R v Agaar
[2023] SADC 1
•19 January 2023
District Court of South Australia
(Criminal)
R v AGAAR
Criminal Trial by Judge Alone
[2023] SADC 1
Reasons for the Verdicts of his Honour Judge Cuthbertson
19 January 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
The accused is charged on the Information for arraignment on 29 November 2021 with six counts.
The charges are as follows: One count of aggravated causing serious harm with intent to cause serious harm (Count 1); one count of aggravated cause harm with intent to cause harm (Count 2); one count of unlawfully choking, suffocating or strangling another (Count 3); two counts of aggravated assault causing harm (Count 4 and Count 5); one count of aggravated assault (Count 6).
Count 2 is in the alternative to Count 1. Count 4 is in the alternative to Count 3.
The conduct that occurred between 8 August 2018 and 11 August 2018 is the subject of Count 1 and Count 2. Due to the injuries that were alleged to have been caused by the accused, the complainant suffered a brain injury. The complainant spent several months in a Rehabilitation Centre.
The conduct that occurred on 13 February 2021 is the subject of Count 3 and Count 4.
The conduct that occurred on 14 February 2021 is the subject of Count 5 and Count 6.
Verdict - not guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) ss 20A, 20(3), 20(4), 23(1), 24(1); Evidence Act 1929 (SA) ss 13BA; 29B, referred to.
R v Vonarx [1999] 3 VR 618; R v Mas (2013) 118 SASR 160; R v Davies (1995) 183 LSLJ at 192, 6 VR unreported CCA 13 of 1995, considered.
R v AGAAR
[2023] SADC 1R v AGAAR
Introduction
The offender, Achiek Agaar is charged with six counts of assault against his former domestic partner. The charges are as follows:
First Count
Statement of Offence
Aggravated Causing Serious Harm with Intent to Cause Serious Harm. (Section 23(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Between the 8th day of August 2018 and the 11th day of August 2018 at Woodville Gardens, caused serious harm to AD intending to cause her serious harm.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Second Count
Statement of Offence
Aggravated Cause Harm with Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Between the 8th day of August 2018 and the 11th day of August 2018 at Woodville Gardens, caused harm to AD intending to cause her harm.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Third Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Achiek Agaar on the 13th day of February 2021 at Woodville Gardens, being or having been in a relationship with AD unlawfully choked, suffocated or strangled her without her consent.
Fourth Count
Statement of Offence
Aggravated Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Achiek Agaar on the 13th day of February 2021 at Woodville Gardens, assaulted AD and thereby caused her harm.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Fifth Count
Statement of Offence
Aggravated Assault Causing Harm (Ibid).
Particulars of Offence
Achiek Agaar on the 14th day of February 2021 at Woodville Gardens, assaulted AD and thereby caused her harm by punching her.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Sixth Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Achiek Agaar on the 14th day of February 2021 at Woodville Gardens, assaulted AD by kicking her.
It is further alleged that Achiek Agaar committed the offence knowing that AD was his domestic partner.
Summary of Offences
The offences all relate to one complainant, AD, the accused’s former domestic partner. All offences are alleged to have occurred in Woodville Gardens, South Australia.
The charges are alleged to have occurred between 2018 and 2021.
Elements of Offences
The elements of the charge of Aggravated Causing Serious Harm with Intent to Cause Serious Harm are as follows:
1.The accused caused serious harm to the person;
2.The act causing serious harm was a conscious and voluntary act (i.e it was deliberate as opposed to accidental);
3.The accused acted unlawfully (i.e without lawful excuse);
4.The accused intended to cause serious harm at the time of the act;
5.The accused committed the act knowing that the complainant was his domestic partner.
The elements of the charge of Aggravated Causing Harm with Intent to Cause Harm are as follows:
1.The accused cause harm to the person;
2.The act causing harm was a conscious and voluntary act (i.e it was deliberate as opposed to accidental);
3.The accused acted unlawfully;
4.The accused intended to cause harm at the time of the act.
5.The accused committed the act knowing that the complainant was his domestic partner.
The elements of the charge of Unlawfully Choking, Suffocating or Strangling Another are as follows:
1. The accused is, or has been, in a relationship (per s 20A(3) of the Criminal Law Consolidation Act 1935) with the complainant at the time;
2.The accused deliberately applied force by choking, suffocating or strangling the complainant with the result that the complainant’s respiration was stopped, hindered or restricted;
3.The accused applied the force intending to stop, hinder or restrict the complainant’s respiration;
4.The complainant did not consent to being choked, suffocated or strangled.
The elements of the two charges of Aggravated Assault Causing Harm are as follows:
1.The accused applied physical force to the person;
2.The application of force was a voluntary and intentional act;
3.The application of force was without the consent of the victim;
4.The act was unlawful;
5.Harm was caused to the complainant;
6.At the time the accused knew that the complainant was his domestic partner.
