silence… I know but you need to tell him "Switzerland 2018".
   Leonie: How urgently do I need tell Ben?
   Today, before everyone gets back to work on Monday. She apologised again for contacting me and I said goodbye.
2144 With respect to Person 17's contact with the applicant's executive assistant on 20 April 2018, the applicant submits that Person 17's attempt to contact the applicant and to seek help from him is on the balance of probabilities inconsistent with her having been recently assaulted by the applicant and is inconsistent with Person 17 being afraid of the applicant.
2145 The applicant submits that the two events on 20 April 2018 indicate that Person 17 was desperate to attract the attention of the applicant at that time. She was not alleging any assault occurred. The applicant submits that at this time Person 17 had not yet invented the allegation.
The Correspondence with Danielle Kennedy
2146 On or about 22 April 2018, Person 17 received an email purporting to be from a Ms Danielle Kennedy which was in the following terms:
   My name is Danielle Kennedy and I represent Mr and Mrs Roberts-Smith.
   I am aware of all details pertaining to your particular situation and have been instructed to contact you using the gmail account details you supplied to Mr Robert-Smith's office by phone on Friday 20 April 2018.
   I have now tried to call your mobile on several occasions on Friday 20 April and Saturday 21 April 2018. These calls went unanswered. I have also been corresponding with you via your nominated gmail account and have tried to ascertain a suitable time to speak with you in person. Due to you not providing me an appropriate time to call, I am now sending this email.
   Due to you calling Mr Roberts-Smith's place of employment and leaving a panicked message that included you stating you have been "threatened" by a 3rd party, I feel an obligation to offer you assistance and as such recommend that if you have or are being threatened you should engage the Qld Police. If you require my assistance with that process, I am able to connect you with the relevant persons.
   I will highlight that at no stage has Mr Roberts-Smith, his family, or any associates tried to communicate with you post Friday 06 April 2018 when you arrived unannounced and without invitation to the Roberts-Smith's private residence and were eventually asked to leave.
   Mr Roberts-Smith has made clear to you now on several occasions he does not wish to personally communicate with you through any means. Given the disturbing nature of your last message to Mr Roberts-Smith's office he has requested I assist you where and if required.
   I can be contacted through this gmail account by reply. ​You can expect further correspondence shortly to follow up.
2147 Person 17 responded by asking the sender to identify themselves and by suggesting that the assertions in the email does not represent what happened. On or about 24 April 2018, Person 17 received a further email from Ms Kennedy which was in the following terms:
   In regard to your letter of reply on the 23rd April at 1:15am, please find the following response.
   We offered you assistance as you contacted Mr Roberts-Smith office requesting help and this was recorded through Mr Roberts-Smith's personal assistance on the 20 April at 12.57 pm. You specifically stated that you were being threatened and required Mr Roberts-Smith's help.
   We now acknowledge that you have since changed your position and no longer require any assistance or help.
   We accept your position and you can expect all communication from myself to cease immediately.
   I will reiterate that Mr and Mrs Roberts-Smith have requested that you do not attempt to communicate with them, their family or associates and places of employment.
2148 The applicant admits that he drafted the two letters from Danielle Kennedy to Person 17 dated 22 April 2018 and 24 April 2018 respectively. He had nothing to do with the use of the name "Danielle Kennedy". The respondents filed an outline of evidence from Ms Danielle Scott on 3 May 2021, but she was not called as a witness.
2149 The applicant makes two points about the correspondence. Further, in the letters from Danielle Kennedy, it is made clear by the applicant that he wishes to have no contact with Person 17. Secondly, in Person 17's response, she says that her only reason in attempting to contact him late last week was to warn him that she had received information to the effect that the affair was about to be made public. She said that she would think this to be of "significant interest & concern to him & something he may have wanted to discuss". The applicant submits that whether this related to the man on the beach or her husband's news about a big story, it again confirms Person 17's willingness to engage with the applicant even when she knew he had broken off contact.
2150 At 11.47 am on 30 April 2018, Channel 7 Maroochydore sent an email to the applicant saying:
   11.47am phone call for you to try your Switzerland gmail again. Asked for woman's name and she did not provide it.
The applicant submits that although Person 17 denied this attempted contact, the note is obviously recording a call by her. This is yet another example of Person 17 trying to get in contact with the applicant.
​Messages by Applicant on Gmail Account
2151 Person 17 posted two messages to the Gmail account to which she and the applicant had access. The first message was dated 1 May 2018 and read as follows:
   This has become ridiculous. I'm so frustrated.
   I get that you're in damage control mode & no doubt under immense scrutiny at home –as am I.
   I'm trying to reach out to you – in order to help us both. Why do you have to be so stupid about it?
   All I care about at this point is not becoming a headline. It's a terrible outcome for everybody & things are bad enough already.
   I've been going round & round in circles for weeks now trying to figure out what the hell is going on. It seems to me that someone has a serious vendetta against you & now I'm caught up in it.
   The police can't & won't do anything – but I think you can. Unless you're prepared to throw me to the wolves because you feel I betrayed you?
