Deng v The King

[2023] SASCA 35

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DENG v THE KING

[2023] SASCA 35

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

6 April 2023

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF

The appellant was charged with one count of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).

The circumstances of the offending were that during a physical altercation between the appellant and the complainant (who was in a relationship with the appellant’s former partner), the appellant bit off a piece of the complainant’s lower lip, causing her serious harm.  The prosecution case was that the appellant instigated the physical altercation.  The essential issue at trial was whether the evidence excluded, as a reasonable possibility, that the complainant instigated the altercation, with the appellant acting in self-defence.

Following a trial by judge alone, the appellant was convicted.  The judge accepted the prosecution case that the appellant instigated the altercation, and rejected as a reasonable possibility that the appellant was acting in self-defence. 

The appellant was sentenced to five years imprisonment, with a non-parole period of two years.  The judge declined to suspend the appellant’s sentence, and also declined to make an order that the sentence be served on home detention. 

The appellant appeals both her conviction and sentence. 

Conviction appeal

The grounds of appeal against conviction are as follows:

1.the judge erred in his application of the burden of proof in relation to the issues to be determined;

2.the judge failed to bring to account the evidence of prosecution witnesses other than the complainant in undermining the reliability of the complainant and in supporting the appellant’s evidence;

3.the judge erred in concluding, in relation to the appellant’s account and the injuries she suffered, that “it would be very difficult to see why she sustained only one small abrasion over the right eyebrow”;

4.the judge erred in his approach to the legal issues by determining that the appellant intended to disfigure when she was not charged with an intention to cause any degree of harm;

5.      the judge’s reasons were inadequate; and

6.the verdict of the judge was unreasonable or cannot be supported having regard to the evidence.

Held, per the Court, granting permission to appeal but dismissing the appeal:

1.      none of the grounds of appeal against conviction are made out.

Sentence appeal

The grounds of appeal against sentence are as follows:

1.      the judge erred in imposing a sentence that is manifestly excessive;

2.the judge erred in imposing an immediate custodial sentence where the appellant has no prior convictions and was responsible for the care of five children;

3.the judge erred in sentencing the appellant on the basis of a specific intention to harm and disfigure the complainant in circumstances where she was only charged with an offence of reckless intent; and

4.that the judge erred in failing to consider the combination of ss 96(3)(b) and 96(5) of the Sentencing Act 2017 (SA) which provided a means by which a partially suspended sentence could have been imposed on the appellant.

Held, per the Court, granting permission to appeal and allowing the appeal on ground 4, but dismissing grounds 1, 2 and 3:

1.      no error is made out in respect of grounds 1, 2 or 3;

2.      the sentence was affected by error in the judge’s failure to consider partial suspension; and

3.      the appellant is to be resentenced.

Criminal Law Consolidation Act 1935 (SA) ss 15, 20, 21, 23, 24; Sentencing Act 2017 (SA) ss 71, 96, referred to.
Boyle (a pseudonym) v The Queen [2022] SASCA 50; Cakar v The King [2023] SASCA 25; De Silva v The Queen (2019) 268 CLR 57; DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; Fleming v The Queen (1998) 197 CLR 250; JGS v The Queen [2020] SASCFC 48; Liberato v The Queen (1985) 159 CLR 507; M v The Queen (1994) 181 CLR 487; Millhouse v Police [2008] SASC 353; Murray v The Queen (2002) 211 CLR 193; Neuendorf v The King [2023] SASCA 13; Nguyen v The Queen (2016) 256 CLR 656; Pearce v The Queen (1998) 194 CLR 610; R v Deng [2022] SADC 61; R v Dransfield [2016] SASCFC 68; R v Edwards [2009] SASC 233; R v P,S (2016) 261 A Crim R 239; R v Pennington [2015] SASCFC 98; R v Sexton [2018] SASCFC 28; The Queen v De Simoni (1981) 147 CLR 383; The Queen v Trimboli (1979) 21 SASR 577; Wessling v Police (2004) 88 SASR 57, considered.

DENG v THE KING
[2023] SASCA 35

Court of Appeal – Criminal:    Livesey P, Doyle and Bleby JJA

1. THE COURT: The appellant was charged with one count of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).

2. The circumstances of the offending were that during a physical altercation between the appellant and the complainant (who was in a relationship with the appellant’s former partner), the appellant bit off a piece of the complainant’s lower lip, causing her serious harm.  The prosecution case was that the appellant instigated the physical altercation.  The essential issue at trial was whether the evidence excluded, as a reasonable possibility, that the complainant instigated the altercation, with the appellant acting in self-defence.

3. Following a trial by judge alone, the appellant was convicted.  The judge accepted the prosecution case that the appellant instigated the altercation, and rejected as a reasonable possibility that the appellant was acting in self-defence.  The appellant was sentenced to five years imprisonment, with a non-parole period of two years. 

4. The appellant appeals both her conviction and sentence.  It is convenient to commence by considering the appeal against conviction.

   PART A:  THE CONVICTION APPEAL

5. The grounds of appeal with respect to conviction are wide ranging and overlapping, but may be summarised as raising the following complaints:

   ·the judge erred in his application of the burden of proof in relation to the issues to be determined (Ground 1);

   ·the judge failed to bring to account the evidence of prosecution witnesses other than the complainant in undermining the reliability of the complainant and in supporting the appellant’s evidence (Ground 2);

   ·the judge erred in concluding, in relation to the appellant’s account and the injuries she suffered, that “it would be very difficult to see why she sustained only one small abrasion over the right eyebrow” (Ground 3);

   ·the judge erred in his approach to the legal issues by determining that the appellant intended to disfigure when she was not charged with an intention to cause any degree of harm (Ground 4);

   ·the judge’s reasons were inadequate (Ground 5); and

   ·the verdict of the judge was unreasonable or cannot be supported having regard to the evidence (Ground 6).

6. A judge of this Court referred the issue of permission to appeal on Grounds 1-3 for hearing as on appeal.  Ground 4 did not require permission.  During the course of the hearing, the appellant was given permission to add Grounds 5 and 6.

   Background

7. The appellant was born in an Ethiopian refugee camp.  In 1992, she moved to Kenya, and in October 2002, migrated to Australia with members of her family.  They lived first in Brisbane and then in Toowoomba.  In 2005, she moved to Adelaide.

8. The appellant met Mr Jur in 2005 and commenced a relationship with him in either 2005 or 2006.  The appellant regarded Mr Jur as her husband from the commencement of their relationship, which she said was reflected in a cultural ceremony held at Mr Jur’s house.  They were not legally married.  The appellant and Mr Jur had four children together, born between 2007 and 2015.

9. The relationship between the appellant and Mr Jur broke down over time and, in 2015, Mr Jur moved to Melbourne to study.  At the time of moving, Mr Jur considered the relationship with the appellant to be over.  He told the appellant that he would take her back to her family in Brisbane in accordance with the cultural traditions of her community, but the appellant refused.  Shortly after this, the appellant moved to Melbourne with their four children and set up a home near where Mr Jur was living.  Whilst studying in Melbourne, Mr Jur would assist with the children, including babysitting them whilst the appellant worked shift work. 

10. Mr Jur had met the complainant, Ms Gai, in Kenya in 1995.  Upon moving to Australia, Mr Jur and Ms Gai continued their friendship when they met again at school, between 2005 and 2006.  At that time, Mr Jur was interested in commencing a romantic relationship with Ms Gai, however she declined.  It was after this that Mr Jur commenced his relationship with the appellant.

11. In 2015, when the appellant and Mr Jur’s relationship broke down, Mr Jur commenced a relationship with Ms Gai.  In 2016, Ms Gai fell pregnant.  Mr Jur told the appellant about his relationship with Ms Gai at the beginning of 2017.  In early 2018, Mr Jur and Ms Gai had a second child.

12. It is apparent that, notwithstanding his relationship with Ms Gai, Mr Jur continued to have sexual intercourse with the appellant.  Indeed, the appellant and Mr Jur had a fifth child together in 2018.

13. At the time of the alleged offending, Ms Gai was living in Adelaide with the children, whilst Mr Jur remained in Melbourne to complete his studies.  The appellant’s two youngest children were still living with her in Melbourne, but the three older children were with her family in Brisbane.  Mr Jur was still regularly assisting the appellant with the care of their two children living in Melbourne. 

14. There was no significant challenge to the basic facts in the above summary of the background relationships between the parties.  There was a dispute, however, as to whether Mr Jur’s relationship with Ms Gai was a source of animosity on the part of the appellant.  On the prosecution, case it was a source of great animosity; on the appellant’s evidence, it was not a source of any animosity on her part towards Ms Gai.  We shall return to this issue when addressing the evidence, and in particular the evidence of the appellant.

    The evidence at trial

15. The prosecution called evidence from the complainant (Ms Gai), Mr Jur and Mamer Jur (the brother of Mr Jur, and referred to as Mamer) as to the circumstances of, and lead up to, the physical altercation between Ms Gai and the appellant.  The prosecution also called evidence from three police officers involved in the investigation of the alleged offending, and tendered by consent statements from a paramedic, a surgeon and a general practitioner, each of whom attended to Ms Gai’s lip injury.  Finally, the prosecution also tendered by consent statements from a police officer and a doctor who dealt with the appellant in the immediate aftermath of the altercation.

16. The appellant gave evidence in the defence case.  The defence also called evidence from Nyanwut Alier (a second cousin of Mr Jur) and David Amol (a pastor of the appellant’s church).

17. Given the nature of the grounds of appeal, it is necessary to summarise the pertinent aspects of the evidence of these witnesses.  In so doing, we have drawn largely from the trial judge’s (unchallenged) summary of their evidence in chief.

    Ms Gai’s evidence

18. After outlining the history of her relationship with Mr Jur in terms consistent with the above, Ms Gai gave evidence of threatening phone calls and messages that she said she received from the appellant.  Her evidence was that, from about 2017, she began receiving phone calls from the appellant, who would scream at her over the phone, calling her a ‘slut’ or ‘prostitute’.  She said that on hanging up the phone, she then received texts from the appellant threatening her and her children.

19. In January 2019, Ms Gai was living in Adelaide with her mother, sister and children.  On Ms Gai’s evidence, her son became unwell, and so Mr Jur said he would come to Adelaide to see her and the children.  Ms Gai explained that because her family’s cultural beliefs did not permit Mr Jur to stay under the same roof as her mother, she and Mr Jur arranged to stay at the Broadview house of Mr Jur’s brother, Mamer.

20. On the evening of 14 January 2019, Ms Gai and Mr Jur, together with their youngest child, slept in the upstairs bedroom of Mamer’s house, overlooking the street.  Ms Gai said that, during the course of the evening, she overheard Mr Jur receive a phone call from the appellant telling him that she was bringing her two children to Adelaide by car.

21. Ms Gai gave evidence that at about 6.30am on the morning of 15 January 2019, there was a loud banging on the front door which caused Mr Jur to look out the window.  Mr Jur indicated that the appellant was outside, and told Ms Gai that she should stay out of sight.  The knocking and banging at the front door continued.  They stayed quiet in the hope that the appellant would stop.  On occasion, Ms Gai looked out of the window herself, and saw the appellant walking back and forth between her car and the door.  At times the appellant drove off and then returned.  Mr Jur began receiving phone calls from the appellant, during which Ms Gai could hear the appellant saying that she knew Ms Gai was at the house; that she could see her shoes at the front of the house; and that she wanted Ms Gai out of the house, or to come outside.

