Director of Public Prosecutions v Maki

[2023] ACTSC 253

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Maki
Citation:	[2023] ACTSC 253
Hearing Date:	4 – 7 September 2023
Decision Date:	8 September 2023
Before:	Berman AJ
Decision:	(1) I find the accused not guilty on counts 1, 2, 3, 4, 5 and 6. (2) I find the accused not guilty on the statutory alternative counts of common assault to counts 1, 2, 3 and 4.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge alone verdict – assault occasioning actual bodily harm – intentionally and unlawfully choke, suffocate or strangle – threat to kill – family violence –
verdict of not guilty
Cases Cited:	Liberato v The Queen (1985) 159 CLR 507 R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82
Parties:	Director of Public Prosecutions (DPP) Rami Maki (Accused)
Representation:	Counsel
S Janackovic (DPP)
D Ager (Accused)
Solicitors
ACT Director of Public Prosecutions
Mulbridge Lawyers (Accused)
File Number:	SCC 57 of 2023
BERMAN AJ:
Introduction
1․	On 4 September 2023, the accused was arraigned on an indictment containing 6 counts.
The counts were as follows:
(i)  Count 1 – an allegation of assault occasioning actual bodily harm involving family

violence;

(ii)      Count 2 – an allegation of assault occasioning actual bodily harm involving family

violence

(iii)     Count 3 – an allegation of assault occasioning actual bodily harm involving family

violence

(iv)     Count 4 – an allegation of assault occasioning actual bodily harm involving family

violence

(v)      Count 5 – an allegation of intentionally and unlawfully choking, suffocating or

strangling involving family violence; and

(vi)     Count 6 – an allegation of threat to kill involving family violence.

2․	There were also statutory alternative counts of common assault to counts 1, 2, 3 and 4.
The accused pleaded not guilty to all counts.
3․	He had previously elected to be tried by judge alone. Before the trial started he produced
an election signed by himself, and a certificate signed by his legal practitioner, which
stated that the practitioner had advised him in relation to his election and that the election
was made freely. The election and certificate had been filed in Court before I was
allocated the trial and so was within time.
4․	Accordingly, the question as to whether he is guilty or not of the counts on the indictment
is one that I will answer rather than a jury.
5․	In this judgment I will refer to the person who the prosecution says was the victim of the
charges the accused faces as “the complainant”. I mean no disrespect to her by using
such an impersonal appellation. I know what her name is of course, but I describe her
the way I have in this judgment in order to protect her privacy.
6․	My judgment must include the principles of law which I have applied and take any
relevant warnings, directions, or comments into account in considering my verdict. I will
therefore begin this judgment with a statement of basic principles which apply to all trials,
whether a jury trial or a trial by judge alone.

Directions

Liberato Direction

7․	The accused gave evidence in this case. In the course of his evidence, he denied
committing any of the offences with which he is charged.
8․	If I accept his denials and if I believe he was telling the truth when he denied committing
these offences, that would mean that the prosecution has not proved its case against
him beyond reasonable doubt and I would find him not guilty.
9․	If I think that his denials might be true, that would also mean that the prosecution has not
proved its case against him beyond reasonable doubt and I would find him not guilty.
10․	Even if I rejected what the accused said in his evidence that does not mean that I
automatically find him guilty. All that means is that I would put his denials to one side and
look at the rest of the evidence to see whether the prosecution has proved his guilt
beyond reasonable doubt.

Good Character

11․	The accused gave uncontradicted evidence that he had never been convicted of any
offence involving domestic violence. He thereby raised his character in a particular
respect. I will take into account that aspect of his character in deciding whether the
prosecution has proved that he is guilty of these offences. The absence of a conviction
for a domestic violence offence makes it less likely that he committed the offences
alleged against him.
12․	There is another aspect to the accused’s character as well. Although the accused only
gave evidence about a particular aspect of his character, the prosecution very fairly
conceded that I should take his character into account in another way. That is that the
accused’s character supports his credibility in the sense that it makes it more likely that
he was telling the truth when he denied committing these offences.
13․	Of course, people with no convictions for domestic violence offences are not incapable
of committing such offences. After all, everyone ever convicted of a domestic violence
offence at some stage has been able to say, “I have no previous convictions for offences
of that kind”. Nor are people with no convictions for domestic violence offences incapable
of lying in court.
14․	But that is not to undermine the direction I will give myself which is that people of the
character of the accused are less likely to have committed the offences charged against
him and more likely to have told the truth when he denies his guilt.

Motive to Lie

15․	Mr Ager on behalf of the accused raises a number of possibilities as to why the
complainant might lie by making false allegations against his client. These relate to her
jealousy that the accused had started a new relationship, and being upset that there was
no possibility that the accused would resume his relationship with her.
16․	Even if I reject Mr Ager’s submissions, and I can think of no reason why the complainant
would make false allegations, that does not mean that she is telling the truth. After all
there might be a reason for her to tell a lie which no one knows about. The accused
cannot be expected to look into the mind of the complainant and find whatever motivation
there may be for her to make false allegations against him.

Markuleski Direction

17․	I will consider each of the allegations separately. Although the counts on the indictment
arise from events which are alleged to have occurred quite close to each other, each
count on the indictment refers to a different criminal act alleged against the accused and
I should look at the evidence relating to that alleged act and be satisfied of that beyond
reasonable doubt before I convict the accused of any individual offence.
18․	On the other hand, and this is particularly important in this case, doubts I have in relation
to the accused’s guilt on any one count, particularly where they relate to my doubts about
the credibility of the complainant in relation to that count, have to be taken into account
by me when I consider whether the prosecution has proved the guilt of the accused on
the remaining counts.