The elements of the charge of Aggravated Assault are as follows:
1.The accused applied force to the complainant;
2.The application of force was intentional or deliberate;
3.The application of force was without the consent of the complainant;
4.The act was unlawful;
5.At the time the accused knew that the complainant was his domestic partner.
Onus of Proof
There is a presumption of innocence and the accused is regarded as innocent unless, or until, guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies wholly upon the prosecution; the accused does not have to prove anything. The prosecution must prove beyond reasonable doubt each element of the offence.
Separate Consideration of Counts
The accused is charged with six separate counts, and each must be considered on its own merit. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other count or counts.
I am not to reason that because the accused is guilty of a particular count or it is proved against him that he has committed a particular uncharged act that on that account he is guilty of the particular offence being considered.
Accused Did Not Give Evidence
The accused did not give evidence in his trial. He was not obliged to give evidence. He has not assumed any burden of proof by not giving evidence. That burden always remains with the prosecution.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not influenced by public opinion in relation to this matter.
Witnesses Not Called
During the trial, there were potential witnesses that were not called to give evidence. The case must be decided on the evidence that has been called. I must not speculate on what a witness who was not called might have said. Each party can call whatever witness or witnesses that particular party wants to call. The evidence I have heard is the evidence that the parties have decided to call.
If the non-calling of a witness means that I have a reasonable doubt, well so be it. If I have the view that the case has not been proved beyond reasonable doubt, and that is through a witness not being called and there is not adequate evidence on a topic, I must find the accused not guilty in relation to that particular count.
Evidence Given via CCTV
The complainant gave evidence via CCTV from out of court pursuant to s 13BA of the Evidence Act 1929 with a court companion present.
I will not draw any adverse inference against the accused from these matters and I am to assess the evidence given in exactly the same way as if it was given by any other witness in court in the usual way.
Background – Complainant
The complainant provided extensive evidence into the background and context of her relationship with the accused.
On 26 June 2018, a domestic violence Intervention Order was put in place in favour of the complainant.[1] The Intervention Order was in place at the time of the charged allegations.[2]
[1] Ex P10 para 1.
[2] Ex P10 para 1.
The Intervention Order is relevant in the same manner as the uncharged acts of the accused. He is not to be found guilty solely on the basis there was an Intervention Order in place or that he may have breached it but it is relevant as to the background and as to how each of the parties may have acted in the circumstances of the various counts.
The complainant is a 35‑year‑old woman. She moved from Kenya, Africa to Adelaide, Australia in 2001.[3] She was 13 or 14 years old at that time.
[3] T 20 L 5-17.
The complainant met the accused in Kenya where they both lived in 1999.[4] Due to their culture, the complainant was not allowed to speak to the accused, however the complainant knew that the accused had a romantic interest in her.[5]
[4] T 21 L 15-16.
[5] T 21 L 20-22.
The accused arrived in Perth, in 2003.[6] The complainant first spent time with the accused in Australia on 27 December 2003 when he came to visit her for two weeks.[7] The complainant stated at around this time they were in a relationship.[8] That was the last time the complainant saw the accused for that period. The complainant stated she had relationship problems with another partner and fell pregnant. The complainant and the accused started communicating again in 2005.[9] The complainant and the accused met physically again in 2010.[10] The accused was living in Adelaide. Around that time, the complainant stated that they did not have a romantic relationship, however, in 2015 the relationship officially began.[11] The complainant had moved into the accused’s family home in Melbourne.[12] The complainant had two children from a previous relationship. The children resided with the complainant’s mother in Adelaide whilst the complainant lived in Melbourne with the accused. The complainant and accused lived in Melbourne for 3 months with the accused’s mother, father, sister and cousin.[13]
[6] T 22 L 7.
[7] T 22 L 3.
[8] T 22 L 5-6.
[9] T 22 L 19-22.
[10] T 22 L 24.
[11] T 22 L 36-37.
[12] T 23 L 8-9.
[13] T 23 L 11-12.
The complainant and accused then moved to Adelaide to be with her children.[14] They originally moved to Salisbury, South Australia. The complainant lived with the accused, her two children and the accused’s friend who resided there for a few months.[15] After a year, the complainant and the accused returned to Melbourne in 2017 and resided there for a year.[16] When they returned to Adelaide, the complainant and the accused lived with the accused’s aunt.[17] After three months, the complainant and the accused moved to the house in Woodville Gardens.[18] This is where the alleged offending occurred. When they lived in Woodville Gardens, the complainant’s aunt resided with them for a few months.[19]
[14] T 23 L 25.
