R v H, N - [2012] SADC 101

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, N
Criminal Trial by Judge Alone
[2012] SADC 101
Reasons for the Verdicts of His Honour Judge Chivell
8 August 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Charges of aggravated assault causing harm (five counts) and unlawful sexual intercourse (three counts) against daughter - issue of application of force and reasonable chastisement - issue of corroboration.
Verdict: guilty of three counts of aggravated assault causing harm - not guilty of unlawful sexual intercourse.
Criminal Law Consolidation Act 1935 s 20(2), s 20(4), s 22(4) , referred to.
R v R, R & R, LJ [2008] SASC 35; Robinson v R [1991] HCA 38; Stoten v R [2011] HCA 44; Harris v The Queen (1990) 55 SASR 321; R v Calides (1983) 34 SASR 355; R v HS [2004] SASC 300; R v Liddy (2002) 81 SASR 22; R v Nieterink (1999) 76 SASR 56; R v M, BJ [2011] SASCFC 50; R v Costin [1998] 3 VR 659; R v Sluczanowski [2008] SASC 185; R v Terry [1955] VLR 114; Byrne v Hebden [1913] St R QLD 233, considered.

R v H, N
[2012] SADC 101
TABLE OF CONTENTS
Introduction
General directions
Prosecution case
Count 1 – aggravated assault causing harm
Defence version

Charge withdrawn
C returns home
C’s relationship with a young man
Count 2 – unlawful sexual intercourse
C runs away to the church hall
Police attend
Defence version

Count 3 – aggravated assault causing harm
Further uncharged behaviour
Initial complaint
Counts 4 and 5 – unlawful sexual intercourse
Count 5 – unlawful sexual intercourse
Count 6 – aggravated assault causing harm
Defence version – counts 4, 5 and 6
Evidence of C’s mother about counts 4, 5 and 6

Counts 7 and 8 – aggravated assault causing harm
Count 8 – aggravated assault causing harm
Police attend
Medical evidence – Dr Tee
Defence version

C’s credibility
Motive to lie
Character evidence
Reasonable chastisement
Conclusions

Introduction

Mr H is charged with aggravated assault causing harm (5 counts) and unlawful sexual intercourse (3 counts). He has elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. The complainant is his daughter. Ms S McDonald appeared with Ms H Kinuthia for the Director of Public Prosecutions and Ms Spence appeared for Mr H.
The complainant, to whom I will refer as “C”, was born on 21 January 1994 in Zimbabwe. Her birth certificate is Exhibit P31. She came to Australia with most of her immediate family in October 2007. Her twin sister was unable to come with them, and is still in Zimbabwe. The family has resided here ever since.
General directions
The Supreme Court has stated that it is not necessary that I set out in these reasons all of the directions which a judge might give to a jury in a criminal trial.[1]
[1] R v R, R & R, LJ [2008] SASC 35
However, I remind myself of the following fundamental principles:
·the accused is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt;
·the burden of proving guilt rests on the prosecution. There is no onus on the accused to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of the accused;
·the accused is under no obligation to give evidence. If he does not, no adverse inference may be drawn against him. If he does, he does not undertake any onus to prove or explain anything. That remains with the prosecution. His evidence is not to be discounted merely because he is the accused. That would deny him the presumption of innocence. His evidence should be assessed in the same way as that of the other witnesses;[2]
·even if the evidence of the accused is disbelieved completely, that does not bolster the prosecution case. It is as if he had not given evidence at all;[3]
·the fact that the accused has given evidence does not create a contest between the prosecution and defence versions of the events, the resolution of which excludes the issue whether the prosecution has proved its case beyond reasonable doubt;[4]
·proof beyond reasonable doubt means what it says and needs no further elaboration. A mere suspicion of guilt, or that there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient;
·every element of each offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is “not guilty”; and
·each count must be considered separately. In the event that I were to find the accused guilty of a count, the evidence and that finding may not be used in proof of the other counts.[5] Conversely, if I am not satisfied about the credibility and reliability of C in relation to one count, and the other counts rely on the uncorroborated evidence of C, then that doubt should be taken into account in determining whether I am prepared to accept her evidence on other counts.[6]
[2]    Robinson v R [1991] HCA 38, Stoten v R [2011] HCA 44
[3]    Harris v The Queen (1990) 55 SASR 321 at 323
[4]    R v Calides (1983) 34 SASR 355
[5]    R v HS [2004] SASC 300
[6]    R v Liddy (2002) 81 SASR 22 at [181-193]
Prosecution case
C’s evidence was that she had been beaten by her father since she was a small child, both in Zimbabwe and since they came to Australia. He beat her regularly and often. He did not try to hide the fact that he was doing this. Her mother was sometimes present when these beatings occurred.[7]
[7] T13
C said that the beatings became worse, both in frequency and severity, when the family came to Australia.[8] Her father more often used an electrical cord, although he sometimes used a tree branch from one of the olive trees in the front yard. She described how, when he used the electrical cord, he would fold it and then hold it in his right hand.[9]
[8] T13
[9] T12
This evidence was led, without objection, on the basis that by February 2009, such behaviour was commonplace in the H household. It had become “normalised”, in Ms McDonald’s words.