Proof beyond reasonable doubt

19․	The most fundamental direction is that it is for the prosecution to prove the guilt of Mr
Maki if it can. The accused does not have to prove that he is innocent, nor does he have
to prove that he is not guilty. The onus of proof is on the prosecution. Further, because
what is alleged are criminal offences, the prosecution must prove the accused’s guilt
beyond reasonable doubt before I can return a verdict of guilty.
20․	Mr Maki started the trial enjoying a presumption of innocence. He continues to enjoy that
presumption even now. The only way in which the presumption of innocence is removed
from him is if I am satisfied beyond reasonable doubt that he is guilty. If I have a
reasonable doubt about his guilt I must return a verdict of not guilty.
21․	The prosecution does not need to prove that every word spoken by every one of its
witnesses is true before I can convict the accused. What it must prove, and prove beyond
reasonable doubt, are the elements that go to make up the offences. In this case there does not need to be much, if any, attention paid to the specifics of those elements
because the real issue is whether the prosecution has proved beyond reasonable doubt
that the accused did the physical acts which the complainant alleges he did.
22․	I could only convict the accused of any count on the indictment if I am satisfied that the
complainant has given a truthful and accurate account of the events relating to each
count. The corollary of that is that I must be satisfied beyond reasonable doubt that the
account the accused gave is untruthful and inaccurate.
23․	It is not necessary for me to resolve every conflict of evidence that arises. Where there
is evidence given by one witness which is contradicted by evidence given by another
witness, it is not necessary that in every case I make a decision about whose evidence
I prefer.
24․	I have decided my verdict by examining the evidence presented to me in court. That
evidence has consisted of the answers that witnesses gave in the witness box, the
exhibits which were tendered, and two forms of evidence given by the complainant in
this matter, namely the playing of video recorded interviews with police as part of her
evidence in chief, and the rest of her evidence given remotely. Those two forms of
evidence are standard procedure in cases of this kind. I have given her evidence no
greater or lesser weight because it was given in the way it was, and I have certainly
formed no adverse view of the accused because the evidence was given in that manner.

Evidence from the accused

25․	The accused gave evidence in this matter. He was assisted by an interpreter which, as
in every case where an interpreter is used, provides something of an impediment to the
accused understanding the questions asked of him and his ability to accurately
communicate his answers. I have made allowances for this. I have made similar
allowances in the case of the other witness who gave evidence through an interpreter,
such as the complainant’s mother. That is not to be understood as a criticism of the
interpreter who assisted the court in this case. He performed his duties commendably.
26․	There was no obligation on the accused to give evidence. He could have remained silent
in court. If he had I would not have been able to use his silence to make up any
deficiencies in the prosecution case. His silence in court would not have been evidence
against him. I will treat his evidence in the same way I treat the evidence of all other
witnesses in this case.

Other considerations

27․	There are a number of things I have ignored. They include emotions such as sympathy
and prejudice. The decision I have reached is based on a cold hearted unemotional
analysis of the evidence presented in this trial. I have made no enquiry about any matter
which has come up in the trial, relying solely on the evidence presented to me in court.
28․	For reasons which will become obvious when I refer to the evidence in the trial, this is a
case where the prosecution relies almost exclusively on the evidence of a single witness,
the complainant, to prove Mr Maki’s guilt. Because of the heavy burden of proof placed
upon the prosecution, I have examined the evidence of the complainant very carefully,
and exercised caution, in order to decide whether her evidence satisfies me beyond
reasonable doubt of Mr Maki’s guilt. An important part of that examination includes a
careful consideration of the extent to which there is support for the allegations made by
the complainant.
29․	That the prosecution bears the onus of proof beyond reasonable doubt has other
consequences too. In this case, there is a dispute about some things, the resolution of
which would have been aided by evidence which is now unavailable. For example, the
complainant gave evidence that the accused left a voicemail over a phone app saying
that he was sorry for what he did. When police examined the complainant’s phone they
could find no evidence of such a recording. It was suggested that was because the
complainant had blocked him and so the voicemail was lost. I must bear in mind that it
is harder to be satisfied of the guilt of an accused person beyond reasonable doubt where
there is an inability to obtain evidence which might have assisted me in assessing the
honesty and accuracy of witnesses, in particular of course, the complainant in this matter.
30․	I will now very briefly outline the evidence given in the trial before analysing it and
explaining why I have reached the decision I have come to.

Complainant’s evidence

31․	I will deal with the complainant’s evidence first. The complainant and the accused had
been in an “off and on” relationship for a number of years. There were two children born
of that relationship. At the time of the events which have led to this trial the relationship
was in an “off” stage.
32․	The complainant gave evidence that after hosting a party at her home which started
around noon on 18 December 2022 and continued until around 1:00 am she decided to
go to visit the accused where he lived in a share house some 30 minutes away. Her
evidence was that she wanted to discuss their relationship with him.
33․	When she arrived at the accused’s house, she entered the house and sat in the living
room to talk to the accused about their relationship. A person she had known for a
number of years, Zephaniah Anyoka, then came home and entered the living room. Mr
Anyoka was a housemate of the accused. She and Mr Anyoka spoke about her
relationship with the accused, the conversation became heated with them swearing at
each other before Mr Anyoka pushed her to the floor. The complainant’s evidence was
that Mr Anyoka then stood over her and prevented her from getting up and, at times,
holding her legs so that she could not stand up. The accused told him to leave her alone.
The accused faces no charges in relation to the events I have just described.
34․	However, the complainant’s evidence was that the accused then grabbed her by the shirt
and bra, and that he pulled her up off the floor. She alleged that he then started pushing
her down the hallway so that she hit the walls to her left and her right. She said that she
was being forced backwards by the accused’s forearm which was against her neck. This
allegation has led to count one on the indictment, a charge of assault occasioning actual
bodily harm, the offence involving family violence.
35․	The complainant’s evidence was that eventually she was pushed into the accused’s
bedroom where he shoved her onto the bed, causing bruises. The accused then closed
the door to the bedroom. This has led to count two, another allegation of assault
occasioning actual bodily harm, the offence involving family violence.
36․	At one stage, the complainant grabbed the accused’s hair in an attempt to leave the
bedroom. Whilst on the bed, the complainant said that the accused grabbed her right
forearm and twisted it leaving bruises. This is the basis of count three, an allegation in
similar terms to counts one and two.
37․	Count four, a similar charge, arises from evidence of the complainant that the accused
sat on top of the complainant and put his hands over her face and shook it, as a result
of which she suffered swelling to her cheek and lips. At one stage, the accused slapped
the complainant’s chest with both of his hands about six times.
38․	The next count is an allegation of choking. The complainant said that the accused placed
his hands around her neck to the extent that, for a second, she could not breathe.
39․	The final count, count six, is an allegation that he threatened to kill the complainant. It
relates to the complainant’s evidence that whilst he was choking her he said “I’m going
to kill you”.
40․	The complainant said in evidence that after these acts of violence the accused expressed
his remorse to her. She and the accused both went to sleep on his bed. In the morning, the accused transferred money to the complainant to pay for an Uber to take her home
and asked her to wear a mask so that the injuries which had become apparent to her
face would not be seen by members of her family.
41․	I interrupt my summary of the complainant’s evidence to note that the Uber driver was
called. He described seeing bruises on the complainant’s arms, legs and face and said
that she had told him that she had been hit by her husband and his friend. She asked for
a facemask to cover the bruises on her face because she did not want her family to know
what had happened.
42․	Returning to the evidence of the complainant, she went back to her house. She went to
the bathroom and photographed her injuries. These images where tendered as an
exhibit. She had earlier taken a photo at the accused’s home which was part of the
exhibit.
43․	The complainant and the accused communicated via telephone after this incident. As I
have already mentioned, the complainant said that the accused left her a voicemail using
WhatsApp in which he apologised for his behaviour. For reasons which were explained,
no such voicemail could be recovered from the complainant’s phone.
44․	The complainant then attended the Belconnen police station on 24 December 2022 and
made a complaint to police. She participated in a recorded evidence in chief interview.
45․	That summarises what she said on the first occasion the complainant gave evidence.
She was recalled to give evidence after some photographs emerged during the case for
the accused. She denied being responsible for any of the damage shown in the
photographs.
46․	There are a number of features of the complainant’s evidence which support her
credibility. She was clearly distressed in her evidence in chief interviews which were
played in court. As far as I could tell, that distress appeared genuine. She took
photographs of injuries she said she suffered at the hands of the accused. Those
photographs were tendered and there is some obvious bruising to various parts of her
body. Another feature of those photographs is worthy of mention. Two of the photos
show discolouration over her left lower jaw but when asked whether the accused caused
that to happen she said that it was a natural skin blemish. This suggests her honesty.
47․	She made an early complaint to a number of people who also saw injuries to her. Of
course merely saying the same thing a number of times does not make it true, but her
behaviour in telling others that the injuries which they saw were the result of violence
from the accused is consistent with her evidence in court. To one person she said that she had fallen down the stairs, which is advanced by Mr Ager as a possible reason for
some of the injuries which the complainant clearly suffered.
48․	I will discuss later the significance of those injuries when I refer to the evidence of the
Doctor called to examine the complainant soon after she finished her interview with the
police.