[15] T 24 L 2-3.
[16] T 24 L 21-23.
[17] T 24 L 27.
[18] T 24 L 28.
[19] T 24 L 30-32.
The complainant and the accused resided at the Woodville Gardens home until their separation.
Uncharged Acts
During the course of the trial the complainant gave evidence in relation to uncharged acts. The uncharged acts occurred in Melbourne and when the complainant and accused lived in Salisbury. The charged acts occurred when the complainant and accused were residing in Woodville Gardens.
Finances
The complainant stated that the accused carried her bank card with him and had control of her money.[20] The complainant had not worked, and her main income was from Centrelink.[21] The accused worked intermittently in factories and obtained money from Centrelink.[22]
[20] T 26 L 32-36.
[21] T 26 L 34-35.
[22] T 27 L 4-7.
‘The Eye Punch’ Incident
The first act of alleged violence occurred when they were residing in Melbourne.[23] The accused would accuse her and block her friends on Facebook because he assumed they were men trying to flirt with her.[24] They would argue to the point that “one day he had to punch me in the eye and I could not see for two weeks”.[25] The complainant had to see a medical practitioner and claimed the accused admitted to the medical practitioner that he had assaulted her.[26]
[23] T 24 L 21.
[24] T 25 L 26-29.
[25] T 25 L 29-31.
[26] T 25 L 33-38.
Choking & Fighting in Melbourne
The complainant stated that on one occasion in Melbourne, the accused had choked her in front of his family.[27] The accused’s family allegedly stopped him from continuing to strangle the complainant.[28] The complainant stated that she had to sleep in a room with the accused’s sister because he was thought to be too dangerous.[29]
[27] T 26 L 10-12.
[28] T 26 L 10-12.
[29] T 26 L 13-14.
On another occasion, the complainant stated that the accused got into a fight with her at a friend’s house.[30] The complainant stated that the fight occurred because the accused did not like the fact the complainant was speaking to her ex-boyfriend’s brother.[31] The complainant slept away from home that night.[32]
[30] T 26 L 15-16.
[31] T 26 L 16.
[32] T 26 L 25-26.
On another occasion, the complainant and the accused were residing in Colac.[33] The accused was working at a meat factory. The complainant stated that they were fighting frequently. The complainant stated they resided in shared accommodation and the accused would lock her in the room until he finished work.[34] The accused became angry because he thought the complainant was talking to another man in the shared accommodation. The complainant stated that the accused would become violent but because there were always other people around, it would not escalate.[35]
[33] T 34 L 16-17.
[34] T 34 L 26-27.
[35] T 34 L 31-34.
Uncharged Acts in Salisbury, South Australia
The complainant stated that when they returned to live in South Australia, the relationship became “horrible” and “toxic”.[36] The complainant stated that the accused always wanted to fight her, and the relationship was marred with violence.[37]
[36] T 28 L 2-5.
[37] T 34 L 1.
The prosecution led evidence of an uncharged incident of violence that occurred in April 2016.[38] At that time, the complainant and accused had been arguing.[39] The accused walked away from the complainant at some point during the argument, but the complainant could not recall.[40] The complainant followed him as he was walking on Salisbury Highway.[41] The accused allegedly pushed the complainant to the ground.[42] The complainant also recalled a neighbour watching, and the neighbour called out “you know you shouldn’t do this when here [in Australia]”.[43] The complainant recalled the neighbour calling the police and went to the neighbour’s house for safety.[44] The police arrested the accused.[45] The complainant eventually withdrew the charges against the accused as she was pressured by her Sudanese community.[46]
[38] T 28 L 18-38; T 29 L 1.
[39] T 28 L 20.
[40] T 28 L 24.
[41] T 28 L 27-28.
[42] T 28 L 29-30.
[43] T 28 L 31-33.
[44] T 28 L 34-35.
[45] T 28 L 38.
[46] T 29 L 19-38.
The complainant recalls another incident after the April 2016 incident.[47] The complainant recalled that on one occasion, the accused followed her into the park and pushed her towards the chairs where she fell on her back onto the chairs.[48] Another time, “we were fighting, and he had a fight with my cousins”.[49] Around that time, another fight occurred between the complainant and accused to which the complainant called the neighbours and police were called.[50]
[47] T 30 L 13-21.
[48] T 30 L 15.
[49] T 30 L 16.
[50] T 30 L 19-21.