22. Ms Gai said that she was terrified, given the appellant’s behaviour and the background of the earlier phone calls and threats she had received.  She said that after about 20 or 30 minutes, she became aware that Mamer had arrived at the house.  Ms Gai could hear him speaking with the appellant, and the appellant saying that she knew that Ms Gai was there; that she had seen her shoes; that she wanted Ms Gai to come out of the house; and that she would not leave until Ms Gai did so.

23. Ms Gai’s evidence was that Mr Jur eventually went out to try and get the appellant to leave.  Ms Gai remained in the upstairs bedroom with the baby.  She said she could hear Mr Jur trying to tell the appellant that they should leave, and that he would go with her.

24. According to Ms Gai, the baby then woke and began fussing, so she went downstairs and into the kitchen to prepare some milk for her.  While she was at the microwave, she heard a loud rattling and banging on the glass of the front door.  Ms Gai said that she realised that the security door must be open and that the appellant was knocking hard on the glass door itself.  She feared it may break.  She recalled the appellant’s threats to her child from the earlier phone calls, and was aware that the stairs to her baby were adjacent to the front glass door.  She was frightened for her baby upstairs, and so grabbed a lightweight frying pan and went to the front door.  She explained that she was scared that the appellant may have a knife, and so wanted the frying pan to be able to protect herself.  She was concerned that the glass could break, and about what might then happen.

25. However, Mr Gai said that when she got to the front door, she could see that the appellant was not armed, and was merely holding a phone.  So she decided that the appellant may just want to talk, and that she may just need to say something to her.  So she put down the frying pan and unlocked the door.

26. Ms Gai gave evidence that the appellant immediately pushed the door open, came in, and bit her forcefully on her lip.  Ms Gai gave evidence that the appellant clamped down and chewed on her lip, and a struggle ensued.  She could feel the appellant tugging and chewing on her lip.  As she tried to manoeuvre them away from the adjacent glass table, or anything else that could hurt them, the appellant continued to chew and tug at her lip, seemingly trying to bite it off.

27. Ms Gai said that she punched the appellant to try and disengage her.  She was successful, but she and the appellant fell backwards onto the floor.  When she fell, Ms Gai’s head hit the wall.  She said this made a dent in the wall, which she was able to point out in the tendered photographs.  The appellant then bent over the top of Ms Gai and spat Ms Gai’s lip out onto the floor. 

28. Ms Gai said that everything happened very quickly after that.  She was angry at what was happening to her, and that her lip was on the floor, and so she grabbed the frypan and tried to hit the accused, perhaps connecting on a couple of occasions.  The accused ran off past Mamer, who by that stage was inside.  According to Ms Gai, the appellant did not say anything to her during the altercation.

29. Ms Gai gave some evidence about the injury she suffered.  She was bleeding and in pain.  She was shaking and was in shock.  Mamer took her severed lip and placed it in a bag in the freezer.  An ambulance and the police were called.  She was taken to the Royal Adelaide Hospital for treatment.  Unfortunately, the surgeon was unable to reattach Ms Gai’s lip, and the injury has had ongoing consequences for her.  For several weeks she was unable to chew or eat any hard food; she was confined to pureed or grated food.  For nearly a year she could not consume hot or cold food or drinks.  The injuries caused her difficulties in her speech for an extended period of time.  The physical wound took nearly two years to heal properly.  Even then, she has a changed appearance.  Her face and mouth have a different, and asymmetrical, appearance.  She is awaiting further corrective surgery.  Her injuries have affected her mentally.  She has been the subject of comments by others, and her self-esteem continues to suffer.

30. Ms Gai said that, prior to the altercation, she had only met the appellant on one previous occasion, at a wedding in 2009.  She said that she was not angry that the appellant had turned up on the morning of 15 January 2019.  Nor was she jealous of whatever the relationship was between the appellant and Mr Jur.  She accepted that she became very angry when the appellant bit off her lip, and did strike the accused at that point.

    Mr Jur’s evidence

31. After addressing matters of background, Mr Jur turned to the events in question.  He explained that he was in Melbourne and received a call from Ms Gai indicating that their child was sick.  He told Ms Gai he would come to Adelaide.  Mr Jur then told the appellant that he was going to Adelaide to see Ms Gai and his sick son, and that because the appellant was working night shift, he would take their two children who were living in Melbourne with him.  The appellant initially agreed, and Mr Jur planned to leave at about 9.00 pm, when the appellant was expected to return from her night shift. 

32. The appellant, however, did not return until about midnight, whereupon she said that she would not allow her children to go to Adelaide as it was too far and too long a drive.  She also said that she had taken a week off work to look after the children in Melbourne during Mr Jur’s absence.  Mr Jur said “alright, fair enough” and put his belongings in his car, and prepared to leave by himself.  But the appellant then drove her car so that it was positioned horizontally behind Mr Jur’s car, preventing him from leaving in that car.  When the appellant refused to let him use either of their cars, he took an Uber to a friend’s house, and caught the interstate bus to Adelaide the next morning.

1. Mr Jur said that he arrived in Adelaide on Saturday, 11 January 2019.  The following day he spoke to the appellant by phone.  She asked when he was coming back because she was worried about her job.  Mr Jur reminded her that she had told him she had taken the week off, and said he was not coming back immediately.  At that, the appellant said she was going to bring the kids over to Adelaide for Mr Jur to look after them because she had work to do.  An argument followed.

2. On Mr Jur’s evidence, he stayed the next few nights with Ms Gai, including at his brother’s house in Broadview.

3. Turning to the morning of 15 January 2019, Mr Jur said that he and Ms Gai had spent the night at his brother’s house in the upstairs front bedroom.  He awoke to hear knocking on the front door.  He said that the initial knocking was very loud continuous knocking, like the “movies where police knock at the door” or when “someone was in a hurry”.  He lifted the blind and recognised his car out on the street, realising that it was the appellant knocking on the door.  He said that the knocking occurred three or four times, with the appellant walking back and forward to the car over a period of time.  He also saw the appellant get in the car and drive off and then return.  Indeed, she did this more than once.

4. Mr Jur gave evidence that, after a while, he saw his brother, Mamer, arrive home.  He saw Mamer talking with the appellant, and could hear him telling her that Mr Jur was not in the house.  The appellant insisted that he was.  He could hear his brother telling the appellant that she was being selfish.

5. According to Mr Jur, after about 45 minutes had passed since the appellant had arrived, he realised that he was the only person who could solve the problem.  So he went outside and spoke to the appellant, saying “you know what, it has been a long drive, why don’t you go to the passenger seat, and I will drop you back to your sister’s”.  The appellant agreed, but as Mr Jur walked towards the car, the appellant walked back past him and Mamer, saying that she was going to the toilet. 

6. Mr Jur said that within about five or ten seconds of the appellant walking past him on her way towards the house, his brother told him that the two women were fighting.  Mr Jur ran inside to find Ms Gai down on the floor with the appellant on top of her, half prone and half kneeling.  Mr Jur grabbed the appellant and dragged her off Ms Gai.  He saw the appellant’s mouth was dripping with blood, and described her as wild with rage.  He saw her spit something onto the floor before running out of the house, getting into her car and driving off.  He then saw the injury that had been caused to Ms Gai.

   Mamer’s evidence

7. Mamer gave evidence that on the evening of 14 January 2019, he was on shift work.  He finished work at 6.00am on 15 January 2019 and found he had a missed call from the appellant.  In the course of driving back to his Broadview house, the appellant called again.  She told him that she was at his house looking for Mr Jur, and that she was sure that Mr Jur and Ms Gai were inside the house.

8. When he arrived home, he parked in the driveway and saw the appellant’s car parked next to a neighbour’s car.  In it were two of the appellant’s sons.  The appellant repeated that she knew that Mr Jur and Ms Gai were inside, showing him the lady’s shoes near the front door.  Mamer asked her why she was there, and she said that she was dropping the children off to Mr Jur, and was then going back to Melbourne for work. 

9. Mamer said that he was concerned that something was not right about the appellant’s body language, and that she was obviously angry.  For that reason, Mamer suggested that she go to one of her relative’s houses so she could have a sleep, saying that they could talk about it the next day.  At first the appellant appeared to agree with this suggestion, and drove off, but then changed her mind and returned, reiterating that Mr Jur and Ms Gai were inside the house. 

10. Mamer saw the appellant focusing upon a car with a baby seat that was parked nearby.  She said she was going to damage the car, because she thought it was Ms Gai’s car.  Mamer explained that it belonged to a neighbour and not Ms Gai.  The appellant had become angry again, and drove off for a second time before then returning again.

11. Mamer said that by this time he was becoming angry himself.  He told the appellant that she was being selfish and stupid for putting her interests over those of her children.  At that point, Mr Jur came out of the house, asked the appellant to get in the car, and said that they would leave together.  The appellant said that she was going into the house to pee, and walked towards the house.  Mamer said that he followed behind her. 

12. Mamer said that he was not clear exactly how it happened, as it happened so quickly, but the appellant got inside, bent down and there was fighting.  Mamer called out to Mr Jur, and then ran inside himself.  He saw the appellant on top of Ms Gai, and he grabbed the appellant’s hands.  He saw Ms Gai’s head up against the wall where the wall was dented.  He saw Mr Jur take the appellant out, and then Ms Gai got up.  Ms Gai was bleeding from her mouth onto the floor and coffee table.  He recalled getting some frozen vegetables from the freezer for Ms Gai to put on her mouth.

    Other prosecution evidence

13. As mentioned, the prosecution also called evidence from three investigating officers.  Two of those officers made some observations as to Ms Gai’s injuries.  Some photos were taken, however, there was no formal crime scene examination, and no forensic evidence which bore on the circumstances of the altercation itself.

14. The prosecution called evidence from a paramedic, surgeon and general practitioner, each of whom attended to Ms Gai’s lip injury and so were able to make various observations as to the seriousness of that injury.  In particular, Dr de Jong gave evidence that Ms Gai was admitted to the emergency department of the Royal Adelaide Hospital on 15 January 2019, giving a history of an assault in which she sustained a bite injury to her lower lip.  Dr de Jong operated immediately and twice attempted to reimplant the amputated lip.  These attempts were not successful, and the wound was finally debrided and closed in a wedge incision style.  Ms Gai was discharged the following day, and her sutures removed on 21 January 2019.  Dr de Jong said that the injury was consistent with the history given, and that the potential effects could involve functional impairment, and would involve a permanent aesthetic disfigurement that may require further surgery.