Mr Anyoka’s evidence

49․	The next witness called was Mr Anyoka, one of the accused’s housemates who was
alleged by the complainant to have assaulted her. When Mr Anyoka gave evidence, he
made it clear that he objected to answering any questions concerning his actions that
night and early morning in regards to the complainant, but was prepared to give evidence
otherwise. Neither the prosecution nor Mr Ager submitted that it was in the interests of
justice for me to require Mr Anyoka to answer questions he did not want to answer.
50․	Mr Anyoka’s evidence contradicted that of the complainant in almost every respect.
51․	It was his evidence that he arrived home somewhere about midnight. He met the
accused outside who told him that the complainant was in his room inside the house. He
went inside and went to one of the couches in the lounge room. A little while later the
accused walked back in and went straight to his room. He could hear the accused and
the complainant arguing but as they were speaking in Arabic he did not understand what
they were saying.
52․	When Mr Anyoka first saw the complainant they had an argument. He objected to
answering a question about whether that argument turned physical on the grounds that
his answer might incriminate him. Neither Mr Ager nor the prosecutor submitted to me
than it was in the interests of justice that he be required to answer that question and so
I did not tell him that he had to answer. I draw no inference regarding the credibility of Mr
Anyoka because he exercised his right against self-incrimination.
53․	He did however give evidence that the complainant struck him twice with a frying pan
causing a haematoma and considerable pain, after he accused her of always causing
trouble. She blamed him for the breakdown in her relationship with the accused. Mr
Anyoka described how the complainant struck the accused with a fan heater by holding
onto the cord and swinging it around. He also said that she threw teacups, plates and
mugs. He said “whatever she could find next to her she was throwing at us”. He saw the
complainant strike the accused in the face with her outstretched hand and later saw
scratches on the accused’s head and neck before those scratches were covered with
Band-Aids. They joked that he would have to say that a cat scratched him.
54․	At no time did he see the accused strike or grab the complainant.
55․	All this commotion had drawn the attention of the neighbours who came downstairs. Mr
Anyoka told the accused that he wanted to call the police but the accused persuaded
him not to because he did not want the complainant to lose custody of their children. Mr
Anyoka and the accused asked the complainant to leave but she did not.
56․	The three of them went back inside, Mr Anyoka sat on the couch while the complainant
and the accused went back to the accused’s room where they argued again, also in
Arabic. Mr Anyoka tried to call someone to calm the complainant down. Eventually one
of their housemates, Peter Ikuro, who had been at the Christmas party at the
complainant’s home, came over. He spoke to the complainant asking what had
happened because the place was a mess with glass everywhere. The complainant did
not say much in response to his questions.
57․	The accused left his room and began pacing backwards and forwards. The complainant
sat on the other couch and held her head in her hands. Mr Anyoka noticed a bruise on
her lip. The accused and the complainant went back to the accused’s room and resumed
arguing but the argument did not last long on this occasion. It was Mr Anyoka’s evidence
that the accused did not sleep in bed with the complainant that night. Instead, he, Mr
Anyoka and Mr Ikuro watched the World Cup soccer final on TV.
58․	After the game ended the accused and Mr Ikuro went to work leaving the complainant in
the accused’s room. When she came out Mr Anyoka told her he did not want to argue
with her and she left.
59․	I have earlier referred to some matters which supported the credibility of the complainant.
However, there were also matters which supported the credibility of Mr Anyoka whose
evidence was vastly different to that of the complainant.
60․	He gave evidence of seeing a bruise on the complainant’s lip. That is an unlikely thing
for him to have said if he was telling lies to cover up for the accused.
61․	When asked if he ever heard the accused threatening to kill the complainant, he did not
simply say “no” but explained that he did hear the accused saying some things to the
complainant which he did not understand because they were in Arabic.
62․	Whilst there were differences, his evidence as to the behaviour of the complainant being
aggressive was supported by evidence from Mr Ikuro and the accused.
63․	And what he said regarding the actions of the accused in throwing crockery and using
the fan heater as a weapon, was supported to a considerable degree by Exhibit 10, some
photographs which turned up in surprising circumstances.

The complainant’s mother

64․	The complainant’s mother gave evidence with the assistance of the interpreter. She was
unable on many occasions to answer any question put to her, seemingly preferring to
talk about the subject matter of the question rather than answering it. This caused some
difficulty in clarifying exactly what she was saying.
65․	She was also at the Christmas party. The complainant left the party somewhere after
11:00 pm and her mother next saw her the following morning shortly before midday.
66․	The complainant was wearing a mask when she saw her claiming that she had a severe
cold but the complainant’s mother never heard her cough. She went straight to her room
where she changed into a long sleeved top and pants with closed shoes while still
wearing the mask. One of the complainant’s friends called Lola told her that something
happened to the complainant and the complainant’s mother confronted her daughter.
67․	Eventually her daughter told her what had happened was that when she arrived at the
accused’s home, the accused and Mr Anyoka were there. Mr Anyoka attacked her by
pushing her down to the floor repeatedly. The accused was watching for a while but then
came and grabbed hold of her blouse or bra area, lifting her up and pushing her down
the corridor to his room. Once there, she was pushed onto his bed. The accused held
her neck area and said “I hate you, I hate you, I hate you. I’ll commit a crime. I will kill
you”.