On another occasion, the complainant stated how the accused had an argument with her regarding her phone.[51] The argument was about who the complainant was talking to on the phone. The accused pushed the complainant and choked her in the main bedroom.[52] The complainant recalled that the room was locked.[53] The complainant stated that her children were yelling “stop stop”.[54] Once the children were screaming, the accused stopped choking the complainant and let her go.[55] The complainant recalled the accused’s hand around her neck and that she could not move but she could scream.[56] The complainant then ran to the neighbour and called the police.[57] The accused walked away but the complainant could not recall where he went. When the police came, the complainant provided a statement. The complainant stated she eventually withdrew the charges.[58]
[51] T 31 L 11-38.
[52] T 31 L 1.
[53] T 31 L 15.
[54] T 31 L 16-17.
[55] T 31 L 18.
[56] T 31 L 30-31.
[57] T 31 L 19-20.
[58] T 32 L 27-28.
On another occasion, in February 2017 the complainant and the accused were at a train station.[59] The accused punched the complainant and was fighting with the complainant.[60] A bystander called the police, but the police did not arrive.[61]
[59] T 33 L 11-12.
[60] T 33 L 13.
[61] T 33 L 23-26.
On another occasion, the accused had slapped and punched the complainant in front of their friends.[62] The complainant stated that the fight occurred because the accused thought she was talking to another man.[63]
[62] T 33 L 27-29.
[63] T 34 L 5-7.
Another occasion occurred in 2019.[64] The complainant stated that the accused’s friends were at their home.[65] The accused was drunk and fell asleep on the balcony outside.[66] The complainant stated she was sitting with a friend and the friend assisted her in trying to wake up the accused by pouring water on his head.[67] When the accused woke he became angry that the complainant was socialising with the friend.[68] The complaint walked away into the bedroom and the accused followed and started calling the complainant names.[69] In the bedroom, the complainant states that the accused pushed her, grabbed her and strangled her.[70]
[64] T 44 L 13-14.
[65] T 44 L 13-14.
[66] T 44 L 15.
[67] T 44 L 17-19.
[68] T 44 L 23-26.
[69] T 44 L 25-28.
[70] T 44 L 29.
Another occasion occurred where the accused’s aunt was in the house. The complainant remembers screaming and the accused was choking her.[71] The complainant stated that the accused would tell her that he ‘will do worse than a brain injury’.[72] The complainant called the police.[73]
[71] T 44 L 32-33.
[72] T 44 L 33-35.
[73] T 45 L 3-5.
The uncharged acts, if proved can be used for the following purposes:
i.To put the evidence about the offences in context;
ii.To show the nature of the relationship between the complainant and accused;
iii.To show why the parties may have reacted in the manner they did. In other words, if there had been violence on previous occasions, it may have determined how the parties reacted on a particular occasion;
iv.To show why complainant may not have complained.
Such evidence is clearly prejudicial and if it shows no more than the existence of a criminal disposition or propensity on the part of the accused it will be inadmissible. If the evidence is tendered by the prosecution to prove the existence of a relevant “relationship” between the accused and the victim, the onus rests on the prosecution to establish that the evidence goes further than mere propensity and has additional probative value which justifies its admission despite its prejudicial effect.[74]
[74] R v Vonarx [1999] 3 VR 618 (CA) at 622-623 [14]
Due to the large number of incidents described and the lack of detail regarding them, I am unable to find the uncharged acts established to the required degree so they do not assist me in resolving the issues with any of the charged counts.
The prejudicial evidence of uncharged acts must be completely ignored if it has no probative value as explained.
The Charged Acts
Count 1 and 2
These offences are alternative offences.
Prosecution Opening
The first two charges related to a time the accused slapped and punched the complainant to the head in August 2018 when they were walking near their house in Woodville Gardens.[75] It resulted in the complainant being taken to hospital the next day and requiring surgery on the brain.[76] She spent about three months in hospital at the Hampstead Rehabilitation Centre and still suffers the effects of that brain injury.[77]
[75] T 11 L 35-37.
[76] T 12 L 1-5.
[77] T 12 L 4-5.
Prosecution Case
Both parties had moved back to South Australia to Woodville Gardens by August 2018.[78]
[78] T 34 L 35-37.
They were frequently violent towards each other and often fighting.[79]
[79] T 35 L 1-10.
On one occasion, they went for a walk to the accused’s aunt’s house and had an argument on the way back.[80] The accused slapped the complainant three times and punched her two times such that she was unconscious and fell to the ground.[81]
[80] T 35 L 2-3.
[81] T 35 L 6-7.
The accused lifted her up and they went home.[82] They both had some alcohol prior to this incident.[83] The complainant was complaining about her head.[84] When she fell to the ground it was on a concrete footpath such that the right side of her body and head hit the ground.[85] The punch was very hard. “I never felt anything like that before”.[86] After the second day the complainant began to feel sick.[87]
[82] T 35 L 8-10.
[83] T 35 L 30-35.
[84] T 35 L 18-26.
[85] T 36 L 13-18.