15. Finally, the prosecution also tendered by consent statements from two witnesses who dealt with the appellant in the immediate aftermath of the altercation.  The first of these was a statement from a police officer (Senior Constable Connaughton) who attended upon the appellant when she presented at the Salisbury Police Station at 8am on 15 January 2019.  She said that the appellant told her that she had attended the police station to report that she was the victim of an assault from an incident that had occurred at a house in Broadview.  As a result of information received by Senior Constable Connaughton from her police colleagues, she ultimately arrested the appellant, and arranged for her to be taken to the Lyell McEwin Hospital for an assessment of her injuries.  The second was a statement from a doctor at the Lyell McEwin Hospital, Dr Connolly.  He noted that the appellant had a small laceration on her right forehead, some right forearm abrasions, and a left arm abrasion and bruise.  In his view, no follow up contact was necessary. 

    The appellant’s evidence

16. After dealing with some matters by way of background, the appellant said that when she arrived home from a shift one night, Mr Jur said to her that he was going to Adelaide, and that he was doing so to attend his cousin’s wedding.  She responded by asking what was going to happen to the two children who were with them in Melbourne at the time, because she was working all weekend.  Mr Jur said he could take the children with him, but she refused to let them go.  She said that she was not happy about Mr Jur going, queried why he needed to go to the wedding, and explained that it would cause her difficulties with her new job.

17. The appellant said that Mr Jur had arranged to travel to Adelaide by bus on the Saturday morning, and to return by bus on the Sunday evening, arriving back in Melbourne by the Monday.  She cancelled her Saturday shift and arranged for a friend to look after the children on the Sunday so that she could work her shift that day.

18. According to the appellant, she spoke to Mr Jur on the Sunday and he said that he had missed the bus, and would thus not be back until the Tuesday.  She said that she spoke to him again on the Monday, and that he then said that he had not been able to catch the bus that day as it had been full.  After further conversation, Mr Jur said to her that it was up to her whether she wanted to bring the children to Adelaide and leave them with him so that she could return for work.  The appellant said that she was left with no option but to do so.  She said that Mr Jur told her that he was at his brother’s house, and that she should bring the children there, that he would then drive her to the airport so that she could fly back to Melbourne in time for her to go to work.

19. The appellant gave evidence that she and the children got in the car, and headed for Adelaide.  When in Ararat, she rang Mr Jur to let him know they were on their way.  When she arrived in Adelaide, she rang Mr Jur again but got no answer.  Five or ten minutes later she rang Mamer, telling him that she was in Adelaide to drop the children with Mr Jur. 

20. Upon arriving at Mamer’s house, the appellant knocked on the front door.  However, she denied seeing any shoes near the front door.  The appellant said that she had a further conversation with Mamer when he arrived home.  Mamer said that he would call Mr Jur to find out where he was.  The appellant said that, after a while, she simply said to Mamer “if you don’t mind, please drop me to the airport, maybe by the time you come back, maybe you will find Jur and you can stay with the kids”.  Mamer told her that it was not his responsibility to stay with her children; that she could not leave the children, otherwise he would call the police and they would take the children.  The appellant said that she told Mamer she was going to return to Melbourne, and drove off, before then changing her mind and returning.  The appellant said that Mamer then rang Mr Jur, and Mr Jur came out of the house.

21. The appellant gave evidence that when Mr Jur came out of the house, she said to him “okay honey, bring the kids out, we take them inside and then you can drop me off”.  She added “I will quickly use the bathroom while you’re taking the kids out”, and walked towards the front door of the house.  The appellant said that once at the front door, she opened the flyscreen and when she went to open the next door she found it locked.  She said that she turned back to her left and said “honey, the door is locked”.  At that point she was hit on the right side of her face.  She felt someone grab her on her right arm and pull her inside, and she fell down onto her knees.  She was being hit in the head while her right arm was still being held, and she put her left arm over her head.  The appellant said that she was being repeatedly hit with some object.  She put her right arm around her attacker’s hips, got herself halfway up, but then fell to the ground with her attacker falling on her.

22. The appellant said that, by this point in the altercation, Ms Gai was top of her and was repeatedly hitting her in the head with the frying pan, then grabbing her by the neck.  The appellant tried to get herself up, but Ms Gai grabbed her behind the back of the neck with her left hand while she held the frying pan with her right hand.  They were then rolling, and their heads were close together, with the appellant lying on her back on the ground, and with Ms Gai on top of her.  The appellant said that she tried to push Ms Gai off, but she was too heavy, and she could not do so.  Because she could not free herself, she bit Ms Gai, although she did not see or know where she bit her.

23. The appellant said that they both got back up, but fell back on the ground a second time, with the appellant ending up on top of Ms Gai.  The appellant said that, at that point, Mamer came inside, grabbed both of her hands, and lifted her up.  She said that she just walked out the door straight away, got in her car and dropped her children off at the house of Mr Jur’s cousin.  She then went to a police station “to report the case”.

24. The appellant was cross-examined at length in relation to several aspects of her version of the altercation, and the events leading up to it.  It will be appropriate to make reference to some aspects of this cross-examination later in these reasons.

25. The appellant also gave evidence as to her good character, including that she had no previous court appearances and had not been accused of any kind of violence in the past.  She denied having ever contacted or threatened Ms Gai.

    Mr Amol’s evidence

26. The appellant’s own evidence as to her good character was supplemented by the evidence given by David Amol, a pastor ministering to a Sudanese congregation in Adelaide.  Mr Amol said that he had known the appellant since 2007, and had kept in touch with her over time.  He described her as an honest young woman who got along with others, and who did not engage in any anti-social behaviour.  He described her as a woman of good character.

    Ms Alier’s evidence

27. The defence also called evidence from Nyanwut Alier, a cousin of Mr Jur.  She gave evidence that she would occasionally see Mr Jur.  She said that she spoke to him the day after the altercation.  She said that Mr Jur told her that he had come back to Adelaide for a wedding.  There was then some confusion between Ms Alier and Mr Jur about when he was returning to Melbourne.  When asked what Mr Jur said about what had happened the previous day, Ms Alier said:

    Jur told me that in the following morning that they were with [Ms Gai], [the appellant] came, and they he saw the car, he was in the first floor, so he saw [the appellant] car in the down floor, and he told [Ms Gai] that ‘[the appellant] is here’, and then that’s what he said, and [Ms Gai] said ‘Oh, if she is here today, we’re going to fight’; and Jur said ‘Why’.  According to Jur he convinced [Ms Gai] to stay up and [he] come down to take away [the appellant], but he believed he locked the door behind him, he didn’t know what happened when [the appellant] walk in, the door was open, and they start fight.

28. This version of an alleged conversation between Mr Jur and Ms Alier is to be compared with the version which had earlier been put to Mr Jur by defence counsel during cross-examination.  It had been put to Mr Jur that he told Ms Alier that, when they were in the upstairs bedroom and realised that the appellant had arrived, Ms Gai said that she had been looking forward to beating the appellant, and that this was ‘a golden chance’ for her to do so.  It was also put to Mr Jur that he then said to Ms Gai that they were cheating; that the appellant was his wife; and that Ms Gai should not be violent or wanting to fight because she and he were having an affair.  Mr Jur had denied that he made these statements.  The significance of the divergence between what had been put by defence counsel to Mr Jur, and the evidence given by Ms Alier, is a matter addressed later in these reasons.

    Elements of the offence

29. The judge provided the following summary of the elements of the offence of recklessly causing serious harm:

    1.   That the accused caused serious harm to another person.  Serious harm is defined to include harm that endangers a person’s life or, consists of, or results in serious and protracted impairment of a physical or mental function, or harm that consists of, or results in serious disfigurement.[1]

    2.   The accused’s acts were voluntary.

    3.   The accused was reckless in causing serious harm.  Recklessness in causing serious harm occurs where the accused is aware of a substantial risk that her conduct could result in serious harm and engages in the conduct despite the risk and without adequate justification.  It requires proof of an active thought process.[2]

    4.   The accused acted unlawfully.  The prosecution must prove that the accused’s actions were unlawful, in other words were not lawfully justified on the basis of any defence.  The accused’s actions will be lawful if the accused acted in self-defence.  Self-defence requires the accused to have genuinely believed that her conduct was necessary and reasonable for a defensive purpose and the accused’s conduct to have been in the circumstances as the accused genuinely believed them to be, reasonably proportionate to the threat the accused genuinely believed to exist.  Where self-defence is raised, the prosecution must prove beyond reasonable doubt that the accused’s conduct was not in self-defence.[3]

    [1] CLCA, s 21(a).

    [2]     R v Dransfield [2016] SASCFC 68.

    [3] CLCA, s 15.

30. There is no challenge to this summary of the elements.

    The issues at trial

31. The prosecution case at trial was that the appellant had been in a relationship with Mr Jur, and indeed had a number of children with him.  Mr Jur subsequently formed a relationship with the complainant, Ms Gai, and commenced a family with her.  On the prosecution case, this led to the accused harbouring ill feeling, indeed animosity, towards Ms Gai.  As a culmination of certain further events, she attacked Ms Gai on the morning of 15 January 2019, biting off a portion of her lip and causing her serious harm.

32. It was not in dispute at trial that the appellant bit off a portion of Ms Gai’s lower lip, permanently disfiguring her face.  The primary issue, as outlined by defence counsel at the outset of the trial, was whether the prosecution could exclude self-defence beyond a reasonable doubt.  In support of this defence case, the appellant denied that she harboured any ill feeling or animosity towards Ms Gai, or that she was otherwise upset or angry at Ms Gai when she arrived at the Broadview house where the altercation occurred.  She claimed that Ms Gai instigated the physical altercation that occurred.

    The trial judge’s reasons

33. Given the nature of the challenges made on appeal to the trial judge’s reasons for verdict, it is necessary to provide an overview of the structure and content of the trial judge’s reasons.[4]

    [4]     R v Deng [2022] SADC 61 (trial reasons).

34. The judge commenced with some general directions to himself,[5] before undertaking a lengthy summary of the evidence.[6]  The judge’s summary included an outline of each witnesses’ evidence in chief, along the lines of what has been set out above, but with some additional detail.  Importantly, however, in summarising the key witnesses’ evidence, the judge also summarised some of the significant issues that arose during cross-examination and, in the case of the appellant, identified some difficulties with the evidence that was given.  It will be appropriate to return to the significance of some of the issues that arose during cross-examination later in these reasons.

    [5]     Trial reasons at [5]-[8].

    [6]     Trial reasons at [13]-[100].

35. The judge next referred to the closing addresses of counsel for the prosecution and defence.[7]  After making it plain that he had taken into account all matters argued by counsel, the judge identified the theme of the prosecution address to be that the complainant, Ms Gai, was an impressive, credible and reliable witness, whose evidence was supported in material respects by other unchallenged evidence adduced by the prosecution.  Her evidence should be accepted beyond reasonable doubt.  The appellant’s evidence, on the other hand, stood in stark contrast to a number of pieces of unchallenged evidence, did not withstand scrutiny, and should be rejected beyond reasonable doubt.  On that basis, self-defence did not realistically arise. 

    [7]     Trial reasons at [101]-[106].

