R v Cotton - [2014] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v COTTON
Criminal Trial by Judge Alone
[2014] SADC 164
Reasons for the Verdicts of His Honour Chief Judge Muecke
24 September 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Trial by judge alone.
The accused charged with twelve offences he allegedly committed on his partner over about four years.
Verdicts: Guilty of counts 1, 2, 3, 4, 5, 6, 7 and 12.
Guilty of the alternative to counts 8, 9, 10 and 11.

R v Robinson & Tiplady (1985) 123 LSJS 37, considered.

R v COTTON
[2014] SADC 164
Background

The complainant Mary Ballah was born in Liberia, Africa. She was about 16 years old when she came to Australia with other members of her family. She came here through a refugee organisation. She came with her sister Nboweh Ballah who is two years her senior. She came here on 15 November 2005.
After she had arrived she stayed in metropolitan Adelaide at various houses. She first stayed with her uncle in Pt Adelaide. She had come to Australia with him, his wife and their children.
When living there she met and became friends with a woman named Yah Gbele.
Mary Ballah met the accused in the middle of 2006. The accused was a friend of Ms Gbele’s boyfriend. They started a relationship in 2007. At that time the accused was living with his parents in Broadview.
Mary Ballah and the accused had three children together. They were born in January 2008, August 2009 and March 2011.
Mary Ballah’s relationship with the accused ceased on 23 July 2010. At that time she had just become pregnant with their third child. Their relationship spanned about three years.
Mary Ballah’s evidence was that the relationship was marred and punctuated by domestic violence committed on her by the accused. She reported that to the police for the first time at about midnight on 23 July 2010. That was after what she described as the last time the accused assaulted her in their home.
Mary Ballah’s complaint to the police led to the accused being charged with twelve counts on an Information dated 29 November 2012. Most of those counts allege some violence committed against Mary Ballah. One count is an allegation in which it is alleged that Nboweh Ballah was the victim and two other counts allege that the first two children of Mary Ballah and the accused were the victims.
For a time Mary Ballah lived with her friend Yah Gbele at a house at Kilburn. The first three counts on the Information allege that the accused offended against Mary Ballah when she was living at Ms Gbele’s house. The first count is alleged to have occurred in a car when the accused was driving Mary Ballah and Yah Gbele home to Ms Gbele’s house. The second and third counts are said to relate to one incident which is alleged to have occurred in Ms Gbele’s house when Ms Gbele was present.
Counts 4 and 5 are alleged to have occurred at a house at Hillcrest where Mary Ballah and her sister Nboweh Ballah were living together. It is alleged that Nboweh Ballah witnessed the incident which is said to constitute the fourth count.
For about six months in the later half of 2008 Mary Ballah and their first child lived with the accused at his parents’ house at Broadview. Count 6 is alleged to have occurred at that house when the accused’s mother was overseas, but when the accused, his father and Yah Gbele were in the house. It is also alleged that during the incident the subject of the sixth count the accused’s father struck and kicked Mary Ballah as well as the accused.
After living at the accused’s parents’ house until the end of October 2008 Mary Ballah, the accused and their first child moved to live at a rental house owned by the accused’s parents. That house was at Prospect. It is alleged that counts 7 to 12, being the remaining six counts, occurred whilst they were living at the Prospect house, although it is alleged that counts 8 to 11 occurred in a car when the accused was driving Mary Ballah, their two children and Nboweh Ballah home from a party. It is alleged that those counts were committed by the accused at Windsor Gardens on the way home to the Prospect house. Counts 8 to 11 are alleged to have occurred in the same incident. Only the alleged victims were different.
At the trial I admitted evidence of two incidents which comprised uncharged acts or conduct. I refer to the first as “the Centrelink incident”. This is alleged to have occurred when Mary Ballah was living at the Hillcrest house. I refer to the second as “the baby bag incident”. This is alleged to have occurred when Mary Ballah was living at the Prospect house. The Centrelink incident is alleged to have occurred between counts 5 and 6 whilst the baby bag incident is alleged to have occurred between counts 7 and 8, 9, 10, 11. There was another or other incidents which were not charged and I ruled or rule that I shall have no regard to these incidents in considering my verdicts as to the charged acts and conduct.
Count 1 is alleged by Mary Ballah to be the first time that the accused committed an act of domestic violence on her. If it occurred it was probably in about August/September 2007 when Mary Ballah was about four months pregnant with their first child. That child was born in January 2008. Ms Gbele was said to be there when this incident occurred and she gave evidence of it.
Counts 2 and 3 are alleged to have occurred at Ms Gbele’s house when Ms Gbele was present. Ms Gbele gave evidence as to the incident in which it is alleged the accused committed these two offences.
Counts 4 and 5 are alleged to have occurred at the house where Mary Ballah was living with her sister Nboweh. Nboweh Ballah was said to be present when the fourth count was committed. She gave evidence as to this incident.
It was the accused’s case that the four incidents which constituted counts 1 to 5 (counts 2 and 3 being alleged to be comprised in one incident) did not occur at all.
The uncharged Centrelink incident is alleged to have occurred before their first child was born. It is alleged to have occurred at the house of a friend of Mary Ballah. That friend was Irene Kallon. Ms Kallon gave evidence as to this incident. The evidence was that other people were present during this incident. Those others did not give evidence. The accused’s case was that this incident did not occur at all.
Count 6 was referred to as “the toilet seat incident” and that is alleged to have occurred at the Broadview house of the accused’s parents. It is alleged that Ms Gbele and the accused’s father were there as were Mary Ballah and the accused. This is alleged to have occurred when Mary Ballah was staying at the Broadview house of the accused’s parents. Ms Gbele gave evidence as to this incident as did Mary Ballah, the accused and the accused’s father. It was common ground that something happened at the accused’s parents’ house on the occasion described by each of those four witnesses who gave evidence of it. It was common ground that a toilet seat was involved and that the incident occurred when Ms Gbele was visiting the house for the first time.
Count 7 is alleged to have occurred when Mary Ballah was eight months pregnant with their second child. It is said to have occurred at the house at Prospect. Their second child was born in August 2009 so if Mary Ballah was eight months pregnant when it occurred it likely occurred in July 2009. No‑one else was alleged by Mary Ballah to be present when this occurred. The accused’s case was that it did not occur at all.
The uncharged baby bag incident is alleged to have occurred in Mary Ballah’s eight or nine month of pregnancy with their second child when they were living at the Prospect house. Mary Ballah alleged that no-one else was present other than she and the accused. The accused’s case was that this incident did not occur at all.
Counts 8 to 11 were alleged to have occurred on a drive home from a party when Mary Ballah, the accused and their first two children were living at the Prospect house. These four counts are alleged to arise out of the same incident. It was alleged that the accused performed an act which created a risk of serious harm, separately in respect of the four counts, to Mary Ballah, to Nboweh Ballah, to his elder child and to his younger child. Nboweh Ballah gave evidence regarding this incident. The accused’s case was that this incident occurred but it did not occur in the way described by Mary Ballah and Nboweh Ballah. His case was that it occurred in circumstances which did not give rise to a risk of serious harm occurring to anyone or to any offence by him.
Count 12, the last count, is “the Independence Day” incident. It was not alleged by Ms Ballah that anyone other than herself and the accused was present during this incident. The accused’s case was that something occurred in the Independence Day incident but that it did not occur as described by Mary Ballah. His case was that Mary Ballah was the aggressor, not him. His case was that he did not assault Mary Ballah causing her harm. His case was that he suffered harm caused by Mary Ballah.
In summary, therefore, the Crown case was that there were ten incidents of domestic violence committed on Mary Ballah by the accused. Those incidents were committed from about September 2007 to July 2010. Eight of them comprised the twelve counts charged against the accused. The other two were uncharged incidents. There is no dispute that something happened between Mary Ballah and the accused on three of those ten incidents. These comprised six counts. They were the toilet seat incident (count 6), the incident during the drive home from a party when Nboweh Ballah and the two children were in the car (counts 8, 9, 10, 11), and the Independence Day incident (count 12).
The accused’s case was that five incidents that comprised six counts on the Information did not occur at all (counts 1, 2 and 3, 4, 5, 7). The accused’s case was that the two alleged incidents which were uncharged acts and conduct did not occur at all. Of these seven incidents, four were said by Ms Ballah to be witnessed by others (counts 1, 2 and 3, 4 and the Centrelink incident). Some of those others gave evidence at the trial.
Some general matters
The Crown must prove the charges or any of them. The accused does not have to prove anything. He does not have to prove his innocence. At his trial he did not have to give evidence, nor did he have to call witnesses. Even if he does do either of those (as is the case here), it is still for the Crown to prove the charges or any of them.
The Crown must prove the charges or any of them beyond reasonable doubt. Further, the Crown must prove each and every element of any charge beyond reasonable doubt.
Nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt, or to show that the accused is probably guilty. In this case the accused is not to be convicted of any of the charges against him unless I am satisfied that his guilt has been proved beyond reasonable doubt.
I am not required to be satisfied of the accused’s version in this case. The burden of proof lies elsewhere and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of that, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.
Although one focus will probably be on the accused and his credibility, even if I do not believe him on crucial issues, that does not mean I must find him guilty. I still have to be satisfied that the Crown has proved each element of any of the charges against him beyond reasonable doubt.
I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.
I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger or distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.
The date and range of dates on the Information are not elements of the offences. They give some indication of when it is that the Crown alleges the events occurred.
If, in these reasons, I speak about matters being ‘proved’ or ‘satisfied’ or ‘established’, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I may not say so on every occasion, ‘proof beyond reasonable doubt’.
Assault (counts 1 and 5)
An assault for the purposes of the charges in counts 1 and 5 consists of any intentional and unlawful application of force to another without that person’s consent.
The elements of this offence are:
1.   There must be an application of force to Mary Ballah.
2.   The application of force must be deliberate, that is to say, not unintentional or accidental.
3.   The accused must have acted without Mary Ballah’s consent.
4.   The accused must have acted unlawfully. In each of the circumstances said to constitute counts 1 and 5, if those circumstances occurred, there is no evidence before me going to proof of any lawfulness.
Each element or ingredient must be proved beyond reasonable doubt.
The real issue in this trial as to these counts is whether the Crown has proved beyond reasonable doubt the circumstances said to constitute count 1 and/or 5.
Aggravated Assault (counts 4 and 6)
An assault becomes an aggravated assault if it is accompanied by an aggravating feature.
The elements of an assault in respect of these two counts are the same as referred to above.
The aggravating feature alleged in count 4 is that the accused used an offensive weapon, namely a knife, when committing this offence. A knife is an offensive weapon if it was used and if it was used by the accused in the way alleged by Mary Ballah on the occasion alleged in count 4.
The aggravating feature alleged in count 6 is that Mary Ballah was the domestic partner of the accused when he committed this offence. If he did what Mary Ballah said that he did in respect of this count I am satisfied beyond reasonable doubt that she was his domestic partner at the time.
The real issue in this trial is whether the Crown has proved beyond reasonable doubt the circumstances said to constitute count 4 and/or 6.
Aggravated Assault Causing Harm (counts 3, 7 and 12)
An aggravated assault becomes an aggravated assault causing harm if the application of force causes harm to another without that person’s consent.
The elements of an aggravated assault in respect of these three counts are the same as referred to above.
The harm caused must be more than trivial, such as a scratch or temporary pain. On the other hand, the harm does not have to be of a serious nature such as to leave permanent after affects or to require treatment. It does not matter whether the accused intended to cause the particular harm that was suffered.
The aggravating feature alleged in count 3 is that the accused used an offensive weapon, namely a knife, when committing this offence. A knife is an offensive weapon if it was used and if it was used by the accused in the way alleged by Mary Ballah on the occasion alleged in count 3.
Two aggravating features are alleged in count 7. First, that the accused used an offensive weapon, namely a leather belt, when committing this offence. A leather belt is an offensive weapon if it was used and if it was used by the accused as alleged by Ms Ballah on the occasion in count 4. Secondly, that the accused committed it knowing that Mary Ballah was his domestic partner. If he did what Mary Ballah said that he did in respect of this count I am satisfied beyond reasonable doubt that she was his domestic partner at the time.
The aggravating feature alleged in count 12 is that Mary Ballah was the domestic partner of the accused when he committed this offence. If he did what Mary Ballah said that he did in respect of this count I am satisfied beyond reasonable doubt that she was his domestic partner at the time.
The real issue in this trial is whether the Crown has proved beyond reasonable doubt the circumstances said to constitute count 3, 7 and/or 12.
Threatening to Cause Harm (count 2)
It is an offence for a person, without lawful excuse, to threaten to cause harm to the person of another person intending to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused.
The elements of this offence are:
1.   The accused made a threat to Mary Ballah. A threat means a declaration of hostile intent which is made seriously, as distinct from merely “sounding off”. The threat can be made by words, either spoken or written, or by conduct, or by a combination of words and conduct.
2.   The accused threatened to cause harm to Mary Ballah.
3.   At the time the threat was made, the accused intended to arouse a fear that the threat would be, or was likely to be, carried out or that he was recklessly indifferent as to whether such a fear was aroused.
It is not necessary for the prosecution to prove that at the time the threat was made the accused intended to carry it out. What the prosecution must prove is that, at the time the threat was made, the accused intended to arouse a fear that the threat would be carried out or was likely to be carried out.
Either intention or reckless indifference will suffice. An accused is recklessly indifferent if, while not intending to arouse a fear that the threat will be, or is likely to be carried out, he realises when he makes the threat that a consequence of doing so might be to arouse the relevant fear but nevertheless goes ahead and makes the threat.
4.   The threat was made without lawful excuse. If the prosecution has proved beyond reasonable doubt the first three ingredients of the offence, the accused is not to be found guilty if I am persuaded, on the balance of probabilities, that he had a lawful excuse for his conduct. In this case the accused does not assert that he had any lawful excuse, so it is presumed by law that no such excuse existed. The accused’s case is that the circumstances of count 2 never occurred.
The real issue in this trial is whether the Crown has proved beyond reasonable doubt the circumstances said to constitute count 2.
Act Creating Risk of Serious Harm (counts 8 to 11)
It is an offence to do an act, without lawful excuse, knowing that the act is likely to cause serious harm to another, and intending to cause serious harm or being recklessly indifferent as to whether such serious harm is caused.
The elements of this offence are:
1.   The accused, consciously and deliberately, performed an act which was likely to cause serious harm to Mary Ballah, Nboweh Ballah, A and/or S.
An unconscious, accidental or non-deliberate act would not be sufficient.
The act need not in fact cause serious harm to any person. It is sufficient for the prosecution to prove that the act was likely to cause serious harm to another.
It is a matter for my judgment whether the act in fact was likely to cause serious harm to another.
2.   At the time of performing the relevant act the accused knew the act was likely to cause serious harm to Mary Ballah, Nboweh Ballah, A and/or S.
3.   The accused either positively intended to cause serious harm to Mary Ballah, Nboweh Ballah, A and/or S or was recklessly indifferent as to whether the performance of the relevant act caused serious harm to one or other of them.
Either intention or reckless indifference will suffice. An accused is recklessly indifferent if, while not intending to cause serious harm to another, he performs the act realising that a consequence of doing so might be to cause serious harm to another but he nevertheless goes ahead and performs the act.
4.   The act or omission was without lawful excuse. If the prosecution has proved beyond reasonable doubt the first three ingredients of the offence, the accused is not to be found guilty if I am persuaded, on the balance of probabilities, that he had a lawful excuse for his conduct. In this case the accused does not assert that he had any lawful excuse, so it is presumed by law that no such excuse existed. The accused’s case is that the circumstances of counts 8 to 11 never occurred.

The real issue in this trial is whether the Crown has proved beyond reasonable doubt each of the above four elements or ingredients in respect of any or all of Mary Ballah, Nboweh Ballah, A and S.
The evidence of the complainant
Mary Ballah was 24 years old when she gave evidence. She was born in Liberia, Africa. She came to Australia on 15 November 2005 through a refugee organisation. She must have then been about 16 years old. She came with her uncle and her uncle’s wife, their children and her sister. Her sister is Nboweh Ballah. She was 26 years of age at the time of the trial. Ms Ballah referred to her uncle and her uncle’s wife as her “parents”.
Ms Ballah said that when she arrived in Australia she stayed in Port Adelaide with her uncle, in a rented house. When they were living there she met a woman named Yah Gbele. They became friends. After living at her uncle’s place for a time, from 2006, 2007 she and Yah stayed at Yah’s house. She started living with Yah and Yah’s baby son.
Ms Ballah said that the accused was the best friend of Yah’s boyfriend. She met the accused in the middle of 2006. She got to know him better in 2007. In that year the accused said to her that he wanted to have a relationship with her. They became boyfriend and girlfriend. At that time the accused was living with his parents in Broadview.
Ms Ballah said that she and the accused had three children together. The first was born in January 2008, the second in August 2009 and the third in March 2011.
Ms Ballah said that she fell pregnant with their first child in May or June 2007. When she told the accused she was pregnant, “he was happy, I guess”. She said he was not upset about the pregnancy.
Ms Ballah said that after she and the accused had spent three or four happy months during her first pregnancy they had an argument. When she was asked what the argument was about she said that she was living with Yah at the time and the accused drove them to her parents’ house at Taperoo. As she started to describe the argument Ms Ballah said, in English, “Sorry if I cannot remember because there is so many things going through my head but I’m sorry, I try my best. Everything that happen I tell the court.” Whilst an interpreter in the Liberian language had been sworn when Ms Ballah started her evidence this evidence was given in English.
Ms Ballah then described what happened. She said that after they had visited her parents they drove back to Yah’s house. The accused was driving. It was at night. She said that when the accused was stationary at an intersection another car put its lights on high beam and flashed the lights into the accused’s face. She said the accused then became agitated and started swearing, “eff, eff, eff, eff, this person crash into him”. She said she tried to calm the accused and said “You don’t have to be swearing, you don’t even know this person and you swear in front of me. Calm down”. The accused then told her to “‘Fucking shut up’, sorry, Eff, eff, eff, shut up”. The accused then “opened his back hand and like hit me in my chest twice”. She said: “Allen, what do you do that for?”. The accused replied: “Fucking shut up, get out of my car”. She said: “Allen stop, you have to calm down, stop”. She tried to calm the accused down and he got angry and started hitting her and told her to get out of the car. She was pregnant with their first child. The accused lent over her and opened the passenger’s door. He pushed her out of the car “Where I went further on my stomach and on floor and I could hear Yah telling Allen it is not right”. Yah was saying : “It is not fair, what are you doing”. She said Yah got out of the car and the accused drove off, leaving she and Yah behind.
At this point in her evidence I asked Ms Ballah if we could try to hear her evidence through the interpreter. That happened very briefly until it appeared that the interpreter may have been speaking English. The interpreter explained that he was speaking to Ms Ballah in Pidgin English and not standard English. He explained that in Liberia Pidgin English was spoken as well as standard English. English is a first language in Liberia but it is commonly spoken in a pidgin form. With that explanation we tried again to hear Ms Ballah’s evidence without the interpreter.
Ms Ballah went on and said that after the accused drove off she and Yah crossed to the other side of the road and were walking along a road when the accused drove back to where they were. When the car stopped Ms Ballah said to the accused that she was not getting into the car. The accused said: “This is stupid, you should not do that, it is the devil, please get back into the car. I will take you home”. Ms Ballah said that she was afraid and did not want to go. When Yah told her that the accused had said he was sorry and they should all get into the car, the two women did and the accused drove off to Yah’s house.
Ms Ballah said that before the other car had flashed their lights really high they were all happy in the car until that happened. When it happened “Allen was so agitated, just swearing, banging his head on the car and both hands into the seats. Just like he was so agitated and, you know, frustrated and he was swearing at this person, ‘I could fucking crash the car into this person’. I’m like ‘You don’t even know this person, stop swearing in front of me’.” She said that when she tried to calm the accused down he then had a go at her, swore at her, told her to “Fucking shut up”, and hit her chest with his hand open wide. He used his left hand to hit her chest twice. It was then that Yah said “Stop, it is not fair”, but the accused would not listen to Yah either and told her (Ms Ballah) to “Fucking get out of this car”, opened the door and pushed her out.
Ms Ballah said that when she got back into the car after the accused had returned she could not remember talking to the accused because she was in so much pain. She had fallen on her stomach and she was holding on to it when the accused returned. She was afraid. She did not talk to him when she got in the car. She said that she had fallen on her stomach on her side onto the roadway. She said that the accused dropped herself and Yah off at Yah’s house.
Ms Ballah said that she went to the Women’s and Children’s Hospital. She said she did not report it to police. When asked why she did not report it to police, she answered: “Because Alan came and apologised to me and he is saying he will never do it again, he was stupid and he should not do it. I forgive him because I believe what he said”.
Ms Ballah said that this was the first assault that happened to her by the accused. When she was asked “When was the next time?”, she answered:
After a while when that assault happened I was at Yah’s house. Alan was work at Aldersgate nursing home. That day – I’m sorry if I can’t remember the day but he called me on his break time and I was at Yah’s place and he told me how am I. I’m like “I’m good” and then when I tried to go at the shop, to get back home, because when I get pregnant with my baby, I never eat food. So he called me. He was like am I home, “I’m trying to go to the shop to buy some corn”. He was like “Don’t go there. When I finish work I will pass to the shop and get some” and I’m like “No, I think I will be fine, let me go, because it is on Saturday, I don’t need to forget, when you have been working you will be tired”. He said “No, it is okay. I will pass there and get it”. I said “Okay”. So I stayed all day. I was so hungry. Alan came home 6 o’clock. He had a pack of oranges. I was a little bit disappointed but I not angry because I knew he was tired. So I was like “You already forget what I asked you to buy. You buy the oranges” and Alan became angry, agitated, start swearing at me again “Eff, eff, eff, you know I’m tired, been at work”. I said “This is why I told you I go myself and go and get it but you said no, you were going to”. I said “Stop swearing at me”.
QAnd did he stop swearing.
ANo, he was just swearing. I’m like “Okay, this is what I told you. I will go and get it myself because I knew you were going to be tired”. So Alan get angry. I was like in the hallway. Just say, for example, this is just a little road to the kitchen and bedroom and the shower room (INDICATES) and this seat here is the TV room where you sit out. In between there Alan hits me with his open hand on my back neck. I’m like “Alan, why you do that for” and he pushed me down on the ground and he was kicking me in my stomach and I said “Stop”.
QI think you said “And I said ‘Stop’”. Is that right. You said “He was kicking me in my stomach and I said ‘Stop’”.
AYes, because like I was really shocked and I didn’t know what to do when Alan was doing that and he pushed me down on the floor. He went into the kitchen and he said “I’m going to get the knife and open your stomach to take this baby out”. He went into the kitchen and took the large knife out of the cupboard and came and suddenly on my stomach where he told me “I’m going to open your stomach” and he pressed the knife down on my stomach because I land on my stomach on the floor. He pushed the knife hard and he broke my skin. I remember that. Because it was really sharp. It broke my skin a little bit. Yah goes “What was going on?” She was in her room. She came out, she saw Alan onto my stomach. She said “Oh my God”. She went out of the house and when Yah went out, I quickly stood up and threw the knife in the kitchen and get up. I could hear Yah, Alan, talking outside “Please don’t call the police”. Yah went and called for her sister and the sister’s boyfriend and her mum and I could hear Alan telling her “Please don’t call the police, I was stupid, I should not do that, oh my God”. When Alan went to put the kitchen knife he was hitting his head on the wall, you know, “Oh, gosh”. I wanted him to stop. He come back to his senses. He always banging his head on the wall, “Oh my God, I am stupid, I shall not do that, I am so sorry” and he went outside and he told Yah not to call the police.
Ms Ballah said that she would say that she was about five to six months pregnant with her first child when this incident occurred, although she said she could not remember. After this incident Yah told her to leave her house.
Ms Ballah said that the accused used his hand when he hit her on her neck. He hit her several times. She could not remember how many because she was in shock and did not know what to do. He said, “That’s it, I’m going to take a knife and cut this and open your stomach and this stupid pregnancy, I’m going to take it off and destroy it”. She said that when she fell to the ground she fell on her stomach and the accused came and forced her to turn over and then put his two knees down on her stomach and put the knife on her stomach, pressing it down. She said that the accused pulled up her top so that her skin was exposed and put the knife to it. That was when Yah came and saw him doing that. When Yah left where they were the accused stood up and ran into the kitchen dropping the knife in the kitchen. The accused was saying that he was sorry and was stupid. He was banging his head on the wall in the area where she was leaning. He kept hitting his head, hitting his face with his hand and then he followed Yah downstairs.
Ms Ballah said that when the accused left she was in significant pain. The next day she went to the Women’s and Children’s Hospital. She said that she saw someone there but she could not remember exactly what she told them. She believed she told them that she had fallen in the bathroom. She never told them the accused had done what he did to her. She said: “I excuse it because he beg me to forget it. I tell them I fell in the bathroom or on the bus, that’s all, to the hospital, but I never tell them Alan did this to me”.
Ms Ballah said she did not go to the police as the accused begged her “again to forgive him, it was the devil, he will never do it. I didn’t give him permission to assault me but I always forgive him when he apologises to me”.
Ms Ballah said that after this incident Yah told her to leave the house. She said Yah was scared that the accused had done this to her and that she (Ms Ballah) had not called the police, “and then when he do it again I didn’t call the police”, and that she was staying with Yah. Yah said that if anything happened to Ms Ballah she (Yah) may be held responsible so she asked Ms Ballah to leave the house. Yah was afraid. Yah did not want her to stay with the accused.
Ms Ballah said that when she left Yah’s house she went to a women’s shelter and stayed there for a couple of weeks. The accused visited her in the shelter and that when he did so “He was fine”. After some weeks in the shelter, Housing SA provided her with a private rental at Hillcrest. She moved in there with her sister Nboweh. She was still pregnant with their first child.
Ms Ballah said that the accused continued to visit her at the Hillcrest rental. He would stay overnight. That was most of the time. Whilst at Hillcrest the two of them had arguments, “then happy, argument, then happy”.
Ms Ballah said that in her eighth month of pregnancy a friend of the accused came back from India. It was around that time that an assault happened at the Hillcrest house.
Ms Ballah said that one night around Christmas time the accused brought his friend David there to meet her sister. At around 10.00pm the accused said that he was going out with David but he would be coming back later. Ms Ballah said:
... I am “oh, okay, that’s good”. Then he said “I am going now”, around 10 o’clock. I told him “Can I lock the door?” because I was afraid. I didn’t want to leave the door open. I locked the door as well inside and he told me “No, I am coming back. Just leave it open”. I said “Okay”. Me and my sister went to bed. It was around 2.30, like that, very late, we heard someone knock on my door, on the window. ... I heard bang bang on the window and I was asking “Who is that?” and he told me “It is me, Alan. It is me, Mary, Alan”. I look at the time, it was 2.30 am so I went there and opened the door. I said “Oh, Alan I told you not to come late. You know we are here, I am afraid, I don’t leave the door open”. He said I should leave it open. I opened the door and he entered and I told him he was very late, why he had to come this time. He should not come very late because I wanted to lock the door and he made me to leave the door open because he would bang on the window or when he knew the door was open because someone would leave the door open. That is what I was telling him, it was very late, I was told leave the door open. ... I tell him – he was upset in the beginning. I said again, like – whatever Alan do wrong, he tell – it is wrong to me and he get agitated and lose his mind. He would be swearing at you, “you” eff eff “shut up”. I just told you my friend, my childhood friend came back. I have to go see him’. I said “Why not? But you can’t tell someone to leave the door open and you are coming back very late. It is not good”. He said eff eff “Shut up, that is my childhood friend”. “Okay, you are being very abusive, maybe you should go home”. ... I told him if he was abusive maybe he go home. He like, this is the hallway (DEMONSTRATING) after the TV room – because I went to pass him and go to the room, out the front of him, I tell him “If you are being abusive maybe you should go home”. I was passing, going down the hallway and went towards my room and I heard, you know, at the back of my head, my neck, it is Alan, he hit me at the back of my neck and push me to the floor because he is angry because I told him “If you are being abusive you can just go home”.
Ms Ballah said that she fell to the floor on her stomach “because he always pushing me with force with his hands and I fell down on the floor on my stomach again, on the side”. She continued:
When I fell down Alan kicked me with his shoe, a white shoe, I can’t describe it, was always very hard when someone hit you, you can feel it. Alan kicked me in my stomach, which I can remember and then he told me “You can’t understand. You are fucking – ‘blah blah blah, sorry, I don’t like to use the eff eff in reality – so ‘You are like the –‘ eff eff blah blah blah and he was going into the kitchen and getting a knife, the same type of knife that I was describing again today.
QA minute ago you said he said “eff eff”, is that the actual words he used.
AYear, eff eff “Shut up, I told you I been to my friend”.
QIt is okay to swear in court. You need to tell us exactly what he said; can you do that.
AYeah, when I tell Alan why he have to come late and he get very frustrated and angry, swearing at me, “You fucking shut up. I told you my friend just came from India and he been my childhood friend, I told you I had to go see him. You don’t have to ask me why I can’t be late.” “It is not fair you are coming late because I told you that, Alan, I don’t want to leave the door open” and he said I should leave it open.
QHad you expected him at some time that night.
AYeah.
QWhat time had you expected him to be there.
AI told you he was going to 10 o’clock. He said he was coming at 10, he leave at 6 o’clock. Alan told me he was going to come by 10 o’clock – I am very sorry, this is a thing that gave me trouble, time and dates. I am so sorry. I meant to say come at 10 o’clock, that is when he told me he was coming back, at 10 o’clock.
Ms Ballah said that the accused kicked her in her stomach. She could not remember where but he kicked her several times in her stomach before going into the kitchen and grabbing a knife. She said her sister Nboweh was sleeping in her bedroom at the time.
She said, however, that her sister must have heard the noise and she woke up and came to where she was. At that time the accused was on top of her “again with the knife” and her sister said:
“Are you drunk?” I am, like, “He is not drunk”. He never drank alcohol. Alan is not drunk, he can’t drink. Then my sister started to tell him to put the knife down and he say he will not put the knife down. “Fucking go into your room, go away”. My sister said she not going anywhere until he put the knife down. He stand up and put the knife in the sink again and walk out of the house.
Ms Ballah said that she did not report this incident to police. When asked why not, she replied:
Because, like I said, I don’t want Alan to do something wrong. He say he will come to his sense and he will begin the same attitude, banging his head against the wall. Like I say, any harm that – whenever Alan behave like that towards me he altogether come to his senses and say “I shall not do this”, banging himself, begging me, asking me forgive him and, yeah, I never report it to the police but I always used to say to Alan “I am going to call police” and Alan will grab my phone and smash it from me because he don’t want me to call police. He afraid of the word police, you know. He always take my phone from me and smash it so I cannot call police and after that he would beg me so I can just forgive and I never report it to the police.
Ms Ballah said that she went to the Women’s and Children’s Hospital the next day. She told them at the hospital that she and her sister had had a fight, but that was not true. When asked why she said that, Ms Ballah replied:
Because I defended him. He beg me and I was going to the hospital – do you know what you call, a CCG test when you go to have to monitor the baby. When I went it was complicated and they told me “you have to stay because the baby” – there was some complicated because the result wasn’t reading that well. They were not happy with the result, the doctor, so I went in there like, afraid, I can’t say he did it to me, I was fearing for him and he always beg me “If you call police I never leave you alone,” this and that. I would be afraid, just forgive him, like I say. When he beg me, I forgive him and I just said my sister, I don’t know why, defending him. He came to the hospital actually. He came there and he knew that’s me from this fight, what he done to me. The nurses were telling him me and my sister had a fight so they arrest my sister for that. He knew me and he had a fight. He knew I was lying against my sister because of a man, this man, yeah, he came there and went later.
QDid it ever cross your mind to report what happened to police.
ANo, like I say, he always beg me to forgive him. That is the truth. It was stupid, you shouldn’t do that. He beg and I forgive him. Like, he apologise and say he would never do it, promising and I forgive him.

Ms Ballah said that there was another assault of her by the accused in the Hillcrest house. She was almost 9 months pregnant with their first child. She said that she and the accused had been shopping. They were arguing when they arrived at the Hillcrest house. Her sister was not at home. She asked the accused to leave because they were arguing and there was too much abuse of her by the accused. He was calling her “eff eff” and “black African”. There were other words and then the accused assaulted her and she was lying on the floor. She said that this happened so long ago that she was “forgetting what is happening”. She said that the accused assaulted her and left the house. When her sister returned home she was lying on the floor of the TV room. She said that the accused “hit me hard, really hard, with his hand open on her back again pushing me on the floor, kick me twice in the stomach and then he leave the house”. When she told him that she was calling the police and he took her phone from her pocket. He took it and smashed it on the floor because she was going to call the police. She said, “He always smash my phone away from me because he know I was going to call the police. When you talk about police Alan gets so, like, scared, I don’t know why. For some reason he would be so scared and he take the phone from me and smash it so I can’t call the police, he doesn’t want to go to the police and after he would beg me”. The accused said to her that he “would fucking kill me” if she went to the police.
Ms Ballah said that the accused was wearing white shoes when he assaulted her when her sister was home on the earlier occasion. When asked what he was wearing this time when her sister was not home, she said: “it is a white shoe always, a white shoe that is on his foreleg – I can’t describe it sorry – it was a white shoe on his foot always”.
Ms Ballah said that she did not call the police after this incident but she did go to the Women’s and Children’s Hospital because she was in so much pain. The pain was mostly in her stomach because she “always feel something happen to the baby because being hit in your stomach like that you have the fear that something happened to the baby, you have to go and check up”.
Ms Ballah said that she went to the hospital later that same day but did not tell anyone there what had happened. She said: “Like I said, on one occasion I lied against my sister and another I said I fell in bath – I guess I fell in the bathroom and I can’t remember if I said those things to the hospital”. She said she was not sure when she said which.
Ms Ballah said she had a friend called Irene whom she knew from Africa. They had met in Conakry, the capital of Guinea. They met up again in Australia.
Ms Ballah said that one day she called Irene from the Hillcrest house when she and the accused were there. Their first child had not yet been born. The two of them went to Irene’s house to visit. Irene’s sister was there as well. Ms Ballah wanted Irene to help her fill out a Centrelink form.
Ms Ballah said that as Irene and her sister were preparing food, and Irene’s sister’s boyfriend Tony and some children were in the TV room watching TV, the accused opened the Centrelink form. He saw that her date of birth had been entered incorrectly. She said that the accused had said:
Oh, my God, you are stupid. I said “What I am stupid?” He said “‘Because your date of birth is not correct. Look at the date of birth”, he goes. I said “What you mean. It is just a mistake. Alan, Centrelink made a mistake” and Alan said “Yeah, that is what happened if you don’t go to school. You didn’t go to school, you are stupid and you are mistakes always”. I said “It is not my mistake, it is Centrelink”.
QAfter you had that verbal argument, what happened.
AYeah, me and Alan, like, arguing, I was uneducated, if I was going to school I would never make mistakes, he told me. “You are so angry, Alan, again little thing. You are always losing it like that, make it big” so Alan was – I tell him “You should not be swearing at me. You are using” eff eff. “You are fucking stupid, you don’t go to school, he get angry and hit me in my chest again.
Ms Ballah said when the accused hit her in her chest and she said “Why you have to do that?”, she hit his leg. She said: “It is not hard hitting, he hitting me, myself, I hit him back”. She hit him back because she was in shock. She had never done that before. When asked what happened next, she said:
When I hit him he – Alan stood up, grabbed me, you know, hitting me in my stomach with his knee here, hitting me in my stomach and pull my hair, grabbed my head and put it under his arm and we were fighting, under his armpit and hitting into me in my stomach with his knee here. (DEMONSTRATES)
Ms Ballah said she was bending forward and fighting to get away from the accused, when he pushed her onto the floor. He kicked her in her stomach. At that time Tony said for the accused to “stop it” and “You can’t do that. You have to stop hitting her. She is pregnant. You can’t keep beating her.” He also said: “you can’t beat a woman in Australia”. Irene’s sister came and tried to move the accused off the top of her and Tony said “Call the police”. Then the accused jumped up and left the house, after he kicked her stomach hard.
Ms Ballah said that she did not call the police because she was in so much pain and felt dizzy. That was because she was in her ninth month. She said that she could not go home and she stayed at Irene’s house that night and then went back to the Hillcrest house by bus.
Ms Ballah said that when she was at the house that day the accused came knocking on her door. When she opened the door she asked him “Have you come to see if I am dead”. He said: “No, I am sorry, Mary”. He said “It was no good, forgive me, it is the devil. I didn’t come to see why you are dead”. She told him that she was going to the hospital and he drove her there. She then said that she believed he did but she thought someone else went with her to the hospital. There she saw a doctor but she did not tell them what had happened. That was “because he always ask for forgiveness and I forgive himself”.
Ms Ballah said that she was at the hospital for a while “because my water had broke”. She was already in her ninth month. This was one week earlier than she had thought she was due. It was a day after her waters broke that she had her baby.
Ms Ballah said that when their baby was born the accused was happy and she was happy as well.
Ms Ballah said that after the birth she went to stay with her “aunty”. That was at a house in Greenacres. She went there because she did not want to go back to the Hillcrest house because her sister was no longer there and she was “not going to lie against my sister” again. She went to her auntie’s so that she could find another place to live. She said that whilst she was at the Greenacres house the accused always stayed there as well, or stayed there most of the time at her auntie’s. After a time the accused came to that house and said to her: “My mum has seen the baby”. She was confused and said to him “Your mum has seen the baby?” The accused then said that his mother had said that she and the baby “should come and live with her”. Ms Ballah said “Okay”.
When Ms Ballah was asked to explain why she was confused, she replied that from what had been said earlier by way of a “joke” she thought that the accused’s mother did not want grandchildren. She said that she had never had a conversation with the accused’s mother about her being pregnant. She explained that was:
Because when I first meet Alan, we go and visit the parents, the looks they would give me, it made me feel so uncomfortable because she would be asking so many questions, “Are you going to school? What are you doing”, and then one day we were there, me and my sister, and that lady go angry at Alan “What are you doing with African girls? I don’t want you to go out with a black girl?”, you know. So this thing made me afraid. I never discussed my pregnancy with her because the way she answer.
Ms Ballah explained that when the accused had said that his mother had seen the baby:
Yeah, before I go to Broadview, when I was staying to my aunty, Alan is like “Oh, my mum went through my phone and see you and my baby picture on the phone but I denied to her first”, and I’m there “Why you have to deny?” and he is like “Because my mum never like us to have child and when she see the baby she cried”. It is true, like I say, when I get pregnant I never discuss it with her because that time I was having the joke I was already pregnant with A. She said “Anyone who have child, I will not accept that”, you know, “I don’t want to have child”. You know, they not – like she have to be sister or something like that before you have child. She will at least look at it and – whenever we walk in, the looks she always give me and made me feel nervous and uncomfortable because I know maybe she never happy with me being with her son, like she always say in my face. So that’s how I shock when he said “my mum” said I should go and live with her. I was shocked because the lady never wanted to have child. The lady always say “Don’t be with black girls”. The lady would say, you know, like this, like that. You know, I was shocked, that’s what I was saying.
Ms Ballah said that before she went to live at the house of the accused’s parents at Broadview she spoke to her aunty (at the Greenacres house) and to her uncle about the idea. They were not happy with it. She said: “You know, because of like they say, because love is blind for your husband if you love them. So that’s why I not listen to my people, I went to live with him and his parents at the Broadview address”. She said their first child A was five months old at the time.
Ms Ballah said that when she moved in to the accused’s parents’ house at Broadview his parents “were happy to see me for the first time”.
Ms Ballah said that she was there from June to November 2008.
Ms Ballah said that at the Broadview house there was an argument over $20. Some friends of hers had asked her if the accused could give them a lift. She did not want to ask the accused because she did not want an argument. So she asked her uncle who said he did not have petrol in his car. She told her uncle that she would give him $20. When the accused heard that he got angry and started to yell at her. She tried to explain but he wasn’t listening. He just kept going “Why you giving $20 to your uncle? Why you cannot even give my parents any money”. As she tried to explain he just kept yelling at her.
Ms Ballah said that the accused’s parents and brother heard them arguing and came into the bedroom where they were. Ms Ballah said:
Yeah, all they hear the arguing and they all came to the bedroom where we were. They came there and then they started having a go “Why did you even love this stupid girl, this African girl. She is a piece of shit, you know, you should not even have an African girl”. Alan mum was angry-talk to Alan. They were all having a go talking at me, not one person. Alan’s mum starting telling Alan “Why are you living with this African girl? Leave this African girl and get some white girl from Rundle Mall”. He is “Yes, mum, I hear you. I have finished with her”. Then his mother said “Mary” – she asked Alan “You have to choose whether you are going to be with a white girl or African girl from Rundle Mall”. Then he is, like, “Yes, mum, I am finished with her”. She is, like, “You heard him, he is done with you so you have to go”. We have the argument. We argue with all of them. Then I take A and go to my uncle’s house that night.
Ms Ballah said that before she left the house she told the accused’s parents that she was going to take her daughter with her. They said that she could not go with their grandchild, but she did.
Ms Ballah said that she walked with her baby to her uncle’s house. She said that the accused and his parents followed her there. They told her uncle that she didn’t deserve to be with their son. They told him to tell her to stay away from their son, he doesn’t want to see her anymore. Her uncle had said: “If you be like that, you can go”.
Ms Ballah said that the next day the accused came to her uncle’s house and said she should go back to the Broadview house with him. She had to arrange for her social worker to come because the accused’s mother had said she should leave the Broadview house. She went back to the Broadview house with her social worker and another woman called Rosalie. There the accused’s mother was very nice. They convinced the social worker that they would look after her and her baby. She said that the accused’s mother was always nice when her social worker came. She said “she was nice like she loved me so she convinced these people and they went away”.
Ms Ballah said that for a while she slept on the couch in the TV room at the Broadview house. While she was sleeping in the TV room the accused’s mother “always boss me around”, telling her to cook tea for her son and to make breakfast for her son.
Ms Ballah said that the accused was violent towards her more than once when she returned to his parent’s house. She described the second time he was violent towards her. That was when the accused’s mother went to America. The accused’s father and brother remained at the house. She described what happened:
I was at the Broadview house. I needed to do my hair and I asked my friend Yah to do my hair because she always do my hair and Yah said “Okay”. I wanted to go to Yah house and Alan told me “It would be better for Yah to come to Broadview house and do your hair” and I said “Okay”. It was on the weekend, Saturday. I said “Okay”. We go for Yah and bring her to Broadview house. When we came, Yah and Alan and my daughter A, and Yah saw daughter in the TV room. I went and told my friend she was hungry, I needed to prepare my food so we can eat ourselves in the kitchen, preparing some food. A was watching – like first when we get home we all start and talk before I went to the kitchen to prepare some meal and then while I was in the kitchen I heard the bang in the toilet. Because in that bathroom it is really, really slippery. If you are not careful you always fell off when you enter. So when I heard this sound I ran straight – I told Yah fell in the bathroom. As I said, that bathroom is very slippery. So when I get there I tell you “Are you okay, are you okay?” and she said “Yeah, I didn’t know the toilet have double seats. Just the toilet, I slip and bang onto the toilet”. I said “Are you okay?” and she said “Yes”. I could see Alan’s dad became really agitated -
... She came towards the toilet and when he came I could see the look on his face, really agitated. That’s when he tell Alan “Alan, this is my house that I spent a lot of money on this house and I don’t want to spend a lot of money fixing this house up. If anything is broken you are going to fix it”. Then I tell him “Yah didn’t mean to do it. She didn’t know there was double seat to the toilet but she is very sorry, nothing is broken”. Alan was so angry and he started to yell “This black girl, the government bring her into house to make them civilised. They are not civilised. African in my house, trying to damage my house” and I was like “You don’t have to use the remark ‘African girl’”. I say “That is in general. If you want to have a go at Yah you should have a go at me because I’m the one that’s bring Yah in the house”. So when I talking to Alan, that I say “You don’t have to use the remark”.
... Alan was angry at his son, he started telling “Alan, you bringing African girls in my house, she not civilised, the government try to make them civilised, you not civilised”. I tell him to calm down. When I talking to him Alan was slamming down twice. ...
Ms Ballah said that then the accused’s father slapped her twice. She said that she could see that the accused was getting emotional and angry because of the way his father “was having a go at him”, and when she asked him whether he saw what his father did to her he replied “You were talking while my father was talking”. The accused began to yell at her as well. Both the accused and his father were swearing. The accused started to hit her and he “then grabbed me by my hair and bang it on the wall”. She “went on the floor on my bottom and Alan kicked me in the side of my bottom”. The accused’s father “also started kicking me as well”.
Ms Ballah said that she could hear Yah telling them to stop and she was also trying to get away. She managed to get away and went outside. She said that when Yah went outside the accused and his father thought that Yah was going to call the police. The two men went to the kitchen and she went to the TV room where her daughter was crying. She picked up her daughter and tried to leave the house. The accused’s father grabbed the child by the leg and ultimately forced the child out of her arms. Then they pushed her outside the door and locked it. She started banging on the door calling for them to give her her child and calling for Yah to give her a phone. She then saw the door open and her daughter was pushed outside and the door was locked.
Ms Ballah said that she, her child and Yah started walking down the road to her uncle’s house. The accused came running up behind them. He was saying, “Mary, please, stop, forgive me. Please don’t go”. She said she was not stopping and she was not listening. The accused kept begging her to forgive him. He said “It is not me, it is my father who put the pressure on me”. She said that she knew that the pressure on the accused came from his father because when there was pressure from the accused’s father, the accused got very emotional, and got “out of control really bad”. So when the accused went on for a while she forgave him. They got into his car and they went for a drive to the beach. The accused “promised me it is not going to happen, it is not his fault, it was his father’s fault”.
Ms Ballah said that they went back to the Broadview house to stay.
Ms Ballah said that she stayed at the accused’s parents’ house until the time that the accused’s mother returned from America. After that time she moved to another house owned by the accused’s parents. That was a house in Prospect. She paid the accused $800 before moving into that house and then she paid $400 a fortnight to the accused’s mother. She moved into that house on 30 November 2008 although she told Centrelink that it was in October. The accused’s mother said that the accused could not move into the Prospect house and stay with her because Centrelink would not then pay her rent as her partner was staying with her. The accused was working at the time, and she was not. If the accused moved in Centrelink would “not allow single parent money” and the accused’s parents would not be able to get the rent. In fact Centrelink paid the rent direct to the accused’s parents. After she moved into the Prospect house the accused would stay there most of the time.
Ms Ballah said that she fell pregnant with their second child whilst at the Prospect house. She said:
When I told Alan I was pregnant Alan looked very agitated and angry because he said “Oh my God, I’m so disappointed, I know my parents are going to be so disappointed in me again”. He was afraid his family were going to be angry and disappointed with him, the second child is on the way. ...
Alan was so afraid and he said my brother should have been the first one again. When I told him I was pregnant again he was angry, I could see, I could see that because he said “Oh God, my parents are going to be disappointed in me”. He said “You have to do abortion”. I said “No abortion”. Alan so angry.
Ms Ballah said that when this conversation occurred the accused was living full-time at the Prospect house. He had moved in full-time in June 2009.
Ms Ballah said that an incident occurred in the Prospect house when she was in her eighth month of pregnancy with their second child. She was not feeling well that day when the accused came to the house from his parent’s house. When asked what happened she said:
When Alan go to see his family he come back, he always sits on the chair and hold on to his chin with one hand thinking and I said “Alan, don’t sit like that, there’s a problem”, so he was sitting thinking. I could tell there was something wrong so I ask him, I said “Alan, what is the matter?”, he said “Nothing”. I say “what is going on?” He didn’t say anything, he said nothing. I said “Okay, seeing you’re not going to talk, it’s better I leave you alone and go”. When I was walking Alan hold me back and I fall –

Ms Ballah said that the accused grabbed her clothes at the back of her upper body and pulled her back and he said “You can’t go, you have to stay”. She said that she saw that the accused was angry. They started arguing and the accused said that his parents did not want her to bring her friends to their Prospect house. The accused said that he did not want her to bring her friends to the house where they were living because that is what his parents wanted. She said to the accused: “No, I am paying rent here, I have a right to bring my friends here”. She went on:
… When I said to Alan “No, I can’t do that, as I’m paying rent Alan did get angry, ‘Oh I’ll fucking kill you, you know my parent – my parent, dad, someone is paying for you, you are fucking stupid girl, you are just – it’s in my family’, like his family are working and the government is paying me their taxes, plus they are feeding me, so I have to follow their wish. I said ‘No, I can’t follow their wish’ and ‘I’m sorry, if you think your family taxes paying for my welfare you can take me to court’ and Alan got angry about this because Alan said ‘The moment you started to pay the rent is parents’ tax’. ‘No, paying the rent’.
QDid he say anything else.
ANo, he said nothing in the beginning, to get angry, “I’ll fucking kill you, they didn’t kill you in Africa, I’m going to fucking kill you here”. I’m saying “Sorry”. I could see him angry. Alan and me having this argument for a while now, I want to leave, see if I can go, then Alan push me, forced with his hand on the floor and I fell on the side of my stomach again, on the floor and Alan was kicking me in my stomach again, while A was sitting playing with the toys. Me and Alan were having argument and he pushed me onto the floor, put his knee onto my stomach again and then pull, he said he is going to ‘fucking kill’ me “didn’t kill me in Africa”, he’s going to kill me here. He takes the belt from his waist and –
INTERPRETER:   Let me just explain that: when she was arguing with Alan, Alan was saying “I’m going to kill you; they didn’t kill you in Africa, I’m going to kill you” and every time Alan say, you can see the vein on his face and hand and she was trying to leave, argue with Alan, Alan did not allow, she falls down and he took the belt from his waist.
APushed me and –
INTERPRETER:   Took the belt and put it to her neck, belt from his waist.
AAnd then put two knee me on my stomach; when he was doing that his two knees went onto my stomach and he pulled the belt onto my neck.
INTERPRETER:   She was eight months pregnant and Alan put his two knees on the stomach, put the belt on the neck....
AI could hear my baby crying, A. I could hear her crying “Mummy, mummy” when Alan was pulling the belt tight and A came the back and hit Alan on the back, you know, then he just turn his face and look at A and pushed A down and A fell down on her bottom on the floor and he removed the belt and lifted me and put on the belt – I can’t remember, he didn’t say anything when he put on the belt to my neck – then he pushed A down and then he walk out and leave the house for that day and I never see him the rest of the day.
QYou said that Alan’s veins were standing up.
AWhenever he is angry you can see it.
QWhat can you see.
AThe vein on his face when he get angry, when he get emotional.
QDid you call the police after that incident.
ANo, I didn’t call the police as I was feeling much pain and dizzy. I want to call my friends and my uncle. I can’t remember, I didn’t call police.
QDid you go and see a doctor.
AI went and seen the doctor.
QWhen.
AThe next day I went to the hospital.
QThe next day. How did you get there.
AI went on the bus.
QDid you speak with the doctor.
AYes.
QDid you tell the doctor what had happened.
AI didn’t tell him what happened as I always just give a story, right, excuse, like I fell in the bathroom. I thought my ribs were broken already because I was feeling so much pain. When I went to the hospital I can’t remember if it was the next day or the same day I went to the hospital.
QWas this the Women’s and Children’s Hospital or a different hospital.
AI always go to Women’s and Children’s Hospital.
Ms Ballah said that she was told at the hospital that after checking her baby, that there was nothing to see. She was told “You are fine. Your ribs is not broken. Go and relax and drink” … water.
Ms Ballah said that she then returned home to the Prospect house. The accused came to the house, and his family also came. She told his parents what happened. She said: “When I tell his parents what happened and they ask him, he always made it true. Alan’s always made it true even to my friends or parents. Whenever I tell what happened when he is asked, he say ‘yes’”.
Ms Ballah said that when she told his parents the accused’s father asked the accused why he had to do what he did. He said he did it because he was stressed. His father said to him that he should not do it, it is not fair. He should not be treating a woman like that. She said that the accused’s mother, however, never believed her when she said things to her about her son. She would get angry at the accused’s father when his father said to him “Don’t do it to Mary, it is not fair”. When the accused told his mother that what Ms Ballah said that he had done to her was true she would tell her son “You are stupid. You know you can get into trouble for that”.
Ms Ballah said that whenever she spoke to the accused about what he had done he would agree with her that he had done it. She said:
Yes, he always say he was stupid, he shouldn’t do that. He always ask me to forgive. He always convince me. I forgive him, especially he tell me if you call police for me I won’t be able to have good job and won’t be able to support these kid and I know he live here more than I do and he know all the rules of Australia so I would be living with his mother and father and I would be living on Centrelink and I fear for it. I say “Okay, I won’t take this case any further for the sake of me and my baby” and he made it true that he was the devil, he not meant to do that and “forgive me”. I always forgive him.
Ms Ballah said that after that the accused kept living at the Prospect house with her. She said that later, when she was still pregnant with her second child, she spoke to the accused from the Prospect home to where he was at work. She told him that she was going to her friend’s house to get her hair done. He did not want her to go and have her hair done and said that she should wait for him to get home after work. She went to get her hair done and at around 7.00pm that evening the accused arrived at her friend’s house. She said:
When Alan arrived to my friend’s house I was eating. My friend prepared some meal for us to eat. When we were eating, Alan arrive. He said I have to go and I say “No, I cannot go, I am stay, eating. I am in the middle of eating my meal. You sit and wait for me. When I am finished eating we can go home”. He get angry. He didn’t stay there, he walk out and he sat in the car. I didn’t follow after. I have to stay and finish my meal. Then he went and sat in the car because he was angry. I didn’t – he went and sat in the car. When I finished I follow Alan for us to go back home. While we were on our way we were having this argument again, me and Alan. “I can’t believe I am out so late. I told you to wait for me. I was coming to pick you up”. We have that argument, we have it for a while so when we came home I didn’t even want to talk to Alan because I was scared. If I talked to him we were going to have another argument at home. A was asleep and I have the baby bag, my babies stuff with everything in, I pull it down the hallway and I went and put my baby in as she was sleeping and Alan went and stood in the TV room. I didn’t want to talk to Alan. I wanted to go to bed. I went to my bedroom. Alan say “Aren’t you even making tea for me? I have been away the whole day, I am hungry. This stupid fucking ‘eff eff’ you don’t want to make my tea, I am hungry”. I was scared. I said “Okay,” I went into the kitchen and took fish and put it in the oven then I came in the TV room and sat there for Alan, I put the fish in the oven. When I put the fish in the oven Alan keep going on with the argument, still arguing. So sorry, I just cannot.
When she was asked whether she went back to the kitchen to check on the fish, Ms Ballah replied:
I don’t remember, I believe I did went and check on the fish and came back and me and Alan stay argument about me being to my friend’s house, not making him tea, “Stupid girl, not even civilised. I could fucking kill you” eff eff and I said “If you are going to be like that I am going to leave you and go to sleep”.
Ms Ballah said that this occurred when they were in the TV room. She said she did not want to argue with him anymore and she wanted to go and sleep in her room. As she was going the accused “started the back of my neck and pushed me down again on the floor. ... He kicked me in my stomach, I can’t remember how many times but then I still managed, like, I wanted to go in my room and stay and then Alan took, sorry, I just think for the moment”.
Ms Ballah said that the accused kicked her twice and when he did so he was wearing white shoes. She asked him what he did that for. She said she did not go to her bedroom “because Alan pushed me down on the floor as I lay on the floor he took my baby bag with all my stuff in it and started hitting it on the side of my stomach again, you know. All the baby stuff in there, so many stuff in there, baby things, you know, yeah”.
Ms Ballah said that after the accused had done that he left the house. When asked when she saw the accused again she replied:
I seen him the next day. I seen Alan the next day because when he assault me he always knows what he had done is wrong. He has kept banging on his head and then he hit the wall, walk out because he need to go out to – whenever Alan is assaulting someone he realise that is wrong and he banging his head on the wall or go “Oh my God, sorry Mary. Sorry Mary,” and he would leave and – when he assaulted me he left the house, he didn’t stay there.
QDid you see Alan’s parents after that.
AYeah, they came around, yeah.
QDid you discuss with them what happened.
AI discussed with them and they didn’t believe me.
QWas his father there.
AHis father was there and he asked again “Why you have to do that?”, and he said he was stressed again. His father say “Alan, I told you if you do that I will be the first person to call police. You should not do that to Mary again,” and make Alan more even angry, Alan and he argue and he left the house because of that comment from Alan dad.
QBecause of the comment from Alan’s dad.
AYeah, “If you do it again I will be the first person to call the police for you now. It is not fair. Why you do that. You should not be doing that when you get angry”. Alan leave the house.
Ms Ballah said that after the incident involving the accused hitting her with her baby bag she again went to the Women’s and Children’s Hospital. She went alone by bus. She thought she was in her eighth or ninth month of pregnancy with their second child. She went because she was worried about her baby. They said the baby was fine.
Ms Ballah said that on a Sunday morning shortly after this she felt pain in her stomach. She was at Church. She told the accused because he was awake and he told his parents. When the accused and his parents arrived at church they took her to the Women’s and Children’s Hospital. Their second daughter was born shortly after. She was premature and very small. This was in mid-August 2009.
Ms Ballah said that three weeks after the birth another assault took place at the Prospect house. They had gone to a party at a friend’s house at Modbury. There was the accused, herself, the two children and her sister Nboweh. She said:
Yeah, we all went to the party. Alan drove there and he is the one who bring us back again. So when we went to the party, I think around 7 o’clock, going 11, we was coming home. Me, Alan, my sister, A and S, we was coming, my sister was sitting at the front to the left passenger seat and I was sitting behind my sister and A was sitting behind Alan and S’s car seat was in the middle. So I was sitting on the side. So we were coming, we were playing music. So my sister called my mum and said she was going to go to her house. She wanted to go to my parents’ house. So because we were playing music we couldn’t really understand what she was saying on the phone, which I heard it all “It is too late, don’t come”. So, yeah, Alan get angry. He begin to swear “Why your mum don’t want you to go there? Your mum is uncivilised. She is not intelligent, she is fucking uncivilised”. He started having a go at our mum and I was like “Alan, don’t swear at my mum. We are playing music loud. We couldn’t hear what she say.” I said “Don’t swear on my mum, it is not fair”. I said “Alan, stop swearing. She is not uncivilised. She is not unintelligent”. He is so angry yelling. I said “Alan you don’t have to say that. That is not fair. Don’t swear on my mum.” Me and Alan start arguing again. My sister go to my parents’ house, we started arguing again and he said “I’m going to crash your car. Baby or not baby, I’m going to crash the car and kill everyone”, and we were close to Greenacres, on the way to the Greenacres Shopping Centre. From Holden Hill Police Station he put on his speed. I don’t know how many kilometres he do but he was really, really on high level. I was, you know, feeling dizzy. You know when you are in speed, how hard it is when you are doing more than 80. He begin to speed coming to the Greenacres Shopping Centre. We passed. There is a little traffic light there. I don’t know what was going there. Police car went on there, all surrounded. I think Alan see the police car and he put on his brake. When he put the brake on I just went and my head, neck, onto the car, which is on the side, and my baby, she is so little in the car seat, she is so little and she threw out on her head, bang, onto the seat at the front. So he put his brake on because the police were around there, he went back on the little street side on the left. He parked there, and then when he parked there he tell her to get out of the car, he took my daughter A and threw her down on the floor on the main road, you know. He took my baby and push her down on the floor, and why he wanted to do this thing – and when I quickly grabbed S. So I grabbed S. My sister went to help my baby A and went on the other side of the road and Alan was banging into the car and going to kill himself and I tried to calm him down again because I didn’t want him to do that. I tried to calm him down, say “You don’t have to kill yourself, it is okay”.
QDid he respond to that.
AWhen I calm him down, he was saying “I going to kill” himself and he begin to bang his head. Well, before that he call my uncle. He abuse my uncle wife as well on the phone. He said “Your wife is so unintelligent and uncivilised person”. Then when he stopped, he saying he was going to kill himself, I went to him and I said “Alan”, I tried to calm him down again. I said “You don’t have to kill yourself, you don’t have to do that. Don’t do that, just calm down. Everything will be okay”, and then when I talked to him for a while we all said we should go back into the car. Because we needed to drive my sister home. We have no choice but we have to – we have to get back in the car as we have baby.
QWhen you got back in the car where did you go.
AWe have to go drive my sister Novar Gardens.
QDid you talk to Alan about what had happened in the car.
AWhen we came back into the car I didn’t talk much to Alan. I was only focus on my baby S. Because when she lent onto the car I could see a big lump here. Because she just a baby, it went really hard like that. I was really concerned. I said “Alan, we have to take S to the hospital” and he said like “Go to Women’s and Children’s Hospital. What are you going to tell them. You going to tell them I tried to kill you all”. Because I didn’t want us to argue again, I think “Okay, it is okay, we will not go to the hospital. Let my sister home and go home” and we took my sister. I can’t remember if we talk to Alan too much because we were scared.
QDid you go to the doctor about that with S.
AWe went and drive my sister at Novar Gardens. We came back home to Clifford Street. I never went to the doctor because Alan plead with me not to do so. He was scared that if I tell the hospital you will be in trouble. So plead with me and I didn’t want us to keep arguing and arguing. I have the kids on the way home. When we get there, ice, slowly massage my baby head, for it to go down. I kiss it and I just doing that (INDICATES) for the baby head to calm down. I never went to the hospital about it.
Ms Ballah said that normally after a birth nurses come to people’s houses to check the baby. When they came after the birth of her second child they said to her that “they already know there was domestic violence involved when I was at Broadview address ... because I talked to the people about it a little bit. So when the nurses came they were asking me that they know I’m involved in domestic violence, so that’s why I explained to them what happened in the car with S”. She said she explained to these people what happened.
Ms Ballah said that after this incident in the car everything was “okay for a while and there was another incident in 2010”.