68․ The complainant’s mother gave evidence that the complainant told her about a

conversation the complainant had with the accused. The complainant’s mother said the

accused said “I’ll send you money. Can you please not tell anybody about what

happened. I can even talk to your dad and ask for your hand in marriage”.

69․	The complainant’s mother’s evidence was that she saw injuries to her daughter, although
the evidence was a bit unclear as to when this was because, as I mentioned, she was
unable to respond succinctly to many questions which were put to her.

The complainant’s sister

70․	The complainant’s sister was also at the Christmas party. Her evidence was that the
complainant left before her and she next saw her sister the following day when she came
to her place with their mother and Lola. The complainant was hiding her face, wearing a
mask although she was not sick.
71․	She also saw the complainant the following day when the complainant showed her
photos of bruises on her body. She said that “the boys beat her up”. The accused and
Mr Anyoka were pushing her down and every time she tried to get up they pushed her back down again. The complainant told her that the accused was holding her down and
choking her in the living room and she felt helpless.
72․	The complainant told her that the accused gave her some money to keep quiet and
offered to marry her if she did not go to the police. She observed bruises on the
complainant’s face and body with what she described as a busted lip.
73․	In cross-examination she was shown a statement made to police. She admitted that
nowhere in the statement did she specifically say that the complainant told her that the
accused choked her, but in re-examination it became apparent that while she did not use
the expression “choke” she did say that her sister told her “she struggled to breathe”.

The complainant’s father

74․	The complainant’s father gave evidence. He was not at the Christmas party and did not
see her until 24 December 2022 when she and other family members came to dinner at
his place, something of a regular event. She was wearing a mask and when he asked
why, she did not answer. She told him that when she went to the accused’s house he
was rude and angry and he and his friend Mr Anyoka assaulted her. She had bruises on
her face and said she had swelling on her foot.
75․	That evening he saw the complainant on the phone and he overheard the accused ’s
name being mentioned. The complainant handed him her telephone saying “Rami wants
to speak to you”. The complainant’s father asked the accused “why did you assault [the
complainant]?” The accused denied that he did so. When the complainant’s father said
“if your friend did it you should have protected her” the accused denied everything saying
he did not assault the complainant and he hung up.

Alla Dali (aka Lola)

76․	Alla Dali, who is also known as Lola, knew many of the people involved. She was at the
Christmas party but went to sleep early. She woke up at about 7:00 am to find only Peter
Ikuro there. The complainant arrived around eight or 9:00 am. Ms Dali noticed that her
lip looked bigger than normal and her clothing look different. The complainant told her
that she had fallen from the stairs.
77․	Ms Dali also saw bruises on the complainant at the top of her chest towards her
shoulders.

Peter Kuranji (aka Peter Ikuro)

78․	Before I describe what Peter Kuranji, also known as Peter Ikuro, said in his evidence, I
want to say something about the way he gave his evidence. He appeared somewhat amused by the whole process of giving evidence, constantly smiling at the questions
being asked of him. He spoke very quietly and generally appeared to be unwilling to give
evidence.
79․	Having noted that, let me emphasise that I have not taken his demeanour as he was
giving evidence into account when assessing whether I accept what he says. I have no
idea why he appeared the way he did. The way a witness gives evidence is almost
invariably a very poor indication of whether what they are saying is true or not. Some of
Mr Ikuro’s behaviour may have been a result of him being untruthful but could equally be
explained by him simply being nervous and unfamiliar with the court process. In
assessing his credibility, I have concentrated on what he said in court rather than the
way he said it.
80․	He too was at the Christmas party, drinking so much that one stage he passed out. After
having a bit of a sleep, he received a call from Mr Anyoka. He went to the house which
he shared with Mr Anyoka and the accused. He arrived at the house via an Uber. When
he arrived, he saw a frying pan on the floor near the balcony door, that Mr Anyoka was
bleeding, and there was yelling. There was broken glass on the floor. He said that the
broken glass was in the kitchen and somewhere else.
81․	He described the frying pan as having been bent, that the pan part was warped. Mr
Anyoka told him that the complainant had hit him with the frying pan. Mr Anyoka was
bleeding from scratches on his back which he said had been done by the complainant.
He said that he took a video of those scratches using Mr Anyoka’s phone. He said that
he does not know whether the video still exists. When Mr Anyoka was recalled to give
evidence he too said that a video was taken but explained why it was no longer available.
82․	The accused went to his room leaving him with the complainant and Mr Anyoka. He said
he went to the accused’s bedroom to see if he was okay. Mr Anyoka, the complainant
and Mr Ikuro began to watch the World Cup soccer final which was being televised at
the time. He said that the complainant watched the whole of the World Cup final with him
whilst the accused remained in his bedroom.
83․	Whilst on the couch, he spoke to the complainant. He said that the complainant told him
how much she hated Mr Anyoka. Mr Ikuro said that whilst they were sitting on the couch
together, he and Mr Anyoka ignored the complainant.
84․	He then said they all went to sleep after the World Cup match finished.
85․	He said that he saw no injuries to the complainant.

Dr Graeme Thomson

86․	I next turn to the medical evidence. The complainant was seen by a forensic medical
officer on the evening of 24 December 2022 shortly after she had completed the first of
her videoed interviews with police.
87․	Dr Thompson obtained a history from the complainant which guided his examination of
her. He prepared a very helpful report in which he noted 10 injuries which he had
observed on the complainant. He also photographed nine of those injuries (the 10th was
not photographed because the injury extended onto the complainant’s buttocks).
88․	He went through those photographs in his evidence, explaining how those injuries could
have been caused. To very broadly summarise his evidence, he said that what he saw
was consistent with what the complainant told him had happened to her.
89․	He did not see, or photograph, any injury to the complainant’s neck. He was asked
whether that lack of injury was significant when the complainant alleged that the accused
had choked her to the extent that she could not breathe. Dr Thompson said that in about
40% of cases, people who have been strangled have no visible signs of injury afterwards
and even when people have died from strangulation, about the same proportion show
no visible external signs.
90․	Thus, the lack of injury in his photographs is not inconsistent with the complainant’s
allegation that she was choked.
91․	He was also shown photographs taken by the complainant herself on her mobile phone
(Exhibit 4).
92․	In photograph one he could see bruising on the complainant’s skin. In photograph two
he said that the left side of the complainant’s lip looked darker, but this could be either
an effect of lighting or a change in blood flow. In photograph three and four he saw
bruising or erythema in the middle of the neck on the left side of both of those
photographs. However, he could draw no firm conclusions about that, saying that it may
have been erythema that occurred at the time and had faded since then. Photograph six
showed the doctor nothing of significance to him. He noted that the upper lip appeared
to be a bit swollen, but he did not know what her normal appearance was.
93․	Importantly, he described the appearance of some of the bruises as being consistent
with them being caused by fingertips from being grabbed and held firmly.
94․	He was asked whether the injuries were consistent with the complaint having fallen down
two stairs. He said that that would not explain all of the injuries he observed. I should say
at this stage that there are two important aspects of that evidence. First, the accused gave evidence without challenge that while there were 2 or 3 stairs up to the living room,
there were 7 stairs leading from outside to his bedroom and it was those stairs which the
complaint used to get into his premises. Secondly, it was no part of the accused’s case
that all of the complainant’s injuries could have been occasioned in such a fall.