   All I can say is that – as difficult & painful as it was – I did what I thought was best for everyone in the circumstances at the time. I didn't turn to you for help because I felt scared & alone & you'd already lost my trust.
   I don't want things to deteriorate further. I don't know how to stop that happening. I don't know what to do if it happens anyway. I don't even have a genuine understanding of the situation we're actually in!
   And now you can't or won't communicate with me…
2152 The second message was dated 5 May 2018 and read as follows:
   Why won't you talk to me – before things get out of our control?! Find a way.
2153 With respect to these two messages, the applicant submits that Person 17 must have been aware by that stage that he did not want to have any contact with her. In the email dated 1 May 2018, Person 17 states that all she cares about is not becoming a headline. Person 17 states that it seemed to her that someone had a serious vendetta against the applicant and that the police cannot and would not do anything. The applicant submits that the true meaning of this email is unclear. What is clear, so the applicant submits, is that Person 17 is trying to attract the applicant's attention.
Person 17 contacts Mr McKenzie, makes a complaint to the AFP and withdraws the complaint on 24 August 2012
2154 As I have said, Person 17's evidence is that she told her husband about the assault over Easter in 2018.
​2155 It would seem that the next person Person 17 told about the assault was Mr McKenzie and that occurred on or about 29 May 2018. Person 17 said that she contacted Mr McKenzie anonymously as he had been writing articles about the applicant. She contacted Mr McKenzie because she was afraid of what she was caught up in. She said that she was really paranoid and fearful. She was hoping that Mr McKenzie could give her more information about what she was caught in. Mr McKenzie was keen to talk to her.
2156 Person 17 flew to Melbourne at her own expense. She met Mr McKenzie in a hotel room at the Sofitel on Collins Street. Person 17 said that her husband had told her about the story coming out and a number of strange things had happened, such as the Danielle Kennedy emails, the anonymous letters the applicant claimed to have received and the approach by the man on the beach.
2157 The applicant submits that Person 17's evidence should not be accepted on these matters for the following reasons. The anonymous letters said to have been received by the applicant were received in December 2017 and January 2018; the man on the beach incident had occurred on 3 April 2018; the Danielle Kennedy correspondence had occurred on 22 and 24 April 2018; and her husband had told her about a "big story" prior to 20 April 2018. The applicant's submission is that what, in fact, had changed is that by early to mid-May, Person 17 understood that the applicant would no longer speak to her and had ended any contact with her.
2158 Person 17 said that she had said to Mr McKenzie that she was not telling him the story of the assault because she wanted it made public. She said that she initially asked him not to publish the story.
2159 The applicant submits that this evidence of Person 17 should not be accepted. She had given the story to the media. She had selected Mr McKenzie because he was writing articles critical of the applicant. The applicant submits that it is not to the point that he may have found another way of verifying the allegations. Person 17 elected to take her allegations to the press before she reported them to the police. She is responsible for this decision.
2160 Person 17 spoke to the AFP on 30 May 2018. Person 17 spoke to Detective Sergeant (DS) Stephen Cato and Federal Agent (FA) Carol Hugi at the Sofitel Hotel in Collins Street, Melbourne and FA Hugi took a five page statement. She said that she did not want to make a formal complaint. She just wanted to tell "somebody about this". She was scared and she was ​scared of what the applicant would do. She was scared if it all become public, then the applicant would think it was her doing and seek payback.
2161 The applicant submits that this evidence is not credible. Person 17 had spoken to a journalist and told him her story. The applicant submits that if Person 17 was genuinely frightened of him, she would not have pleaded to spend a night with him on 5 April 2018, visited the family the following day, and then attempted to contact the applicant on at least 20 April 2018, 30 April 2018, 1 May 2018 and 5 May 2018. Ultimately, the complaint to the AFP was withdrawn on 24 August 2018. Prior to that time, the articles had been published. The complaint was withdrawn shortly after the Australian Capital Territory police had asked Person 17 for permission to access her medical records and in her formal letter of withdrawal, Person 17 referred to that correspondence. The applicant submits that the "immediate trigger" in the sequence seems to have been the request for medical records. The applicant submits that the sequence of events in terms of not reporting, going to a journalist, reporting and then withdrawing the report weighed heavily against the credibility of Person 17.
2162 The applicant submits that Person 17 acted dishonestly in withholding from the AFP the critical text message from the applicant to Person 17 at 3.11 pm on 29 March 2018. That message is set out above (at [2095]), but for convenience, I will repeat it:
   | Applicant: | [P17] I'm really glad to hear that your injuries are not worse and that you'll be better soon. I was legitimately worried last night which is why I stayed up but I'm sure that ice helped to some degree. I'm not going to bullshit you [P17] your behaviour has given me real cause to think and I'm a little in shock myself. Apart [sic] putting yourself in a dangerous situation I found it really disrespectful and inappropriate. In saying that however I acknowledge you have apologised and I accept your apology. |
2163 In cross-examination, Person 17 was taken to some photographs of Telegram messages dated 29 March 2018. She was asked how the AFP obtained these photographs. She said that she thought she held her phone up with the messages she wanted them to see and allowed them to photograph the telephone. She then said that she did not remember, but that it looked to her like the actual message. Person 17 denied that she made the decision as to what to show to the AFP officers. She said that the officers were with her and could have accessed her telephone. She could not remember whether the AFP officers actually touched her telephone.