1. As the judge explained, the defence address acknowledged that the injury was not in dispute, and emphasised that the issue at trial was whether the prosecution had excluded self-defence beyond a reasonable doubt.  The judge summarised the defence case as submitting that there were three pathways to reasonable doubt:

   [104]Firstly, that the prosecution evidence was not sufficiently reliable or credible when subjected to close analysis. The defence submitted inter alia that Ms Gai’s evidence was inconsistent or unsatisfactory in a number of respects including the alleged threatening calls over time, her lack of response to such calls at the time, her claimed reactions to the offence on the day in question and suggested inconsistencies and illogicalities in her evidence.

   [105]The second pathway to a reasonable doubt was that the defence case was sufficiently credible and reliable that the court could not reject it as a reasonable possibility. The defence argued that the accused was a forthright, adamant but good witness and that her version of the events had some support. Further, that she went to the police station herself to report the assault on her, and that her injuries were consistent with the history she gave the treating doctor.

   [106]The third pathway to a reasonable doubt was to submit that with the two competing versions of events, the court should not realistically be able to say where the truth lies, and accordingly not exclude a reasonable doubt.

2. The judge then embarked upon the section of his reasons entitled ‘Analysis’.[8]  At various places in her submissions, the appellant criticised the judge’s reasons on the basis that they ‘only’ included 18 paragraphs of analysis.  However, as developed later in these reasons, the analysis has to be read in light of not only what came before these paragraphs, but also the forensic contest as identified by the parties.  In any event, there is significant reasoning contained in these paragraphs of his Honour’s reasons.

   [8]     Trial reasons at [107]-[125].

3. The judge commenced the ‘Analysis’ section of his reasons by explaining that he found each of the three main prosecution witnesses, Ms Gai, Mr Jur and Mamer, to be generally credible and reliable:

   [108]The complainant, Ms Gai gave evidence in a measured and straightforward way. The initial impression given was of an intelligent and articulate woman who was doing her best to recall traumatic events which occurred over three years ago. Her narrative had a clear and logical sequence, she became appropriately upset when having to describe her injuries from the day in question. Her responses to the fact that her evidence was more extensive at trial than her initial statement to police that at the time of the initial statement, she was injured, traumatised and would have been in considerable pain, were logical, understandable and at the end of the day, entirely credible. Ms Gai’s denials of the version of events put by defence counsel was clear and apparently credible.

   [109]At the conclusion of a lengthy examination and cross-examination, the overwhelming provisional impression was of a logical, sensible, straightforward, and intelligent witness doing her best to accurately and truthfully recall the events she was being asked about.

   [110]Mr Jur was also a good witness. He and his brother Mamer’s English was not as good as Ms Gai’s. Notwithstanding that, he gave evidence in a relatively straight forward way, frankly admitting matters that did not necessarily paint him in a good light. For example, he admitted the overlapping nature of his relationships with Ms Gai and Ms Deng and the children he had had with both of them. His account of the circumstances whereby he came to Adelaide was logical and straightforward and had the ring of truth to it. He had no ostensible motive to prefer or slant his evidence to either Ms Gai or the accused, and he gave the impression of intending to be as fair as he could in his account of the events in question. As to the alleged prior inconsistent statement to his cousin Alier, his answers were straight forward, logical and potentially credible. The principal impression he gave was of an honest, and reliable witness.

   [111]Mr Jur’s brother, Mamer’s evidence was credible, but less clear. His command of the English language was a little worse than his brother’s, but he also gave his evidence in a straightforward way. He indicated no animus towards Ms Gai or the accused and the overwhelming impression was he was doing his best to objectively recall the events he witnessed. As with his brother, Mr Jur, he did not purport to see the offence occur, nor did he overtly support one or another’s versions of it, but rather he appeared to be doing his best to recall what he could, of what he did see, at the relevant time. He conceded and explained matters put to him in his statement to police, and appeared honest in his answers on those topics. In relation to the 3 January 2020 statement, he responded that there were some errors in the typed up version that was brought to him, possibly because it was taken from some handwritten notes from a police officer’s notebook and at various times he subsequently corrected those errors. Mamer’s answers were credible on this topic. At the end of the day whilst his evidence was a little more haphazard and less clear than his brother’s, Mamer gave evidence in a straightforward and credible way.

4. The judge took quite a different view of the appellant’s evidence.  The judge described her evidence to the effect that she harboured no resentment or ill-feeling towards Ms Gai as lacking in credibility.  However, he also found her evidence to lack logic and credibility in other respects.  An important example was her evidence as to the commencement of her altercation with Ms Gai as she entered the front door of Mamer’s house.  The appellant described what occurred in terms that did not make physical sense, apparently because she had mistakenly confused Mamer’s house with the next-door house in the photograph she was shown while giving evidence.  The judge referred to other difficulties with the appellant’s evidence.  He also referred in this context to the evidence as to the appellant’s good character.

5. Because it is relevant to some of the submissions advanced on appeal, it is appropriate to set out in full the judge’s observations in relation to the appellant’s evidence:

   [112]The accused gave evidence on oath in her own defence. It soon became apparent that she had an absolute view of her relationship with Mr Jur that was inconsistent with both Ms Gai and Mr Jur’s evidence. She maintained that her relationship had continued unimpaired from 2006 through to the moment of the alleged offence, that the relationship was never in doubt or under threat, that she was consequently never resentful, nor did she harbour any antipathy whatsoever towards Ms Gai, and that she was at all times, for all purposes, Mr Jur’s wife. She did not agree that Ms Gai and Mr Jur had any kind of relationship whatsoever at any time, beyond Mr Jur’s isolated fathering of two children with Ms Gai in 2016 and 2018. The accused’s evidence that notwithstanding that fact, she harboured no resentment or ill feeling whatsoever towards Ms Gai, entirely lacked credibility.

   [113]The accused’s version of events lacked logic and credibility in a number of respects beyond those already mentioned. The accused’s account of why she refused to let Mr Jur use any of their three cars to drive to Adelaide, in particular the Toyota Camry hybrid he regularly used, was jumbled, inconsistent and unbelievable.

   [114]The accused’s account of what happened at the front door of Mamer’s house was inconsistent with the photographs of the wall and lattice surrounding the front door. The accused said she looked around over her left shoulder, saw and spoke to Mr Jur as her right hand was on the door handle was simply not possible given the layout of the doorway. When shown photographs in exhibit P5, the accused marked with a dot where she was standing when she claimed this occurred; and marked the next door house, which did not have a wall and lattice work. The events plainly did not occur there. An obvious explanation for this is that the accused had mistakenly thought that was the door to the relevant house, and had consequently fabricated that she was able to turn around, look over her left shoulder and talk to Mr Jur at the point when she was then attacked by Ms Gai.

   [115]The accused’s account was riddled with illogicallities. Her evidence that after having had no contact with Ms Gai, having made no threats to her at any time, having no reason to believe there was any antipathy between them, that on going to the front door of Mamer’s house just to use the toilet that for no apparent reason, Ms Gai opened the door and repeatedly hit her over the head with a frypan, dragged her inside the house and kept hitting her over the head with a frypan, lacked all credibility. Further, if as she had claimed in evidence she was repeatedly hit in the head with a frypan, it would be very difficult to see why she sustained only one small abrasion over the right eyebrow.

   [116]At the end of the day, the overwhelming picture painted by the accused in her evidence was of a witness determined to paint herself in an entirely innocent light both as to the history of her relationship with Mr Jur, any contact with Ms Gai, her actions preceding Mr Jur’s journey to Adelaide, and her actions leading up to the moment of the physical contact with Ms Gai. Little of her evidence rang true. She denied any aspect of the evidence of Mr Jur and Mamer that tended to paint her in any way in a poor light, and her overall recount of events entirely lacked credibility.

   [117]In coming to that assessment, the court has regard to the character evidence given on the accused’s behalf by Mr Amol and applies the well-known principles applicable to its assessment.[9]

   [9]     Evidence of good character is relevant to support the credibility of the accused as a witness, and is relevant to the likelihood that the accused as a person of good character committed the charged offence.

6. The judge next gave his reasons for rejecting the evidence of Ms Alier.[10]  He described her as a “jumbled and almost incoherent witness who seemed petrified to be in the courtroom”.  He described her as “an extremely poor witness”, whose account of the conversation with Mr Jur was seriously at odds with what defence counsel had put to Mr Jur had passed between them.  The judge concluded that Ms Alier’s evidence “had no credibility at all”.

   [10] Trial reasons at [118].

7. Having expressed these views as to the evidence of the key witnesses, the judge made it plain that he had carefully reviewed all of the evidence and submissions.  His Honour then set out his ultimate conclusions.  Once again, the nature of the submissions put on appeal makes it appropriate to set out the relevant section from his Honour’s reasons in full:

   [120]At the end of the day, each of the prosecution’s witnesses were logical, credible, and convincing. Notwithstanding the defence case and the defence evidence, but having considered them carefully and given them the fullest weight, the court accepts the evidence of Ms Gai, Mr Jur and Mamer beyond reasonable doubt. The accused’s evidence was jumbled, unrealistically absolute, inconsistent, and proffered a narrative that was in many respects logically unlikely and at the end of the day, unbelievable.

   [121]Ultimately the prosecution case was logical, consistent, and compelling. The picture painted of the accused becoming angry and obsessive as she progressively discovered that Ms Gai had two children with Mr Jur, followed by her starting to send angry and threatening messages, and then trying to prevent Mr Jur from travelling to Adelaide to visit those children and then when he proceeded nonetheless, deciding to drive to Adelaide, attack and injure Ms Gai who she undoubtedly perceived as a rival for her husband’s affections, at the end of the day, was compelling.

   [122]Accordingly, the court finds proven beyond reasonable doubt that that is exactly what happened. The accused had become angrier over time at Mr Jur’s relationship with Ms Gai, the fact that he kept having children with her, the fact that he maintained to the accused that his relationship with the accused was not his primary relationship, and that he travelled to Adelaide to be with Ms Gai and her two children over her objections and despite her attempts to prevent it, motivated her to travel to Adelaide for the purposes of confronting and attacking Ms Gai.

   [123]The medical evidence was unchallenged, and the court accepts it beyond reasonable doubt. Ms Gai was seriously injured and suffered considerable ongoing pain, disability and serious disfigurement as set out in the medical evidence which has not yet subsided. The court finds beyond reasonable doubt that this amounts to serious harm within the statutory definition.

   [124]As to the accused’s intention, the court finds beyond reasonable doubt that she intended to attack Ms Gai and injure her. The relationship of the two, the fact that Ms Gai was a woman the accused saw as a woman competing for Mr Jur’s affections, who she developed antagonistic feelings toward over time, and in particular the singular nature of the attack and its obvious likely consequences of facial disfigurement, cause the court to conclude that the accused intended to disfigure her. This is supported by the anger and body language she displayed to Mamer outside his house, and her threats to damage a parked car she suspected belonged to Ms Gai, all immediately prior to the attack. She was at least reckless as to the degree to which she would seriously disfigure her and the degree to which serious harm would be inflicted.

   [125]The court finds proven beyond reasonable doubt that that accused’s actions were a unilateral assault on Ms Gai and did not occur in circumstances of self-defence. It is proven beyond reasonable doubt that the accused’s conduct was not in self-defence.