Ms Ballah said she became pregnant for a third time with the accused. It was in July 2010 that she found out she was pregnant. She said she was taking the pill but it was making her fat and she was sick. I infer that she stopped. She said: “When I find out I pregnant and I tell Alan that I was pregnant with our third child and Alan said “Are you sure?”, “Yes, I sure”. He said “You have to do abortion”. He was angry again and agitated because he was so scared of his parent”. He said:
Your pregnant again, I’m so disappointed, my parents going to be so disappointed in me’. Then he said “You should do abortion”. Then I said “I’m not going to do abortion”. Then he got angry, he said “I have to leave or I kill someone”. My memory later “You have to go or we fight” and he say “I have to go or I’ll kill someone.
Ms Ballah said that she took her two children to Yah’s house. Later that day the accused arrived there and told her to go with him back to the Prospect house. She said:
When he said we should go home I was scared. I said I didn’t want to go. He said “Just come, I want to discuss our third child”. I said “Well, if you want to discuss that I don’t want to come with you” because I was scared if I go with him, we discuss, he’s going to be angry and fighting again. I said I didn’t want to go with him. He said “Okay, I’m not going to discuss anything, just get in the car, let’s go”. So when I get into the car, put the kids into the car, I was about to – I sat in the car, then Alan said “Are you sure you’re not going to get abortion?”. I say “I’m going to tell my uncle”, then he get angry, he said “I thought you said you are not going to discuss this, and now you are”. He said “Okay, I’m going to crash the car” and there’s a gate, it’s all made of metal, it’s a big gate. He told me I’m going to crash the car into that. I know Alan said he would do it, whenever he said he was going to crash the car he always attempted. So when he say things like that, he always meant to do them. So that’s what made me scared. I quickly jumped out of the car and sat on the side of the road and then I started, was going to put my baby down – “I’m going to crash this car”, don’t care about my baby, “I’m going to call the police; take my babies out of the car”. Alan tried to move the car, then I dialled 000 and called the police.
QWhat did Alan do when you said that you would call the police.
AHe went into the drive, like he started the car “vroom”, like that. I quickly called the police, I said “My children are in my boyfriend’s car, he’s going to crash the car, I have my kids in the car”. I don’t know how I say that to police. He stopped the car, got out of the car, put my baby A, throw her on the side in the gutter, it was really wet. I quickly grabbed S from him because I didn’t want him to do the same as he do to my first child. He got my shoulder and threw my bag outside and he went and put my baby on the floor, before that I call my friend to come and help me.

I am satisfied and find that the apprehensions and fears that both Mary Ballah and the accused held as to the accused’s parents’ likely reaction to her pregnancy were well‑founded.
I am not suggesting here that the accused’s parents are “racists”. That word is often used in a pejorative sense to describe people who hate people from other races just because they are from other races whom they consider as “inferior” to them. There are, I think, some people who are not “racist” in that pejorative sense who find it difficult to treat people of other races in the same way as they might treat people from their own race, particularly when those others come into their close family to be part of their close family unit, where they have played no voluntary role in inviting those others in.
I am satisfied, find and conclude that both the accused’s parents had a view that Mary Ballah was “inferior” to them and to their son, and that she was not “good enough” for their son. I am satisfied and find that they hoped and expected their son to take a partner of the same race as he and them, and to raise a family such that their grandchildren would be white and Australian. I am satisfied and find that both the accused’s parents were upset, disappointed and angry that their hopes and expectations of their elder son did not come to pass with Mary Ballah and with the grandchildren she produced for them.
I consider that these findings are important in considering my verdicts in this case.
I am satisfied and find that Mary Ballah loved the accused throughout their relationship and I find that she wanted for them to raise a family together as a happy family. I find that she had such a wish until 23 July 2010. I am satisfied and find that until that day she would do almost anything to ensure that her wish would be fulfilled and that that family would include “her man” as part of it.
Furthermore, I am satisfied and find that Mary Ballah’s cultural beliefs from Africa included the belief that no-one is perfect and no relationship is perfect. She believed that there will always be disagreements, arguments, even fights, in a relationship. I find that it is also a part of Mary Ballah’s culture from Africa that where partners, whether they be husband or wife or otherwise, have a problem they have to try and solve it and, in particular, the woman has to decide whether anyone outside the relationship and family is asked to come in to try and solve it. Someone outside the family includes the police. Whether or not to call the police is a matter for the partners or either of them to decide, not for others.
I cannot make a finding as to whether or not the accused loved Mary Ballah at any time. He did not say that he did. He did not say that he told his parents that he did. He told me that he did not tell his parents that Mary Ballah was pregnant with their first child. Therefore, he did not go to his parents and say to them that Mary Ballah was having his child, that he loved her, that he wanted her to have his child and that he wanted their support for both her, her unborn child and for any future children that they hoped and expected to have. The only mention in the evidence of “love” in this context was from Mary Ballah when she said that on one occasion his parents “had a go” at the accused by saying to him, “Why did you even love this stupid girl, this African girl. She is a piece of shit”. I find that this was said as Mary Ballah described it.
I am satisfied and find that at no time did the accused consider Mary Ballah to be his equal in any aspect of their lives. I find that part of the reason for that was his upbringing and his feelings towards his parents and his understanding of their expectations and hopes for him. Some of our attitudes, particularly towards others, and some of our beliefs we learn from our parents during our upbringings. Some we experience and learn in later life. The accused was only about 20 years old when he met Mary Ballah and started a relationship with her. His then attitudes and beliefs would have come from his parents and from his upbringing with them.
I am satisfied and find that for the years that the accused was in a relationship with Mary Ballah his attitude towards her was influenced by his parents’ beliefs and attitudes. Further, because those beliefs and attitudes were strongly held by his parents, as I find they were, and that the accused knew they were, I find that his relationship with Mary Ballah was influenced in those same ways. I am satisfied and find that the accused did not consider Mary Ballah his equal and, accordingly, he did not consider their first child in the same way as he might have considered his first child who was white and Australian. There was another layer added to that in that he was then only 20 years old with little experience of life to share and contribute to bringing a child into the world
I am satisfied and find that the accused and his parents viewed Mary Ballah and her race as “uncivilised”, or at the very least “not civilised” in the sense that they were civilised in a white Australian community. I find that the accused and his parents considered Mary Ballah, her family, her friends and others of her race to be “uncivilised”, unintelligent, disorganised and stupid or silly. I am further satisfied and find that the accused and his parents considered that Mary Ballah was of a “lower class” than them, or at the very least not “at the same level” as they were.
The findings that I have just made are very important when I assess the evidence, particularly that of Mary Ballah and the accused. They are also important in assessing the evidence of the other witnesses called by Ms Abbey and the evidence of accused’s father.
The findings to which I have just referred lead me to consider and conclude that much of Mary Ballah’s evidence is believable and reliable. Not only is that the case in respect of the charged and uncharged acts and conduct of the accused that she described, but it is also the case in respect of the surrounding circumstances to them.
I have come to the same conclusions regarding the evidence of Nboweh Ballah, Yah Gbele, Arku Kormah and Irene Kallon. I considered favourably each of those four witnesses. I thought each was completely without any guile at all. I am satisfied and find that none discussed what they were going to say in their evidence with Mary Ballah let alone agreeing on what consistent evidence they might give. I consider that each gave their evidence as best they could without any apparent rancour against the accused or his family.
Neither Ms Gbele nor Ms Nboweh Ballah sought to embellish their evidence or to add to it by including allegations of assault by the accused against Ms Ballah when neither could say that they saw such assaults. Each witness said at different times that they did not see something happen. It is for me to determine whether that means that it did not happen or that they did not see something that did happen.
I was impressed by the simple denial of each of these witnesses when Mr Edwardson put to each of them that the things that they had described had not occurred. I am convinced that each told me the truth as best they recalled what they saw and heard. I am also satisfied that the account each of these four witnesses of what they saw and heard form a reliable base upon which I can consider and determine my verdicts.
I am not at all troubled by some variations in the evidence each of the African witnesses gave as to the finer detail of the various incidents. I conclude that these variations are just what would be expected as to detail, and rather than make me question their credibility or reliability, they enhance my view of those matters. The consistency between the evidence of the African witnesses as to their evidence as to charged and uncharged incidents is convincing and compelling. For each of them to maintain such a consistence, even when relating unusual features of the various incidents, could only, in my view, be borne of each relating what they recalled of events that occurred, rather than be the result of fantasy or contrivance.
Mary Ballah spent a considerable time in evidence before me. Earlier in her evidence I sometimes struggled with following and understanding what she was saying, and with becoming attuned to and familiar with her manner of expression and the words she used either in English or in Pidgin English. I was not always confident that the interpreter, when he interpreted, was “interpreting” her words appropriately. That is not to say that I thought the interpreter was not doing as good a job as he possibly could. I think there was sometimes, particularly earlier in her evidence, when I thought I understood what Mary Ballah was saying better than did the interpreter. Again that is not a criticism of him.
I was ultimately satisfied by the end of her evidence that I had a proper and reliable understanding not only of the words that she used in her evidence but of what she meant them to mean and what she meant me to understand her to mean.
I was very impressed with Mary Ballah’s demeanour throughout her evidence. I ultimately formed the belief that she did her best to ensure that she gave as credible and as reliable evidence as she possibly could in what she believed to be an important and significant court setting.
Whilst Mary Ballah’s evidence was not entirely consistent in some limited areas and in some of the Exhibits D2 and D7, I am satisfied, and I am satisfied beyond reasonable doubt, that on the crucial matters her evidence is both credible and reliable. Her evidence on such matters is supported in significant ways by the other Crown witnesses. I am satisfied beyond reasonable doubt that they could not have all maintained a consistent account of the relevant evidence if they were not true and given from actual and reliable memory. One example concerns Mary Ballah’s and Yah Gbele’s evidence that after the incident which comprised counts 2 and 3 Ms Gbele told Mary Ballah that if she was not going to report the accused to police then she would have to leave her house and not live there anymore. Mary Ballah left Yah Gbele’s house and moved elsewhere to live. This evidence was not only consistent one with the other but it is significant for an understanding of the relationship between Mary Ballah and the accused and for my assessment of Mary Ballah and Yah Gbele as credible witnesses. Another example is the evidence of Mary Ballah and her sister Nboweh Ballah as to what was said when they described the accused violently assaulting Mary Ballah at the house which she was then sharing with her sister Nboweh. The evidence was that Nboweh Ballah asked the accused whether he was drunk. Mary Ballah responded with words to the effect that the accused was not drunk, and there was evidence to the effect and I find that she added words to the effect that the accused was well aware of what he was doing. Again, there is a consistency between the witnesses and what Mary Ballah said to her sister is consistent with her evidence that the accused was violent towards her over the period of their relationship. Yet another example is the evidence of Mary Ballah, Nboweh Ballah and Arku Kormah regarding the telephone call made from the accused’s car when he was driving home from the Independence Day party. I refer to that at paragraph 266 of these reasons. Although the words Mr Kormah used to describe what he heard over the ‘phone were different, albeit slightly, than the words used by both Mary Ballah and Nboweh Ballah, their sense was the same in every aspect of what he heard of that conversation and related in evidence.