2164 Person 17 was taken to a series of Telegram messages on 29 March 2018. It was put to her that she only showed the messages up to, but not including, the one identified above. Not only ​that, but in addition, she did not show them the message she sent at 5.25 pm on 31 March 2018 which is set out above (at [2101]), but which for convenience, I repeat:
   Please don't punish me. I'm already hurting – physically & mentally. I know it's my fault & I hate that I can't change what happened. I really need to know what you're thinking & where we stand.
2165 It was put to Person 17 that the two messages are "entirely inconsistent" with her story about an assault. It was put to Person 17 that she did not give these messages to the AFP because she knew that they were entirely inconsistent with the story that she had fabricated. Person 17 disagreed with that suggestion. The applicant submits that the omission of the message from the applicant on 29 March 2018 is material and affects the meaning of the whole chain of messages. The message suggests that it is Person 17 who has done something wrong and not the applicant. It is said to be inconsistent with Person 17's allegation of assault. Person 17 agreed that they are probably relevant. The applicant submits that a failure by a complainant, in particular a lawyer, alleging a serious assault to show the police documents which she knows are relevant and which tend to suggest her allegation may be incorrect is a matter "reflecting most adversely on the honesty and integrity of the complainant".
2166 On 24 August 2018, Person 17 wrote to Detective Sergeant Matt Innes in the following terms:
   … In all of the circumstances and as a result of this advice, I advise that I do not wish to proceed with my complaint of assault or an application for apprehended violence against Ben Roberts-Smith at this time.
   Thank you for the support and assistance that you have provide to me in relation to this matter. If there are any documents you require me to sign to confirm the withdrawal of this complaint, I will attend to this when they are provided.
2167 The documents tendered included correspondence between Detective Sergeant Innes and Person 17 wherein the former is seeking a signed consent from the latter to obtain medical information from the medical practice Person 17 consulted in relation to the following:
   Any records pertaining to a facial injury sustained on 28 March 2018.
Events from June 2018 to 2020
2168 On 20 June 2018 Ms Lauren Jewell of Channel 7 sent an email to Ms Leonie Atkinson, who is the applicant's executive assistant, as follows:
   I received a call from Louise Sparrow for Ben.
   She asked if he could check his Gmail account and said to tell him that "2018 is now 2019".
   She was fairly evasive when I tried to obtain more details from her and would not leave ​a return phone number.
Person 17 denied using the name "Louise Sparrow", but otherwise said that she had a conversation with Ms Atkinson to the effect set out above.
2169 Person 17 agreed that she called Ms Atkinson again on 25 June 2018. Her evidence was as follows:
   She said – she said, "These calls are being recorded. This is harassment." And I said, "Is that you, Emma?" Because I thought that it was not her that had answered the phone. And she said, "No. It's Leonie." And then I was just annoyed, because she had taken the message the previous week without incident, and when she said that I just hung up, and I didn't then attempt to contact them again. That was the first time that anybody had – other than the fake Danielle Kennedy person – had actually said to me not to contact them.
2170 Person 17 said that she made the attempt to contact the applicant on 20 June 2018 because she had found out about the war crime allegations and a lot of things that had happened between her and the applicant started to fall into place for her. She wanted an explanation from the applicant about "what on earth was going on".
2171 The applicant submits that this evidence should not be accepted. It is a falsehood created to try and explain away her ongoing desire for contact in the face of an assault allegation and other evidence to the effect that she was frightened of the applicant. Her true attitude was as revealed in the notes of a clinical psychologist, Dr Alyssa Ryan, whom Person 17 was consulting (at the expense of the respondents) and who wrote in her notes dated 9 April 2020:
   — If saw him, Could All be back on.
   — may meet needs, Shouldn't matter.
2172 Person 17 said that she did not think that is what she would have said to Dr Ryan because that is not how she felt. The applicant submits that the sentiment as recorded in the notes is consistent with her ongoing desire for contact with him.
2173 Person 17 agreed that she contacted the applicant's solicitor, Ms Monica Allen, in July 2020 and asked whether the applicant would contact her. She said that she did this for the following reason:
   I just wanted to tell him to just stop. Just stop traumatising everybody.
2174 The applicant submits that that evidence should not be accepted. It tells against the credibility of her assault allegation and against her claim that she was in fear of the applicant.
​The Submissions
2175 Although in the description of the evidence set out above I have identified a number of areas of factual dispute, the bulk of the submissions of the parties were directed to events on 28 March 2018 which was the day of the alleged assault and events on 3 April 2018 when Person 17 claims that she was approached on the beach by a man who showed her photographs.
2176 The applicant submits that the affidavit which Person 17 swore in support of the application for a suppression order as to her name and other matters which may identify her was false or misleading by omission in three respects.