The accused

95․	The accused gave evidence. He spoke about his relationship with the complainant before
answering questions about the events of 18 and 19 December 2022.
96․	On the 18 December 2022, he went to bed intending to wake up to watch the World Cup
soccer final. What woke him up was someone knocking at the door at about 1:30 am.
This was the complainant. He was not expecting her and she was not welcome. He
noticed that her right thigh was wet and her face looked muddy in parts. She looked
drunk. They went to the living room where she expressed a desire to resume her
relationship with the accused. The accused said that he was not able to do that. She
went back to his bedroom while he went outside where he met Mr Anyoka. Whilst they
were outside, the accused said he heard something been broken or smashed inside the
house.
97․	The three of them were then in the lounge room. The complainant began swearing at Mr
Anyoka. The accused went to his bedroom and saw that there were things which were
smashed.
98․	The complainant began throwing cups, mugs and glasses at Mr Anyoka from the kitchen.
Some of these hit Mr Anyoka and some hit the wall. She threw a glass containing wine
towards the accused, but it did not break. The accused said that he saw a ceramic mug
hit Mr Anyoka on the side of the eye. The complainant then grabbed a portable fan heater
which she used to hit him on the forehead which caused him to bleed. He went to his
bedroom and took off his t-shirt. He was wearing a singlet underneath his shirt.
99․	He again told her to leave but she again used bad language. He did not see Mr Anyoka
touch the complainant at all.

100․ He and Mr Anyoka went outside to talk. Mr Anyoka wanted to call the police, but the

accused asked him not to because if he did the complainant would stop him from seeing

his children. The complainant came outside where she continued to use bad language

and refused to leave.

101․	When they went inside the complainant was holding a frypan. The accused said that this
was already bent. It was about 15 centimetres in diameter and made from aluminium,
not cast-iron. She hit him in the area of his kidney using a frypan after which he took the frypan and put it in the kitchen sink. She grabbed the frypan again and used it to hit the
wall. The frypan was then placed on the floor.
102․	The complainant then moved towards Mr Anyoka and grabbed the fan heater and hit him
with it on the back of his head twice, once on either side. She grabbed him with her
fingers and scratched him. This caused him to bleed. He also saw that Mr Anyoka was
cleaning blood off himself.

103․ The complainant walked towards the couch but fell down because she was drunk. She

pushed Mr Anyoka with her legs, but Mr Anyoka did not make contact with her at all.

104․	The accused went to his bedroom, and the complainant followed whilst holding a glass
of wine. She wanted him to sit down so that they could either resolve the relationship or
end it. The accused said that he did not want to talk and that he wanted to end his
relationship with her. She then grabbed his hair and took him to the bed. He pushed
away by holding her arm. In evidence he demonstrated how he did this.
105․	She then caused some more damage to his bedroom including throwing a glass towards
him which hit the door and pushing the TV onto the floor. He left the room and found that
Mr Anyoka was upset and crying.
106․	Mr Ikuro was not at home when all this was happening. He arrived later after Mr Anyoka
called him.

107․ The World Cup soccer final was about to start so Mr Anyoka turned the TV on. The

complainant came out of the accused’s bedroom when Mr Ikuro arrived. She was calm

when she talked to Mr Ikuro who said he wanted to watch the World Cup.

108․	The accused went to his room because although he wanted to watch the World Cup he
did not want to do that with the complainant in the living room. The complainant came to
his bedroom. She slept there. The accused watched the World Cup in the living room
but after the game finished, he went back to his bedroom and slept on the other side of
the bed.
109․	The accused woke up about 6:30 am. He went to the bathroom where he had a shower
and then put Band-Aids on the scratches he suffered. When the complainant woke up,
he told her that he was going to work and that if she wanted to discuss anything she
should call him. She asked the accused to transfer money to her to take an Uber back
to her home.

110․ On 20 December 2022, the accused spoke to the complainant after he finished work.

The complainant asked him to clean her back yard.

111․ Peter and the accused then attended the complainant’s house at around 4:30 pm that

day to tidy up the backyard. The accused said the grass was too long to cut and he told

the complainant that he would transfer her money to get someone to do it for her. She

asked him for money so that she could buy clothes for their children for Christmas, so he

transferred $500.00 to her account.

112․ He saw her again on 22 December 2022 when she came over to his house uninvited.

She asked for one more chance for the sake of the children.

113․ He spoke to her over the phone at about 10:30 am on 24 December 2022. There had

been an arrangement for her to bring the children to see him, but she said she could only

bring them in the evening which caused him to become upset. He did not want to talk

about the events of 19 December 2022 so she passed the phone to her father. He asked

the accused “what’s happened” to which the accused responded that it was over

between them, and he only wanted to talk about seeing the children.

114․	He denied shoving the complainant against a wall, pushing her to the floor, picking her
up off the floor by her clothing, twisting her arm, pinning her down, choking her and
threatening to kill her.
115․	Finally, he gave evidence that he had never been convicted of an offence involving family
violence.

116․ I have hinted already about the importance of the photographs in Exhibit 10 and the

surprising way in which in which their existence was revealed to the court. I will explain

now how Exhibit 10 came to be produced. In the course of his cross-examination, the

accused was being asked questions about what happened in his bedroom. In response

to one of the questions put to him by the prosecutor he said that he had photographs

showing how his bedroom looked after the complainant had thrown things at him and

pushed the TV to the floor.

117․ This evidence came as a surprise to everyone including, somewhat concerningly, his

lawyers. The accused said that the photographs were on his phone and that his phone

was actually in court. The prosecutor called for the photographs. As they could only be

produced at that time by the accused handing over his phone, and because it was shortly

before 4:00 pm that this evidence emerged, the court was adjourned until the following

day.