I will have regard to this evidence on that basis only. Specifically, I refrain from indulging in “propensity reasoning”, that Mr H is the type of person who is prone to violence and therefore more likely to have committed the offences charged.
Count 1 – aggravated assault causing harm
C said that on 28 February 2009 her father became angry about some issue of discipline – she could not remember what. He beat her with black electrical cord while they were in the computer room of the house. He beat her on the arm, on the right hand side of the neck and across the back, and also in the vicinity of her right eye.[10]
[10] T15
C said that after the beating stopped, she went outside the house and hid among some car tyres near the back shed. She telephoned the police on her mobile phone.[11] The police attended and spoke to her. Photographs taken by the police at the time[12] show bruising and swelling around the right eye, and marks on the outside of her left arm and the inner side of her right arm. The black electrical cord is also depicted.
[11] T16
[12] Exhibit P2
The marks on C’s arms have a characteristic curved shape, consistent with her evidence that the cord was folded, forming a loop at one end. The width of the marks is also consistent with having been made by an electrical cord.
One of the police officers who attended, Constable Leonard, said that C appeared sad and upset when spoken to.[13] The officer noticed “a large lump” to the right side of her face,[14] and bruising to her left upper arm. The other officer, Constable Murdock, noticed the swelling to the right side of the face and some “welt-type marks” on both of her arms.[15] He said these injuries were clearly visible to the naked eye.[16] It was Constable Murdock who took the photographs in Exhibit P2.
[13] T348
[14] ibid
[15] T325
[16] T327
C was conveyed by ambulance to the Queen Elizabeth Hospital. She was examined by Dr Div Kumar. Dr Kumar was a Resident Medical Officer at the time, in his second year after graduating. He was not conducting a forensic examination. He had no memory of the examination apart from the medical record.
The triage nurse had noted that C was complaining of an injury to her right cheek. He said he examined “mainly the face”,[17] and noted swelling to the right cheek. He did not examine any other parts of her body.[18] He did not recall the injuries to the arms depicted in the photographs, Exhibit P2.
[17] T333
[18] ibid
I do not regard Dr Kumar’s evidence as being inconsistent with C’s account, or detracting from her credibility in any way. The injuries were clearly present – the photographs in Exhibit P2 make that obvious. Dr Kumar was obviously more concerned to ascertain whether C needed treatment, and was not conducting a forensic medical examination. He prescribed an ice-pack and pain relief.[19]
Defence version
[19] T336
When he gave evidence, Mr H said that C had been behaving badly all week. She had been coming home late from school and was not “forthcoming” about where she had been.[20] She had also erased material he had saved on the computer.[21] C and her younger sister had also been quarrelling over a small mirror.[22]
[20] T510
[21] T511
[22] Exhibit D19
Mr H said that C went outside and picked a “twig” from an olive tree in the front yard and began striking her sister with it.
He denied he was angry with C. He admitted he was “a little bit upset”.[23] When he emerged from the computer room, C rushed to the front door and threw the stick outside.[24]
[23] T651
[24] T652
Mr H brought a small twig to court.[25] He said it was similar in size to the one used by C to hit her sister. At one point in cross-examination, Mr H said he saw C get the twig from the tree,[26] and, only two pages later in the transcript, denied he said that.[27]
[25] Exhibit D26
[26] T652
[27] T654
Mr H said he went outside and retrieved the same twig. He came inside and spoke to C, saying that striking her sister in the presence of her parents was a challenge to their parental authority.[28] C turned and moved towards the kitchen, and he struck her with the twig, once to each arm in the vicinity of the elbow. He said he just “tapped her” and demonstrated in court.[29]
[28] T657
[29] T659
This evidence was plainly untruthful. Mr H’s evidence fails to deal with the nature and extent of C’s injuries as seen by the police officer and by Dr Kumar. When the photographs (Exhibit P2) were put to Mr H in cross-examination, he said:
QLooking at Exhibit P2, focusing at the moment on the first page, the photographs of C’s arm and her face. See the two photographs to the left, we’ve heard some evidence about an older area of scarring on the arm. Do you remember C having scarring like that on her arm, darker pigmentation, linear shaped.
AShe has had those things sometimes you know, maybe in the past she might have had those things.
QThe question was do you remember her having an area of scarring or what looked like darker pigmentation in a linear shape on her arm. Do you recall your daughter having that.
AI wouldn’t give you an answer precisely she had that or not that, I wouldn’t give you a precise answer, I have never seen that myself.
QIt might be difficult to see but can you make out an area of linear bruising on that arm just above that more obvious older mark area, do you see that.
AOn which part?
QOn the arm.
AThe arm, I can see sort of like a bruising, yeah.
QHow did she get that.
AI don’t know.
QWas that you tapping her.
AI’m not sure whether it was through tapping her.
QIf we go to the next page, we see the inner aspect of C’s right arm. Did you do that, the mark we see there.
AI didn’t do that.
QYou didn’t do that.
ALet me see. Yeah, I’m trying to see whether it could have been from tapping. Because if you look at the photograph it has got some other lines in here. With this thing, this little thing, it wouldn’t cause any marks of a swelling or a bruising.[30]
[30] T660
On the following pages, Mr H repeated a blanket denial that he caused C’s injuries at all.[31] I reject his denials as untruthful.
[31] T661
Mr H said that after he “tapped” her with the twig, C “went outside to play with her mobile phone on the back lawn of the house”.[32] He made no mention of an incident put to C by his counsel in cross-examination:[33]
QThe swelling under your eye, didn’t that occur because you ran away from your father when he was hitting you with the olive branch and you fell on the kitchen sink.
ANo, it did not happen due to that, it happened when he hit me in the computer room with the electrical cord.
QYou ran away from him when he hit you and you ended up falling and striking your face.
AI never remember falling, he just hit me in the computer room. That’s what I remember: he hit me in there, that’s when I had the swollen eye.
[32] T661
[33] T226
I formed a very poor impression of the credibility of the evidence given by Mr H about this event. I have no doubt that his evidence about “tapping” C with a “twig” is untrue. When challenged about the evidence, he became evasive and self-contradicting.
Mrs H gave evidence for the defence. She said she did not see Mr H hit C.[34] She saw the facial bruising, a redness, but was anxious to say she did not see the marks on C’s arms, either the older marks or the marks C alleged were inflicted on that day.[35] Even though C often wore short-sleeved T-shirts, she had never seen such marks on C’s arms. Frankly, I do not believe her. The marks are extremely obvious, even in the photographs in Exhibit P2, which are not of good quality.
[34] T765
[35] T841
Further, when cross-examined about whether C told her where her father had hit her, Mrs H was evasive and self-contradictory.[36] During the time in the ambulance on the way to hospital, and while waiting in the hospital, she had ample time to ask C about what happened. Her evidence finally came down to:[37]
QIn all that time you had with (C), did you ask her where her father had hit her.
A
I never asked – probably I could have asked and she told me, but I didn’t take it. What I know is that (C) told me that her dad hit her somewhere, I don’t know where.

[36] T840-843
[37] T843
The conclusion seems inescapable to me that Mrs H either knew very well what had happened, or did not ask C because she did not want to know. Either way, nothing arises out of Mrs H’s evidence which reflects negatively upon C’s credibility.
I will discuss count 1 further in the “Conclusions” section of these reasons.
Charge withdrawn
Mr H was arrested on 28 February 2009 and charged with aggravated assault. He was initially refused bail until arrangements were made for C to board with a family friend.
On 22 March 2009, C signed a letter addressed to the “Police Violence Section”.[38] The letter is in the following terms:
I am writing to you regarding the charges against my father (Mr H). My name is (C). I was the victim and I am the one who reported the case on the 28^th of February 2009.
I advise that I am not willing to proceed with the charges against my father as I told the police before. I request that the charges be dropped. I don’t want the police to charge my father.
I want the bail conditions dropped and I want to go back to live with my father and mother.
I confirm that I am not prepared to testify as a witness against my father in court.
[38] Exhibit D21
C said the letter was drafted by the family’s lawyer, Francis Elekwachi. She said her mother told her to copy it. She said:[39]
ALike I wasn’t willing I wanted to drop the charges, but I was scared because I didn’t know what my father was going to do. She kept on saying like I have to drop the charges, she was forcing me to do it, but it wasn’t by my willingness, she dropped the charges.
QDid she say why you had to drop the charges.
ABecause she didn’t want my dad to go to prison or something to happen, because she was saying about the visa and some other things. At that time we didn’t have proper visa. I can’t really remember much, that’s all.
[39] T24
Mr H denied exerting any pressure on C to withdraw the charges, and denied suggesting to his wife that she should exert any such pressure.[40] As to his attitude to being in custody, he said, when being asked about an earlier comment he had made:[41]
QDidn’t you feel as though you were being treated as though you committed murder, some serious offence.
AIt could have been the case but not that I was unhappy with (C) herself or whatever, I was just thinking that the police are here in Australia, I thought they were reasonable and I was just equating it to my culture, that if the police were there it would be reasonable to understand that children are disciplined. I didn’t know that here in Australia children are taken as the Goddess or the Queen, that they can’t be disciplined, it’s the parents that discipline the children themself, that’s what I thought.
[40] T669
[41] T666
I found Mr H’s evidence that he was not unhappy about being arrested and remanded in custody entirely unconvincing.
Mrs H denied that she gave C anything to copy which led to the writing of Exhibit D21.[42] C wrote it herself. She denied exerting any pressure on C to withdraw the charges. On the contrary, C was pressuring her. C told her:[43]
A… I ask her ‘Why are you not sleeping?’, she said ‘I can’t sleep because those police they took my dad. I didn’t want them to take him to the cell, I wanted them to just talk to him, what he has done to me, I didn’t want them to take him to the police cells and it’s really worrying that my dad has been put in police cells.’
[42] T770-772
[43] T767
It is noteworthy that Mrs H was not alleging that C withdrew her allegations against her father in any way. In fact, she confirmed them. She simply regretted the consequences, which is understandable.
Mrs H said she and C went to the police station on 2 March 2009, and again on 6 March 2009, where C discussed the matter with police. She said C suggested that she would write a letter. They took the letter to Port Adelaide Police Station on 23 March 2009.
I do not accept that Exhibit D21 was authored by C. There is no evidence that it was drafted by Mr Elekwachi, or anyone else, but its language displays some knowledge of legal terminology (“proceed with the charges” and “testify as a witness in court”, for example). The grammar and spelling and general structure of the document are in marked contrast to the language in Exhibit D20, which she did write. There are also no alterations in Exhibit D21, which is also in marked contrast to Exhibit D20.
On 26 March 2009, C signed Exhibit D20, a form PD207A requesting that no further action be taken. The form was countersigned by her mother. There is no specific evidence that C underwent any independent counselling before signing the form, although there is evidence from Families SA through Mr Balkwill that two workers visited the home on 13 March 2009 and spoke to Mr and Mrs H, and on 24 March 2009 the same workers spoke to C at school in the presence of the principal.[44] She was 15 years old at the time. When she filled out the form, the reasons she gave for withdrawing the charges were:
·“I miss my father so much”
·“I didn’t mean to say my father will kill me. I said it because I was very angry.”
·
“He didn’t mean to hit me with the code (sic - cord). He just mistakenly hit me with it.”

[44] T456

There is no evidence about the origin of the clause “my father will kill me”. I will ignore that comment.
It is noteworthy that, in her mother’s presence, C referred to being hit with the cord, in contrast to her mother’s assertion that, on 28 February, C referred to being hit with a “stick”.[45] In view of the conclusions I have formed about Mrs H’s credibility, I reject the suggestion that C made a prior inconsistent statement to her mother that she was hit with a stick.
[45] T842
Returning to the withdrawal of the charge, whether or not C was persuaded or pressured to write and sign Exhibit D20, at no stage did C withdraw or contradict her evidence about what happened on 28 February 2009. Indeed, she confirmed that her father had struck her with the cord.
The only exceptions to that are C’s statements in Exhibit D20 that “he didn’t mean to hit me” and that he “mistakenly hit me”. While I accept that these statements are inconsistent with her evidence, they do not cause me to doubt the veracity of her evidence about count 1. To the extent that she was anxious to keep the family together, I am satisfied that she was merely trying to put the best “spin” on the situation so that Mr H would not remain in custody.
C returns home
After the charge was withdrawn, C returned to live with the family. She said her father was even angrier with her then. He talked about recovering money that he had spent on lawyers, and told her not to bring the police or Families SA to the house again.[46]
[46] T29
C said her father also began demanding that she take her clothes off. She said he had never done so before the police visit in February 2009. She said he would say:[47]
Those clothes are mine, you don’t have any money, you didn’t buy those clothes, take them off
[47] T31-32
C said this happened in the presence of her mother on some occasions. Her mother protested, but her father would not listen.[48]
[48] T32
C said her father also made her sleep outside as punishment. She would sleep in an outside toilet or in the garage.[49] Sometimes, her only clothing was underpants.[50]
[49] T34
[50] T37
C said her father continued to be violent to her, beating her with the electrical cord and with a cooking stick called a “mugoti”.[51] Mr H is not charged with any offence arising from this evidence, which was led without objection. I have regard to the evidence as showing the background and context in which the charged acts occurred, showing the extent to which such behaviour was normal in the family. I do not have regard to it for the purpose of showing that Mr H had a propensity for violence and/or sexual behaviour towards C.[52]
[51] T38
[52] R v Nieterink (1999) 76 SASR 56
C’s relationship with a young man
During 2009, C entered into a relationship with a young man. I will refer to him as “A”. They were both students at the same school. They would communicate via email and various social networking media.[53] She said she would also write down her thoughts in a journal, which she would save in a “word document” on the family computer.
[53] T42
Count 2 – unlawful sexual intercourse
On one occasion, which C thought was in August 2009,[54] Mr H saw such a document. C had written:[55]
Now things are sorted out and I am back home living with parents absolutely well. The problem is now at school only where I am having boyfriends. My boyfriend (A) does not kind of trust me because I told 3 people that he is my boyfriend. I also told … that I was going for a pregnant test which made it so hard … And somehow I sometimes regret why I tell people my secretes (sic).[56]
[54] T49
[55] Exhibit D11, p1
[56] Exhibit D11, p2
C said her father was very angry when he saw the document.[57] Her mother “checked” her vagina after she heard her parents discussing how angry they were at her behaviour. Her mother had never done that before.[58]
[57] T43
[58] T44
C said that after her mother went to work, she and her father were in the computer room. He was still angry and talking about the document. He told her he wanted to see her vagina. He put his hand up under her skirt and inserted two fingers in her vagina.[59] He said “Let me see” as he did this. She was wearing underwear at the time.[60] He said he wanted her to “be like his wife”, by which she thought he meant have sexual intercourse with him.[61]
[59] T45
[60] T48
[61] T45
C runs away to the church hall
C said her father then demanded that she take him to A’s house. They drove around the Cheltenham area, but she did not know where A lived.[62] After they returned home, her father told her to go and get a branch from the olive tree in the front yard. Anticipating another beating, she went outside and ran away. She walked around the suburb until she found a church hall by chance, and went inside. After the service, she spoke to a man, who was Mr John Armonis, and he called the police.
[62] T45
The contents of the statement of Mr Armonis were admitted by consent.[63] Mr Armonis said he attended a bible meeting at the Christadelphian Hall in Woodville on Saturday, 1 August 2009. He noticed a young African girl come in and sit near him and his wife. When the meeting ended about 20 minutes later, he went and spoke to her. She told him she was 15 years old, that her father had been beating her and she ran away from home. She had been at the Woodville train station, but she had been “harassed” there. She became scared and ran off.[64] Mr Armonis said she seemed “unsettled” but “calm”, and he did not notice any injuries on her. He said:[65]
I told her that considering what she had just told us about her Dad that we should call the Police.
[63] Exhibit P32
[64] Exhibit P32, p2
[65] ibid
Police attend
Senior Constable Griffiths and Constable Henry attended and collected C from the church hall. Griffiths was the senior officer. He said he spoke to C about the reason they had been called. He made no notes of what she said. He could not remember “the specifics” of what she said. He recalled she was not very talkative. He could not remember if she made any allegation of abuse or not.[66] He drove C home. He went inside the house with a “male”, clearly Mr H, and spoke with him in the kitchen for “maybe an hour”.[67] He gave vague evidence of their conversation, that C had been having “trouble” at school, and running away.
[66] T369
[67] T371
After speaking with Mr H, Griffiths went to the bedroom where C and her younger sister were waiting with Constable Henry. He said he “gave her some phone numbers for police and asked her if there was somewhere else she wanted to stay, if she didn’t feel comfortable being at home for whatever reason”.[68] C did not wish to go anywhere else, apparently.
[68] T372
Constable Henry had only been out of the Police Academy for three weeks. The only note he took was of C’s name. He said C seemed “withdrawn and very much emotionless”, and “not offering any eye contact”.[69] He tried to talk to her in the police car, but she was not “forthcoming”.[70] When they drove her home, he said, Mr H opened the front door to them. He said they explained that the reason they were there was “a possible allegation of an assault”.[71] He said Mr H “would have responded” but he could not recall what he said. He took C and her three- or four-year-old sister, who was “causing a distraction in the house” into a bedroom, where they remained for 30 to 40 minutes. After that, they all met in the dining room, where there was a further conversation. During that, he recalled Mr H saying:
If she could do that with somebody else, she could do that with me.[72]
[69] T352
[70] T359
[71] T354
[72] T355-6
Mr H sought to justify his remark by saying that “he was upset and angry that she was intimate with someone who may have not meant anything to her and she should have waited for somebody who she loved.”[73] Remarkably, this latter part of the conversation occurred when both Mr H and C were present.
[73] T356
The two officers left the premises soon after that. Neither of them took any further action in relation to the incident. Because, on their evidence, C made no complaint to them about the incident, particularly after they had taken her home, they obviously decided they were powerless to act. This was not policing at its finest.
At no stage did either police officer become aware of an allegation that C had been sexually assaulted by her father.[74]
[74] T363-4, T374-5
Contrary to what the police officers said, C said she told the police that her father had been demanding sex from her. She said:
I spoke to them about my dad wanting me to be like his wife, about what he was asking me to do.[75]
They were still in the police car outside the church.[76] However, she did not tell them that her father had put his fingers in her vagina that night.[77] She has since told the police that she was comfortable talking to the two police officers that night.[78]
Defence version
[75] T136
[76] T141
[77] T140
[78] T140
When Mr H gave evidence, he denied that he had inserted his fingers in C’s vagina.[79] Contrary to C’s evidence, he said he and his wife had seen the computer document, in which C referred to a pregnancy test[80], before, around the end of May, early June 2009. He said they had spoken to her about it before. He said that on the day of these events, 1 August 2009, C had printed the document and left it on the desk. He said:
I said “(C), look, this document, you know, it – was why, did you – you have sex with, (A), I mean the boyfriend? We know that part of it. We have spoken to you about it. What is the point of you now printing and leaving it on the computer desk? Is it a challenge, is it a challenge to us that we did not do the best job to counsel you in early June or end of May about this talking that she did on the computer?”[81]
[79] T523
[80] Exhibit D11
[81] T524
Mr H said he and C did not speak further about the document after Mrs H left for work. He denied being alone with C in the computer room at any time after Mrs H went to work that day.[82] He said he noticed C was missing from the house at around 6 p.m. He waited an hour, then drove around looking for her.
[82] T537
When the police brought C back to the house, Mr H asked his friend Mrs Mpofu to attend to act as a witness.[83] He said the police did not tell him that C had made any allegation against him.[84] He said he showed them the document,[85] and had a discussion about having problems with her. He denied saying anything like “If she could do that with somebody she, she could that with me.”[86]
[83] T531
[84] T532
[85] Exhibit D11
[86] T727
I reject Mr H’s evidence about these events as being inherently implausible. His evidence that he did not mention the computer document to C after Mrs H went to work, after describing the fact that printing it out constituted a “challenge” to his authority, is not credible. Again, Mrs H was determined to give as little evidence as possible on these topics. I will discuss count 2 further in the “Conclusions” section of these reasons.
Mrs H also said that she and her husband had seen the computer document Exhibit D11 in April or May 2009. She said that the next day, she administered a pregnancy test to C, which was negative.[87] On 1 August 2009, Mrs H said she went to work after the discussion with C about Exhibit D11. She denied inspecting C’s vagina before she left.[88] By the time Mr H picked her up from work, the police had been and gone, and by the time she arrived home, C was asleep in bed.[89]
[87] T778
[88] T779
[89] T781
Count 3 – aggravated assault causing harm
C said that after the police left the house, Mr H hit her again, this time with a stick from the olive tree growing in the front yard. She said he was angry because she brought the police to the home. She was vague about where in the house this occurred.[90] She could not remember where on her body she was hit or how many times he hit her.[91] It is unclear whether she suffered harm or not, even if these beatings took place. The evidence about this alleged offence is vague and unsatisfactory, and could not support a finding of guilt beyond reasonable doubt.
[90] T57-8
[91] T57
Further uncharged behaviour
C’s evidence was that after the events giving rise to counts 2 and 3, her father’s behaviour towards her became increasingly sexual in nature. She referred to him saying that he wanted her to be a wife to him, implying that she should have sexual intercourse with him. He said this would, in some way, “purify” her.[92]
[92] T180
C also said her father began increasingly demanding that she take all her clothes off in his presence. She said this happened five to 10 times.[93] He said that the clothes were his, not hers. He would also force her to sleep outside the house, sometimes clothed, other times not.[94] She sheltered in the garage or in an outside toilet when this happened. She used a towel or bathmat to keep warm.[95]
[93] T32
[94] T37
[95] T34, T274-5
Again, these incidents are not the subject of charges. The evidence was led without objection. I have regard to it only for the purpose of providing a sexual context to Mr H’s alleged behaviour. If accepted, the evidence shows that the sexual charges did not arise “out of the blue”. It also shows the temporal connection between the discovery of C’s sexual relationship with A and Mr H’s increasingly sexual preoccupation with C. I consider the evidence probative for those purposes. Again, I remind myself to refrain from propensity reasoning (R v Nieterink[96], R v M, BJ[97]).
[96] supra
[97] [2011] SASCFC 50 at [58-62]
Initial complaint
C said that after the events in August 2009, she went to see the student counsellor at the school. At a meeting which appears to have happened on 4 August 2009, C spoke to Mr Zigoronikos, a counsellor, and Ms Tungaraza, a school services officer. Ms Tungaraza is from Tanzania.
The evidence of these witnesses was inconsistent, and it is difficult to draw firm conclusions about what C said to them, in what order. Ms McDonald said that the prosecution does not rely on an initial complaint as bolstering C’s evidence on any of these counts.[98]
[98] T954
It is necessary to mention, though, that as a result of action taken by Mr Zigoronikos and Ms Tungaraza, an officer from Families SA began visiting the house. C said that the officer was female, and would come on a Tuesday, either weekly or fortnightly. She said her father was angry that these visits occurred.[99]
[99] T65
Counts 4 and 5 – unlawful sexual intercourse
C said it was after one of these Tuesday visits that the events giving rise to counts 4 and 5 took place. She could not recall if it was the same day or the day after the visit.[100] The evidence is that a Families SA worker interviewed C at school on 26 August 2009, and that a house visit took place on 4 September 2009.[101]
[100] T65
[101] Evidence of Mr Balkwill at T458
The worker who gave evidence that she conducted these visits, Ms Salvatore, said that Mr Zigoronikos and another worker, Ms Dancer, were present during the school interview on 26 August 2009.
As for the house visit on 4 September 2009, Ms Salvataore did not give evidence as to what transpired during that conversation. She confirmed that C’s parents would have been informed, probably by telephone, after a decision was reached that abuse had not been confirmed.[102]
[102] T470
On the basis of this evidence, the events alleged in counts 4 and 5 must, on C’s evidence, have taken place on 4 or 5 September 2009. Her evidence about what happened on that day is as follows[103]:
AYeah. On that day my father was really angry and then he like – I still remember like he told me to go into the bathroom and then like in that bathroom he – like he forced me, like, to take my clothes – like he forced – like he was forcing me, and then that’s the time he raped me, but that’s when we were in the bathroom. I told him, like, I don’t want to, do that without like something, I told him I wouldn’t do it without anything, and that’s when he used my mother’s shower cap and he used the vaseline to like – he used the vaseline to put on my vagina before he put the shower cap, it was kind of a blue shower cap that my mum used to use.
[103] T66
C said that she did not resist because she was afraid of being beaten with the electrical cord again.[104] Her father pulled down her pants, and then told her to “finish it” (take them off).[105] She saw something brown, or “reddish”, on his penis before he put the shower cap on it. He did not take his clothes off during the act.[106] He put his penis in her vagina only once. It took from a couple of seconds to a minute.
[104] T66
[105] T67
[106] T69
Count 5 – unlawful sexual intercourse
C said that after the act of sexual intercourse, Mr H removed the rest of her clothing, he ran the shower, told her to get in, and then he washed her vagina, inside and out, with “Betadine”.[107] She confirmed he put his fingers inside her vagina to do this. She said he told her at one point that he had touched “the mouth of the womb”. [108]
[107] T70
[108] T70
C said that, after these events, her father was no longer angry. She said she went and changed her clothes. He told her to cook “sadza”, which is like polenta, for dinner. She had been sleeping outside for the last few days, but this night he allowed her to stay in her bedroom.[109]
[109] T73
C said this was the last time her father touched her “in a sexual way”.[110] However, she said, the violence continued.
[110] T76
Count 6 – aggravated assault causing harm
C said she told her mother about these events either the next day “or, if it wasn’t that day it was a day or days soon (after)”.[111] Her mother confronted her father with the allegations soon after that. The family were in the living room watching television. She said:
AI can’t remember how it came up, but I remember that it came up, and my mum told my dad that he had to confront what he had done.
QDid she spell out, say what it was that he had to confront.
AYeah, she did.
QWhat did she say. As best you can, what were the words she used.
AI cannot remember her words, but she did mention about the rape.
QWhat did your father say when she said that.
AMy father, he didn’t say much, he just stood up and say that ‘If want to fight, let’s fight man to man’, something like that. I can’t remember exact words, but something like to fight fist to fist, man to man. So I was so scared. Then I went into the kitchen area and then my dad, he punched me, he punched me on the mouth, and it started to bleed, bleeding.
[111] T74
She said this happened in the kitchen. She had run there to get away from her father, and he followed her and punched her there.[112]
Defence version – counts 4, 5 and 6
[112] T75
Mr H denied on oath that any of these events took place. He denied he ever had a “reddish discharge” from his penis, or that he has ever suffered from a sexually transmitted disease.[113] He also denied that there were any shower caps in the house in 2009. He also denied that he kept any Betadine in the house, or used any other substance like Betadine in the manner alleged

by C.
[113] T541-3
Further, Mr H denied there was any conversation among the family about a rape, as alleged by C, or that he ever punched her in the mouth.[114]
[114] T550
Mr H’s evidence was that there was no house visit from Ms Salvatore on 4 September 2009. He said that he took his youngest daughter, D, to the Royal Adelaide Show that morning. He was very specific that he took her in the morning.[115] They left home at about 9.30 a.m. They did not go directly there, he went to the Woodville Post Office, to the bank, and then to Woolworths on the way. He said after that they went to the Show. The Commonwealth Bank statement was tendered through him to confirm the transactions which occurred that day.[116]
[115] T590.14
[116] Exhibit D35.

In cross-examination, however, Mr H became evasive about whether he went to the bank, post office and Woolworths in the morning, as he had earlier stated. By this time, he was aware that the prosecution may have subpoenaed his bank records for 4 September 2009.[117] He said, when his earlier evidence was put to him:
That was as I was referring to the time that I left the home in the morning, not that I arrived at the show in the morning or in the afternoon.[118]
[117] T630
[118] T624
His evidence became increasingly evasive about his activities that morning.[119] In fact, the banking records[120] demonstrate that, on 4 September 2009:
·he made enquiries about his account at a Commonwealth Bank ATM at Torrensville at 2.52 p.m. and 2.55 p.m;
·there were transactions at Australia Post at Woodville at 1.35 p.m. and 1.36 p.m.;
·there was a withdrawal of $650 cash from the Commonwealth Bank at Torrensville at 3.21 p.m.; and
·there was a transaction at Woolworths at Findon at 4.01 p.m.
[119] T625-632
[120] Exhibit P42
It follows that Mr H’s evidence, the clear effect of which was that he left home at 9.30 a.m. that morning, that he went to the bank, the post office and Woolworths on the way to the Show, and that, for all these reasons, Ms Salvatore could not have visited the house and met with him and his wife that day, is untrue. They were lies which were clearly intended by Mr H to discredit C’s evidence about these events, and the fact that she associated them in time with the Families SA visit. The untruthfulness of this evidence, and Mr H’s attempted evasion and obfuscations when the truth was put to him, causes me to conclude that Mr H was not a truthful witness.
It was not suggested by Ms McDonald, counsel for the DPP, but these lies constitute evidence of guilt. I remind myself of the words of King CJ in Harris v The Queen[121]:
Lies told by an accused person either to the police or in the witness box are likely to have an adverse effect upon the credibility of the accused as a witness. But even the total discrediting of an accused as a witness is not a substitute for evidence of the commission of the crime charged. Generally speaking “a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all”.