2177 The affidavit contains the following paragraphs under the heading "Police Aware of Assault":
   3. Between 13 October 2017 to 5 April 2018, I had an intimate relationship with the Applicant, Ben Roberts-Smith (Ben).
   4. On 28 March 2018, during an argument, Ben punched me on the left side of my face with his right hand. I spoke to the police about the assault. That is the act of domestic violence referred to in the article dated 11 August 2018, which Ben has sued over in these proceedings.
   5. I have given the police photographic evidence of the black eye I suffered as a result of the assault and a series of Telegram messages from the day after the assault in which Ben is coaching me about how I should explain the black eye to my husband.
   6. Exhibited hereto and marked [redacted] is a copy of a photograph which I took of myself at 8:49am on 29 March 2018 at Brisbane airport whilst I was waiting for a connecting flight to [redacted] (having travelled earlier in the morning from Canberra) showing the black eye caused by Ben punching me.
   7. Exhibited hereto and marked [redacted] is a copy of the series of Telegram messages between myself and Ben on 29 March 2018.
   8. At all times I advised the police that I did not wish to make a formal police complaint which then proceeds to Court. I do not wish for a police complaint to proceed to Court as I am genuinely scared about my safety and that of my children if I am identified in the media, as discussed further below.
2178 The photograph referred to in para 6 is a photograph of Person 17 showing the black eye. The Telegram messages of 29 March 2018 referred to in para 7 starts with the message at 9.46 am and then ends with the message at 10.08 am. It does not include the message at 3.11 pm or the message on 31 March 2018 at 5.25 pm.
2179 The affidavit contains the following paragraph under the heading "Identity Not Widely Known":
   11. As far as I know, at the moment, very few people apart from the parties to these proceedings know that Ben and I were having an affair and would therefore be ​able to work out that I am the person who claims to have been assaulted by him on 28 March 2018. To the best of my knowledge, those people are:
       (a) My husband;
       (b) Ben's wife and mother in law;
       (c) Legal advisers involved in this case;
       (d) A close friend in whom I confided;
       (e) A very senior ranking military official;
       (f) Police officers to whom I spoke about the assault.
2180 The first false or misleading statement identified by the applicant relates to Person 17 attributing the black eye as shown in the photograph to the assault in circumstances where she had also fallen over and had significant swelling above her left eye and yet she made no reference to the fact that she fell over. The second false or misleading statement involves the failure of Person 17 to produce later text messages on 29 March 2018 and a text message on 31 March 2018 in which she indicated the incident was her fault and she apologised. The third false or misleading statement involved the man on the beach story. If it is true, and the applicant's principal submission is that it is not, it is relevant that Person 17 made no reference to that person in para 11 of her affidavit.
2181 The applicant submits that Person 17 is not a witness of credit. She was prepared to lie to the police and in her affidavit. The applicant submits that Person 17's evidence should not be accepted unless corroborated independently by documentary or oral evidence. The applicant submits that his denial of the assault is corroborated by the contemporaneous record of Person 17's doctor and by the messages Person 17 and the applicant exchanged in which Person 17 apologised for her conduct.
2182 The applicant emphasised four matters in particular.
2183 First, the applicant submits that Person 17 sustained an injury to her head above her left eye when she tripped and fell down the stairs. There was an egg shaped swelling above her eye. Various witnesses gave evidence to this effect and, in addition, this is what Person 17 told her doctor on the following day and Ms Roberts and Ms Roberts' mother on 6 April 2018. The applicant submits that Person 17's allegation is highly improbable. It would involve accepting that the applicant, on the one occasion he has assaulted her over a six month period, has hit her in precisely the same place, or almost precisely the same place, as the injury sustained from the fall less than an hour after it happened.
​2184 It is not entirely clear to me why the applicant submits that this is improbable and, in particular, whether it is because, on Person 17's account, this would be the one and only occasion he hit her over the period of the affair, or whether it is because it would have been a particularly cruel and dangerous thing to do in circumstances where Person 17 had already suffered an injury.
2185 In my opinion, if the assault took place, the likely explanation is that the applicant was very angry at the way in which Person 17 behaved that night. At the same time, to frame the issue in terms of whether the applicant took the "opportunity" presented, as the respondents appeared to submit, seems to me to distract attention from the real issue.
2186 Secondly, the applicant submits that Person 17 was sufficiently affected by the alcohol she consumed on the night of the alleged assault that her memory of events is clearly unreliable. It is not possible on the evidence to be precise about the effects on Person 17 of the alcohol she consumed. On the one hand, she appears to have been uninhibited and she told Officer Grosskreutz she was having an affair, but on the other, she was sufficiently alert to appreciate some aspects of her situation. Officer Grosskreutz refers to Person 17 apologising profusely for falling down the stairs and saying that she was embarrassed for causing a scene. Person 17 said she was quite drunk and that accords with the other evidence in the case and, whilst that is likely to mean that her perception of events was not as good as it might otherwise have been had she been sober, at the same time, as the respondents submit, there is really nothing to suggest that it would engender a false memory.