   Conclusions

   [126]The court finds proven beyond reasonable doubt that on the 15^th day of January 2019 at Broadview:

   1.  The accused caused serious harm to Achol Gai.

   2.  The accused’s acts were voluntary.

   3. The accused was at least reckless in causing serious harm. The accused in intending to cause harm and disfigurement to Ms Gai was aware of a substantial risk that her conduct could result in serious harm and engaged in the conduct despite the risk and without any justification.

   4.  The accused acted unlawfully without any lawful justification and in particular, without any circumstances of self defence.

8. Having found each of the elements of the charge established beyond reasonable doubt, the judge announced a verdict of guilty.

   The appeal

9. The six grounds of appeal relied upon by the appellant appear at the outset of these reasons.  As developed in writing and orally, the grounds were not only wide-ranging but also overlapped to a significant degree.  While Ground 4 involved a quite distinct legal issue, and Ground 3 involved a challenge to the judge’s finding or reasoning on one particular issue, each of Grounds 1, 2, 5 and 6 involved complaints about the trial judge’s approach to various aspects of the evidence.  Grounds 1 and 2 focused upon the significance of these aspects of the evidence to the judge’s application of the criminal standard of proof.  Ground 5 focused upon their significance to a complaint that the judge failed to provide adequate reasons. Ground 6 included a contention that these aspects of the evidence contributed to the unreasonableness of the verdict.

10. The overlapping, and somewhat discursive, nature of the submissions made in support of Grounds 1, 2, 5 and 6 has made this Court’s task of addressing the complaints made on the conviction appeal difficult.  It seems to us that the most convenient and appropriate approach is to commence with a consideration of the issues raised in respect of various aspects of the evidence through the complaint of inadequate reasons (Ground 5).  We will then return to address the general complaints made in Grounds 1 and 2 as to the judge’s application of the criminal standard of proof, before addressing the specific complaint in Ground 3.  We will then address the Ground 6 complaint that the verdict is unreasonable, before concluding with our consideration of the contended legal error in Ground 4.

    Ground 5 - Inadequate reasons

11. While they are well known, it is useful to commence by setting out the basic principles governing the adequacy of reasons.

12. In a trial by judge alone, the judge has an obligation to provide adequate reasons.  As the High Court explained in Fleming v The Queen,[11] this requires more than “a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made.  Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.”

    [11]   Fleming v The Queen (1998) 197 CLR 250 at [28] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

13. The precise content of the obligation to give adequate reasons in a particular case will depend very much upon the forensic issues in that case, and the way in which the case has been run.[12]  As Kiefel CJ, Keane and Edelman JJ observed in DL v The Queen:[13]

    Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict.  At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues.  Nor will they be inadequate merely because they fail to undertake “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion”.  At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion.  In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.

    [12]   Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [118] (Livesey P, Lovell and Bleby JJA); JGS v The Queen [2020] SASCFC 48 at [201] (Lovell J, Peek and Bampton JJ agreeing).

    [13]   DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ) (omitting citations).

14. Further, the adequacy of the trial judge’s reasons must be assessed by reference to his or her reasons as a whole.[14]

    [14]   Boyle (a pseudonym) v The Queen [2022] SASCA 50 at [119] (Livesey P, Lovell and Bleby JJA); JGS v The Queen [2020] SASCFC 48 at [201] (Lovell J, Peek and Bampton JJ agreeing).

15. In articulating the complaint of inadequate reasons, the appellant’s notice of appeal contends that the trial judge failed to properly identify the issues to be determined, and to expose his reasoning process in determining the matters in issue.  In particular, it is said that the trial judge did not address:

    (i)the inconsistencies and illogicalities in the complainant’s evidence which, on the defence case, raised important questions as to the complainant’s overall credibility and reliability;

    (ii)the extent to which, if at all, the judge considered the evidence of the other civilian witnesses and its impact upon the credibility and reliability of both the complainant and the appellant; and

    (iii)the extent to which the appellant’s account gained support from her having reported being assaulted to the police immediately following the altercation, and from Dr Connolly’s evidence that her injuries were consistent with her account of the assault she alleged was perpetrated on her. 

1. At the outset, we reject the complaint that the judge did not properly identify the issues to be determined.  To the contrary, the judge at several places in his reasons identified that the primary issue at trial was whether the prosecution had excluded self-defence as a reasonable possibility.  This issue in turn required consideration of the competing versions of Ms Gai and the appellant as to how the altercation occurred, and in particular who instigated the violence.  As the judge identified, it also required consideration of the events in the lead up to the altercation that, on the prosecution case, led to the appellant being angry towards Ms Gai.

2. There is no doubt that the judge identified the issues, at least at this general level.  Putting to one side for a moment the separate complaint about his Honour’s application of the criminal standard of proof (Grounds 1 and 2), there can also be no doubt that his Honour’s reasoning towards guilt involved his acceptance beyond reasonable doubt of the prosecution evidence and case on these issues, and his rejection of the appellant’s version as a reasonable possibility.  The judge accepted the evidence of Ms Gai, Mr Jur and Mamer suggesting that the appellant was angry towards Ms Gai; and the evidence of Ms Gai, to the effect that the appellant instigated the altercation that occurred.  The judge rejected the appellant’s evidence that she was not angry, and indeed harboured no hostility or ill-feeling, towards Ms Gai; and the appellant’s evidence that Ms Gai instigated the altercation.

3. To the extent that there is any force in the appellant’s complaint of inadequate reasons, it is in the complaint that, on the face of his reasons, the judge tended to approach the evidence of each of the main witness in isolation; that he expressed a view as to the evidence of each as a whole, without addressing some of the issues that arose on the evidence of the key prosecution witnesses (including when considered in the context of the evidence of the other witnesses), and without addressing the support for aspects of the appellant’s evidence found in the evidence of other witnesses.

4. It is to be acknowledged that when addressing the evidence of Ms Gai (at [108]-[109]), Mr Jur (at [110]) and Mamer (at [111]) in the ‘Analysis’ section of his reasons, the judge did so succinctly and at a general level.  However, these passages from the judge’s reasons must, of course, be read in the context of the judge’s reasons as a whole.  Earlier in his reasons, when summarising the evidence of each of these witnesses, the judge had included reference to some of the potential issues or difficulties with their evidence that had been pursued through cross-examination.

5. Taking Ms Gai’s evidence as an example, in the “Analysis” section of his reasons, the judge described (at [108]-[109]) Ms Gai as an intelligent and articulate woman who gave evidence in a clear, logical and straightforward manner, giving the impression of a witness doing her best to accurately and truthfully recall the events in question.  In support of this general conclusion, the judge explained (at [108]) that he was satisfied that Ms Gai’s explanations for the additional detail in her evidence relative to her initial police statement were logical and understandable.  Further, earlier in his reasons, after summarising Ms Gai’s evidence in chief at some length (at [13]-[33]) the judge also addressed (at [34]-[38]) the challenges made to her evidence in cross-examination.  While the judge did not quite say so in as many words, it is apparent from this summary, at least when read in combination with his general conclusions as to her evidence (at [108]-[109]), that the judge was satisfied that Ms Gai’s evidence remained consistent when cross-examined, and that she satisfactorily addressed or withstood the challenges that were made to her evidence by defence counsel.  

6. The judge dealt similarly, albeit in slightly less detail, with the evidence of Mr Jur and Mamer.

7. In the case of the appellant’s evidence, the judge dealt at greater length with the difficulties that he had with her evidence, both when summarising some aspects of her cross-examination (at [90]-[98]), and when setting out his overall impression of her evidence (at [112]-[117]) in the ‘Analysis’ section of his reasons.  In the course of summarising her cross-examination the judge expressed views to the effect that certain aspects of her evidence, when challenged or teased out in cross-examination, became unclear or jumbled.  He also exposed the difficulty with a critical aspect of the appellant’s evidence, stemming from the appellant identifying the wrong house in a photograph she was shown and then giving evidence as to commencement of the altercation that did not make sense (and indeed could not have been accurate) once the correct house was identified.

8. In the ‘Analysis’ section of his reasons, the judge returned to the difficulties with the appellant’s evidence.  While describing the appellant’s evidence as lacking in credibility and logic, he supported these general conclusions with examples.  He mentioned in this respect the appellant’s unnecessarily absolute, and ultimately unbelievable, evidence to the effect that she did not harbour any animosity or ill-feeling towards Mr Gai (at [112] and [116]).  He mentioned the aspects of her narrative that were, or became, unclear or jumbled (at [113]).  He also mentioned the difficulties with the appellant’s description of the instigation of the altercation by reason of her having identified the wrong house, suggesting that an “obvious explanation” for what occurred was that she had fabricated this aspect of her evidence (at [114]).  The judge also made reference to what he considered to be other illogicalities with the appellant’s evidence (at [115]), including the implausibility of Ms Gai suddenly attacking her in the manner described, and the apparent difficulty in reconciling the appellant’s description of Ms Gai repeatedly hitting her with the frying pan with her relatively limited injuries.

9. In summary, properly understood, the judge’s reasons provide quite some detail in terms of analysis of the strengths and weaknesses of the evidence of the key witnesses, and hence reasoning for accepting the credibility and reliability of the key prosecution witnesses, and for finding the appellant’s evidence to be lacking in credibility and reliability.

10. It is true that the judge did not expressly deal with every issue that arose in respect of each witnesses’ evidence.  But, as explained in the passage quoted earlier from the reasons of Kiefel CJ, Keane and Edelman JJ in DL v The Queen,[15] the law did not require that he do so.

    [15]   DL v The Queen (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ).

11. In relation to Ms Gai’s evidence, the appellant cited three examples of issues with her evidence which it was said were not addressed by the trial judge.  The first was a contended inconsistency between Ms Gai’s evidence that she received one threatening phone call from the appellant in February 2018, and her reference in an affidavit provided to police to multiple threatening phone calls from the appellant at that time.  In our view, there is nothing in this complaint.  The judge adverted to the issue in his summary of Ms Gai’s cross-examination (at [35]), referring to Ms Gai’s explanation that there were also text messages that accompanied the call and that that was what she was referring to.  It is apparent from this that the judge took the issue into account, accepted Ms Gai’s explanation for the superficial inconsistency, and did not consider that it provided any reason to doubt the credibility or reliability of Ms Gai’s evidence.

12. The second issue was the complainant’s evidence to the effect that, while in the upstairs bedroom at the Broadview house, she heard the appellant saying on the phone that she knew Ms Gai was in the house, had seen her shoes and wanted her to come out.  Ms Gai had not mentioned this to the police until the day before the trial.  While not specifically mentioned by the trial judge, it seems to us that this criticism of Ms Gai’s evidence was probably encompassed within his Honour’s reference (at [108]) to being satisfied by Ms Gai’s explanation for the additional detail that she gave in her evidence relative to her initial police statement (her explanation being that she was injured, in pain and traumatised when she gave that initial statement).  In any event, in the context of the forensic dispute at trial, we would regard this as a matter of detail that did not require express consideration in his Honour’s reasons.