[86] T 37 L 38 continue T 38 L l-5.
[87] T 38 L 21.
One might have expected to see abrasions to the side of the face/head when the complainant hit the concrete pavement if examined soon after by an expert. It would also be surprising if there were no physical signs of recent injury given the description of the event. There is no such evidence.
The complainant went to the hospital because she was vomiting on the first night but was discharged and came back home.[88] She may well have been examined for injuries but then there is no evidence before the court of any injuries or any cogent explanation for the symptoms.
[88] T 39 L 3-7.
There is no evidence of any history given by the complainant as to the cause of the injuries to those treating her.
She went to the hospital again on the following night.[89] She had a scan on her head.[90] She said the medical practitioner diagnosed her with internal bleeding.[91] She was transferred to the Royal Adelaide Hospital and spent a few months in the Hampstead Rehabilitation Centre. When she was discharged, the complainant returned to live with the accused.[92] There is no evidence of any observations of injuries (other than internal bleeding) nor any history from the complainant on this occasion, as to what happened to cause the injuries.
[89] T 39 L 6-13.
[90] T 39 L 18-22.
[91] T 39 L 22-24.
[92] T 41 L 1-4.
Corroborating Witnesses
Dr Sukumaran
He was a medical practitioner working at the South Australian Brain Injury Rehabilitation Clinic at the Hampstead Rehabilitation Centre when the complainant was admitted in August 2018.[93] He did not see her until 29 August 2018[94] at which time any signs of recent injury would have been healed in any event as the incident is alleged to have occurred 21 days earlier.
[93] T 123 L 32-37.
[94] T 129 L 29-31.
The complainant was admitted on 29 August 2018 and discharged on 8 November 2018.[95]
[95] T 124 L 2-4.
Relying on notes, he says she presented at the hospital on 10 August 2018 with a history of having had a headache.[96] Significantly, there is no evidence of any history given of the complainant having been struck and falling to the footpath which, given the complainant’s present assertions, might have been expected.
[96] T 124 L 32.
She was kept for observation and discharged on the same day and represented on 11 August 2018 to the Queen Elizabeth Hospital with a headache and vomiting.[97]
[97] T 124 L 34-37.
The evidence is somewhat unsatisfactory. By reference to medical notes it was noted she had alcohol withdrawal seizure and was kept under observations after a CT scan found bleeding on the brain.[98]
[98] T 125 L 1-4.
There is no history given of any assault and no evidence of signs supportive of it as described by the complainant.
Dr Sukumaran says that there was no physical trauma documented even though he made a search for notes of someone observing such trauma.[99]
[99] T 125 L 28-29.
The CT scan of the brain demonstrated a subdural haematoma which is known as bleeding between the layers of the brain.[100]
[100] T 126 L 21-25.
On the second admission she did mention at some stage about being slapped three times on her face on her right side.[101] There is no evidence of her having complained of a fall.[102]
[101] T 126 L 28-30.
[102] T 127 L 1-4.
As to the possible causes of the injury there is no evidence by the medical practitioners who saw her at the relevant time. This is no criticism of Dr Sukumaran who saw her at a much later time.
The absence of expert medical evidence from persons who were present and saw the complainant in the first two days after the incident in the light of an accurate explanation of what happened to her and upon her admission to hospital, causes me to have concern as to whether I can be satisfied beyond reasonable doubt of the incident as it is now described by the prosecution.
This is especially so given there was no history given about the assault consistent with what is now alleged and there is no evidence of trauma consistent with a fall on rough cement.
I cannot accept the complaint’s evidence about the actus reus on Counts 1 and 2 beyond reasonable doubt due to reservations about her credibility and reliability.
My reservations arise due to the lack of any evidence of the presence of any observable signs of external injury consistent with a fall to a cement footpath and punching to the head and the lack of any consistent history at the time given to medical personnel that attended to the complainant.
As I cannot be satisfied beyond reasonable doubt as to the actus reus in relation to Counts 1 and 2, I must acquit in relation to both these counts.
The fact that I cannot accept her evidence beyond reasonable doubt in relation to the actus reus of Counts 1 and 2 is a matter I take into account in assessing the credibility and reliability of the complainant in relation to the other Counts.
Count 3 and 4
These offences are alternative offences.
Prosecution Opening
The prosecution case on Counts 3 and 4 is as contained in the Prosecutor’s opening.[103]
[103] T 12 L 14-27.
The third and fourth charge relate to an evening when the accused and Ms Deng were at their home in Woodville Gardens and the accused got angry at Ms Deng about being nearby when he was on the phone. After the phone call she says that they were laying on the bed and the accused got on top of her and straddled her before putting his hand on her neck and squeezing. It got to the point where Ms Deng couldn't breathe. The accused made various threats of violence while he had hold of her neck, before he got off her when she pleaded for him to stop. She felt soreness in her neck after the incident. The aggravated assault charge that is count 4 is laid in the alternative to count 3.
Prosecution Case
The only evidence given by the complainant that could conceivably correspond with the case that the prosecutor had opened on as follows:[104]
[104] T 31 L 6 and T 32 L 10.
QThen you talked about, you started to tell us about an incident at the house when he had taken your phone off you.
AMm-hmm.
QCan you tell us about that.
AThere we had an argument, most of the time it would be about who did you talk to, this and that, pretty much I don't remember exactly why we argued that day, on that day. But yeah, he pushed me and he was choking me to the house, in the room, bedroom. The room was locked inside, and I remember the kids were calling out 'stop, stop', he wouldn't stop, and then they were screaming, that's the time he stopped, then let me go, and he walked away. And I had ran to the neighbour, so they can call the police.
QSo which room of the house was it in.
AOur bedroom, main room.
QThe main bedroom.
AYes.
QAnd you said he walked away, where did he go.
AI'm not sure where he went.
QWhen you say he was choking you, what was he actually doing.
AGrabbing me on my throat, holding me down, and just - I couldn't move at all, except that I could scream.
HIS HONOUR
QWere you able to breathe.
AYeah, I could breathe a bit.
XN
QWhere in the bedroom was this.
AOn the bed. Because he pushed me down on the bed.
QYou said the door was locked from the inside.
AYeah.
QWho unlocked it.
AHe did, when he walked away.
QThat's when you went to the neighbour's house.
AYes.
QWhat did the children do at that point.
AThey were crying, and I just had to calm them, calm them down. That's all I could do.
QWhen you went to the neighbour's house did they stay or come with you.
The prosecution concedes that this is not a reference to what the prosecution opened on as Counts 3 and 4 and that there is no evidence in relation to Counts 3 and 4.[105]
[105] T 164 L 1-12.
In relation to Counts 3 and 4 as no evidence was offered, I return verdicts of not guilty.
The allegations which comprise Counts 3 and 4, are alleged to have occurred on 13 February 2021, (the day before the incident which is the subject of Counts 5 and 6).
Effect of Failure to Prove Case on Counts 3 and 4 and Counts 1 and 2
The question that arises is whether I can use the failure of the complainant to come up to proof concerning the allegations comprised within Counts 3 and 4 and the matters that informed the verdicts on Counts 1 and 2 to cast reflections upon her credibility or reliability and use that material against her in determining adversely her credibility and reliability in relation to other Counts on the Information.
The failure to prove Counts 1, 2, 3 and 4 does not rely on some technicality. It depends directly on the lack of proved accuracy and credibility of the complainant.
It is a matter of logic that if a person is found to be lying or inaccurate or unconvincing in relation to a particular matter, it may have the consequence that one’s view of the credibility or reliability of that witness is impaired. It is a matter which has frequently and traditionally been a concern of the trier of facts in legal proceedings.
Section 29B of the Evidence Act 1929 reads as follows:
29B (1) In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim’s evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim’s evidence generally or in relation to other charges.
(2) Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in subsection (1) is abolished.
[s 29B insrt Act 57 of 2021 s 16 opn 1 June 2022]
In my view the failure of the complainant to remember and recount in evidence the alleged incident which comprises Counts 3 and 4 is a significant factor in assessing her credibility and reliability. The incident occurred the day before Valentine’s Day and was pleaded as such on the Information. The fact that it was the day before Valentine’s Day would have been a significant factor for remembering this incident if it had taken place.[106]
[106] R v Mas (2013) 118 SASR 160; R v Davies (1995) 183 LSJS at 192, 6 VR unreported CCA 13 of 1995.
The prosecutor was given ample opportunity to pursue the matter in examination in chief.[107] The failure to come up to proof in relation to Counts 3 and 4 is in my view a significant factor in assessing the credibility and reliability of the complaint generally such that it is a highly relevant consideration in relation to all other Counts.
[107] T 30-51.
This form of logical reasoning is not precluded by s 29B of the Evidence Act 1929 which relates to jury directions and in any event precludes a clearly wrong direction that the trier of fact must take into account a matter which at least could only be a matter that they may wish to take into account depending on the circumstances.
Counts 5 and 6
Prosecution Opening
Counts 5 and 6 are particularised as follows.[108]
[108] T 12 L 28-35.
The following evening the accused and Ms Deng went for a walk from their property at Woodville Gardens. On that walk the accused, on the prosecution case, punched Ms Deng in the lip, causing her to bleed. That is count 5 on the information. Then the accused kicked Ms Deng to the foot, causing a cut to her foot, that is count 6 on the information. Ms Deng then ran from the accused and phoned police.[109]
[109] T 12l L 28 – 34.