2187 The point here is that it is not entirely clear how the applicant seeks to deploy the effects of Person 17's alcohol consumption on the critical issue of whether the assault took place. The applicant relies on what he submits is an inconsistency between Person 17 saying at one point in her evidence that she did not really remember much about what happened next after she tripped and fell, and saying later in her evidence that her recall of what happened on the night when she fell the stairs was "fairly good". I do not consider that there is necessarily any significant inconsistency because such open-ended evaluations need to be assessed and given content by the whole of the witness' evidence.
2188 Thirdly, the applicant submits that Person 17's conduct after the alleged assault is inconsistent with an assault having occurred. He points to the fact that at the time Person 17 was married, independently wealthy, a lawyer and a person living in a different city from the applicant. She had, according to the applicant's submission, "agencies". The applicant submits that it is highly improbable that if Person 17 had been assaulted, she would, within days, be pleading with the ​applicant to be alone with him again in another hotel room. Person 17's apology to the applicant and her persistent attempts to contact him over the ensuing months and years are also totally inconsistent with the truth of the allegation. The suggestion that her conduct should be overlooked or ignored because she was "in love" does not withstand scrutiny.
2189 As I understood the applicant's submission, it is that it may be accepted that someone who is under the power, economic or otherwise, of another person may stay in that person's company even though they are being abused by that person. However, the opposite is not necessarily true because it does not take account of the complexities in human relationships. Person 17 said that she both loved and feared the applicant at the same time. Perhaps more to the point is how Person 17 felt about her own behaviour. Person 17 felt that she had embarrassed the applicant by her conduct and she knew that on the night. She said that he was looking at her in a disapproving fashion. The text messages sent on 29 March 2018 clearly indicate that Person 17 considered the events to be her fault. Not only is there a reference in the applicant's message to an apology by Person 17, but Person 17's message on 31 March 2018 at 5.25 pm is particularly illustrative that she saw the events as her fault.
2190 In the context of these arguments, I bear in mind the warnings against applying stereotypical expectations of how victims will respond to certain offences. It seems to me that those offences include, not only sexual assault, but also domestic violence (Nguyen v R [2022] NSWCCA 126 at [57]–[58]; Rao v R [2019] NSWCCA 290 at [98]).
2191 Fourthly, the applicant mounts a strong attack on Person 17's credit. He asks the Court to find that she is a liar and/or a fantasist. I will deal with his submissions to this effect in due course. Important among the applicant's submissions is a submission that Person 17's evidence about the man on the beach is plainly a fabrication. The applicant submits that there is no remotely plausible culprit for this incident and that the threat, being a demand that a lover tell a wife, is the most peculiar threat in the history of sexual blackmail.
2192 There was a dispute between the applicant and Person 17 as to whether in the car leaving Parliament House she indicated that she wanted to be taken to hospital. The applicant said that he asked the driver whether there was a hospital nearby and he was told that there was one a reasonable distance away. He asked Person 17 whether she wanted to go to hospital and she said no. At this point, she is trying to lie down in the back seat and he is trying to keep her upright and she is "sort of, in and out of consciousness".
​2193 Person 17's evidence, on the other hand, was that there was some discussion about whether she should be taken to a hospital or a doctor and that she thought she should be. The driver offered to take Person 17 to the hospital emergency department, but the applicant said no and that he would look after Person 17.
2194 In support of his version of the conversation, the applicant places significant reliance on the fact that she was offered medical attention in Parliament House by Officer Grosskreutz and she refused it. However, it seems to me that Person 17 was sufficiently aware of the circumstances to be embarrassed for "causing a scene" and the fact that she refused medical attention at that point does not necessarily indicate that she would refuse medical attention later when she and the applicant were in the car leaving Parliament House. I think that she probably went along with what the applicant indicated was appropriate. The fundamental flaw in his account is that if she was so seriously incapacitated as to be moving in and out of consciousness, then the decision was his.
2195 The applicant submits that the respective accounts of Mr Nichols and Officer Grosskreutz largely, if not entirely, corroborate his account. This submission does not take the matter very far other than establishing that Person 17 had significant swelling on the left hand side of her forehead above her left eye as a result of the fall because those accounts relate to the period between Person 17 coming out of the hall and leaving with the applicant to go to the car and there is no significant dispute about what occurred during that period.
2196 The applicant submits that the respondents' submission that the applicant did not want to take Person 17 to hospital because he was frightened Person 17 would say something about the assault should be rejected. Again, the applicant relies on his own evidence that Person 17 did not want medical attention and had not wanted to attend hospital. As I have said, it is true that Officer Grosskreutz said that he offered to seek medical attention for Person 17 and she refused, but there is a difference between refusing an offer of medical attention in a public place and being away from that public place and deciding whether or not to go to hospital. The applicant's case is that Person 17 was very drunk and was passing in and out of consciousness in the car after it had left Parliament House and that shortly after their arrival at the hotel, Person 17 passed out and the applicant stayed up all night observing her vital signs. It is difficult to be precise, but it seems to me unlikely Person 17 would not have been taken to hospital if she was passing in and out of consciousness. Person 17 was significantly affected by alcohol, but I do not think she was affected to the extent described by the applicant.