13. The third issue also related to a discrepancy between Ms Gai’s evidence and what she said in the affidavit she provided the police.  In her affidavit she said that, while in the upstairs room at the Broadview house, she heard the appellant telling Mamer that she wanted to give the children to Mr Jur.  However, in her evidence she denied hearing the appellant saying this.  Whilst not specifically mentioned by the trial judge, we do not think this matters.  In this instance Ms Gai included detail in her affidavit that did not form part of her evidence, rather than the other way around.  While not falling within the judge’s observation at [108], it nevertheless involved a similar complaint about discrepancies between the information Ms Gai provided to police and her evidence at trial.  The discrepancy does not necessarily provide any basis for doubting the credit or general reliability of Ms Gai.  It is hardly surprising that, after three years, Ms Gai might have forgotten some things that she heard whilst she was in the upstairs room.  In any event, we do not think that it was necessary for the judge to specifically address every discrepancy between Ms Gai’s evidence and police affidavit in order to adequately explain the view he took of her evidence.  That is particularly so given that this discrepancy was not mentioned in defence counsel’s closing address, and did not loom large in the forensic contest below.

14. In relation to the appellant’s own evidence, she complained that the judge failed to address her explanation for denying that she harboured any animosity or ill-feeling towards Ms Gai over her relationship with Mr Jur; that he did not mention her evidence to the effect that, in her culture, a woman would never make an approach to a man, and that it would be for a man to approach a woman.  On the appellant’s evidence, as a result of this cultural belief, her anger at the relationship was directed towards Mr Jur rather than Ms Gai.  Once again, we regard this as a matter of detail that the judge was not required to address.  It was not a matter taken up in closing addresses, or that otherwise featured significantly in the forensic contest below.  The judge was entitled to reach his conclusion that the appellant’s evidence that she harboured no animosity or ill-feeling towards Ms Gai at all was unbelievable and lacking in credit, without specifically addressing the appellant’s reference to her cultural beliefs.  As was made plain in the passage extracted earlier from DL v The Queen, reasons will not be inadequate merely because they fail to undertake a minute explanation of every step in the reasoning process that leads to the judge’s conclusion.

15. The appellant also complains that the trial judge failed to explain how he took into account the evidence of her good character.  It will be necessary to address the judge’s reference to good character in more detail later in these reasons.  However, in circumstances where the judge made express reference (at [117]) to having had regard to this evidence, we do not think there is any merit in the complaint of inadequate reasons in this respect.  Good character evidence is not taken into account in any mechanical manner that is capable of being analysed or articulated in any great detail.  It is a matter of general evaluation and impression.  It was sufficient that the judge identified the relevance of this evidence (namely as to the appellant’s credit, and as to the likelihood of the appellant having committed the charged offence), and made it plain that he had taken it into account.

16. We turn now to the appellant’s complaint that when assessing the evidence of individual witnesses, the judge did not make express reference to how it was supported or undermined by the evidence of other witnesses. 

17. In developing this submission, the appellant focussed upon what she contended was the capacity for the evidence of Mr Jur and Mamer to undermine the evidence of Ms Gai, and support the evidence of the appellant, on a critical aspect of the evidence.  She referred in this respect to the evidence of Ms Gai to the effect that, while she was downstairs in the kitchen, the appellant was banging loudly on the glass at the front door, and Ms Gai feared that the appellant might break the glass.  This loud banging was an important aspect of Ms Gai’s evidence leading to her opening the door, and hence the altercation commencing.  However, neither Mr Jur nor Mamer made any reference in their evidence to hearing any banging on the glass at the front door.  Nor, on their evidence, would there have been time for this to have continued for long.  On Mr Jur’s evidence, the altercation had commenced within five or 10 seconds of the appellant walking past him and towards the house.  While Mamer was not asked about time frames, he said that he had commenced to follow as the appellant walked towards the house, which again did not leave much time for the appellant to be banging on the glass at the front door.

18. While the judge mentioned Ms Gai’s evidence that the appellant was banging on the glass at the front door, he did not otherwise address this issue.  However, this is hardly surprising given that the issue was not one explored at trial.  Ms Gai’s evidence was not specific as to the duration of the banging.  It was not a matter she was cross-examined on.  It is true that neither Mr Jur nor Mamer made any reference to hearing or seeing the appellant banging on the glass at the front door, and that their evidence did not leave room for any such banging to have continued for long.  That said, there was no direct or clear inconsistency between the evidence of Ms Gai and the evidence of Mr Jur and Mamer.  The evidence of Mr Jur and Mamer did not exclude the possibility that the appellant was banging on the glass for a few seconds.  Further, and in any event, this was again not a matter pursued in cross-examination with the witnesses.  Nor was the issue one addressed in defence counsel’s closing address.  In the circumstances, we do not think that the issue was one that required express mention in the judge’s reasons.  It was not a matter that was at all prominent in the forensic contest at trial.

19. Similar difficulties exist with the other examples given by the appellant of the judge failing to advert to the evidence of prosecution witnesses providing support for other aspects of the appellant’s evidence.

20. For example, the appellant relied upon the evidence of Mr Jur and Mamer to the effect that the appellant said she was going inside to use the toilet as being consistent with the evidence of the appellant.  Whilst it is true that there was a consistency between the evidence of Mr Jur, Mamer and the appellant in this respect, we do not think it was necessary for the judge to mention this.  It is a matter of detail that did not contradict Ms Gai’s evidence.  It stood in stark contrast to the balance of the evidence of Mr Jur and Mamer, which did directly contradict the appellant’s evidence as to how she was behaving outside the Broadview house. 

21. The same may be said of the consistency between Mamer’s evidence to the effect that the appellant said she wanted to drop the children off so that she could fly back to Melbourne for work, and the appellant’s evidence to that effect.

22. The appellant also relied upon the judge’s failure to mention that the appellant’s evidence, to the effect that Mr Jur said he was going to Adelaide for a wedding (rather than to look after a sick child), received some support from other evidence.  In particular, her evidence was supported by evidence from Mr Jur and Mamer to the effect that Mr Jur did in fact attend a wedding upon his arrival back in Adelaide, and by evidence from Ms Alier to the effect that Mr Jur subsequently told her that he had told the appellant he was going to Adelaide for a wedding.  The issue was otherwise very much at the periphery of the forensic contest below, and the judge made it plain that he rejected Ms Alier’s evidence as having no credibility at all.  The fact that Mr Jur did attend a wedding did not stand in the way of the judge accepting Mr Jur’s evidence that he gave a sick child as his reason for returning to Adelaide, and rejecting the appellant’s evidence to the contrary.  We do not think any inadequacy in the judge’s reasons has been exposed.

23. The appellant identified some other similar illustrations of issues or evidence not specifically dealt with by the judge.  We would reject the appellant’s complaints in relation to these matters for similar reasons.  They involve relatively peripheral matters that did not require specific treatment.

24. Having addressed the evidence of the key witnesses in the detail that he did, the judge was entitled to then step back and accept the general effect of the narrative that emerged from the prosecution witnesses, and to reject the evidence of the appellant insofar as it involved an entirely different narrative.  His Honour was entitled to do so without mentioning, let alone attempting to resolve, every discrepancy that existed between the evidence of the prosecution witnesses, and without mentioning every aspect of the appellant’s evidence that had some support elsewhere in the evidence.

25. For completeness, we conclude by mentioning two further aspects of the evidence relied upon by the appellant as demonstrating inadequacy in the judge’s reasons.  The first is the evidence of Dr Connolly to the effect that the appellant’s injuries that he observed were consistent with the appellant’s suggestion that she was struck to the head with a frying pan.  The second is the appellant’s prompt attendance at the Salisbury Police Station to report that she had been the victim of an assault.  The appellant complains that, despite these aspects of the evidence being drawn to the judge’s attention during the defence closing address, he did not make specific reference to either of them when assessing the appellant’s evidence.

26. In addressing this complaint, the starting point is that the judge did refer to both of these aspects of the evidence when summarising the evidence.  It is not as though he overlooked this evidence.

27. Dealing first with the evidence of Dr Connolly, we do not think that this was of any great significance in assessing the appellant’s evidence.  It was not in dispute that, at some point, Ms Gai had struck the appellant with the frying pan.  The only dispute about this aspect of the evidence was as to timing, being the stage within the altercation that this occurred.  The evidence of Dr Connelly did not assist in this respect, and hence was consistent with the evidence of both Ms Gai and the appellant as to the use made of the frying pan.  As such, we see no difficulty with the judge’s failure to refer to the evidence of Dr Connolly when assessing the appellant’s evidence.[16]

    [16]   I note that the judge did refer (at [115]) to the appellant’s (limited) injuries and the difficulty in reconciling this with her evidence as to the ferocity of Ms Gai’s use of the frying pan.  This is addressed separately below.

28. Nor do we think that the appellant’s evidence that she attended a police station to report that she was the victim of an assault was of any great moment.  Again, there was no dispute that Ms Gai did strike the appellant with the frying pan.  The issue was who was the aggressor, and who was acting defensively.  The mere fact that the appellant was claiming to be the victim rather than the aggressor shortly following the altercation did not bear significantly upon the credibility or reliability of that claim.  Having earlier referred to the relevant evidence, we do not think that it was necessary for the judge to make specific reference to it when assessing the appellant’s evidence.

1. It is relevant to observe in this context that there is a clear distinction between the definitions of harm and serious harm in s 21. As the respondent submitted, serious harm involves sequalae that are complex and distant. The impairment of physical function must be serious and protracted. The disfigurement must be something that consists of, or results in, serious disfigurement. Not every disfigurement will be a serious disfigurement. The latter connotes a disfigurement which, allowing for some reasonable time and possible rectification, significantly affects aesthetic appearance. It follows, in our view, that not every biting of a person’s lip, even if it involves severing a part of the lip, will necessarily satisfy the definition of serious harm. Some wounds will be small, and some will be readily correctible.

2. It follows from the above that there is a clear distinction to be drawn between harm and serious harm, and indeed between intending some harm and being reckless as to serious harm. 

3. We accept that the judge’s reference to the appellant being “at least” reckless in causing serious harm was unfortunate.  However, it appears to be no more than a reflection of the judge’s contemplation that, on one view, the evidence might have been capable of establishing the more serious offence of intentionally causing serious harm.  We do not think it is indicative of the judge ever forming a conclusion to that effect, let alone making a finding to that effect. 

4. The first limb of the appellant’s complaint under Ground 4 has not been made out.

5. The second limb of the appellant’s complaint under this ground involved a submission to the effect that, because the offence was one that turned upon recklessness, there was no room for any finding of intentional conduct on the part of the appellant; that because no element of the offence required a finding of intentional conduct there was, in effect, an embargo upon such a finding.

6. In our view, this limb of the appellant’s complaint is misconceived.  As already explained, the judge’s finding of an intention was confined to the infliction of some harm, or mere harm, as opposed to serious harm.  It was but a step in the judge’s conclusion towards the separate and distinct conclusion of recklessness as to serious harm. This process of reasoning is most clearly seen from the judge’s statement in [126], when addressing the element of recklessness, that “[t]he accused in intending to cause harm and disfigurement to Ms Gai was aware of a substantial risk that her conduct could result in serious harm and engaged in the conduct despite the risk and without any justification”. Having accepted that the appellant deliberately bit Ms Gai’s lip, it seems to us that this chain of reasoning was entirely logical and permissible. We do not think it matters that an intentional infliction of some harm would itself have constituted the lesser offence in s 24(1).