118․	When the evidence resumed, three photographs were tendered. They showed a circular
hole in the accused’s bedroom door, broken glass, a damaged fan heater, a cask of wine
on the accused’s bedroom floor, and a television facing the wall.

119․ The accused gave evidence that the hole in the door was caused by the complainant

throwing a glass, that the broken glass was a result of her throwing a second glass from

which she had been drinking wine, that the fan heater was damaged when she used it

to strike him and Mr Anyoka, that the wine cask had been brought into the room from the

living room by the complainant, and that the TV was facing the wall because she had

pulled it off its stand and the accused had to lift it up off the floor in order to get access

to his bedroom when he came home from work.

120․	The photographs were clearly important, not only for what they showed, but also because
the accused took them in the first place. The meta data showed that they were taken at
7:24 pm on the day the offences were alleged to have occurred. The complainant was
recalled after the photographs were tendered so that she could be asked about what
they depicted. She denied being responsible for the damage to the door, the damage to
the fan heater, the broken glass and the presence of the cask of wine. She said that she
had not caused the TV to fall to the floor.
121․	According to the complainant, it was the accused himself who was responsible for all the
damage shown in the photographs which occurred when he was committing acts of
violence upon her in his bedroom.

Prosecution submissions

122․	The prosecution submitted that an event of some sort occurred at the unit of the accused
on 19 December 2022.
123․	In respect of the complainant’s evidence, the prosecution submitted that I could accept
the complainant as a witness of truth and accept the complainant’s version of events. In
support of this submission, the prosecution relied on the way the complainant gave
evidence, the quality of the complainant’s evidence, and the evidence of injury which
corroborates the complaint’s version of events.

124․ The prosecution submitted that the complainant provided an in-depth account of the

alleged assaults in her family violence interview with the police in that her answers were

near immediate and directly responsive. The prosecution further submitted that the

complainant was primarily internally consistent in her evidence to police and her

testimony in court.

125․	The prosecution submitted that the complainant did not overstate or embellish evidence
in either her police interview or her testimony in court. For example, during the police
interview the complainant said that the accused only choked her for a couple of seconds
and that she did not lose consciousness. The complainant also volunteered to the police that she grabbed the accused by the hair, and she was jealous about the relationship
between the accused and other women.

126․ The prosecution submitted that it was significant that the complainant’s evidence was

consistent with surrounding details. For example, the complainant’s evidence that she

asked her Uber driver for a face mask the morning after the incident was consistent with

the Uber driver’s evidence. The prosecution also said that the complainant’s evidence is

further corroborated by the evidence given by the witnesses that saw her wearing a face

mask later that day.

127․ The prosecution said that the evidence of complaint is persuasive and consistent with

the evidence of the complainant.

128․	As to the evidence of injury, the prosecution submitted that the photographs taken by the
complainant of her injuries the morning after the incident depict swelling and bruising to
her left lip, left cheek, left neck, right forearm, upper arms, and chest area. The
prosecution said that these injuries were consistent with the complainant’s evidence. For
example, the photographs of injuries to her lip and cheek were corroborated by her
evidence that the accused placed his hand over her face, which was also consistent with
the evidence of the witnesses that observed bruising to the complainant’s lip.
129․	As to the evidence of Mr Anyoka, Mr Ikuro and the accused, the prosecution submitted
that their evidence bore the hallmarks of collusion in that they reached a central premise
but the accounts of the details around that are very different.

130․ It was submitted by the prosecution that the evidence of Mr Anyoka was internally

inconsistent and contrary to the observations of other witnesses. For example, Mr

Anyoka said that when he saw the complainant leave the unit the next morning she was

fine with respect to her physical appearance (other than the bruise on her lip) but the

Uber driver, the complainant’s mother and Ms Dali gave evidence that they immediately

observed the complainant’s injuries and unusual gait. As to Mr Anyoka’s evidence

overall, the prosecution submitted that as he is close friends with the accused and is also

a co-accused, it would be quite helpful for him to give evidence that supports the accused

so that the accused would give helpful evidence in his proceedings.

131․	In terms of Mr Ikuro, the prosecution submitted that his evidence was unreliable in that it
shifted and changed. For example, he initially gave evidence that the complainant was
drunk at the Christmas party but later said that she did not look drunk nor did anyone
else at the party. He also initially said that he had drunk prior to the party and then passed
out from alcohol at the party, yet later said that he was not drunk.
132․	The prosecution submitted that the accused was a poor witness and that I should reject
his version of events. For example, the accused initially said that he saw the complainant
smash the television in his bedroom but later gave evidence that the television was
already broken when he entered the house and he had never actually seen the
complainant smash it. In this sense, the prosecution submitted that the accused had
given positive evidence that he saw something happen which he later admitted he had
not. It was submitted that the reason the accused took photographs of his bedroom was
because he was concerned about the complainant going to the police and wanted an
insurance policy.

133․ The prosecution submitted that the above reasons are broadly why I could reject the

accused’s evidence and accept the complainant’s evidence to find the accused guilty

beyond a reasonable doubt.

Defence submissions

134․ Mr Ager submitted that the I should accept the version of events where neither the

accused nor Mr Anyoka slammed the complainant against the walls or pushed her onto

the bed, and there was no choking or threatening to kill. It was said that it was more

believable that the complainant calmed down and fell asleep rather than fell asleep

moments after being choked and being threatened to be killed.

135․ In terms of the complainant’s evidence, it was submitted that I should be guarded in

accepting her version of events. Mr Ager submitted that the complainant was not a

credible witness and there was real doubt that she was being entirely truthful about

certain aspects of her version of events. Mr Ager said that the complainant had motive

to downplay the truth in that on one version of events, she has committed at least one

assault and damage to property. In that version of events, which it was submitted that I

should accept, the complainant had fallen down the stairs at least twice and this would

explain any one or more of her injuries. Mr Ager submitted that the weight of evidence

and context points to the complainant being the aggressor in the incident and initiating

the physical violence. It was said that she downplayed the amount she had to drink, her

role as the aggressor, and lied about falling down the stairs.

136․	As to the complainant’s injuries, the defence submitted that it can not be proved beyond
reasonable doubt that they were caused in the way the complainant alleged. For
example, there was evidence of two falls that could have caused the injuries. It was also
said that the complainant’s evidence about weaking a mask and jumper to cover her
injuries was inconsistent in that some witnesses observed injuries to her face on the day
after the incident and others gave evidence that she was wearing a mask the entire time.
137․	Mr Ager submitted that the complainant’s evidence of complaint was not genuine in that
she did not complain of the threat to kill to anyone.
138․	Mr Ager submitted that I should have regard to the fact that the evidence of the accused
was given through an interpreter and that some nuance was lost in translation. For
example, the distinction between the accused’s evidence that he was upset rather than
angry.