​2197 The applicant submits that there was nothing unusual about his conduct in taking photographs of the medication and of the private notes of Person 17. I have already described that conduct. It should be noted in this context that the photographs of Person 17 in bed sent by Ms Roberts to Ms Scott on 27 April 2018 suggest (on the applicant's case) that Ms Roberts was accessing emails from the applicant's deleted items. The applicant submits that bearing in mind the fact that Person 17 was in fact prescribed and was taking medication, he is not to be criticised for searching the notebook to locate a schedule of medication. The prescribed medication referred to in this submission is the Valpam 5, that is to say, the Valium tablets.
2198 The applicant asked the Court to reject Person 17's evidence that during the night when she woke up, she asked to go to the hospital. He submits that that evidence should be rejected, again having regard to Officer Grosskreutz's corroborative evidence to the effect that she had refused medical treatment earlier. Again, I make the same observation that that refusal was in a public place and some hours before Person 17 said that she woke up and asked to be taken to a hospital.
2199 The applicant submits that there are inconsistencies in various accounts of the assault given by Person 17 and that they are important. In the draft statement taken by the AFP officers, Person 17 said the following:
   21 He then punched me straight in my left eye with a clenched right fist. I staggered back but didn't fall…
In her outline of evidence filed with the Court, Person 17 said the following:
   The Applicant then withdrew his right hand from Person 17's hold and punched Person 17 on her left temple with a clenched fist. Person 17 staggered back towards the bed and fell back onto an ottoman along the end of the bed and ended up lying on the bed.
2200 The account of being hit in the left temple and staggering back and falling onto the bed was the account put to the applicant in cross-examination. In her evidence at trial, Person 17 said that the applicant had punched her with his right fist on the left side of her face and that she went back. She thought there was an "ottoman type thing" at the end of the bed and she went back onto that and ended up lying on the bed. Under cross-examination, she said that the applicant hit her in the left temple and eye, but on "that same side of my face". He hit her in the same area, but not the same spot where she sustained the injury when she fell down the stairs. Person 17 said that she would class her left temple and the left side of her face as in the same position. The applicant submits that these inconsistencies as to the location of the blow and ​whether she fell or not are evidence of her fabrication of the event or, in the alternative, of her not having a real memory of what had happened.
2201 The applicant submits that Person 17's story about being approach by a man on the beach is so improbable that it should be rejected as a complete fabrication for the following reasons:
    (1) there are no plausible candidates for the man who Person 17 said approached her on the beach;
    (2) despite communicating with the applicant by text messages in the days following the alleged incident and seeing the applicant in person on 5 April 2018, she did not tell him about the incident or make any reference to it;
    (3) allied to the previous point is the unsatisfactory nature of Person 17's explanation for not telling the applicant in that she said that she did not trust the applicant and that he might have been involved in the incident. Her explanation as to the applicant's interest in being involved in the incident, that is, to make her appear to be the bad person, is illogical and inconsistent with the applicant's reaction to hearing that Person 17 was at the family home as evidenced by his text message of 6 April 2018 at 11.57 am which included a statement, "what you have done is outright blackmail";
    (4) on 4 April 2018 in a text message to the applicant, Person 17 queries with him why they will not be staying at the "Milton or Sofitel";
    (5) there is no mention of the incident in either the police report of 8 April 2018 or the police report of 20 April 2018. Nor did Person 17 approach Ms Sue Newton and advise her of the incident. Ms Newton was the logical option, being a senior police officer and someone Person 17 had already spoken to about the applicant. The applicant also relies on the fact that the incident is not mentioned in the correspondence Person 17 had with Danielle Kennedy; the story is improbable in that the Milton Hotel is a high rise hotel and Person 17 said that the photographs appeared to be taken outside a window and "just looking straight on". It was put to Person 17 that she and the applicant had never stayed in a room at the Milton Hotel on a level below level 20. She said that they were usually quite high up in the building;
    (6) the threat itself seems implausible in the following respects. What interest did the man have in the applicant's wife being told of the affair? How would the man know whether Person 17 had told the applicant's wife of the affair? Why did Person 17 not take a photograph of the man?; and
    (7) Person 17 has given inconsistent versions of the incident between the version given to the AFP, that is, the photographs showed Person 17 and the applicant naked in a room at the Milton Hotel or, as per DS Cato's statement, "naked in a bed", compared with the version given to the Court, that is, "up against the --- glass window where we had had sex several times". Such conduct, that is, sexual intercourse at a window, is inconsistent with Person 17's description of the applicant as paranoid and the fact that he was always on "about private investigators or people following us".
2202 The applicant submits that Person 17 had a strong motive to fabricate "the man on the beach story" in that it provided an explanation for others (and for her) for her "cruel and classless conduct" in going to the family home on 6 April 2018 and telling the applicant's wife of the affair.