7. The third limb of the appellant’s complaint is that the judge’s finding of an intention to inflict harm went beyond the prosecution case and was impermissible for that reason.  We do not accept this limb of the appellant’s complaint.

8. The appellant contends that the prosecution case did not involve any allegation of intentional conduct.  We do not agree with this characterisation of the prosecution case.  Certainly it was the prosecution case that the appellant deliberately bit Ms Gai’s lip (and, indeed, clamped down and chewed upon it).  It was only a short step from this, if not an inevitable conclusion from this, that the appellant intended to bite and cause some harm to Ms Gai.

9. Insofar as the appellant also complains that the judge went beyond the prosecution case in finding (at [122]) that the appellant travelled to Adelaide “for the purposes of confronting and attacking Ms Gai”, it is to be accepted that the prosecution case focused upon the appellant’s state of mind at the moment of the altercation.  However, we do not think the prosecution case was confined in this way.  It was clear that a good deal of the prosecution evidence was directed towards establishing that the appellant’s animosity and anger towards Ms Gai had existed for a while (indeed, since the threatening phone calls that the appellant had made to Ms Gai), and had been building over the period since Mr Jur informed her that he was heading to Adelaide.  Understood in this context, we do not think the judge’s findings went beyond the prosecution case in any material way.

10. For these reasons, Ground 4 has not been made out.

    Conclusion on conviction appeal

11. Noting that permission was not required on Ground 4, We grant permission to appeal against conviction on Grounds 1, 2, 3, 5 and 6.  However, we dismiss the appeal against conviction.

    PART B:  THE SENTENCE APPEAL

12. On 14 June 2022, the judge sentenced the appellant to five years imprisonment.  He fixed a non-parole period of two years.  The judge declined to suspend the appellant’s sentence, and also declined to make an order that the sentence be served on home detention.  The judge ordered that the appellant’s sentence commence on the date she was taken into custody, namely 8 June 2022 (being the date of sentencing submissions).  The judge also made an intervention order. 

13. The appellant filed notices of appeal against conviction and sentence on 22 June 2022.  On 30 June 2022 a judge of this Court granted the appellant bail pending appeal.  The appellant had spent 22 days in custody by the time she was released.

14. The appellant seeks permission to appeal against sentence on four grounds, namely that the judge erred:

    1.   in imposing a sentence that is manifestly excessive;

    2.   in imposing an immediate custodial sentence where the appellant has no prior convictions and was responsible for the care of five children;

    3.   in sentencing the appellant on the basis of a specific intention to harm and disfigure Ms Gai in circumstances where she was charged only with an offence of reckless intent; and

    4. in failing to consider the combination of ss 96(3)(b) and 96(5) of the Sentencing Act 2017 (SA) which provided a means by which a partially suspended sentence could have been imposed on the appellant.

15. The notice of appeal as originally drafted contained only Grounds 1 to 3.  A judge of this Court granted permission to appeal on Ground 1 and referred Grounds 2 and 3 for hearing as on appeal.  Permission to add Ground 4 was sought and granted at the commencement of the hearing of the appeal. 

    The circumstances of the offending

16. The judge commenced his consideration of the factual circumstances by noting that there was some conflict between the appellant’s and Mr Jur’s evidence at trial as to the circumstances leading up to the offending.  These competing versions have been addressed at length in our earlier reasons on the conviction appeal, and need not be repeated.  The judge stated that he accepted Mr Jur’s evidence in this respect beyond a reasonable doubt.  

17. Based upon these findings, the judge found that the appellant harboured “resentment, growing anger and hostility towards Ms Gai from the moment Mr Jur told you he had formed a relationship and commenced to have children with her.”  He found that this was apparent from the phone and text threats the appellant sent to Ms Gai over time, from her attempts in the days preceding the physical altercation to prevent Mr Jur from coming to Adelaide, from her angry and hostile behaviour in the period prior to forcing her way into the house where Ms Gai was, from her threats to damage the vehicle she thought might belong to Ms Gai, and from the “sudden, violent and unprovoked attack” that the appellant launched on Ms Gai.

18. In describing the attack itself, the judge said that the moment Ms Gai unlocked the door, the appellant pushed the door open, leapt at Ms Gai and “forcefully bit down on her lip, violently tugging and chewing at it with your teeth, consistent with an intention to sever it.”

19. The judge later summarised the appellant’s offending in these terms:

    All those circumstances, combined with the obvious likely consequence of the very particular nature of the attack you launched, lead to the inescapable conclusion you intended to disfigure the woman you saw as your rival, for obvious reasons.  In doing so, you were reckless as to whether you would cause her the serious harm you plainly did cause her.

    In saying that, you are only to be penalised for the elements of the offence for which you have been convicted, and you are only being penalised for that, but in the totality of the circumstances, it is a very serious example of such offending in its motivation, its premeditation, the complete innocence of the victim and in the cruel and lifelong effects your attack will have on the victim.

    The victim’s injury

20. We have already mentioned the evidence in relation to the serious lip injury sustained by Ms Gai.  The sentencing judge described it in the following terms:

    Ms Gai was seriously injured.  She and her severed lip were taken to the Royal Adelaide Hospital for emergency surgery, yet despite that surgery surgeons were unable to reattach the lip.  For several weeks she was unable to chew or eat any hard food, she had to use straws to eat pureed or grated food and for nearly a year she could not eat hot or cold food such as hot drinks or ice cream.  The injury caused her difficulty with talking and pronunciation for an extended period and even at the time of trial, she still struggled with some words, despite a number of exercises she had been doing since the attack.  For months she could not kiss her children or touch her own face, as it was too painful.

    It took nearly two years for the physical wound to completely heal and for that reason the hospital could not further operate to address the disfigurement.  Ms Gai gave evidence that the attack had permanently changed her appearance.  Indeed, a pre and post-attack set of photographs was tendered.  In fact, at trial, her appearance is even more marked than was apparent in those earlier photographs.  Her lips are no longer symmetrical and they are now lopsided.  She looks very different to how she previously appeared.

    This would be, and plainly is, extremely upsetting for a person in Ms Gai’s position and she will remain disfigured for life.

    Personal circumstances

21. The appellant was 34 years of age at the date of sentence.  She was born in 1988 in an Ethiopian refugee camp, to which her family had fled following conflict in Sudan.  She was the third of eight children.  She was exposed to trauma, including family members being killed, while in that camp.  She escaped with some family members to a further refugee camp in Kenya in 1992, but became separated from other family members.  She stayed in that camp, where she was exposed to further trauma and hardship, before migrating to Australia with members of her family in 2002.

22. Once in Australia, the appellant lived initially with relatives in Brisbane, and then in Toowoomba.  In 2005 she moved with a family member to Adelaide.  She met Mr Jur in Adelaide, and dropped out of Year 12 to start a relationship with him between about 2005 and 2006.  From that time, she regarded him as her husband, reflected in a cultural ceremony that she said occurred at Mr Jur’s house.

23. On the sentencing judge’s findings, the relationship between the appellant and Mr Jur went well until about 2011, when it began to “fluctuate” (to use Mr Jur’s word).  The appellant and Mr Jur had four children between 2007 and 2015.

24. In around 2015, when their relationship was deteriorating, Mr Jur suggested that the appellant should let the relationship go and return to her family in Brisbane.  She declined to do so.

25. Instead, Mr Jur moved to Melbourne to study in 2015, regarding the relationship as over.  But the appellant decided to follow him there with the four children, and set up house near to where he was living.  Whilst studying in Melbourne, Mr Jur provided the appellant with some assistance with the children, looking after them when she was working shifts and helping out in other ways.  On Mr Jur’s version of events – which the judge accepted – in early 2017 he made plain that their relationship was formally over, and that he had commenced a relationship with Ms Gai.  That said, Mr Jur and the appellant continued to have occasional sexual intercourse, and indeed had a fifth child together in 2018.

26. At the date of sentencing, the appellant’s four older children were attending school, being 14 years, 11 years, 8 years and 6 years of age.  The youngest child was 4 years of age.

27. In terms of her employment history, the appellant did some babysitting and childcare work in 2003 whilst in Brisbane.  After moving to Adelaide, she worked at McDonald’s and also obtained some TAFE qualifications in aged care and working with children.  From 2019 she worked with an organisation called CareChoice, a private sector provider that provides support for children subject to care and protection orders.

28. The appellant has the support of her extended family in Brisbane.  As at the date of sentencing, the appellant was being assisted by one of her brothers who had come down to Melbourne from Brisbane.  This brother cared for the appellant’s children during her period of imprisonment prior to being granted bail.

29. The judge referred to the appellant’s good character aside from the offending.  He noted that she had no previous convictions, and that there were a number of references which were tendered that attested to her being well regarded within her family and community.  The references attested to her being dedicated to her family and work, and being positively regarded by those of whom the writers of the reports were aware.  The judge also took into account that the appellant had been providing financial support to her sister and her children in Uganda, as well as to her mother in Brisbane.

30. The judge acknowledged that whilst the appellant had an extensive network of family support in Australia, any imprisonment would nevertheless be a significant burden on her five children and herself.

    The sentence imposed

31. Turning to the sentence to be imposed, the judge reiterated that the offending was serious, with a maximum penalty of 15 years imprisonment.  His Honour observed that because she had not pleaded guilty, the appellant was not entitled to any statutory discount.  Nor could there be any allowance for contrition or remorse because, on the judge’s findings, the appellant had shown no contrition or remorse for her attack upon Ms Gai.

32. After referring back to the appellant’s good record and character, the judge summarised:

    That said, this was a violent, premeditated and entirely unprovoked attack on a completely innocent woman who was, at the time, alone in her house with her small baby nearby.  It was a shocking and painful attack which has caused the victim three years of suffering to date and has permanently disfigured her.  You were completely reckless as to causing her serious harm which you, in fact, caused.

    Any sentence must adequately punish your appalling behaviour and deter both you and others from behaving in this way.  This kind of conduct is completely unacceptable in any civilised community.

33. The judge then announced a sentence of five years imprisonment, but fixed a low non-parole period of two years:

    In light of everything put on your behalf, but in particular that you have children who will be removed from you during your absence, there will be a non-parole period at the very lowest end of the possible scale in the court’s view, given the seriousness of your offending.  That non-parole period will be two years.

34. The judge rejected the defence submission that the sentence should be suspended.  His Honour observed that despite the absence of any previous convictions and the hardship to her children, and everything else that had been put in her favour, he was not satisfied that there was good reason to suspend the appellant’s sentence.  The judge said that, “at the end of the day, unfortunately your offending is too serious such that a suspended sentence would not represent adequate punishment, nor would it reflect adequate personal or general deterrence for what you did, or reflect the serious harm that you recklessly caused.”

35. The judge concluded his sentencing remarks by rejecting the submission that he should make a home detention order.  His Honour said that even were the first stage of the two-stage test articulated in the legislation to be satisfied, “the premeditated nature of your offending and the serious harm you recklessly caused involving permanent disfigurement of a woman you saw as your rival means that any sentence on home detention would not be adequate punishment for your conduct.”