139․ In terms of the evidence of the complainant’s sister, Mr Ager submitted that her

statements were not entirely consistent with the complainant’s version of events. In terms

of the complainant’s mother, it was submitted that her evidence would need to be

carefully scrutinised as it married up very closely with what the complainant said to the

police and in her evidence.

140․ Mr Ager also submitted that notwithstanding the fact that Mr Anyoka is criminally

concerned in the incident, his evidence was given freely and voluntary and should be

accepted.

141․	It was submitted by Mr Ager that the alternative version of events to the complainant’s
need only be reasonably possible for each count to be dismissed.

Consideration

142․	The prosecution appropriately relied on the fact that the complainant had complained to
a number of other people about what the accused did to her. That does tend to suggest
the complainant’s truthfulness. However, on both the version given by the complainant
and the version given by the accused, she was subject to some violence by the accused
and Mr Anyoka while in the house that morning. This diminishes the weight which can
be given to the complaint evidence. Further, the allegation that the accused had
threatened to kill her was not made until somewhat belatedly.

143․ Somewhat related to this is the circumstance that although the complainant told a

number of people that the accused told her that they should get married and was going

to seek her father’s permission for that to occur (presumably in order to persuade her

not to make complaint to the police), no-one apart from the complainant gave evidence

of having heard any such thing. In particular, when her father spoke to the accused on

the phone, the accused simply denied everything, saying he did not assault the

complainant and then hung up.

144․	I accept many of the things that the prosecution said about the way the complainant gave
evidence. She did not embellish things, an example of which is her failure to say that she
lost consciousness when she was being choked, something she could easily have said if she wanted to make things worse for the accused. Further, she admitted things such
as breaking a family violence order and being jealous and upset about her former partner
moving on with another woman. Such things do point to the credibility of the complainant,
but of course there are things pointing the other way as well, things I will deal with shortly.

145․ The prosecution noted that the accused paid for the complainant’s Uber trip in the

morning and transferred a further $500.00 into her bank account. The submission was

that this was some attempt to persuade the complainant not to tell anyone what he had

done to her a few hours beforehand. Whilst that is one explanation for those payments,

the other, and I believe more likely explanation, is that the accused made such payments

because he was asked to by the complainant. After all, a perusal of her bank account

reveals that she probably did not have enough money to pay for the Uber herself, and

certainly was not in a position to spend very much at all on Christmas presents for their

children.

146․	Another aspect of the evidence the prosecution relied on was the number of telephone
calls the accused made to the complainant on 24 December 2022, the day that she went
to police to make her allegations. Once again, that is a good submission to make, such
calls are consistent with a concern by the accused that he might get into trouble for what
he had done but that is not the only explanation for such calls. While I will take that matter
into account in the prosecution’s favour it has to be examined in the context of all the
evidence in this case.
147․	It is noteworthy that after the complainant said she had been subject to serious violence
in which the accused placed both of his hands around her neck and squeezed as hard
as he could causing her to be unable to breathe, at the same time threatening to kill her,
once the accused stopped what he was doing and apologised, the complainant remained
on the bed where this all happened and fell asleep. Normal human survival instincts
might suggest that the complainant would have at least left the bedroom and gone to the
living room where there were other people.

148․ I fully accept, as the prosecution submitted, that there is no right way to respond to

violence. That said, simply going to sleep in such circumstances is at least unusual.

149․ At one stage in her submissions, the prosecutor relied on similarities between the

evidence of Mr Anyoka and the accused as suggesting that the accused, who was in

court of course and had heard Mr Anyoka give his evidence, had tailored his evidence

so that it matched that of Mr Anyoka. Yet, at another stage of her submissions she relied

on what she said were significant differences between the evidence of Mr Anyoka and the accused as suggesting that they could not be both telling the truth. Such submissions

by the prosecutor have a “damned if you do and damned if you don’t” flavour about them.

150․ The prosecutor also referred to other differences between the evidence of the three

housemates, Mr Ikuro, Mr Anyoka and the accused. She submitted that it was consistent

with them having colluded to some extent, but not completely, about the evidence they

would give. I found none of the differences in evidence on which the prosecution relied

to be particularly surprising. Whatever happened at the accused’s home that morning

involved drama, violence, and emotion. It would not be surprising in such circumstances

for people’s memories to differ, and for recollections to be imperfect when giving

evidence sometime later.

151․ In some cases, inconsistency in evidence between witnesses can suggest credibility

rather than detract from it. An example of that is this. Mr Anyoka gave evidence that the

complainant hit him with the frypan in the living room whilst the accused was present.

The accused was in court, obviously, when Mr Anyoka said that and had he wanted to

align his evidence with that of his housemate it would have been easy for him to do so.

But, in his evidence he described what the complaint did with the frypan (hit him and the

wall) which did not include hitting Mr Anyoka with it. That tends to favour the idea that

the accused gave evidence of a genuine recollection of events rather than simply saying

something which he had heard another witness say.

152․ I mentioned before that because the prosecution case depends to a large extent upon

the evidence of the complainant then I should examine her evidence with caution. That

is not because of any view I have formed about her, or her evidence, but is a result of

the need to remember that it is much harder to prove something beyond reasonable

doubt where such proof depends largely upon the evidence of only one witness.

153․ For that reason, I have looked carefully at the evidence which supports that of the

complainant and the evidence which calls it into question.

154․ Whilst there are differences in the evidence of Mr Anyoka, Mr Ikuro, and the accused,

they are consistent in describing the complainant as angry, emotional, violent, and

aggressive. She denied any of the behaviours attributed to her by those witnesses, but I

consider it likely that her denials are, to a large extent, false.

155․	For something that turned up to the surprise of almost everyone in court, as the trial was
drawing to a close, the three photographs that form part of Exhibit 10 are very, perhaps
even crucially, important to a resolution of this case.
156․	I repeat, those photographs show damage to the accused’s bedroom door, broken glass,
a damaged fan heater, a wine cask, and a television with its screen facing the wall. Those
aspects of these three photos are strongly supportive of the version of events given by
the accused in his evidence and contrary to the evidence of the complainant.

157․ He spoke of a glass being thrown by the complainant and the damage to the door is

consistent with that. He said that she threw a glass at him which broke and there is a

broken glass in the photo. He said that she used the fan heater as a weapon striking him

and Mr Anyoka with it and the fan heater is clearly damaged. He said she was drinking

wine in his bedroom and there is a cask of wine there. He said that she caused the

television to fall to the floor and the fact that the screen is facing the wall supports his

evidence that he had to lift it up off the floor in order to get access to his room.