2203 For their part, the respondents accept that the man on the beach story is a very strange incident and they note that Person 17 herself agreed that it was "bizarre". However, it is one of a number of strange incidents which are clearly established on the evidence in this case. Those incidents include the anonymous letter sent to the applicant in December 2017 and the parcel sent to Ms Roberts on or about 9 January 2018, the applicant arranging for Mr McLeod to follow Person 17 at the Greenslopes Day Surgery and Greenslopes Private Hospital and to film her, and the correspondence from Danielle Kennedy in April 2018 and the misleading use in that correspondence of a photograph of an unrelated third party, being apparently a woman who is an administrator in a hospital in New Zealand.
2204 The respondents submit that another strange feature, assuming the evidence of Person 17 is accepted, is the applicant's deletion of the original chat thread of messages between Person 17 and the applicant in circumstances where the applicant did not have access to Person 17's telephone.
2205 The respondents submit that it is highly significant that the applicant's counsel put to Person 17 in cross-examination that she had never had sex with the applicant up against the windows in a hotel when, in fact, the evidence is clearly to the contrary. A message from the applicant to Person 17 on 17 March 2018 at 6.35 pm is as follows:
   And I'm now sitting in a suite over looking the Yarra river and Melbourne city… fuck I wish you were here…we would break these windows…
Person 17 said in re-examination that this was a reference to them having sex looking out through the window.
​2206 The respondents also submit that the applicant did not say anything different to the AFP about the content of the photographs. Her recollection, which should be accepted, is that she told the AFP officers that the photographs were of her and the applicant up against the windows having sex.
Findings and Conclusions
2207 The key question is whether the applicant assaulted Person 17 by punching her in the head in the room at the Hotel Realm on 28 March 2018.
2208 With respect to a number of matters, I prefer the evidence of Person 17 to that of the applicant. Further, there are aspects of the applicant's evidence which I do not accept.
2209 First, I consider that Person 17's evidence as to her interaction with the applicant on 6 March 2018 is correct in the following respects. I accept her evidence that in the hotel room at the Milton Hotel on 6 March 2018, the applicant told her that he knew she had taken a different flight and that he had access to the Virgin flight manifest. The applicant had a pregnancy test and asked Person 17 to perform the test in front of him. The test did not work and he took her to a nearby shopping centre where another pregnancy test was purchased. Person 17 performed that test in front of him and it returned a positive result. The applicant said that he would get the CCTV from Townsville after Person 17 said that she had a termination performed in Townsville.
2210 I accept that at dinner that evening, the applicant told Person 17 that he was a good friend to have, but not someone she would want to get on the wrong side of. He told Person 17 that he could get access to her bank accounts if he wanted to and he told her of the army friend who had been able to create a false AVO. He also did something involving the deletion of a message thread of the messages between herself and the applicant.
2211 I accept that at dinner on 5 April 2018, the applicant told Person 17 that she was like "crack" and that he would find it difficult to give her up. He also said to her that as long as they were on the same page, she had nothing to worry about. He said to her that if she did anything stupid or turned on the applicant, he would burn her house down and "it might not be you that gets hurt, but people you love and care about". He showed her photographs, including photographs of her diary or notebook.
2212 This behaviour was intimidatory, threatening and controlling. The evidence is supported by the following objective matters or contemporaneous, or near contemporaneous statements: ​(1) the threatening tone of the message from the applicant to Person 17 on 2 March 2018; (2) the fact that the applicant engaged Mr McLeod to undertake covert surveillance of Person 17 on 6 March 2018; (3) Person 17's notes on her telephone on 7 March 2018 and her statement in those notes that what the applicant had done with the Telegram messages the night before had "freaked" her out and that she wished to decide what messages she kept on her telephone; (4) the statement in the police report of 8 April 2018 that she was scared the high profile military person was "going to burn her house or access her bank account"; and (5) Person 17's text message to the applicant at 6.20 pm on 6 April 2018.
2213 The applicant's denials of engaging in this conduct are false.
2214 Furthermore, I do not accept the applicant's explanation for failing to disclose the video taken by Mr McLeod. I consider that the non-disclosure was due to an appreciation by the applicant that proof that he had had his lover followed and filmed without her knowledge would reflect poorly on him as indeed it does.
2215 I do not accept the applicant's explanation for going through Person 17's handbag after she had fallen asleep in the room at the Hotel Realm and photographing the unopened blister pack and the private notes. Even if there was a prospect of Person 17 having to go to hospital, he could have taken her handbag. I do not accept that he looked at the private notes because he was looking for a prescription schedule. The more likely inference, and the inference I draw, is that the applicant was looking to gather information which he could use to influence Person 17's behaviour should it be necessary to do so or to have a hold over her which he could use to his advantage if necessary.