Prosecution Case
The complainant had been hospitalised prior to Valentine’s Day.[110]
[110] T 46.
The accused asked the complainant to stay with him for Valentine’s Day as he did not want to celebrate it by himself.[111]
[111] T 46.
He picked her up on Valentine’s Day and they went for a walk.[112] There were friends staying overnight at their home and they left them in the house.[113] On the way the accused was talking to another woman on the phone.[114] The complainant went back to collect her wallet.[115] The person on the phone was a female as the complainant could see the screen.[116] She had been silent while the accused was talking to the woman on the phone.[117] The accused said he had been talking to his sweetheart.[118] The complainant kept silent. Then when she went closer to him the accused pushed her and she pushed him back.[119] Then he punched her mouth and made her lips bleed.[120] This is Count 5.
[112] T 46 L 11-13.
[113] T 46 L 27-28.
[114] T 46.
[115] T 46 L 30.
[116] T 46 L 32.
[117] T 46 L 33-35.
[118] T 46 L 36-38.
[119] T 47 L 2-3.
[120] T 47 L 3-4.
In a statement that was tendered by Dr Lees, a medical practitioner,[121] she stated as follows:
[121] Ex P9.
The history provided was that the injuries occurred as a result of multiple episodes of assault from her ex-partner over the preceding two to three days including manual strangulation, head injury and strikes with hand and feet.[122]
[122] Ex P9.
Yet the complainant gave no evidence of assault, manual strangulation or head injury over the preceding two to three days,[123] and there was no evidence given by the complainant of anything that would constitute Counts 3 and 4.
[123] T 181 L 35-37.
The injuries Dr Lees noted were as follows:
Upon examination I noted tenderness to her right lateral neck. There was no swelling, bruising or wounds. There was a superficial wound to the dorsum of right foot. A CT was done of her brain and neck, there were no acute injuries. An Xray of her chest was conducted and there were no acute injuries, the result was stable from previous (sic).[124]
[124] Ex P9 para 7.
No opinion was expressed as to the recency of the injury to the right dorsum.
There was no opportunity to examine or cross-examine the witness to obtain any further details as she simply was not called to give evidence.
One might have wanted to know what sort of examination was made for the presence of a bleeding and swelling lip which the complainant had said was present from the punch.
One might have expected some elaboration on the injury to the dorsum of the foot. It seems a rather light injury for a hard kick with steel capped boots. There is also some doubt as to how recent it was.[125]
[125] T 151 L 11-26.
One might have wanted to know just how recent were the “multiple episodes of assault from her ex-partner over the previous two to three days …”[126] As the witness was not called there was no opportunity for further elaboration on these matters.
[126] Ex P9 para 6.
It is to be remembered that the injuries that were observed by Dr Lees were, according to her statement[127] the result of multiple episodes of assault over the previous two to three days including manual strangulation and head injury.[128]
[127] Ex P9.
[128] Ex P9 para 5.
Evidence of Injuries in Support of Count 5
The main piece of evidence to support the injury to the complainant’s lip is two photos taken by the police.[129] Evidence was taken from Senior Constable Powrie in relation to her observations in relation to that lip injury.[130] She does not directly confirm she saw such an injury.[131]
[129] Ex P3, T 80 L 14-18.
[130] T 150 L 6-8.
[131] T 150 L 3-13.
I am concerned by the lack of evidence in relation to the punch to the lip. The photograph is marked to show where the complainant sustained the injury,[132] however, blood cannot be detected or any injury to the upper lip, nor was the presence of any certified by independent evidence.
[132] Ex P3.
Count 6
The prosecution case is that following the alleged punch to the mouth, the accused kicked the complainant’s foot while wearing steel capped boots.[133] This was a hard kick with a steel capped boot which might have been expected to have caused injury.[134]
The complainant ran into the next street to hide and then rang the police who took her to the police station and then to the hospital.[135]
Evidence of Injuries in Support of Count 6
The evidence in Count 6 is supported by a single photo taken by police.[136] Senior Constable Powrie also gave evidence in relation to this injury. She did not think it was recent.[137]
The photograph depicts the complainant’s right foot. On the top left-hand side of the complainant’s right foot, there is a wound, oval in shape with a red colour on top, different to the colour of the complainant’s skin.[138]
[133] T 47 L 4-6.
[134] T 47 L 10-13.
[135] T 74 L 16-18.
[136] Ex P3, T 80 L 13-16.
[137] T 151 L 18-28.
[138] Ex P3.
Senior Constable Powrie could not determine whether the wound on the complainant’s foot was caused on that day by the accused.[139]
The Opportunity for Confirming Evidence of Injuries
[139] T 151 L 11.