158․ Perhaps even more important than what the photographs show is the fact that the

accused took the photographs in the first place. According to the complainant, the

accused committed a number of criminal offences in the house that morning, including

in his bedroom. It is a strange thing to do for a person who has just committed a number

of crimes to take photographs which would tend to incriminate him.

159․ When the complainant was recalled so that she could be shown those photos she

suggested that they were staged. In her final submissions the prosecutor raised that as

a possibility. However, if the accused had staged the scene which he photographed, one

might have thought that he would have shown the photographs to his lawyers the very

first time he met them. Yet, it was obvious that the lawyers were as surprised as anyone

when the accused mentioned in his cross-examination that he had these photographs in

his possession. The fact that the complainant had not been asked about them by Mr

Ager, nor had they been tendered when the accused was giving evidence in chief is

testament to that.

160․	It is much more likely that the complainant was responsible for the damage shown in the
photos than the accused. Quite obviously, this finding has significant consequences for
the complainant’s credibility.

161․ I am not prepared to accept that part of her evidence where she denied doing things

which led to the accused’s bedroom being as it was shown to be in Exhibit 10. Whilst a

finder of fact, whether it be a judge or a jury, is entitled to reject some parts of a witnesses

evidence and accept other parts, a finding that a witness has not been truthful in court

about some aspect of her evidence is a powerful consideration suggesting difficulty in

accepting the truth of other things that witness said.

162․ In order for me to find that the complainant is telling the truth about the matters giving

rise to the counts on the indictment therefore, there has to be compelling evidence to

support the accuracy of her complaints so that I can make a finding that she is truthful

beyond reasonable doubt.

163․ The evidence which the prosecution primarily relies on in that regard concerns the

complainant’s injuries. That evidence came from a number of different sources. Some

people saw injuries on her after her visit to the home of the accused. She took

photographs of her injuries using her mobile telephone (Exhibit 4). The doctor who

examined her after she went to the police also took photographs (Exhibit 6).

164․ It is clear that the complainant suffered some injuries between the time she left the

Christmas party and the time she caught the Uber home. But that of course is not enough

for me to find that the accused is criminally liable for those injuries.

165․ The evidence suggests a number of ways that the complainant could have suffered

injuries otherwise than through an offence committed by the accused:

(a) When seen at the house by the accused she was wet to her right side and had

mud around her face, suggesting perhaps that she had fallen. She told Lola

the following day that she had fallen down some stairs, and while there may

be many explanations as to why she would say that if it were not true, the fact

remains that she said it;

(b) There was at least some form of altercation between the complainant and Mr

Anyoka, as part of which she either fell or was pushed to the ground by him;

(c)	The evidence suggests that she probably fell on another occasion too;
(d)	She could have suffered injuries to her arms when Mr Anyoka prevented her

from hitting him by blocking her arms;

(e) There would have been some form of contact between Mr Anyoka and the

complainant when he took possession of the fan heater from her and when

she ripped off his shirt;

(f) The accused physically prevented her from assaulting him and Mr Anyoka in

the living room;

(g)	The accused forcibly removed the frying pan from her; and
(h)	At one stage in the accused’s bedroom, she was grabbed by the accused who

said he did so in order to prevent more violence being inflicted upon him.

Grabbing her in those circumstances would clearly amount to a belief by him that it was reasonable for him to do that, and it was not been proved to me

that any such belief would be objectively unreasonable.

166․	Although the accused demonstrated on at least two occasions that when he grabbed her
to prevent her inflicting further violence upon him, he held her forearms, and there are
what appear to be fingertip bruises to the complainant’s upper arm, I consider it
reasonably possible that those fingertip bruises were occasioned either by Mr Anyoka or
by the accused acting in self-defence. The same goes for any other injuries which may
have been occasioned by the accused acting in a way to prevent the complainant
harming either him or Mr Anyoka.

167․ Mr Ager raised the issue of self-defence, saying that while the accused did grab the

complainant, and may have even occasioned bruising to her, he was nevertheless not

guilty of an offence because he was acting in self-defence.

168․	It is not for the accused to prove that he was acting in self-defence. The onus is on the
prosecution to prove that he was not. The prosecution can prove that the accused was
not acting in self-defence if it proves beyond reasonable doubt one or other of two things.
If it proves beyond reasonable doubt that the accused did not believe at the time he
grabbed the complainant that it was necessary to do what he did in order to defend
himself, then the prosecution has proved that the accused was not acting in self-defence.
That is one way the prosecution can prove that the accused was not acting in self-
defence. The other way the prosecution can prove beyond reasonable doubt that the
accused was not acting in self-defence is if the prosecution proves that grabbing the
complainant was not a reasonable response in the circumstances as the accused saw
them. If the prosecution fails to prove one or other of those two matters, then the
appropriate verdict is one of not guilty.
169․	Although the accused was never asked specifically whether he believed it was necessary
to grab the complainant in self-defence, he did say he pushed her away after she
grabbed his hair. The prosecution has not satisfied me beyond reasonable doubt that
the accused did not believe it was necessary for him to push the complainant away after
she grabbed his hair in circumstances where this was after she had only a short time
earlier behaved in a violent manner towards both him and Mr Anyoka in the living room.

170․ Nor has the prosecution satisfied me beyond reasonable doubt that grabbing the

complainant with such force as to cause bruising was not a reasonable response in the

circumstances as the accused saw them. I regard his response as perfectly reasonable.

By the time the complaint grabbed his hair in the bedroom the complainant had likely

thrown crockery, used the frying pan as a weapon and used the fan heater as a weapon in the living room. Pushing someone away by grabbing their arms forcefully has not been

proved to be an unreasonable response in such circumstances.

171․	I would make similar findings in the case of any other injury suffered by the complainant
due to the accused making deliberate contact with her.
172․	There are some injuries which are easier to explain on the defence case than others. But
given that Exhibit 10 in particular causes me to have serious doubts about the credibility
of the complainant regarding those counts that are alleged to have occurred in the
bedroom, and given that I am required to take those doubts into account when I consider
the remaining counts, I am not satisfied beyond reasonable doubt that I can accept what
the complainant said about how all her injuries came about.
173․	While I have my suspicions that the accused was angrier than he said he was and that
his responses to the complainant’s behaviour were not quite as benign as he suggested,
suspicion is no substitute for proof beyond reasonable doubt.

Orders

174․ I return the following verdicts:

(1)	I find the accused not guilty on counts 1, 2, 3, 4, 5 and 6.
(2)	I find the accused not guilty on the statutory alternative counts of common
assault to counts 1, 2, 3 and 4.

I certify that the preceding one hundred and seventy- four [174] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date: