Ottoman v The Queen

[2018] NSWDC 374

District Court

New South Wales

Medium Neutral Citation:

Ottoman v R [2018] NSWDC 374

Hearing dates:

18, 23 April 2018

Date of orders:

07 December 2018

Decision date:

07 December 2018

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

H61571536/Seq 1 Conviction and sentence are confirmed

 

H61571536/Seq 2 Conviction and sentence are confirmed

 H61571536/Seq 3 Conviction and sentence are set aside

Catchwords:

CRIME – APPEAL FROM LOCAL COURT

 

CONVICTION APPEAL – Reconsideration of evidence – 3 charges of common assault – One charge not proved beyond reasonable doubt – Conviction on that charge set aside

  SEVERITY APPEAL – 150 hours Community Service on each charge, wholly concurrent -- Dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

Category:

Principal judgment

Parties:

Alexander Ottoman (Appellant)
Regina (Respondent)

Representation:

Counsel:
Mr K Ginges (Appellant)
Ms R Sharma (Respondent)

  Solicitors:
John B. Hajje & Associates (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2016/217144

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Local Court at Burwood

Jurisdiction:

Criminal

Date of Decision:

26 May 2017

Before:

Trad LCM

File Number(s):

2016/217144

Judgment

Curia advisari vult

1. On 26 May 2017, Trad LCM sitting at Burwood convicted the appellant of three charges of common assault. The charges may be conveniently tabulated thus:

Seq No	Alleged date	Alleged victim	Short name
1	16 May to 27 May 2016	Suzie Ottoman	“knife incident”
2	16 May to 27 May 2016	Lara Ottoman	“hair pulling incident”
3	16 July 2016	Suzie Ottoman	“shoe incident”

Her Honour sentenced the appellant on 12 September 2017. Later that day the appellant filed a Notice of Appeal to this Court. The only ground of appeal in that Notice challenged the appellant’s conviction. Nevertheless, I was told on the second day of the hearing of the appeal, 23 April 2018 at about 4.45pm that the appellant also claimed that the penalties imposed were too severe, and I then heard short submissions on the question of sentence.

The family

2. The charges arise from circumstances of a family’s breaking down. These are the members of the family and their ages at the relevant time (May – July 2016)

Father	Alexander Ottoman	51 years
Mother	Suzie Ottoman	42/43 years
Son	Zack Ottoman	16 years
Daughter	Lara Ottoman	14 years
Daughter	Alisar Ottoman	10 years
Daughter	Elizabeth Ottoman	6 years

Lara described her family as “Lebanese” (electronically recorded interview [ERI] 22 August 2016 (first exhibit 2 in Local Court, exhibit 3 in District Court)). However, her mother Suzie was “born and bred” in Australia, as were each of the children. The father was born overseas and the evidence points inexorably to the Lebanon. The parents often spoke Arabic to each other at home, but Lara said, “I am not very good at Arabic” (ibid, A39). Alisar said that she was “learning to speak Arabic” (ERI, 22 August 2016, D.C. exhibit 4, Q50).

Language

3. I have raised the question of language because it is important when one tries to understand the words recorded in the transcript. The first day of the hearing in this Court was spent reading transcripts. It was a very slow process for two reasons: the first reason concerned language. None of the non-police witnesses (in the order of giving evidence, Lara, Suzie, Alisar, the appellant) used idiomatic English. For example, when talking about where they were, in particular the children, the words “inside” and “outside” were used not to refer to whether they were within or outside the house, but rather to indicate rooms within the house that a person was moving between, as well as to sites outside the house, such as the garage. The verb “go” was sometimes used interchangeably with the verb “come” so that “go inside” and “come inside” might or might not mean the same thing. This lead to slow and considered reading, to understand properly what was being said.

The house

4. The family home was at Belfield. Understanding the layout of the family home aids comprehension of what can be very confusing evidence. On the second day of hearing, Ms Ginges, who appeared for the appellant both in the Local Court and in this Court, produced a sketch plan (MFI 2) made by the appellant which is consistent with the only oral attempt to describe the family home (by Alisar in cross-examination). This sketch plan greatly assists in understanding the evidence. However, it omits the laundry, but its approximate whereabouts can be discerned from the oral evidence. The geographical orientation of the house is not disclosed by the evidence. For the purpose of this description, I assume that the front of the house faces north. The front entrance of the house is in the middle of its north face. The front door opens onto a hallway which leads to a living room described as the “little living room” where there is a PlayStation. Off the hallway or the little living room is the entrance to the master bedroom, occupied by the parents, in the north eastern corner of the house. South of the master bedroom is the bathroom to which access is gained from the little living room. On the western side of the hallway is the entrance to a corridor which gives access to the children’s bedrooms and the laundry. From north to south, the children’s bedrooms are Zack’s, Lara’s, one occupied by Alisar and Elizabeth and then, probably, the laundry. At the southern end of this line of rooms is a window which allows one to look into the main living area; this window might be in the laundry or the bedroom of Alisar and Elizabeth or at the end of the corridor. At the southern end of the little living room is a doorway into the kitchen. From the western side of the kitchen is the entrance to the main living room, which is both a dining and a living room. A sliding door on the southern side of the main living room gives access to the backyard.

References

5. Evidence was given on three days:

10 October 2016:   Const Jasmine Gammage; Lara

23 January 2017:   Suzie

22 May 2017:      Alisar; the appellant

Addresses followed the evidence on 22 May. Those addresses have not been transcribed. Her Honour gave her decision on 26 May 2017. The pagination of the transcript is not continuous: each day’s transcript begins on page 1. I shall use the following reference system:

1T: transcript of 10 October 2016

2T: transcript of 23 January 2017

3T: transcript of 22 May 2017

4T: transcript of 26 May 2017

A number appearing after the reference to a transcript is the page number of that day’s transcript and another after a point is a reference to a line number on that page: e.g. 2T6.20 is a reference to transcript of 23 January 2017, page 6, line 20. All told, there are 199 pages of transcript, which makes the estimate for the hearing of this appeal (3 hours) absolutely risible.

Matrimonial disharmony

6. For some time prior to relevant events, there had been disharmony between the appellant and Suzie. For how long is a matter of speculation. In cross-examination, Suzie said at 2T10.36 that she had effectively been the victim of 20 years of abuse. However, that was effectively the length of their relationship (Suzie’s DVEC; second exhibit 2 in the Local Court; transcript of which is exhibit 5 in the District Court, page 1). Hyperbole was clearly being used. Later in the same interview she said that the appellant was “always threaten[ing] to kill me” and that either he said, or had the attitude, that “I’m the god of this house, what I say goes.” On the other hand, the appellant said this at 3T34.16:

Q: … What was [sic] your feelings towards Susie?

A. I'm a… loving husband, and my… the feeling that I always had for her, I respect her. I love her and I… looked after her and after the kids. I didn't have any plan A or plan B… I didn't know what was going on then, if she had any different plan for me. As far as I'm… concerned of what's going on and I want to live my life with her.

Q. Had you at an earlier stage in the relationship, even one or two years earlier, had… any separations or spent any time apart?

A. We… never had separation. We were just arguing. Most of the argument was about her parents, basically, and, and I got abused a few times by her brother…

…

Q. But there was unhappiness in your relationship with her family?

A. Correct.

Q. Was that a constant issue in your relationship?

A. Yeah, they… treat me and my kids with disrespect; they refer to me as "an import" as… somebody who wasn't born here. They brag about themselves like, you know, "Aussie bred and born…"

The disharmony would appear to have been deep seated by 2016.

7. At 3T31.50, the appellant said that:

“We were planning to move as a whole family till about two to three years to Lebanon.”

Suzie made it clear that she never had any intention of moving to the Lebanon. In cross-examination, she gave this evidence commencing at 2T11.19:

Q. In mid last year or early to mid last year weren’t you and your husband and the family planning to move to Lebanon for a number of years?

A. No, I wasn’t planning, he planned, but I had no intention of living in Lebanon. I’m Australian born and bred.

Q. You hadn’t contacted and spoken with his sister in Lebanon about what schools might be appropriate for the children?

A. No, not me, he has.

Q. He went to Lebanon in about December 2015 with your son, Zac, didn’t he?

A. Correct.

Q. When he came back from Lebanon I suggest that you and he had discussions about moving all of the children and yourself and him to Lebanon to live for a few years; is that right?

A. Correct.

Q. He was liquidating, selling off his business, wasn’t he, so that he could move to Lebanon with you and the children? That’s what he was doing, wasn’t he?

A. He was going to move by himself.

Q. I suggest that you had spoken to him that you and he and the family would move together to Lebanon, that’s right, isn’t it?

A. No. I had no intention of moving to Lebanon.

Q. Did you tell him you’d had no intention of moving to Lebanon?

A. He knows I have no intention of moving to Lebanon.

Q. My question was had you told him that you had no intention of moving to Lebanon?

A. Of course.

Nevertheless, the appellant persisted with his (and I use the singular in light of Suzie’s evidence, despite his use of the plural) plan. In December 2015 he travelled to the Lebanon with Zack for 14 days to make enquiries about suitable international schools in which the children could continue their education according to Australian norms, and to learn and become fluent in Arabic. The appellant also had a brother in the Lebanon who ran a construction company and plans were being made for the appellant to work in his brother’s business. The appellant is an engineer by profession. He said he was winding down his own business (3T32.23) and planned to rent out his Sydney factory as well as the family home. He said he purchased appropriate luggage on 6 July 2016 (3T32.36). In light of the appellant’s pursuing his plan, and in light of Suzie’s opposition to it, one can see, with the benefit of hindsight, that things might come to a head. That clearly occurred on Monday 18 July 2016. Of course, all of this is only background to the offences alleged.

The timing of the first two charges

8. Suzie first complained to the Police on 18 July 2016. She made the DVEC to which I have earlier referred. She timed the knife incident as occurring “about 7 weeks ago”. That takes one back to about 30 May. 30 May is Suzie’s birthday. In evidence on 23 January 2017, she estimated that the event occurred “roughly 2 weeks prior” to her birthday, i.e. on or about 16 May 2016 (2T5.04).

9. Lara, in her ERI of 22 August 2016, said this incident occurred “early this year or mid-late last year.” In her oral evidence she was unable to identify the month (1T19.46). She could remember it occurred in the evening (1T19.49) but not whether it was a school day or not (1T20.09). In cross-examination, she said that the “knife incident” occurred “a few weeks or two months” before 16 July 2016 (1T44.18), but was unable to say whether it was before or after her mother’s birthday (1T45.46).

10. Alisar, at the end of cross-examination, was asked a few questions on that topic. She could remember her mother receiving a Nespresso coffee machine for Mother’s Day. Mother’s Day in 2016 was Sunday 8 May. As to the type of coffee machine, see per Suzie Ottoman at 2T44.03. Alisar said this event was after Mother’s Day (3T29.18) but could not be sure (3T29.21).

11. The appellant said that “it was definitely after her [Suzie’s] birthday; it’s not before” (3T39.01), “it’ got to be in June. Not in July” (3T39.10).

12. In these circumstances, it is quite impossible to be sure as to when the first two incidents occurred. However, the dates contained in the Court Attendance Notices (CANs) are particulars, not essential elements of the offences charged. It is likely that the incident in question, giving rise to the charges, occurred after 16 May 2016 and, perhaps, before 30 May 2016, but the evidence of the appellant makes a finding about the final date impossible.

The circumstance giving rise to the first two charges

13. This is best explained by evidence given by the appellant, which is largely corroborated by Lara. The appellant was asked to turn his mind to what was and is called the “knife incident”. He recalled it as an event when he was cooking and holding a knife (3T34.50). He had come home from work. His whole family was at home, including Zack who was in his room. The appellant’s usual routine when he came home was to make himself a cup of coffee and then go to the garage where he smoked a cigarette whilst drinking his coffee. He would then return to the house to have dinner, if his wife had prepared it. On this particular evening, after coming home, he changed his clothes “into something more comfortable” and then went to the kitchen to see whether his wife had prepared dinner and she had not. He looked into the refrigerator and cupboards to see what was available and decided to make pizza. He then went to the garage and fetched onions and, on looking into the refrigerator [again] saw meat that had “been sitting there for two days. The blood from the meat [was] actually dripping everywhere” (3T35.46) which he attributed to his wife’s neglect. He then said to her:

“Why all the time you take the meat out of the freezer and you put in the fridge to defrost and you never end up using it?”

He admitted he was upset. At the time Suzie was sitting on a couch in the living room and he was talking to her from the kitchen.

14. He admitted there was an argument. “Zack and Lara came running” (3T36.15). He was holding a knife because he was cutting an onion with it. He then spoke to his two eldest children and, in response to Zack’s question as to “What’s going on?”, he replied, “Nothing just, you know, just having a talk with your mum. She’s … been screaming” (3T36.28). Zack then went to his room, but Lara stayed, not in the kitchen, but in the doorway between the little living room and the kitchen (3T36.40). This evidence was then given:

Q. Did you at some point go up to Susie and lift her up by her collars?

A. Never happen.

Q. Did you at some point go to Susie and put a knife to her throat?

A. Never happen.

Q. Did you at some point go into the living room with a knife, holding a knife?

A. Never happened; the knife was with - in my hand in the kitchen, then I put it on the kitchen bench.

Q. You've heard the evidence of two of your daughters and of Susie saying that you went into the main living room and put a knife to Susie or towards her. You deny that?

A. Of course.

Q. Did Laura at any time go into the living room while you were in the kitchen?

A. No.

Q. Where were the two little children at this time?

A. They were, they were in the living room at the time.

Q. So they were in the living room with Susie?

A. In the living room with their mum, and then, when she start yelling and screaming, they ran to their room.

Q. Did you tell them to go to their room or did they do it by themselves?

A. No, they ran them - themself.

Q. You then had an argument with Susie; she was in the main living room; you were in the kitchen.

A. Correct.

Q. How did that argument end? What happened after the little girls went to their room and Zach went to his room and Laura was staying in the lounge--

A. Just stomped out; she, she, she couldn't care less about what I said to her about that.

Q. Don't worry about whether she could care less--

A. Well okay, we just, we just finish; all done. Just I make my comment about the - about she's not cooking and the meat and all that and how she's neglecting the kids and the house and that's it. And I went, I went back to, to my garage and by the time I had the, the Isha prayer, we call it, and I, I prayed there and went back to my room.

Q. What did you do with the food? Did you finish making dinner?

A. No. No. I just made myself a sandwich then.

Q. You heard some evidence that on this day you followed or you chased Laura either into the small living room or into the hallway outside the bedrooms. Do you remember that evidence?

A. I didn't chase Laura; Laura was crying; she went to her room and I followed her to her room and I was comfort her.

Q. You comforted her?

A. Yeah, I comforted her.

Q. You heard some evidence that you had - other people say that you had pulled Laura's hair, either in the hallway or in the small living room. Did that happen?

A. Never happen.

Q. Did it happen on another occasion? If it was--

A. Never happen. I don't lay any fingers on my kids.

Q. You heard evidence that you'd banged Laura's head against a wall causing her to cry. Did you do that?

A. I - no, it never happen.

Q. You said that you comforted Laura, was that before or after you went to your room?

A. No, before, before actually I went to pray.

Q. Before you went to pray?

A. Yeah, I just brief, a couple of words, I hugged her and, you know, said "Don't worry about it. It's just normal, you know, like every couple have arguments and stuff like that."

He went to pray the Salat al-Isha (the night prayer) in the garage. When he returned to the house, Suzie was reading a paper, or a book, and accessing Facebook. He went to the master bedroom to watch television as the couple have different tastes in television programmes.

15. Lara said that on the evening of the “knife incident”, her father “might have been cooking pizza” (1T40.19). She volunteered the word “pizza”. When he came home she thought she was in the living room. She then gave this evidence:

Q.  That he had his cigarette and his coffee and he came back from the garage to the kitchen, does that sound about right?

A.  Yeah.

Q.  That he opened the fridge door, does that sound right and that there was an argument between your dad and your mum about the meat going off in the kitchen, does that sound familiar to you?

A.  Yeah, probably.  I think they were fighting about food or something.

Q.  Your dad then went out to the fridge in the garage where other food like onions are kept, does that sound right?

A.  Yeah.

Q.  Does that sound right?

A.  Yeah.

Q.  He came back in and he started chopping at the onions, does that sound right?

A.  Yeah.

Q.  He was in the kitchen chopping away at some onions when there was an argument with your mum, does that sound right?

A.  Yeah.

Q.  I want to suggest that your mum was in the lounge room or the living room at that time and that you and Zack were outside, does that sound right?

A.  No.

Q.  I want to suggest that he and your mum, that is your mum and your dad, were shouting at each other, does that sound right?

A.  Yeah.

Q.  There was an argument that included an argument about money, is that right?

A.  Yeah.

Q.  Also an argument about the fact that something to the extent of, you know, that she'd been at home all day and the meat had been left to go off in the fridge and about food, does that sound right?

A.  Yeah.

Q.  He started to make dinner for you guys and for him, does that sound right?

A.  Yeah.

Q.  That he was holding the knife as he was cutting onions while he was yelling at your mum who was in a different room, does that sound right?

A.  Yeah.

She then denied that Zack was present but agreed that the appellant told her and her sisters to go to their rooms. She then said to the appellant “Why are you holding the knife?” but did not go to her room. After further directions by her father, she did go “inside” i.e. at least from the living room, through the kitchen and beyond, but how far is not clear but she then “ran back out when he wasn’t looking” (1T42.12).

The knife incident

16. In the DVEC made on 18 July 2016, Suzie was interviewed by Cons Jasmin Gammage of Campsie Police. The DVEC was the second exhibit 2 in the Local Court and a transcript of it is exhibit 5 in this Court. Suzie said this of this incident:

CG: The incident that happened 7 weeks ago, do you remember what the argument was about?

SO: No, I can’t remember

CG: Ok, then you said he’s grabbed the front of your shirt. How did he grab it?

SO: Um you know in the movies when they grab the clothing of a person and push it up against them like this. Like that… Two hands like that.

CG: Two hands against your throat? Ok

SO: That’s when I couldn’t breathe any more

CG: Where was this happening?

SO: It was in the living room in my house

CG: The living room…

SO: He saw that I couldn’t breathe anymore, he then let go I couldn’t breathe, and that’s when he let go.

CG: Did you have any injuries from that one?

SO: Yeah I had a bit of a, a bit of a slight marking, but no one would notice it, but I notice it because I know…

CG: You said your three girls…

SO: My girls were around, but then that was… after he let go of that he ran to the drawer and grabbed the knife and put it against my throat. That’s when my girls intervened. And because my girls were intervening… he threw the knife on the dining table and then he ran to take them inside the house. So they wouldn’t see him. He got so angry, he said to me, he said… “you see what you make me do in front of the girls, what are they going to think of me?”

CG: So he grabbed the knife from the drawer?

SO: The kitchen drawer

CG: The kitchen drawer, and what type of knife was it?

SO: It was a long knife, like a white, you know one of those white ones you use for chopping

CG: In centimetres, how long do you reckon the knife was?

SO: About 20cm

CG: About 20cm knife, and where abouts to your throat did he put that?

SO: Umm, just like that

CG: What part of the knife was to your throat?

SO: The pointed bit

CG: And where was he standing?

SO: Right in front of me, he’s always in my face

CG: Do you remember what he was saying at all when he held the knife to your throat?

SO: He always threatens to kill me

CG: Threatens to kill you?

SO: Always threatens to kill me. And that everything he says that… I don’t know how to explain it to you in English in Arabic, but he’s always… the god of the house

CG: Yeah

SO: I’m the god of this house, what I say goes

CG: How did it make you feel, him holding a knife to your throat?

SO: Just scared one day he’s going to do it

CG: Do what, sorry?

SO: He’s going to kill me one day. Even if it’s unintentional, just with his rage, it can happen, it can happen

CG: Yeah

SO: It can happen easily

CG: Did you do anything to him, when he was holding your shirt to your throat?

SO: I was just trying to calm him down with words, I use words to calm him down I find that that helps the most. I tell him just relax, everything’s ok, whatever you want, just relax, uh I’ll do it, I’ll stop… like as in I’ll stop arguing, talking, defending like I’ll tell him that so I can calm him down.

In her oral evidence, given on 23 January 2017, she said that Zack had gone to the movies with his cousins.

17. In cross-examination (commencing at 2T40), it was put to Suzie that on this evening the appellant had gone to the garage to say his evening prayers (Salat-al Maghrib) before going into the kitchen. This is inconsistent with the appellant’s evidence that he said his evening prayers at work (3T38.39). It was also suggested to Suzie that the appellant entered the kitchen to “make some dinner”, but that did not jog Suzie’s memory. She went on to deny that the appellant was cooking on this night but then modified that denial to having some recollection of it. She had no recollection of meat defrosting in the refrigerator and denied that the appellant accused her of, in effect, endangering the lives of the family by an unhygienic practice. This evidence was then given:

Q. At that point Zac and Lara, hearing the yelling, came in to find out what was going on from their rooms. Do you recall that happening?

A. I remember Zac was at the movies with his cousin.

Q. I suggest that Zac and Lara were both at home on this occasion.

A. It was the three girls at home with me.

Q. I suggest that Alex said to them, “Go back to your room, there is nothing going on here.” Did he say that to the children?

A. No, because Zac wasn’t there. It was Lara heard the yelling and screaming and then she walked in and found him choking me with my clothes, with my jacket, my robe, it was my robe and he was choking me with my head up.

Q. I suggest that’s--

A. And then the knife came into it.

Q. --false.

A. But first he was choking me.

Q. What happened, I suggest, is that Zac then asked the two younger girls, [Alisar] and Lizzy, to go with him and he took them back into their room and that you’d disagree with that because you don’t agree that Zac was there?

A. He’s confused with the first knife incident that he attacked me with. He’s, he’s talked about the first knife incident that happened two years ago, because that’s what Zac did, correct. He did take his younger two sisters to the other room so they don’t be tormented with that knife to my throat and then he used a wooden spoon and jabbed it in my throat.

Q. I’m not asking you about that--

A. That’s, that’s, that’s the first--

Q. --item, thank you. I’m putting to you squarely this is what happened in May 2016.

A. Zac was at the movies with his cousin.

It was suggested to Suzie that during what could be described as a verbal confrontation with the appellant she was “about 3 metres” away from the appellant, who then put down the knife he was using, to cut up the onions, on the kitchen bench and that he then told Lara to go to her room. Suzie denied these things. It was then suggested that Lara went to her room and that the appellant soon followed her, in order to comfort her. Those things were also denied.

18. A little later this exchange occurred:

Q. You said that you were choked so hard in the May incident that you couldn’t breathe; is that right?

A. Yes.

Q. Did your neck receive bruises from that?

A. No, because I had my robe, he’d used my robe and he’d lifted my head so I couldn’t breathe when he lifted, lifted it.

Q. You say that it occurred in the living room; is that right?

A. Yes.

Q. Was there any knife involved at that point?

A. At that point, no.

Q. You say that he then went into the kitchen and picked up a knife from the drawer, then came back again; is that right?

A. Correct.

Q. Was he waving it around or was he pointing it; what was he doing?

A. He just pointed it at my neck.

Q. He pointed it at your head?

A. At my neck.

Q. At your neck. Did he hold you still or did he do anything with his other hand?

A. He was yelling in my face. It’s all I remember.

Q. Where was Lara when he was pointing it to your neck?

A. At that moment I remember, I remember her somewhere around there. I just remember her around there and I remember her then coming closer and then pushing him away and getting in the middle.

Q. You say that she pushed him back?

A. Yeah.

Q. What, she stood and faced him, did she?

A. Yeah. She was protecting me.

Q. She was protecting you. What then happened?

A. And then that’s what he made me do in front of the kids rather than think of me and he threw the knife on the table and--

Q. Sorry, he threw the knife on the table or under the table?

A. On the table.

Q. Which table?

A. The dining table outside in the living room.

Q. The dining table, that isn’t the kitchen bench, is it?

A. No.

Q. The kitchen bench is a different place?

A. The kitchen bench is in the kitchen.

Q. Yes.

A. And the dining table is in the living room.

Q. Threw the knife on the dining table--

A. Yeah.

Q. --and then what happened?

A. And then he ushered the girls all into the room, to the bedroom.

During further cross-examination, she said that she was unable to recall what the argument was about on this occasion. It was only after this incident and the “hair pulling incident” were over, that Zack came home from the movies.

19. Lara gave a version of this event in her ERI of 22 August 2016. She and her sisters were in the living room. The appellant forced Suzie into a corner and “grabbed her by the collar… So he went off the rails and ran into the kitchen… grabbed a knife…” She told her two younger sisters to run to their bedroom so they could be safe. She “had to run in closer… to the knife. So instead of hurting her he chased me inside…” Later in the interview, this initial description was provided with greater detail. Initially her sisters were elsewhere and heard the parents yelling at each other and came “inside” and Lara told them to leave, but she remained, watching her parents. The appellant had backed Suzie into the corner of the couch. The appellant “just grabbed her by her collar and she just … sat for a little longer and [he] was … getting really frustrated raising his voice a lot.” The parents were in the corner for “about a minute to two at least” before the appellant went to the kitchen to get a knife. He took the knife from a drawer near the pantry. The knife was “wide”. The questioning then continued:

Q62: Ok, and what did he do with the knife?

A: Just, it was seconds away from putting it on her throat; he was very close to putting it on her throat.

Q63: Ok. And then when he grabbed the knife what did you do?

A: I intervened and stepped closer metres, centimetres away from him just so if he ends up hurting her then he’ll end up hurting me with the knife.

Q64: Ok. And did he do anything to you?

A: Yeah, he chased me…

20. The ERI was played as part of Lara’s evidence in chief. At 1T19.24, she said that after the appellant forced Suzie into the corner of the lounge, “[s]he was sitting, so he pulled her up. He pulled her upwards so she can stand”, i.e. he pulled her upright.

21. In cross-examination, Mr Ginges put to Lara that the appellant did not ever put a knife near her mother but she denied that suggestion and said “he put a knife near her throat”. However that was not the knife he was using to cut the onions, as he “grabbed a clean knife”. At the time he took hold of this knife, Lara was in the living room (1T43.26). Later, at 1T51.26, Lara said, in further questioning, that after the appellant had stood his mother up at the corner of the couch, “he just started off yelling in Arabic and then he ran to the kitchen and came back outside [sic, scil. “into the living room”] with the knife”. She agreed that she had “jumped in front of him, between your mum and him” (1T52.41). Before the appellant “chased” Lara towards her bedroom, the appellant put the knife down “on the dining table.” In her ERI, Lara said that the appellant dropped the knife “on the kitchen counter” (A65). This was then drawn to her attention:

Q.  When you told police that he dropped the knife on the kitchen counter, you'd agree with me that the kitchen counter and the dining room table are different places, aren't they?

A.  Yes, well I can't remember if it was the kitchen table or yeah, dining room.

Q.  Is it the case that you, and I don't mean any disrespect to you, but are you just making it up as you go?

A.  I am not making it up.  I just don't have a very clear memory, it was a while ago.

Q.  Is it that you've forgotten what you told the police, is that what it is?

A.  I haven't forgotten, I just can't remember if it was the kitchen table or the dining room table.

Q.  But didn't you just explain very clearly how he stepped back and dropped the knife on the dining table?

A.  He didn't step back, no.

Q.  Do you have any memory of him putting the knife on the dining table?

A.  Yeah.

Q.  Are you sure about that?

A.  Yes, I think I can remember that he did put that on the table.

Q.  Do you have an explanation why you might have told the police that he put it on the kitchen counter?

A.  I guess I was choked up at that time.

…

Q.  If you accept from me that it was about five weeks after he'd left the home, is it the case that you just can't remember what you told the police?

A.  No, I can remember but I can't remember if it was ‑ where he put the knife.

Q.  You can't remember where he put the knife?

A.  Yeah, all I know is that he didn't bring it with him inside and chase me with it.

Q.  Because if he had put it in the kitchen counter, he would have had to have chased you with it for a bit, wouldn't he?

A.  Yeah, sorry what was that?

Q.  If he had put it on the kitchen counter he would have had to have followed you with the knife, wouldn't he?

A.  I think so.

The question containing the phrase “about five weeks after he left home” is a reference to the period between 18 July 2016 when the appellant left the family home and 22 August 2016 when Lara made the ERI.

22. Mr Ginges then asked questions about the “hair pulling incident” and then returned to the knife incident at 1T56. Lara said she positioned herself between her parents so that the appellant did not “actually like cut her”. When asked whether the appellant was saying anything, she replied:

“No, if he was, it was probably just yelling so I couldn’t understand what I’m saying”

Earlier she had said that the appellant was yelling in Arabic and Lara made it clear that she had little Arabic. The last clause of this answer is an obvious mistake for “what he was saying”. Lara denied exaggerating. She volunteered at 1T56.49 that she suggested to her mother to call the police but her mother said no to that suggestion. A little later it was suggested to Lara that during the knife incident, the appellant did not physically touch Suzie, and Lara said that although “he didn’t physically hit her… he did grab her by the collar…” In answer to leading question by Counsel, Lara agreed that the appellant grabbed Suzie “with two hands and then [ran] into the kitchen and [picked] up a knife and [ran] back out (scil. ‘in’) again” to the living room. That ties in with the evidence of Suzie which I have quoted above, that was given after Lara gave her evidence.

23. Alisar’s Birthday is in February of each year. At the time of each occurrence she was 10 years old. She gave an ERI on 22 July 2016, when she was 10 years old. At A51 she said words to the effect that she was playing a game with her sisters and Lara drew to her attention that something was happening and her two sisters went to a door and Lara ran into the living room and was standing there, and “my mum was there and my dad was there. He then ran inside [scil. the kitchen] and grabbed the knife… and then my older sister ran in” and told her and her younger sister to stay outside the living room and “then we stayed at the door and he grabbed the knife and he was waving it at her”. She then said that Zack was at the movies. She was then asked what happened after her father waved the knife around and she said this:

“’Cause we were all crying and my older sister said, no don’t do it. And then he turned around and saw us and threw the knife on… and he ran and chased us inside…”

She continued by giving her version of the hair pulling incident. A little later Cons Flynn asked Alisar what the knife looked like and she said:

It was one like… the one that was like a bread knife but it’s for… chicken… cutting the chicken with… and it was sharp ‘cause after that, ‘cause we sharpen the knives… so that when you’re cutting steel… and we put it back in the drawer.

She went on to say that her father picked up the knife “from the drawer near the large cupboard” in the kitchen.

24. At the time Alisar gave her evidence on oath she was 11 years old, on 22 May 2017. She said that as she was coming from the bathroom she saw her father pull the knife out of the drawer. She then saw him enter the living room and “put it up against my mum’s throat” (3T9.42). The appellant was standing in front of her mother, near the coffee table. The appellant then threw the knife on the coffee table, where the magazines were kept. She then left the living room to go elsewhere in the house.

25. In cross-examination Alisar confirmed that the coffee table was different to the dining room table. After her father had collected the knife in the kitchen, Alisar ran into the kitchen (3T13.23). She saw Lara standing “near my mum but not too close” (3T14.07). However, she was not asked what Lara was not too close to, to her mother, to the knife or to her father. Words were said and then the appellant placed the knife on the coffee table, and then the appellant left the living room. Later Mr Ginges returned to this topic:

Q. Lara you said was standing nearby but not too close?

A. Yeah she was standing near the back door.

Q. How far away from all of this was she in metres? Do you understand what I mean by metres?

A. Like 2 and a half.

Q. So about longer than how long your bed would be? That's about 2 metres do you think, two and a half metres, is that about your two and a half metres?

A. Yeah.

Q. So Lara was about 2 and a half metres away?

A. Yeah.

Q. Did she do anything while this was happening?

A. She was screaming out, "No, stop." She was trying to go close to stop him but my mum didn't want her to go close cause then she'll get hurt.

Q. Did Lara get any closer than two and a half metres or is that how far away she was?

A. She was - yeah, she stayed there and then‑‑

Q. She stayed two and a half metres away?

A. Yeah. Yeah.

Q. Then your dad put the knife down on the coffee table?

A. Yeah.

Analysis of the knife incident

26. Neither the relevant CAN nor her Honour’s reasons, nor anything else in the material before me, tells me exactly what was the relevant event relied upon by the prosecution: was it grabbing Suzie by the collar of her robe with both hands and lifting her up so that she could not breathe the relevant assault or was it the threatening of Suzie by holding a knife to her throat? Each of those two actions is an assault and the first is also a battery. Suzie and Lara are each a witness to the first of these two events, and Suzie, Lara and Alisar are witness to the second of the two events. It is common ground between the prosecution and the defence that there was an argument between husband and wife. Leaving aside other credit issues, the evidence of Suzie and Lara as to the first of these two events is quite consistent. Each of Suzie, Lara and Alisar said that Zack was not at home: he had gone to the movies. He, on the prosecution case, is not a relevant witness. His absence from the witness box is not a defect in the prosecution case. Each of Suzie, Lara and Alisar saw the appellant go to the kitchen, take up a knife and return to the living room and hold it near Suzie’s throat. Such would cause any person of reasonable fortitude to fear injury. It is clear that Suzie felt threatened and, to put it mildly, Lara and Alisar were both concerned for her safety. Lara suggested calling the police, such was her concern. There is no suggestion that before this event police had been called to their home because of an allegation of domestic violence.

27. What are the inconsistencies? Suzie cannot remember the event that led to the verbal argument. Lara does. Alisar was not asked about the background event, and, given her age, one could reasonably excuse her forgetting about that background event. Suzie said the appellant put the knife down on the dining table; Lara initially said the kitchen bench in her ERI but the dining table in oral evidence; Alisar said on the coffee table. What, if anything, turns in this? Nothing! All three witnesses are consistent, that the knife was laid aside on a piece of furniture, before the appellant pursued Lara elsewhere in the house. There is ample corroboration for what the relevant complainant, Suzie, says about this sequence of assault(s). It is not simply a question of whether one believes the husband or the wife. Subject to other “credibility” arguments, the learned Magistrate was right in convicting the accused of this offence.

The hair pulling incident

28. In her ERI of 22 August 2016, Lara summed up this event in A64:

“he chased me… grabbed me by my hair and just pushed [me] back against the wall”

That occurred immediately after the appellant “dropped the knife on the kitchen counter”. In A67, she said that her two sisters were in their bedroom, and “their room is right next to that wall that he slammed me on” (A69).

29. In her evidence in chief, Lara said that her mother came to her after she had been pushed to the floor by the appellant (1T20.45). She had fallen to the floor after she had been pushed back against the wall. The back of her head had touched the wall (1T21.17). After that her head “was throbbing for a while”.

30. In cross examination this evidence was given:

Q.  Did you get a bump on the head when you were hit into the wall?

A.  Yes, I did, at the back.

Q.  You told your mum about it, didn't you?

A.  Yeah,

Q.  Did she say, "Well I better take you to the hospital or see a doctor"?

A.  No, but I did put ice on it.

Q.  You put ice on it, did you?  Did she put ice on it or did you?

A.  I did.

Later, this evidence was given:

Q. In any event, you say that he chased you to the sorry, whose bedroom was it?

A. It was near his bedroom.

Q. His and your mum's bedroom?

A. Yeah.

Q. Where is that located?

A. It's like near the little living room, like you walk through and there's a bedroom and then there's a wall.

Q. You have got to go through the kitchen, the little living room where your brother plays the PlayStation, is that right?

A. Yeah.

Q. Then furtherwards into it's like an area where there are some bedrooms?

A. Yeah, no, you just walk straight and then there's this little area and then there's the bedroom.

Q. Where do you say this happened?

A. Where?

Q. Yes.

A. It was near the bedroom.

Q. Then he pulls your hair you said?

A. Yeah.

Q. At that point you were in a corner, were you?

A. Yeah, when he was pulling my hair, so he dragged me out of that corner to push me on another wall.

Q. I just want to get this right, you are in a corner, are you facing him?

A. Yeah.

Q. Are you screaming out something?

A. I wasn't screaming.

Q. You weren't saying anything?

A. No.

Q. Why not?

A. No, I was just struggling, that's why.

Q. How were you struggling?

A. To get his hand off my head.

Q. He follows you to the living area, the small living area where the bedroom is?

A. Yeah.

Q. Do you then turn around and face him or are you facing the wall when he grabs your hair?

A. No, I'm facing him.

Q. You turn around and you are facing him. Did you push back? Did you hit him?

A. No, I didn't hit him. I just tried to struggle to get his hand off my hair.

Q. At what point did he grab your hair?

A. So as soon as I was in that corner and he came up to me, just pulled my hair.

Q. But at that point you were turning around and you were facing him?

A. Yeah.

Q. Did he say anything to you?

A. No, and even if he did I couldn't remember what he would say.

Q. He grabbed you by the hair and then what happened? He threw you to the ground?

A. He put yeah, he pushed me to the ground onto another wall and I slid back and I hit another wall.

Q. And did he pull your hair out of your head? Was he holding on to bits of

your hair?

A. No, he wasn't. I don't think he was.

Q. He wasn't holding on to any of your hair when this happened?

A. No, I think he just let go.

Q. Did your mum come running in?

A. Yes, she came in.

Q. She came running in to that living room?

A. Yeah, she came running in to where I was thrown.

Q. Then what happened after that?

A. I think he just went back outside.

Q. He went back outside then?

A. Yeah, and I stayed in the in the same bedroom that my sisters were in.

Q. Was that the end of that incident?

A. Yeah, we just stared through the window just to see if he was gone or not.

Q. Nothing else happened?

A. No.

The reference in the fifth last question to “that living room” is a reference to the room I have earlier described as the “little living room”. The interpretation of this evidence has led to some controversy. Where does Lara say the hair pulling took place? In her ERI Lara said that her sisters’ room was “right next to that wall he slammed me on”. One would think that was in the area I have described as the corridor. That is also consistent with this evidence-in-chief:

Q. Do you remember telling the police in incident 1 that your dad chased you?

A. Yes.

Q. Where did he chase you to?

A. Inside to a back wall that - in between two bedrooms.

The only wall between two bedrooms appears to be the wall on one side of the corridor that connects the bedroom of Zack, Lara, and Alisar and Elizabeth. However the passage in question can also be interpreted as relating to a corner of the little living room, near the master bedroom. I shall return to this issue later.

31. In her DVEC of 18 July 2016, Suzie said this:

“… he took the girls to the room. As he was taking the girls to the room, Lara tripped over, she tripped over her foot and she fell back and hit her head on the wall… And then he… ran back out and continued to threaten me and… yell and scream in my face.”

That is not consistent with the prosecution case. The fall and head striking the wall appears to be accidental, and there is no mention of hair pulling.

32. In chief on 23 January 2017, Suzie said this:

Q. You also gave some evidence in your video statement that your daughter, Lara, tripped over. Did you see that?

A. No, I didn’t see.

Q. What made you think that that’s what happened?

A. Because I heard him yelling and screaming in the - inside the house, so I ran in to see why he’s still in there yelling and screaming at them and I found Lara on the ground holding onto her head crying and he was standing over her yelling and screaming at her, so I helped her off the ground.

Q. What room was that in?

A. That was in a hallway outside the girls’ room.

In cross-examination, this evidence was given:

Q. After you came in and you said you saw him with Lara, then what happened? Did you comfort Lara?

A. When I realised he didn’t come out to me and he was still in there yelling I thought I better go and see what’s happening.

Q. Yes, and?

A. And I found him - I found Lara on the ground holding onto the back of her head crying.

Q. Sorry?

A. She was crying and the girls, the little girls, were screaming and he was standing over Lara yelling.

Q. What was he saying then?

A. I just remember it was horrible words but I don’t - I can’t, I can’t repeat the words because I just can’t think of them now.

Q. Then did you go and comfort Lara?

A. I picked her off the floor and I took her and sat her down. We all sat down and then he want outside to have a cigarette.

Very soon thereafter Zack came home, Suzie said that she and her children were all sitting in the living room and the appellant was in the garage, smoking. A little later, Suzie was cross-examined about giving aid to Lara:

Q. Did you get some ice for Lara’s head?

A. I don’t remember if we moved off that couch. We just sat on that couch. We didn’t move. We didn’t move except to when we were going to bed.

Q. You didn’t get her any ice for her head?

A. I didn’t get anyone ice. I didn’t get - no, I didn’t do anything. We just sat on the couch, all of us.

33. After the luncheon adjournment, Mr Ginges again returned to this topic:

Q. I was asking you some questions regarding Lara just before lunch and you said that you came out and you saw her on the ground; is that right?

A. Yes.

Q. Can you tell the Court where it was that she was?

A. She was in the corridor.

Q. Is that the corridor to her room?

A. To her sister’s bedroom.

Q. Is the way that you walk through the house this way, that you walk from the main living room into the kitchen; is that right?

A. Yes.

Q. Then you come out of the kitchen into a small secondary living room which is a PlayStation; is that right?

A. Correct.

Q. From that secondary living room you can either go into the master bedroom; is that correct?

A. Right.

Q. Or you can go into a little hallway which leads to the children’s bedrooms?

A. A corridor, hallway, yeah.

Q. If you go into that hallway the first bedroom you would come across if you turned left, I think, is Lara’s bedroom; is that correct? Sorry, or is that the two children’s bedrooms?

A. No, it’s the little girls’ room.

Q. The first one is the little girls’ room and then Lara’s and then Zac’s at the end; is that correct?

A. Yes.

Q. What you’re telling us is that when you came to Lara was that she was out in that little secondary hallway outside the younger girls’ bedroom; is that right?

A. She was on the floor, yes, around there, yeah. That’s correct.

Q. I’m just trying to be fairly clear about this. Not in the secondary living area but in that hall area?

A. Yes.

Q. Where were the girls, were they in their room by this time?

A. Well, yeah, they were right in, in the doorway of their room crying and screaming, but Lara was just in front of them, you could say, on the floor.

Q. Your evidence is that you and Lara comforted one another; is that right, that evening afterwards?

A. Yeah.

Q. Was that back in the lounge room?

A. Yeah.

Q. Did Lara go and get some ice and put it on her head herself? You gave evidence you didn’t do it. I’m wondering whether she did.

A. I don’t remember.

Q. Sorry?

A. Honestly I don’t remember whether she got the ice or whether she didn’t get ice. I remember we just sat on the couch and we just didn’t have energy or we didn’t have - we didn’t feel good. We just sat.

Q. If I was to ask you whether, in fact, Lara sat this evening in the younger girls’ bedroom with the younger girls, would that change your evidence?

A. Initially, I remember picking her off the floor and then it’s kind of a bit hazy but I know that, I know that we ended up on the couch all of us when Zac walked in so I’m not a hundred per cent positive but I’m positive that we all sat on the couch while he was outside smoking and Zac walked in. That’s what I remember.

34. In her ERI, Alisar said this about the hair pulling event:

“he ran and chased us inside but me and my little sister were… on. So he got up to my older sister who ran into the room and he grabbed her by the hair, waved, pushed her a little bit over the head. And smacked her head into the wall. Then my mum came right after that. And then he’s like, he kept um, smacking my mum and hitting her. He was threatening her still. And then my mum was trying to help my older sister but she couldn’t because my dad kept getting in the way.

Q57: Ok. Did you see what happened to your older sister?

A: Yeah, ‘cause the door was still open. And then right after that, um, my mum was outside and we were still in the room and we were waiting for it to end and my dad comes in and he’s like, don’t trust your mum, she’s just using you. So then whatever happens to her is normal, and whatever happens to me is bad. That’s what he said.”

35. In her oral evidence-in-chief, Alisar said that she saw her “sister’s hair being pulled from side to side”, but that was merely a positive reply to a leading question. Alisar did not volunteer the words “from side to side”. She also said that it happened in “the hallway” “maybe two metres” from her, near the shoe cupboard, i.e. in the structure I have described as the corridor. Further evidence given by Alisar on 3T8 confirms that. Alisar also said that Lara had a pigtail and volunteered that “he wrapped her hair around his [right] hand and pulled it and hit her to the wall”.

36. In cross-examination, Alisar gave this evidence:

Q. You went back into your bedroom and you saw Lara go into her - towards her bedroom?

A. No, near my bedroom.

Q. Why did Lara come to your bedroom when it's further away from her bedroom? Do you know what I mean?

A. Because it's the first room that you go to in the hallway and she - cause she wanted, she wanted to stay with us cause we - I've got a window that you can see the living room.

Q. You have a window that looks between your room and the living room, don't you?

A. Yeah.

Q. You say you saw your dad pull Lara's hair. Was Lara facing your dad or facing away from your dad?

A. Facing my dad.

Q. Where was her ponytail?

A. At the back of her head but he went and reached his hand around her head and then pulled it.

Q. Where was your mum when that happened?

A. She was trying to move her away so that he doesn't hurt her but then

Q. Sorry I'll just stop you there for a moment. So your mum was with Lara when this happened?

A. Yeah, she was trying to push her away into our room but then he grabbed her by the hair.

Q. So your dad pulled Lara's hair at the same time that your mum was trying to put Lara into your bedroom?

A. Yeah.

Q. And that's what you saw?

A. Yeah.

Q. Was your mum there with Lara the whole time?

A. Yeah.

Q. Then after you say he pulled Lara's hair, did he go back into his bedroom?

A. No he went to the garage.

Q. He went to the garage?

A. Yeah.

Q. What did you see happen with your sister or your mum after then?

A. Well then we, we went back outside and then we waited for my brother to come home.

Q. When you say you went back outside, do you mean you went into the living, the big living room?

A. Yeah.

Q. Is that right?

A. Cause - yeah, cause the living room wasn't there way before and then they built a living room there.

Q. At any time after your sister's hair was pulled, did she come into your room or did you all go straight to the living room?

A. No she went to my room.

Mr Ginges then returned to the knife incident and then returned to this incident: Alisar confirms that she and Elizabeth were standing in the door of their bedroom (3T19.08) and then went back inside that room because something was occurring in the corridor. She said she saw Lara first, then her mother and then her father (3T19.27 – 3T19.31). The evidence then continued:

Q. Then your dad went to Lara?

A. Yeah but he was, he was screaming at my mum.

Q. He was screaming at your mum?

A. Yeah.

Q. Then did you see anything happen with him and your mum at that time or did you just see him and Lara?

A. I only saw - well I saw both. My - they were just shouting and then he went and grabbed - cause Lara was getting - she was interrupting the whole conversation so then she got hit into the wall.

Q. Did you see your mum and your dad having a fight or an argument in the hall and Lara was there in the hall?

A. Yeah.

Analysis of hair pulling incident

37. The complainant in this alleged assault is Lara. There is no corroboration for what she says from her mother, Suzie. Indeed, in Suzie’s evidence she was not present until after Lara had fallen to the floor. What Suzie said can only be either her reconstruction/opinion as to what occurred to Lara or a history given to her by Lara. If it be the latter, it is, in my view, fatal to Lara’s complaint. In any event, a contemporaneous complaint by Lara to her mother of what occurred in her mother’s absence would be some evidence of that occurrence (Evidence Act 1995, s 66(2)), yet no attempt was made by the prosecution to adduce such evidence.

38. The other source of potential corroboration to Lara’s evidence is that of Alisar. Unfortunately Alisar’s evidence on this issue is unreliable:

1. in her ERI she stated that the appellant “grabbed her by the hair”; in chief she agreed with the proposition that she saw her “sister’s hair being pulled from side to side”, and a little later that “he wrapped her hair around his hand and pulled it”; in cross-examination she said he “reached his hand around her head and then pulled it”;

2. she said that her mother was present when Lara’s hair was pulled, yet the evidence of Lara and Suzie is to the contrary;

3. she said that Lara entered the corridor, then her mother and then her father and there was “shouting”, and “screaming” by her father at her mother, before the hair pulling took place, again contrary to the evidence of Suzie and Lara.

I accept Alisar’s evidence that something happened in this corridor. This confirms what I discussed in [30] above, that the relevant incident occurred in the corridor, between the entrance to two bedrooms, rather than in the little living room. That is also consistent with Suzie’s evidence which I quoted in [32] above.

39. Something clearly happened in the corridor: it may have been an assault on Lara by the appellant or it may have been a trip and fall by Lara, causing her to hit her head. The probabilities incline me to accept Lara’s description of what occurred, but there is no acceptable corroboration, albeit at law no corroboration is required. The learned magistrate was looking for corroboration (4T4.48; 4T9.01). Her Honour appears to have accepted that Alisar’s evidence corroborated Lara’s, but I am unable to find the same. In these circumstances I am not pursuaded beyond reasonable doubt that the appellant assaulted Lara Ottoman. The conviction and penalty for this offence must be set aside.

The shoe incident

40. There is no dispute as to the date of this alleged offence, Saturday 16 July 2016. Zack worked that day at a McDonald’s outlet. He was to finish work at 4pm. He had been dropped at work by the appellant. Around 4pm the appellant was “in the area” of the McDonald’s outlet (3T39.22), so he went to pick Zack up. His evidence continued:

A. … While I was waiting for him, she showed up; Susie showed up and she looked at me, you know, funny, "What are you doing here?" I said, "I'm picking up Zach." And said "Why?" I said, "That's what I always do, I drop him off. He works one day a week, anyhow. I drop him off." And I said, "But it's good that you, you came in because I needed the car to take it to the mechanic."

Q. So at that time, you had a Mercedes four wheel drive.

A. Correct, she was driving my Mercedes, yeah, four wheel drive, and I had the Subaru, I was driving the Subaru.

Q. So you swapped cars.

A. We swapped cars, yeah, she took Zach and the Subaru and went home and I took the Mercedes to, to, to the mechanic.

Q. How long were you at the mechanic for?

A. I would say for - we had to wait for, for the guy to, to bring the car; it's I would say I left him about, like, just before, like, quarter to 6 or something.

Q. You then came home.

A. I went home straight, yeah.

Some time earlier in the day, Suzie had called the family’s usual plumber, Mr Hammoud, “to come and check the tap in my bathroom because it [kept] leaking” (2T30.24). It was put to Suzie, but denied, that the reason she had called the plumber was because she had been attempting to match one of her brothers to the plumber’s daughter. Suzie agreed that when the appellant arrived home he “made himself a coffee and rolled a cigarette” (2T29.21) and then received a call from the plumber who announced that he was at the front door of the house (2T30.37). According to Suzie, the appellant “was surprised that he was here. Because we weren’t talking, he didn’t know that I’d called the plumber to check the tap” (3T30.44). Suzie was then asked why she waited until 7pm thereabouts on a Saturday night to call a plumber to fix a leaking tap. She replied:

I know the plumber because he always - he’s done all the renovation, like all the plumbing for our home for many, many years, for over eight years, nine years. I know the plumber and he always fixes everything there, but I didn’t call him at 7 o’clock at night, I called him during the day and he said he’s only available at that time because he had a job in the Northern Beaches.

She maintained that she was at the back of the house (the living room) when the appellant went to the door to admit the plumber and that she did not know what was discussed by her husband to the plumber. She then went to the bathroom to show the plumber the leaking tap.

41. This evidence was then given:

Q. Did he fix it?

A. No, they just talked about fixing it. And then Alex took him to the laundry away from me and spoke to him there. I don’t know why and then they continued to talk, then he escorted him out of the house to the front of the house and that’s when I heard him talk about my family and about my brother.

Q. I suggest he walked out and he talked about his own family, did he not? Do you remember that? Alex talked about his own family with the plumber, not your family?

A. No, he talked about my brother and about his niece because I heard him. I heard him asking, “What has happened with your niece? Is she still talking to my brother?”

Q. Which brother?

A. And he said - Fakot.

Q. You heard that. Did you hear them talking about the investment properties, what was happening with those?

A. Yeah, he mentioned something about plumbing needed to be done there.

Q. Did you hear them talk generally about politics?

A. That came after he - the first thing he asked about was my family.

Q. That’s the first thing the plumber asked about, was it?

A. No, it was the first thing Alex asked the plumber.

Q. That made you angry?

A. It made me hurt, it made me upset.

…

A. I just know what I heard. He was talking about my family. He hasn’t stopped talking about my family. He doesn’t leave them alone.

Q. I suggest that when Alex then opened the door, the screen mesh door, you were directly behind the mesh door listening to what was going on?

A. Correct.

Q. You then put your face into his face and said to him, “What are you talking about?”?

A. No. He pushed me out of the way. He came in. I was standing at the door. I said to him I heard--

Q. Sorry?

A. I told him, “I heard you talk about my family. I heard you talk about my brother.” So he wanted to come in and then he pushed his face into my face pushing me out of the way and walking in.

Q. I suggest you put your face into his face?

A. No, I’m not going to put my face into his face. He’s, he’s way stronger than I am.

Q. He then said to you when you said, “What are you talking about?” I suggest he said, “Really, let me in.” He walked around you to the bedroom and got changed. Is that what happened? Did he go to the bedroom to get changed?

A. No. No. He went to the living room in the back of the house.

Q. I suggest to you he went to the bedroom, got changed, then he went to the kitchen and made himself a cup of coffee. Do you agree with that, that he went to the kitchen to make himself a cup of coffee?

A. No, he didn’t. He went to the living room and he grabbed the remote control and was playing with the TV looking at YouTube or something and he was ranting and talking and going on about my family and how much he hates them.

Q. I suggest that - and you probably disagree with this - he went to the kitchen, got himself a cup of coffee and walked through the living room where you were to the garage with his cup of coffee in his hand. Does that sound right to you?

A. No.

Q. That he said to you something like, “Since when do you call the plumber to come to my house without telling me?” Is that what he said to you?

A. Yes, he did say that.

Q. That you replied, I suggest, “What did you talk about? Why did you ask about his niece?” I suggest that’s what you said?

A. Yes, I did.

Q. He said to you something like, “What niece? What are you talking about?” Did he say that?

A. Yes.

Q. I suggest you then shouted at him, “I heard you asking him what happened with your niece. Why are you talking about my brother? You know why I called him here, to tell him off and tell him that we don’t want his niece for my brother.” I suggest that’s the words that you said to him.

A. No, absolutely not.

Q. You deny that under oath?

A. Absolutely not.

Q. I suggest he then said to you these words, “Where do you get off calling a man to come into my house to tell him off? Your brother is old enough to sort out his own crap. He’s a 33 year old man and your mother can talk to them. Why do you always have to” and he said this to you “clean their shit, and then we have to yell and scream about it?” That’s what he said to you.

A. No, that’s not true.

Q. I suggest you then said, “You’re just jealous about my family.” That’s what you said to him?

A. That I did say.

Q. You did say that. Then he said to you, “You and your family have very serious problems.” He said that to you, didn’t he? He accused you and your family--

A. He always swears at my family. He calls my mother a prostitute.

Q. I suggest that didn’t happen on this occasion?

A. It, it did. He always says that. That goes - that’s, that’s how it always starts, every argument.

Q. I suggest by this time Alex was near the door that takes him to the back yard about 4 metres away from you. That’s where he was, wasn’t he?

A. No, he was sitting on the couch about four steps away from me.

Q. I suggest that he had his cup of coffee in one hand--

A. No, remote control.

Q. --and he had an unlit cigarette in the other?

A. No, just a remote control in his hand and he was sitting down opposite the girls.

Q. Sorry?

A. He was sitting down opposite the girls.

Q. I suggest that there was no hitting on the face or anywhere with a slipper at all. He didn’t do that to you, did he?

A. No, he jumped up and grabbed his shoe, it was in the side of the room.

I have quoted that at some length to put what occurred next in the context of the case presented by the prosecution.

42. In her DVEC of Monday 18 July 2016, two days later, Suzie said this:

CG: When you’re ready Susie can you just tell me happened?

SO: On Saturday um we got into an argument and um he attacked me ..with my girls and he ran to um the corner of the living room and he had a shoe there he grabbed it and he came and hit me on the head with it.

CG: Yeah

SO: And then he poked me in my stomach with it. And he was in my face yelling and screaming at me threatening me with doing worse. And this is all in front of my daughters. Um…Um…and this is not the first time he has done it. He is very violent with me.

CG: Has there been another incident?

SO: There was an incident where, um I don’t know, I think about 7 weeks ago, um I was in an argument with him and he grabbed me from my jacket and, and choked me with my clothes to the point where I couldn’t breathe. He saw that I couldn’t breathe. And then he ran and got a knife and put it on my throat. My daughter is 4 and she tried to stop him. And he got angry that they saw that, so he took the girls to the room. As he was taking the girls to the room, Lara tripped over, she tripped over her foot and she fell back and hit her head on the wall. Um. And then he um, he ran back out and continued to threaten me and um yell and scream in my face.

CG: Ok, so you said that the most recent incident was 2 days ago. So is that Saturday 16 July 2016? What time did that argument…

SO: It was about 7 o’clock

CG: At night, 7pm?

SO: Yeah

CG: And what was the argument about?

SO: It was about, um he was talking about my family in a nasty way and when I confronted him, he was talking to this man outside the house, about my family in a nasty way. And when I confronted him about it, he denied it. But I had heard him. I said to him: “but I just heard what you said to the man, I heard you from the window”. And then that’s when he got really angry and aggressive and attacked me.

CG: And where did all this happen?

SO: At my house

…

CG: … And you said he grabbed a shoe from the corner of the living room…

SO: Yeah

CG: Um, what type of shoe was it?

SO: It was um, like a big um, it’s a leather one, and on the bottom of it, it you know that European um type that you put your foot in, it’s all brown leather and it’s hard on the bottom of it.

CG: It’s got a hard sole does it?

SO: Yeah

CG: Ok, you said that he hit you in the head with it?

SO: Yeah, he hit me on my head

CG: Whereabouts on you[r] head?

CO: On this side

CG: Your left side?

SO: On my left side yeah

CG: Ok

SO: On this side he hit me on my head

CG: Yep

SO: And he had it in my face, and then when I put my arms, when I had my arms like that to protect myself, he poked it in my stomach.

CG: So you had your arms in front of you you’re saying

SO: Yeah I had both arms like this, I’m like go, move away, go

CG: How hard did he poke you in the stomach with the shoe?

SO: With the hard bit, like that

CG: How hard was it to you? Like on you?

SO: It was hard

CG: Do you have any injuries from what’s happened?

SO: I had a very sore head, I took Panadol that night. I didn’t go to my doctor.

A little later she told Constable Jasmin Gammage that she had told her Doctor about this assault.

43. In cross-examination Suzie said that the shoe was not one that the appellant took from his foot but one that he obtained from the side of the living room. Before he did that, however, he put down the remote control. This evidence was then given:

Q. I suggest that you’ve made all of that up in order to support what’s become ultimately your application for him to be kept out of the house. What do you say to that?

A. No. He came and he hit me on my head with it.

Q. I suggest he never did such a thing?

A. He did. The girls saw him.

Q. That you, I suggest, would have sought some medical treatment if that had occurred?

A. No, I don’t care how much he hurts me physically, the bruises go away. The bruises go away after a week. It’s all the hurtful words don’t go. The bruises go away after a week. I don’t care if my head goes numb. I don’t care. I can handle it. I can handle, I can handle it. I’ve handled it for years.

Q. I suggest there were no bruises at all in respect of this occasion, were there?

A. Visible bruises, no, because he was hitting me on my head and then he hit me on my side.

Later she was asked why she had not gone straightaway to the police. Her response was that the “hardest thing was going to the police” (2T38.31). Much later in cross-examination she said that Zack was not a witness to this event (2T65.42).

44. In her ERI of 22 August 2016, Lara said this:

Q78: … And you said you were here for a few incidents, did you?

A: Yeah. I was here for the most recent one, which is with a shoe.

Q79: Ok. Can you tell me what, about the most recent incident?

A: Um, yeah, um I think this one was about finance… and… um, but… she was sitting right next to me and my two sisters, two younger sisters were sitting on the couch opposite us… so she… just… fighting, you know, they were just fighting, no… and so she didn’t want… and so she just looked at her phone… frustrated with her doing that so he grabbed the phone and he threw it on the floor and almost step on… but instead she got up and he backed her into a corner. Well before he did that he hit her on the head with a shoe… she… blocking her head… pushed her back against the wall and he just kept yelling in Arabic.

Q80: Ok. Where did this incident happen?

A: …in the living room…

Q81: So, like, in the living room again?

A: Yeah, in the living room…

Q82: Ok. And you said, were you sitting next to your mother?

A: I was sitting next to her.

Q83: And where were the other people, like other family members?

A: Um, my two younger sisters were on the couch and my brother was in his bedroom.

Q84: Ok. And then your dad and mum started having the verbal argument. Is that right?

A: Yeah, verbal and then physical and then verbal again.

Q85: Ok. Where did he get that shoe from?

A: Oh, I… there’s a corner in the living room, he grabbed it… the other side of the living room.

Q86: Ok. Do you know what type of shoe it was?

A: It was a brown leather sandal.

She was then asked to identify when this incident occurred. She knew it was before the appellant was arrested, but was unsure how long before, “a week or two”. The interview then continued:

Q93: Yeah. And so he’s gone to the corner and grabbed the shoe.

A: Mmm.

Q94: And then what’s happened?

A: And then he ran back to, he started hitting her on… once or twice…

Q95: …

A: Backed her into the corner with the shoe… stomach. Pressed it against her stomach.

Q96: And what did your Mum do during this?

A: She tried to block… and she tried to get out of the corner… up… arms around… she managed to get out of the corner.

She was then asked about anything that may have been said and she referred to the appellant’s yelling in Arabic, which she didn’t understand.

45. Lara was cross-examined about this incident at some length. She agreed that on this Saturday evening, the appellant came home “about 6’clock” (1T29.10). Zack was either playing the PlayStation in the little living room or was in his own room using his telephone. She knew he had been at work at McDonald’s earlier that day. She admitted that Suzie had told her that the appellant had gone to a mechanic’s shop to arrange a repair of the family’s Mercedes Benz. She agreed that when he came home he made himself a cup of coffee and had gone outside to smoke. She was quite vague as to when the plumber was at the house on this day. The evidence then continued:

Q. I want to suggest that your dad had gone outside and spoken to somebody for about half an hour before coming back inside, does that sound right to you on Saturday night?

A. Yeah, I think, yeah, he was outside and I didn't see him, so.

Q. When he came back in, he then had an argument with your mum?

A. Yeah, he was yelling, he was just yelling at her.

Q. He had his coffee in one hand and his cigarette in the other hand still unlit, is that right?

A. No, I didn't see any coffee in his hand or cigarette.

Q. You didn't see either a coffee or a cigarette?

A. No.

Q. What shoes was he wearing at that time?

A. He was wearing his I think he was wearing his sandals or no shoes. I

don't think he was wearing any shoes at all.

Q. If I were to suggest that your father doesn't even have any sandals, what would you say to that?

A. Well, we always see him in them. He is always wearing his sandals. When he gets home he's always wearing them.

Q. When you say sandals, can you describe what you mean?

A. They are just big dark brown leather sandals. I think they've got like straps on them and they've got the thing that thongs have, that goes between the toes.

Q. How many straps did it have?

A. I think one, yeah, one.

Q. Where are these usually kept?

A. They're kept in our living room in a corner near our kitchen.

Q. Is that opposite the dining room, dining table?

A. Yeah, it's right next to the dining table.

Q. There's another smaller living room, isn't there, that goes off the kitchen towards the bedrooms?

A. Yeah, it's right near the kitchen. You walk out of the kitchen and you see that little living room.

Q. But when you've talked about the living room today you haven't been talking about the smaller living room, you've been talking about the bigger living room?

A. Yeah.

Q. I want to suggest that there was an argument between your mum and your dad on that Saturday night about mum calling the plumber, is that right?

A. Yeah, he was angry that she called that she got a plumber.

Q. You remember hearing that argument?

A. Yeah, I was right next to her when that argument was.

Q. Did he say something like this, "Why did you call him just to have a go at him", something like that? Do you remember him saying that?

A. Yeah, yeah, I think so.

Q. Did the plumbers niece there had been an arrangement for the plumber's niece, if you like, to be for the plumber's niece to be arranged with your mum's brother, do you remember that?

A. No, I didn't even think the plumber had a niece.

Q. You are not aware of that relationship?

A. No.

Q. Do you recall there being a discussion where your dad said something like, to your mum, "Why did you bring him here just to have a go at him"?

A. Just to have a go at him, I don't recognise him saying that but most of the conversations he had that night was in Arabic so I wouldn't understand.

Q. But you understood that it had something to do with

A. The plumber, yeah.

Q. The plumber?

A. Yeah.

Q. Your dad being upset that the plumber had been called?

A. Yeah, he was really angry about that.

Q. Had your mum said something like, "Why are you talking about my family to the plumber"?

A. Why are you talking my mum said that to the plumber?

Q. No, to your dad. Do you remember your mum saying to your dad, "Why did you talk to the plumber about my family"?

A. No, I don't remember that.

Q. I want to suggest that what happened is that your father then, after this argument, said to him, "Why do you do this in front of the children"? Did he say that?

A. Yeah, yeah.

Q. Then he went out, I suggest, to his little room, to the garage I'm sorry, and had a cigarette. I suggest that's what happened?

A. Yeah, he goes sometimes he goes back and forth, or he'll be at the door but then he'll come back and have another go.

Q. But I am suggesting to you that on this Saturday night he never touched your mother, do you agree with that?

A. No, he definitely touched her.

Q. I suggest that he did not go and pick up the sandal, as you have suggested, and hit her, do you disagree with that?

A. Yeah, he hit her.

A little later this evidence was given:

Q. You said that your father whacked your mother or hit your mother twice with a shoe on the top of her head, is that right?

A. Yeah.

Q. I think you said he poked her as well?

A. Yeah.

Q. Did your mother call out or scream out?

A. No, she didn't.

Q. She didn't make any noises?

A. No.

Q. Did you make any noises to try and stop your dad from doing this?

A. No, I didn't say anything.

Q. You didn't say anything, so it was all done silently?

A. Yeah, he was the only one yelling.

Q. He was yelling but your mother didn't yell out?

A. No, she may have called to him like twice just to tell him to stop.

46. Somewhat later, Mr Ginges returned to this event, after cross-examining Lara about other matters. At 1T49.7 Lara said that in this incident Suzie was pushed into “a corner of a wall” and in her next answer “pushed up against a wall”, in contradistinction to the knife incident when her mother was pushed into the corner of the couch. At 1T50.24, Lara said that her mother was “in between the couch and the dining table”, where there was a flat wall.

47. In her ERI of 22 August 2016, Alisar said this about this incident:

Q27: …Has there been any incidents between your mum and dad recently?

A: There’s two recent ones for this year.

Q28: For this year.

A: The recent one when my dad, he grabbed the shoe and… he pinned my mum against the wall, he punched her on the stomach and smacked her in the head with it, twice and then he grabbed her phone and threw it on the floor. And threatened her. But I forgot what the threat was.

Q29: That’s ok. Do you remember when this incident happened, with the shoe?

A: …it was about like, a couple of months…

Q30: Two months ago. And whereabouts did this happen?

A: It was like at night in the living room.

Q31: Do you, would you know what time?

A: No.

Q32: No.

A: It was at 7ish or 8ish.

Q33: So it was at night time. And it was in the living room?

A: Yeah.

Alisar went on to say that the shoe looked like a slipper and that its colour was “greyish”. She said that her father hit her mother in the face with the shoe. She said that she was sitting on the couch with Elizabeth and that Lara was sitting with her mother. She confirmed that Zack was not present, but she believed that this was the occasion when he had gone to the movies with his cousins. She was then asked about her mother’s phone:

Q45: And what happened with the phone, sorry?

A: The phone, my mum was just on the phone closing the apps… get the phone out of your hands. Get the phone out of your hand and he threatened to step on it and crack it all the way.

Q46: Did he step on it?

A: He was… he stepped on it a little bit…

Q47: So the phone happened first then the shoe… Did anything else happen?

A: … after that he went back inside and then came back out and he kicked her on the foot and said if you every bring a man to this house… he said in Arabic…

48. In her evidence, given on 22 May 2017, Alisar said in cross-examination that the slipper was “brown with a little grey” and it was “like a… flip-flops” (3T20.40). She recalled that a plumber had been to the house and that “after he left that’s when he started to fight” (3T22.44). She recalled the argument was “about family” (3T23.17). Later, this evidence was given:

Q. Did your mum stand up at all with the shoe incident or did it all happen while she was sitting down?

A. She was standing up before and then he pinned her up against the wall, then he grabbed the shoe from the corner, the slipper thing, and then ..(not transcribable).. hit her in the head twice and then she was covering her head and then poked her in her ribcage.

Q. Which wall are you talking about?

A. The one next to the two seater couch that she was on.

Q. There's no corner there, it's a straight wall, isn't it?

A. Yeah.

…

Q. You said that he pinned her against the wall and then he went and got the shoe and came back.

A. Well he got the shoe before he went and pinned her up against the wall. He got it from the other side of the coffee table - I mean the dinner table.

Q. Sorry say that again, he‑‑

A. Before he pinned her up against the wall he went from the other side of the dinner table to grab the shoe and then he pinned her up against the wall and hit her on the head twice, then poked her in her ribs with it.

Q. Is that - and I don't mean to say that it's not very serious, but is that all of the things that happened on the shoe, in terms of hitting your mum?

A. Yeah.

Q. So slapped her on the head with the‑‑

A. With the bottom of the shoe.

Q. Of the shoe.

A. Yeah.

Q. And then poked her in the stomach?

A. Poked her yeah.

Q. He didn't punch her in the stomach?

A. No.

Q. Are you sure about that?

A. Yeah.

Q. If you'd said to the police that he punched her on the stomach, would that be wrong?

A. Yeah.

Analysis of the shoe incident

49. All three prosecution witnesses agree that this event occurred in the living room, on Saturday evening, after the plumber/visitor had left. All those witnesses agree that Zack was not present so the fact that he was not called by the prosecution is not a defect in the prosecution case. The three witnesses agree that the incident was preceded by an argument between the appellant and his wife. There is really no dispute as to the nature of the argument:

1. Suzie said it was about extended family matters;

2. Lara said in her ERI that it was about financial matters (which could include calling a plumber unecessarily) and in evidence she agreed that her father was very angry that her mother had called Mr Hammoud;

3. Alisar said in evidence that it was about a family matter; and

4. the appellant gave this evidence in chief:

Q. You heard Susie give some evidence that she got upset with you talking about her family to the plumber. Were there any discussions with the plumber involving her family?

A. Never, no.

Q. Were there any discussions with the plumber about her brothers or the plumber's niece?

A. Never, no.

Q. Did the plumber at some point leave?

A. Yes.

Q. When he left, did you have any discussions with Susie about what had happened?

A. Yeah, I ask her, I said, "What, what, what's going on?" Like, "Why? Obviously, you're not calling him for, for the toilet seat and the - what's going on?" She said, "Nothing. What?" She said, "Why did you ask him about his niece?" And I said, "I didn't ask him about his niece." She said, "No, you were talking to him about my family." I said, "I don't talk to you - about, about - to anybody about your family." I said, "You tell me the truth. What's going on?" And she said, "Well I called him here to tell him that we don't want his niece for my brother. And I told him here to tell him off."

Q. That's what she said to you?

A. That what she said to me and word by word.

Q. What did you say to her?

A. I said, "Where do you get off calling somebody to my place to tell him off and why would you take the role of, yeah, you know, your brother's mother and defend him all the time and carrying on. He's old enough, he can take care of his, you know" - the word(as said) that I said then, "And your mum is there and you dad is there. They don't need you to take their role. You look after your family, don't worry about your brothers."

Q. Was that a fairly heated argument between you and Susie?

A. Then she start yelling and screaming. She said, "You're jealous of my brother, you're jealous of my family, you're jealous of this." And as I pointed out to her that, "Why should I be jealous, be jealous of your brothers and family? They're not educated; they don't have as much money as I have; they don't drive the cars that I drive; they don't have the family that I have. I don't - there is no need for me to be jealous of your brother."

Q. What happened after that? Did anything else happen?

A. No, just she kept waffling on and I, I'd had enough I went and made my cup of coffee and get my cigarettes and I just kept walking to the garage.

Q. It's been said that you picked up either a sandal or a slipper and that you hit Susie across the head with it and that you poked her with it.

A. Never happen.

Q. Did any of that happen?

A. Never happen.

Q. Do you own any brown sandals or slippers?

A. No.

Q. Do you own any what might be called thongs or flip flops?

A. No I don't.

50. The “shoe” was described thus:

1. Suzie in her DVEC described something made from leather “European… type that you put your foot in, it’s all brown leather” and had a hard sole;

2. Lara described in her ERI “a brown leather sandal” and maintained that description in cross-examination;

3. Alisar described in her ERI a “greyish” slipper and in her evidence “a brown with a little grey”, similar to a flip-flop.

A “sandal” is “a light shoe having an openwork upper usually fastened by straps over the instep or around the ankle, or having an upper consisting simply of such straps”: Shorter Oxford English Dictionary, 5th Ed. A “flip-flop” is “something that flaps or flops. Now especially a sandal consisting of a flat sole and straps”: ibid. Cp: the definition of “thong” in the Australian National Dictionary 1988, OUP: “a flat-soled sandal held on the foot by a bifurcated thong passing between the first and second toes”, and that in the Shorter Oxford Dictionary (5th Ed): “a sandal having a flat sole with straps, a flip-flop. Usually in plural. North America, Australia and New Zealand”. What was being described by each witness was either a thong or a sandal, probably the latter. Bearing in mind the family’s linguistic background, terminological inexactitude (not in the Parliamentary sense) is understandable.

51. Where was the complainant struck?

1. Suzie said she was hit on the head and then poked in the stomach, meaning in the abdomen.

2. Lara said in her ERI that he hit her once or twice and “pressed it against her stomach”. In her evidence she said that her father hit her twice in the head (1T23) and then “poked her” (1T34.25).

3. Alisar said in her ERI that the appellant ”smacked her in the head with it, twice” and “punched her in the stomach” but resiled from the last statement but maintained the appellant “poked her in the ribcage” or “poked her in the stomach”.

In essence these are identical descriptions – two blows to the head and poking of the abdomen.

52. Each of the three witnesses consistently says that the appellant obtained the sandal/thong from the side of the living room.

53. These essential matters have been described so similarly that one can accept that the evidence of the complainant, Suzie, has been corroborated by each of Lara and Alisar. Of course, there are also the appellant’s denials, given under oath, but they were clearly not accepted by the learned magistrate who had the advantage of both hearing and seeing each witness as she or he gave her or his evidence. Clearly, her Honour preferred the evidence of Suzie, Lara and Alisar on this issue to that of the appellant. Subject to the further matters which need to be discussed, this offence has been proved beyond a reasonable doubt.

Credit issues addressed below

54. At 4T1.37, her Honour said this:

It is appropriate I think to address some issues that have been raised generally by both parties going to how much weight the Court can give and how much confidence the Court could have in relation to the veracity, accuracy and honesty of the various witnesses. Several issues were raised by the defence in relation to those aspects of the complainants' evidence, that being both Suzie and Lara, but also the young person Alisair's evidence. It can be generally divided into three suggestions or imputations that the defence wish the Court to consider when assessing that evidence.

Her Honour’s trifold summation of these issues can be categorised thus:

1. subornation of Lara to give evidence for the prosecution by buying her gifts and by special treatment after her parents separated;

2. tainting of the evidence of both Lara and Alisar by overhearing or taking part in their mother’s family’s discussions of the circumstances leading to the separation of the appellant and Suzie;

3. the need for Suzie Ottoman to obtain some form of advantage for the purpose of Family Law proceedings, to obtain a finding or findings from a court exercising criminal jurisdiction which would operate to the appellant’s disadvantage in civil proceedings.

Her Honour dealt with these topics at some length. Her summary of the factual issues was accurate, her reasoning process was apparent and her reasons were entirely correct.

55. My own reasons for agreeing with her Honour may be shortly summarised thus:

1. The separation of parents can be just as traumatic for their children as it is for their parents. It is common when an estrangement occurs for both parents to pamper their children, to assuage them for their hurt, their loss, especially when each parent now has greater time to give to the children when no extended interaction is called for between the parents.

2. If the mother’s object were the subornation of witnesses, it would have been easier to suborn the younger daughter than the older, yet there was no evidence relied upon by the appellant to suggest subornation of Alisar.

3. To insist that children be divorced from their extended family’s concerns about the separation of the parents is, frankly, unrealistic. Some form of segregation from the mother’s extended family might only have increased the children’s interest in outstanding issues, or led to unnecessary and, perhaps ill-conceived, speculation on their part. In other words, it could be counter-productive.

4. In any event, when one considers the evidence in detail, one does not find any evidence of coaching, either in context or language. One, for example, need only consider the inconsistencies in the evidence concerning the alleged assault of Lara.

5. Unhappily, domestic violence is not rare. Domestic disharmony can give rise to anger, to rage or sometimes to violence. In some circumstances of the breakdown of a marriage, there is disharmony which leads to violence. In other words, domestic violence and the breakdown of a marriage are sometimes found to be concurrent. Such is the case here. The fact that the two are concurrent does not mean or necessarily imply that the allegation of assault is false. The criminal courts must do their duty and leave the civil courts to perform their appropriate role. If the criminal courts did not perform their role, there might be an increase in domestic violence concomitant with marital disharmony. Courts exercising criminal jurisdiction, unhappily, often deal with cases such as the present one. Her honour had regard to the appellant’s contention but was not persuaded to reject the evidence concerning the assaults on Suzie. Indeed, the circumstances leading to the breakdown of the marriage can be seen to make the occurrence of domestic violence more likely. That contention balances the contention of the appellant. Her Honour’s approach of considering the direct evidence and seeking corroboration for it was, in my view, the correct approach.

Another credit issue

56. There was one credit issue raised in the evidence but was not directly addressed by her Honour. In her DVEC of 18 July 2016, Suzie told Cons Gammage that she had made a complaint to her “Doctor” after the shoe incident. Suzie’s first visit to the police was on 18 July 2016. At the commencement of his cross-examination of Cons Gammage, this evidence was given:

“Q: Constable, one of the things you spoke to the complainant about when she came in, she said that all her injuries and all her violent episodes with her husband were told to her doctor. That she confided in her doctor with them, didn’t she? She told you that?

A: That is correct, yes.”

Cons Gammage asked Suzie to produce to her a “medical release form” permitting the police to obtain Suzie’s doctor’s notes. That authority was addressed to Dr Fadi Abouzeid. Those notes commenced with an entry on 28 January 2017 (1T9.19). No complaint of domestic violence was raised on that occasion (1T9.30). The next attendance upon the doctor was on Wednesday 20 July 2016, two days after Suzie first attended upon the police, and two days after the appellant was arrested. In fact, the relevant chronology is this:

Sat 16 July 2016	Evening	Shoe incident
Mon 18 July 2016	Suzie attends upon Otto Stichter family lawyer (2T23.43)
Suzie attends the bank “to freeze the accounts” (2T20.11)
“just after 3pm”	Suzie first speaks to Cons Gammage at Campsie Police Station (1T3.40)
4:37pm	DVEC begins
6:10pm	Appellant arrested at matrimonial home (1T4.33)
Wed 20 July 2016	Suzie attends Dr Fadi Abouzeid
Mon 22 Aug 2016	“just before 8pm”	Suzie attends Campsie Police Station with her daughters, each of whom makes an ERI

The evidence also suggests that prior to the shoe incident, Suzie had first consulted Mr Stichter: 2T14.29; 2T16.40.

57. Suzie’s evidence on this issue is not satisfactory. Initially in cross-examination, she confirmed what she had told Cons Gammage. She confirmed that her medical practitioner was “Dr Fadi” (2T9.09). This evidence was then given:

Q. If I suggest to you that the first time you confided in your doctor about any alleged family abuse was after you made this complaint to police; would you agree with that or disagree with that?

A. Pardon?

Q. If I suggest to you that the first time you have confided in your doctor about this allegation of family abuse was after you’d made your complaint to police; would you agree with that?

A. No.

Q. You’re saying that you’ve confided in him prior to 20 July 2016; is that right?

A. Correct. He knows everything.

Q. Can you tell me when?

A. Pardon?

Q. Can you tell me when? When did you confide in him?

A. I, I’ve always confided in him.

Later, after cross-examination about whether her body was marked by the shoe incident, this evidence was given:

Q. I suggest there were no bruises at all in respect of this occasion, were there?

A. Visible bruises, no, because he was hitting me on my head and then he hit me on my side.

Q. You went to the doctor, didn’t you, on 20 July, on the Wednesday; is that right?

A. With my daughter I think I did, yeah.

Q. There were no--

A. The 20th of what?

Q. July. Two days after going to the police?

A. I don’t remember any more.

Q. I suggest that’s the first time you told the doctor that there’d been any alleged family abuse?

A. I don’t know. The doctor knows from day 1. The doctor knows everything. He’s the only one who knows. He’s the only one that knew everything.

Q. How many times in 2016 do you estimate you told the doctor about any family violence you were suffering, any injuries you’d suffered? How many times do you think you’d spoken to the doctor about that?

A. Maybe none, I don’t know. I don’t know.

Q. Sorry?

A. I don’t know. Perhaps, perhaps none. I - because I didn’t go to him every time we fought. I didn’t go to him every time we fought but, but there were times when I needed to tell someone and I knew by law he couldn’t tell anyone so I knew he’d keep my secret.

This evidence clearly acknowledges that Suzie may not have made a complaint to Dr Fadi Abouzeid about domestic violence prior to 20 July 2016. Obviously she was seeking to establish that her complaints could be corroborated by her doctor, but they were not.

58. Should this have led the learned Magistrate to reject Suzie’s evidence? She did not, and she had the advantage both seeing her and hearing her give all of her evidence. Should this cause me to reject Suzie’s evidence? I have reached the conclusion that I ought not reject Suzie’s evidence, despite the attempted mendacity for three reasons:

1. I have not had the advantage of the learned Magistrate of seeing and hearing the evidence of the witness as it was given.

2. In any event, Suzie’s evidence is corroborated by that of Lara and Alisar.

3. Perceiving that this case might boil down to “she said v he said”, the witness has clumsily and stupidly sought to corroborate her version of events by saying that she told her doctor (presumably a reliable witness) all about what was occurring. Unhappily, this sometimes occurs, and courts must realise common human weakness can sometimes affect evidence. One might submit that the witness was “mendacious” but, on this occasion, I would prefer the adjective “stupid”.

This issue does not prevent me from upholding the findings of the Magistrate of proof of each of the two charges of common assault on Suzie Ottoman.

Severity

59. In respect of each offence, her Honour ordered the appellant to perform 150 hours Community Service. All three sentences were wholly concurrent. One of those sentences must be set aside but that will have no practical effect. The maximum penalty for common assault in the Local Court is imprisonment for two years and/or a fine of $5,500. If these offences had occurred on or after 24 September 2018 the court would have had to consider imposing a sentence of fulltime imprisonment: see Crimes (Sentencing Procedure) Act1999 s 4A(1)(a). In light of our community’s current concerns about domestic violence, the sentences imposed could be considered “light”. In respect of each offence, the appellant has been ordered, in effect, to perform 75 hours community service – a little over 9 days work. The sentences are not severe and I see no reason why, in the exercise of my discretion, I should interfere with them.

Orders

60. The appeal is allowed in part:

H61571536	Seq 1	Conviction and sentence are confirmed
H61571536	Seq 2	Conviction and sentence are confirmed
H61571536	Seq 3	Conviction and sentence are set aside

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Decision last updated: 07 December 2018