I am satisfied and find that Mary Ballah could not have made up a significant part of her evidence. One example is her evidence that the accused said to her at one time that his parents did not want her to bring her friends to their Prospect house as they were working and paying taxes, their taxes were paying her rent and feeding her, and therefore she had to follow their wishes about bringing her friends to their house. Mary Ballah did not strike me as someone who could have made that up if the accused had not said that to her. It demonstrates a process of thinking that would likely be completely foreign to her, but not to the accused’s parents. Another example is Mary Ballah’s evidence that when S was hurt in the car when one charged incident occurred she said to the accused that they had to take her to the hospital. She said the accused responded “What are you going to tell them, are you going to tell them that I tried to kill you all?”. I do not consider that Mary Ballah was capable of making that up.
Even the detail of the incidents of violence Mary Ballah described were of such a nature and of such detail that could not have, in my judgment, been made up by her. Some of her allegations were somewhat bizarre and extreme. Examples are that she said the accused would slice her stomach open and take the baby out, that he was going to “fucking kill” her, that they did not kill her in Africa, and that he was going to crash the car, baby or no baby, and kill everyone. I am satisfied and find that Mary Ballah did not make up these statements she attributed to the accused.
I believed Mary Ballah when she said that she never swore, and that she never struck the accused other than once at Irene Kallon’s house.
The accused was not an obviously bad or unsatisfactory witness. I acknowledge that it can be very difficult for an accused person whose case is that certain incidents did not occur at all to do other than deny that they occurred. Here there were three incidents in respect of which the accused was charged that he or his father gave evidence of having occurred but not in the way described by Mary Ballah and Nboweh Ballah. Two of these three incidents were the subject of evidence from other than the accused and Mary Ballah. One was not. That was count 12, the Independence Day party incident. So it is not the case that the accused’s case was that incidents that he said did not happen at all were confined to incidents in respect of which there were no witnesses who gave evidence at the trial other than himself and Ms Ballah.
But at the end of the accused’s evidence I was not convinced that he was telling me the truth. I have no doubt that he did not tell me the truth about his not staying overnight with Mary Ballah at any house before she moved to live with his parents at their Broadview home. His evidence about the “black” baby bag was ridiculous, as was his attempt to explain why he thought Mary Ballah should make a point in the car for Nboweh Ballah to stay at their uncle’s house on the night of the barbeque at Modbury. I find that the accused lied when he said that Mary Ballah had been violent towards him and when he said that she swore at and used foul language towards him.
My assessment of the accused’s character is influenced by my observations of him in the witness box, the evidence he gave and my findings relating to his relationship with his parents and his relationship with Mary Ballah. I find that his relationship with his parents was such that he would not only be very worried about their reaction to what he did with his life, but he felt under extreme pressure from each of them as to what he did in his life to make them proud of him, and as to what he should not do to disappoint them, let them down or bring disgrace on the family. In this way he was frightened of them and intimidated by them. I am satisfied and find that all of this made the accused very unsure of himself in his conduct and he judged himself and his conduct according to what he thought his parents expected of him. I am satisfied and find that when he thought that he or his conduct might anger or disappoint them he became agitated. He would swear, he would become angry and, ultimately, he would become violent not only towards others but also towards himself. The evidence of Mary Ballah both as to his violence towards her and towards himself is consistent with this.
I am satisfied and find that a very great apprehension and fear the accused had was that he would let his parents down in a most significant way if he was arrested and charged for a criminal offence. I am satisfied and find that he feared that would be a significant and the ultimate personal affront to his parents in both their lives and in what they expected of him in his life. Because of that I am satisfied and find that the accused would do almost anything to ensure that his conduct did not come to the attention of the police if that meant that he would be arrested and charged for a criminal offence. My judgment is that if he thought that that might happen if Mary Ballah reported his conduct to police, he would not blame himself other than say that he was “stupid”. I find that he would blame “the devil” and not himself, and he would bring pressure upon Mary Ballah not to report him for his violent conduct against her because that would inevitably have an adverse effect on his family and on his future. That was why he was, as I find, so afraid of the word “police”.
I am satisfied and find that one thing the accused could not do was to lie to his parents. I find that he had told them before the trial that he had never stayed overnight with Mary Ballah in her bed before she came to live at Broadview. To say otherwise in his evidence would be a confession of a lie to his parents. I am satisfied and find that Mary Ballah told the accused’s parents from time to time that their son was violent towards her. I am satisfied and find that on each occasion the accused admitted to his parents that he had been. I am satisfied and find that when that happened his mother would admonish him and say that he should not admit that as he might get into trouble if he did. I am not able to find whether she believed or disbelieved her son. I am satisfied and find that the accused’s father believed his son’s admission of those allegations when Mary Ballah told him about them. That means that I am satisfied and find that the accused’s father believed Mary Ballah because his son admitted the allegations of violence. I find that he also did so because he had seen his son being violent towards her.
I am also satisfied and find that the accused’s father would counsel his son against being violent towards Mary Ballah. He knew that his son was capable of violence against Mary Ballah and that he did commit violence against her. I make these findings despite my being satisfied and finding that he, Mr Cotton senior, struck Mary Ballah once in his own house.
I do not believe the accused’s father’s evidence when he said that Mary Ballah had never complained to him or his wife about violence committed on her by the accused. I do not believe him when he said that he would not lie under oath for the accused. I do not believe him when he said that he never struck Mary Ballah. I do not believe him when he said that Mary Ballah swore, screamed and went into a rage during the toilet seat incident. I find that he lied when he said that Mary could be quite erratic and “you feel like you can be walking on eggshells”. His explanation as to why he told his son to tell Mary to tell Yah to be careful of the toilet seat was bizarre.
My conclusion is that the accused’s father is probably a good man. He is probably not “racist”. But I am satisfied and find that he did not consider Mary Ballah to be good enough for his son nor good enough to be the mother of his grandchildren. I am satisfied that he considered Mary Ballah to be inferior to and beneath his family. I thought it telling in this regard that he said, “We cope with having that child” when saying he did not expect his son to have a child at the age of 20 years. I am satisfied and find that he lied to help his son in respect of the matters before me. That was for his son’s sake, and for the sake of he and his wife.

As a result of these findings I am satisfied beyond reasonable doubt of the truth and reliability of Mary Ballah’s evidence as to each of the charged counts and the uncharged acts and conduct.
I find proved beyond reasonable doubt each and every element of the two charges of assault, being counts 1 and 5.
I find proved beyond reasonable doubt each and every element of the two charges of aggravated assault, being counts 4 and 6. I find the aggravating features of each of these counts proved beyond reasonable doubt.
I find proved beyond reasonable doubt each and every element of the three charges of aggravated assault causing harm, being counts 3, 7 and 12. I find it proved that Mary Ballah suffered harm in each of these three incidents as she described. I find all of the aggravating features of these counts proved beyond reasonable doubt.
I find proved beyond reasonable doubt each and every element of the charge of threatening to cause harm, being count 2. I find proved that the accused intended to arouse a fear in Mary Ballah that his threat to cause her harm would be carried out.
Counts 8, 9, 10 and 11 charge the accused with an act creating a risk of serious harm. The same act is alleged in each of these four counts. That act was that he, without lawful excuse, drove a motor vehicle at excessive speed knowing that that act was likely to cause serious harm, respectively to Mary Ballah, Nboweh Ballah, A and S, intending to cause such harm to them or being recklessly indifferent as to whether such harm was caused.
These charges relate to the evidence of Mary Ballah and Nboweh Ballah that on their way home from a party at a house at Modbury the accused, when he was driving the car, said that he was going to crash the car, baby or no baby, and kill everyone (Mary Ballah) or that he was sick of everyone in the car and he was going to kill everyone in the car (Nboweh Ballah). I consider that those statements are to the same effect and I am satisfied and find that the accused said that he was going to kill everyone in the car. I find that having said that the accused accelerated such that the car was travelling at least at 80kph when he saw a police car ahead at a testing station and braked hard.
I am satisfied beyond reasonable doubt that the accused consciously and deliberately performed that act which was likely to cause serious harm to all of the occupants of the car, including Mary Ballah, Nboweh Ballah, A and S.
I am also satisfied beyond reasonable doubt that at the time he did that the accused knew that his act was likely to cause serious harm to each of his four passengers.
I am also satisfied beyond reasonable doubt that the accused did not have any lawful excuse for his act.
As to the accused’s state of mind, I consider that the accused probably intended to cause serious harm to each of his four passengers or he was probably recklessly indifferent as to that. However, I consider that there is a reasonable possibility that he did not intend to cause any of them serious harm, or that he was recklessly indifferent as to causing any of them serious harm.
I am, however, satisfied beyond reasonable doubt that the accused was recklessly indifferent as to whether what he did would cause harm to each of his four passengers. I am not satisfied that the accused’s state of mind was such that I can find that he positively intended to cause any of his passengers serious harm or even harm. I am not satisfied beyond reasonable doubt that the accused was recklessly indifferent as to whether what he did would cause serious harm to any of them. His earlier conduct towards Mary Ballah, when at the very least he was recklessly indifferent as to whether he caused her serious harm, in the incident the subject of these four counts Nboweh Ballah was in the car as well as his two children. In those circumstances I cannot be satisfied other than that the accused was recklessly indifferent as to whether what he did would cause harm to each of his four passengers. I am satisfied of that beyond reasonable doubt as to each of these four counts.
Accordingly, I am satisfied beyond reasonable doubt that the alternative to each of these four counts is proved. That alternative is the offence of doing an act creating a risk of harm.
Accordingly, I find the accused guilty of counts 1, 2, 3, 4, 5, 6, 7 and 12 as charged.
I find the accused guilty of the alternatives to counts 8, 9, 10 and 11 on the Information, being doing an act creating risk of harm to Mary Ballah, Nboweh Ballah, A and S.