1.In relation to Counts 1 and 2.
The complainant was slapped and fell on a concrete footpath. She was seen by medical staff soon after.
No evidence of relevant injuries eg, abrasions to her were noted.[140]
[140] T 124 L 22-32.
2.In relation to Counts 3 and 4.
No evidence was led corresponding to injuries from the conduct comprising Counts 3 and 4.
3.Counts 5 and 6.
The complainant received a hard punch from a big man to her face and a kick with a steel cap boot.
There was no independent evidence led of any recent lip injury. The only independent evidence is in relation to a foot injury suggesting that it did not appear to be recent.[141]
[141] T 151 L 11-28.
The history given by Dr Lees was in her statement:
The history provided was that the injuries occurred as a result of multiple episodes of assault from her ex-partner over the preceding two to three days including manual strangulation, head injury and strikes with hands and feet.[142]
[142] Ex P9 Para 5.
Senior Constable Powrie did apparently see a swollen lip[143] but did not otherwise confirm an injury to the upper lip[144] and the foot injury did not appear to be recent.[145]
[143] T 50 L 6.
[144] T 151 L 6.
[145] T 151 L 21.
Effect of Alcohol
Alcohol use was a frequent factor in the parties’ fights.[146]
[146] T 28 L 3-11.
The complainant had undergone detoxification treatments whilst living in the Salisbury home and in the Woodville Gardens home.[147]
[147] T 28 L 4-17, T 64 L 30-38.
It is well known that alcohol intoxication can lead to aggression, loss of inhibitions and lack of memory. There is evidence that in their altercations the parties were often intoxicated.[148]
[148] T 28 L 3-5, T 63 L 24-30, T 64 L 22-31
The fact that the parties and more particularly the complainant were frequently affected by alcohol causes me to have more doubt about her evidence as to its reliability, as the effects of alcohol can make a person more likely to forget matters and less able to note and remember nuances in relation to the behaviour of other people.
Complaints by Complainant Being Withdrawn
The fact that the complainant has not infrequently withdrawn complaints after making them to police increases my concern about the truthfulness and reliability of her evidence. There remains a possibility that she withdrew her complaints because the events complained of did not happen in the way the complainant alleges.
Complaints were made and then withdrawn on a number of occasions.[149]
[149] T 28 L 17-38, T 29 L 1-22, T 31 L 6-38, T 32 L 22-36.
I am aware of the fact that it is not an infrequent occurrence for the weaker party in a relationship to make charges and subsequently withdraw them. Often it is because the party is weaker and fearful of the consequences of proceeding with the charges. Often, to determine this it is necessary to analyse in detail the particular charge being considered. Neither party attempted to do that in this case.
In such circumstances it is impossible to come to a resolution of the issue of whether the charge that was withdrawn was justly made. The best I can do is consider the fact that charges were made and later withdrawn. It remains a reasonable possibility that the charges were withdrawn because the complainant knew they or some of them were not justly made.
Evidence of Brain Injury
As a result of an incident complained of as Counts 3 and 4, the complainant has suffered a brain injury.
Dr Sukumaran observed that initially there is a period of confusion called post-traumatic amnesia.[150] The brain cannot register information accurately.[151] It would have an effect on her memory about what happened at that time.[152]
[150] T 126 L 35-37.
[151] T 126 L 37-38.
[152] T 128 L 37-38.
The long-term effects of that injury are said to be ongoing issues with memory and problem-solving difficulties.[153] The complainant also will have difficulty processing information, and a visual defect in her eye resulting from the brain injury.[154]
[153] T 130 L 17-18.
[154] T 130 L 18-24.
The complainant’s memory is likely to be significantly compromised due to the brain injury.[155]
[155] T 142 L 7.
As a consequence of her brain injury, I am concerned about whether it may have had an effect on the capacity of the complainant to accurately describe complex events and especially events involving considerable emotional input. The lack of a detailed history provided by the complainant at the time and the lack of detailed medical observation at the time is thus highly significant.
Combined Effects
The combined effects of these issues (dropping of other charges, alcohol intoxication, brain damage and lack of detailed observations of injuries at the time they were allegedly caused by an independent source) means I am doubtful about the credibility and accuracy of the complainant’s evidence.
I confirm that I cannot be certain of guilt beyond reasonable doubt in relation to any of the charges. This is not to say that I do not believe the complainant. She may well be telling the truth. It is just that I cannot be certain beyond reasonable doubt.
Verdicts
Count 1 – Not Guilty
Count 2 – Not Guilty
Count 3 – Not Guilty
Count 4 – Not Guilty
Count 5 – Not Guilty
Count 6 –Not Guilty
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