2216 I do not accept the applicant's evidence that on arriving in the room at the Hotel Realm, he put Person 17 into bed without any discussion between them. I accept Person 17's evidence that the applicant was very angry and that he was very critical of her conduct at the dinner. He did complain of her conduct at the dinner and of her creating a big scene as they were leaving the dinner. The applicant said that he undressed Person 17 and put her to bed. He did take photographs of her in bed with an ice pack on her head and the bed clothes covering her. Even though the photographs of her with the bed clothes removed were not produced, I am satisfied such photographs were taken and the applicant showed them to Person 17 the following morning and asked her whether he needed to keep the photographs. Such conduct is entirely consistent with his intimidatory, threatening and controlling behaviour generally and with the reasons he photographed the blister pack and private notes.
​2217 I have considered carefully the dispute between the applicant and Person 17 about what they agreed she would tell her husband. As I have said, one matter which emerges clearly from the text messages between the applicant and Person 17 on the morning of 29 March 2018 is that Person 17 would tell her husband that the applicant was not present when Person 17 fell and injured herself. The applicant had had to go away for work. That is not true.
2218 There are only two versions of the account that were allegedly discussed between the applicant and Person 17 and they are that Person 17 had fallen down the stairs and they had been together, or that Person 17 had been drinking alone in her hotel room in Brisbane and taken some medication to help her sleep and later in the night, she got up to go and get some food and during that, she fell down stairs and suffered an injury to her face. Whatever was precisely said, it is clear the applicant was concerned that Person 17's husband would think that the applicant had hit her. The applicant was the dominating person in the relationship and, in my opinion, he is likely to have been the originator of the story about Person 17 being alone and injuring herself when she got up to get some food. I reject the suggestion that the applicant was unconcerned about Person 17's husband knowing she was with him and that he passively agreed to a false account that he was not with Person 17 because Person 17 did not want her husband to know she was with the applicant.
2219 However, this conclusion does not give rise to a consciousness of guilt inference as urged by the respondents. It is plausible that the applicant was concerned about Person 17's husband thinking the applicant had hit Person 17 and the complications of that circumstance even though he had not, in fact, hit Person 17.
2220 In the circumstances, I have difficulty accepting the applicant's evidence on any disputed issue. Clearly, his lie about being separated from Ms Roberts also reflects adversely on his credit. Even if his account is rejected on grounds other than acceptance of Person 17's evidence that the assault occurred, that does not establish the respondents' case. They bear the onus of proof and I must be satisfied that the assault occurred.
2221 Although I accept Person 17's evidence on a number of matters, there are some matters that require close examination.
2222 Person 17 said that she was pregnant, but had had a miscarriage. She did not tell the applicant of the miscarriage and went to the Greenslopes Private Hospital. She said she wanted to tell the applicant of the miscarriage "face to face". However, she did not immediately tell the ​applicant about the miscarriage, but lied about having had a termination in Townsville. This creates a doubt in my mind, and I put it no higher than that, about whether she did intend to tell the applicant about the miscarriage as she claimed.
2223 Person 17 gave evidence about a man on the beach approaching her on 3 April 2018 with photographs of her naked in bed with the applicant at the Milton Hotel and threatening to make the photographs public if she did not tell the applicant's wife of the affair. I agree with the applicant's identification of the many flaws in this story. Not all of the matters identified by the applicant (at [2201]) should be accorded the same weight. On the one hand, the failure to mention the approach of the man on the beach to the police, Ms Newton or Ms Kennedy and the difficulty of understanding how the photographs were taken, are important considerations. On the other hand, I would place no weight on Person 17's alleged "failure" to photograph the man on the beach and I would not place weight on the applicant's alleged concerns about privacy in light of his message to Person 17 on 17 March 2018 at 6.35 pm (at [2205]). Nevertheless, the combined effect of the other matters is considerable and raise a doubt in my mind about the truth of Person 17's evidence with respect to this incident.
2224 Person 17 gave evidence about her reason for contacting Mr McKenzie. Person 17 said she wanted to find out more about what was going on with the applicant and initially did not want anything published. I find this difficult to accept. It is possible, but unlikely. It would indicate a very great infatuation or obsession with the applicant that she was prepared to travel to Melbourne to find out about a man who had made it clear he did not want to see her. The more likely inference is that she was still interested in the applicant, but was aware from the outset that something she said was likely to be the basis of a newspaper article.
2225 Person 17 gave evidence about her contact with Dr Ryan on 9 April 2020 and Ms Allen in July 2020. I found her evidence of that contact and the reason for it difficult to accept. It is not a matter of finding she still wanted to have contact with the applicant and that in some way indicated that the assault did not occur. It is a matter of her evidence on the topic being confusing and difficult to accept. It is very difficult to see any plausible alternative to the conclusion that she did tell Dr Ryan on or about 9 April 2020 that if she saw the applicant, it (i.e., the relationship) could all be back on.
2226 In conclusion, I do not accept the applicant's evidence. Nevertheless, I must be satisfied on the balance of probabilities having regard to the criminal conduct alleged, that Person 17's evidence is reliable and should be accepted. For the reasons I have given, I am not satisfied ​that Person 17's evidence is sufficiently reliable to form the basis of a finding that the assault occurred and Imputations 7 and 8 are substantially true.
2227 However, as I will explain, I am satisfied that the defence of contextual truth has been established in relation to the imputations.