    The appeal against sentence

36. We have earlier set out the four grounds of appeal against sentence.  Given the overlap with Ground 4 of the conviction appeal, it is appropriate to commence by addressing Ground 3 of the sentence appeal.  It will be convenient to next address Ground 4 of the sentence appeal, which the respondent concedes has been made out, and should result in the appellant being resentenced.  For reasons we shall then explain, we do not consider it necessary or appropriate to address Grounds 1 and 2.  We would hear the parties further in relation to the additional evidence that has been filed since the hearing of this appeal, and in relation to the appropriate approach to resentence more generally.

    Ground 3: the De Simoni principle

37. In support of this ground the appellant refers to the passages from the judge’s reasons for verdict in which he found that the appellant intended to bite, and thereby harm and disfigure, Ms Gai.  These passages have been identified in the course of our reasons for rejecting Ground 4 of the appeal against conviction.

38. The appellant also refers to additional passages from the judge’s sentencing remarks.  She refers to the judge’s references to a “premeditated attack … designed to disfigure”; to the appellant “forcefully [biting] down on her lip, violently tugging and chewing at it with [her] teeth, consistent with an intention to sever it”; and to the appellant having “intended to disfigure the woman [she] saw as [her] rival”.

39. Based on these references, the appellant makes two submissions.  The first is that the judge erred in sentencing the appellant on the basis that she intended to harm and disfigure the complainant in circumstances where she was only charged with the offence of recklessly causing serious harm, which contains no element requiring an intention to inflict any degree of harm.  The second is that the judge erred in sentencing the appellant on the basis that she intentionally caused serious harm to Ms Gai when she was only charged, and convicted, of recklessly doing so.  The appellant submits that both of these contended errors involve contraventions of the De Simoni principle, namely that a defendant is not to be punished for an aggravating circumstance which constitutes a different offence for which the defendant has not been charged and convicted.[33]

    [33]   The Queen v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ, with whom Mason and Murphy JJ agreed); Pearce v The Queen (1998) 194 CLR 610 at [31] (McHugh, Hayne and Callinan JJ); Nguyen v The Queen (2016) 256 CLR 656 at [28] (Bell and Keane JJ), [60] (Gageler, Nettle and Gordon JJ).

40. It is convenient to address the two limbs of the appellant’s submissions in reverse order.  As to the second limb submission, its essential premise has not been made out.  As explained in the context of Ground 4 of the conviction appeal, the judge found that the appellant intended some harm, but did not find that the appellant intended serious harm.  In the context of the sentence appeal, the appellant focuses upon the judge’s references to the appellant having not only intended to disfigure Ms Gai, but having also intended to sever her lip.  However, neither of these findings are tantamount to a finding of an intention to cause serious harm.

1. As explained earlier, by reference to the definitions of “harm” and “serious harm” in s 21 of the CLCA, disfigurement falls within the definition of harm. Serious harm, on the other hand, requires something more; it requires harm that consists of, or results in, serious disfigurement. Further, as also explained earlier, even severing a portion of a person’s lip does not, without more, constitute serious harm. The latter requires a serious disfigurement or a serious and protracted impairment. Even when a bite severs a portion of a person’s lip, the wound may be small and readily correctible, and may fall short of serious harm. It follows that intending to disfigure, or to sever a lip, is not necessarily equivalent to intending serious harm.

2. In our view, the judge’s reasons for verdict and sentencing remarks, read as a whole, make it plain that the judge was alive to, and careful to observe, the distinction between recklessness as to serious harm (for the purposes of the offence under s 23(3) of the CLCA) and an intention to cause serious harm (for the purposes of the more serious offence under s 23(1) of the CLCA). The judge found that the appellant intended to cause some harm, but that she was reckless as to whether her act in biting Ms Gai would cause her serious harm.

3. The judge’s awareness of the distinction to be drawn is apparent from the context of the judge’s second reference in his sentencing remarks to the appellant’s intention to disfigure.  The relevant paragraphs from his Honour’s remarks have been extracted above when summarising his description of the circumstances of the offending.  Immediately after referring to the appellant’s intention to disfigure Ms Gai, the judge said that, in so doing, the appellant was “reckless as to whether you would cause her the serious harm you plainly did cause her.”  And then, in the next sentence, the judge made reference to his observance of the De Simoni principle, saying “you are only to be penalised for the elements of the offence for which you have been convicted, and you are only being penalised for that”.  There is no reason to go behind the terms of his Honour’s sentencing remarks.

4. As for the first submission put by the appellant, this fails for the same reason that the equivalent submission put in the context of Ground 4 of the conviction appeal failed. The finding of an intention to cause some harm was but a step in the judge’s reasoning towards a finding of guilt of the s 23(3) offence. The judge having accepted the prosecution case that the appellant deliberately bit Ms Gai’s lip, it followed logically, almost inevitably – particularly given the nature of the bite – that she intended to cause some harm. This was an integral a step in the judge’s reasoning towards a finding of recklessness as to the degree of harm caused. It was not some separate finding of an intention-based offence (such as under s 24(1)) that needed to be disregarded in order to ensure compliance with the principle in De Simoni.

5. We conclude this aspect of our reasons by referring to the decision in R v Pennington.[34]In that case the appellant had been charged with the offence of aggravated causing serious harm with intent to cause serious harm.  He was found not guilty of that charge, but convicted of the alternative offence of aggravated recklessly causing serious harm.  However, in sentencing the appellant, the judge did so on a factual basis that was tantamount to a finding of an intention to cause serious harm, and hence involving the commission of the (more serious) offence of which the appellant had not been convicted.  In reaching that conclusion, Gray and Sulan JJ referred to the sentencing judge’s findings not only that the appellant had engaged in “an unprovoked, cowardly and vicious attack on a defenceless woman”,[35] but also that the appellant selected a knife as a weapon “with the specific intent to stabbing [the victim] and doing her serious harm.”[36]  Thus, unlike the judge in the present case, the sentencing judge in R v Pennington did not merely make a finding of intentional conduct, or intentional infliction of some harm, as an incident of finding recklessness as to the requisite degree of harm.  Rather, the judge in R v Pennington made a finding of an intention to cause serious harm, and thus sentenced the appellant on the basis of the commission of the offence of which the appellant had been found not guilty, in direct contravention of the De Simoni principle.

   [34]   R v Pennington [2015] SASCFC 98.

   [35]   R v Pennington [2015] SASCFC 98 at [4] (Gray and Sulan JJ).

   [36]   R v Pennington [2015] SASCFC 98 at [7]-[8] (Gray and Sulan JJ).

6. The sentencing judge did not make any error of the kind made in R v Pennington.  Ground 3 has not been made out.

   Ground 4:  partial suspension

7. Ground 4 involves a contention that the sentencing judge erred in failing to consider the possibility of a partially suspended sentence.

8. The appellant fell to be sentenced for the offence of recklessly causing serious harm contrary to s 23(3) of the CLCA. It will be recalled from our earlier summary of the sentence imposed that, having announced a head sentence of five years imprisonment, and a non-parole period of two years, the judge rejected the defence submission that there was good reason to suspend the sentence under s 96(1) of the Sentencing Act.  No reference was made during sentencing submissions to the possibility of partial suspension and so his Honour moved directly to the alternative defence submission that he should order that the sentence be served on home detention.  He also rejected that sentencing option.

9. Under s 96(9) of the Sentencing Act, the s 23(3) offence of which the appellant was convicted was a “prescribed designated offence”. By reason of s 96(3)(b), and the appellant being an adult sentenced to a period of imprisonment of two years or more for a prescribed designated offence, the appellant’s sentence of imprisonment was not able to be suspended under s 96. The effect of this was to rule out the possibility of a fully suspended sentence under s 96(1).

10. However, by operation of s 96(5), the sentencing court had a discretion to partially suspend the appellant’s sentence:

    96—Suspension of imprisonment on defendant entering into bond

    (5) Despite subsection (3)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—

    (a)     direct that the defendant serve a specified period of the imprisonment in prison (which, if a non-parole period has been fixed in respect of the defendant, must be a period that is one-fifth of the non-parole period fixed); and

    (b)     suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.

11. It is apparent from the absence of any reference to the above provisions during the sentencing process that the possibility of a partially suspended sentence was overlooked by counsel and by the sentencing judge.  In circumstances where this was a realistic sentencing option – although not necessarily the appropriate one – that is sufficient to conclude that the sentencing process was affected by error.[37]  It cannot be said that the judge was aware of this option but simply omitted to mention it because it was not realistically available.

    [37]   Millhouse v Police [2008] SASC 353 at [18]-[21] (Kourakis J); Wessling v Police (2004) 88 SASR 57 at [29]-[30] (Besanko J); Police v Carusi [2002] SASC 240 at [24] (Gray J).

12. The respondent properly concedes that the sentencing process was affected by error, and indeed concedes that it is appropriate in the circumstances that the appeal against sentence be allowed on this ground and that the appellant be resentenced at large.

13. Ground 4 has been made out, and the appellant must be resentenced.

    Grounds 1 and 2:  manifest excess

14. Grounds 1 and 2 are both complaints of manifest excess in the sentence imposed.

15. Ground 1 focuses upon the head sentence imposed, with the appellant contending that five years was manifestly excessive and the respondent contending that the sentence imposed, whilst severe, was within the appropriate range.

16. Ground 2 focuses upon the judge’s refusal to suspend the sentence imposed, or to order that it be served upon home detention. There is a formal difficulty with Ground 2. Because the offence for which the appellant was convicted was a prescribed designated offence under s 96(9) of the Sentencing Act, and the appellant was sentenced to a period of imprisonment of two years or more under s 96(3)(b), full suspension under s 96(1) was not an available sentencing option. Further, because it was also a prescribed designated offence under s 71(5), and the appellant was given a non-parole period of two years or more under s 71(2)(b)(i), a home detention order was not available either.

17. In any event, in circumstances where it is conceded that this Court should allow the appeal on other grounds and proceed to resentence, there is no utility in addressing the more general complaint of manifest excess.  It is sufficient and appropriate that the matters advanced in support of the contention of manifest excess be addressed in the course of resentencing.

18. As the appellant has filed significant further evidence for the purpose of resentencing, and given the potential availability of partial suspension and home detention[38] as sentencing options, we would hear further submissions before resentencing.

    [38]   Assuming the Court were to impose a fresh non-parole period less than two years (s 71(2)(b)(i)).

    Conclusion on sentence appeal

19. The appellant having already been granted permission to appeal on Ground 1, we grant permission to appeal against sentence on Grounds 2, 3 and 4.  We allow the appeal on Ground 4, and order that the appellant be resentenced.  We will hear further submissions on the sentence that should be imposed upon resentencing in light of the further evidence that has been filed.

    PART C:  CONCLUSION

20. On the appeal against conviction, we grant permission to appeal on Grounds 1, 2, 3, 5 and 6, but dismiss the appeal.

21. On the appeal against sentence, we grant permission to appeal on Grounds 2, 3 and 4.  We allow the appeal on Ground 4, and order that the appellant be resentenced.  We will hear further submissions on the sentence that should be imposed upon resentencing.