Evidence of C’s mother about counts 4, 5 and 6
[121] supra
Mrs H gave evidence that she had never had a shower cap at the house.[122] She confirmed her husband’s evidence that they did not have Betadine at the time.[123] She denied confronting her husband about the rape, and denied that he ever punched C.[124]
[122] T783-4
[123] T784
[124] T785
I have previously commented that I found Mrs H an unreliable witness who was consciously downplaying her husband’s behaviour.
I have no hesitation in finding that I prefer the evidence of C beyond reasonable doubt wherever it conflicts with that of Mr or Mrs H.
I will refer to counts 4, 5 and 6 again in the “Conclusions” section of these reasons.
Counts 7 and 8 – aggravated assault causing harm
Count 7 is alleged to have occurred on 13 November 2010. C said she had terminated her relationship with A in around August 2009, but they had begun seeing each other again in September 2010.
On Saturday, 13 November 2010, Mr and Mrs H went out with their younger daughter and C stayed home alone. She said she was told to do the dishes and her washing, and was told not to use the computer. When her parents arrived home around 4 to 5 p.m., she had not finished the washing and had been using the computer. Her father forced her to open her email account and saw an email from A. This contained a photograph of A dressed only in his underpants and in one photograph he had his hand down the front, apparently fondling his genitals.[125] Her father became angry and upset, both because of the content of the photograph and because she had resumed her relationship with A.
[125] T228
C’s description of what happened then is as follows:
AI still remember that my dad was very angry and he took the extension cord and I still remember that he told me to take off – I can’t remember the whole sequence but I remember what, like, the things that had happened, that he took the electrical cord and he told me to take off my clothes, and then he told me to lay down. And at some point my mum was – I think she came in. I cannot remember very well but, at some point she was in and she tried to stop my dad from hitting, like, hitting me but my dad continued and then my mum just told me, like – at some point – I can’t remember the correct sequence – and then my mum told me I should just take in the pain and then my dad hit me, like, at the back of my legs, like he was – like, he put his leg – step on my legs, he step on my legs, and then he hit me, like, at the back and I was just wearing my underwear.
C said she was lying on her stomach on the floor, and that her father hit her with a “lot of force”[126] to the backs of her legs and “around the bum area”.[127]
[126] T83
[127] T84
C said that she noticed some bleeding “underneath my upper legs” after the beating.[128] She said that, at her father’s direction, she slept in the corridor, still dressed only in her underwear, and without bedding and blankets.[129]
[128] T86
[129] T86
Count 8 – aggravated assault causing harm
C said that her father was still angry with her the next day (14 November 2010). He told her to write in a diary what she had done with A. The diary (Exhibit P7) was out of date, and the written entries do not correspond to the dates printed in it. So, for example, C wrote an entry dated 14 November 2010 in the diary, and it appears on the pages marked 8 to 20 September 2008. She described how they had restarted their relationship in 2010, and how he had sent the photographs of himself to her which I have already described. She denied having sex with him again. She wrote in conclusion:
I am really sorry for all this that happened. I can’t go to his house because I am so young. He has not done anything to me or forced me to do anything. I am really sorry. I can’t go to his house. I am so young and so is him (sic) too. Forgive me please.
C wrote another long entry in the diary on the same day, 14 November 2010. It is at pages marked 5 – 12 November. It is written in the African language, Shona. C said her father asked her to write in that language. She translated the entry at T93 – T95. Again, it constitutes a long and abject apology to her father for her behaviour, an acknowledgment of wrongdoing, and a promise to not repeat it.
That same day there were two visitors to the house. C said her father was still angry with her, but did not show it to the visitors. After they left he started talking about A again. He telephoned A, but there was no answer. After that, he demanded that she undress to her underwear and lie on her stomach while he beat her again with the electrical cord, in the same way he had done the day before. Her mother was present during the beating.[130] She was again told to sleep in the corridor that night, although her mother persuaded her father to allow her a blanket.
[130] T110
C said she approached a school counsellor, Mrs Retallick, the following day, Monday, 15 November 2010. On that occasion, she did not discuss her injuries.
C said she tried to commit suicide by drinking fly spray that night but, obviously, was unsuccessful. Again, she slept in the corridor.
The following day, Tuesday, 16 November 2010, C approached Mrs Retallick again. Mrs Retallick said that when C came to see her on the second occasion, Sandro Bracci, another counsellor, and Mrs Tungaraza were also present. She said that C would not tell them what happened, only that “It’s really bad, it’s really bad, I don’t know if I can – I don’t know if I can say”.[131]
[131] T342
On Thursday, 18 November 2010, C saw Mrs Retallick alone, and showed her the injuries to her legs. Mrs Retallick said she saw “welts” and “lots of bruising” to the back of C’s thighs.[132] She notified the principal, and the police were called.
[132] T344 - T345
Police attend
Detective Brevet Sergeant Nicola Woods attended the school on 16 November 2010 and spoke to C. A statement was taken from her. Mrs Woods later attended at the H home, where Mr H was arrested. At her direction, the photographs in Exhibit P1 were taken. Photographs numbered 7 and 8 depict a jar of Vaseline on a bedside table. Photo number 10 depicts the interior of a wardrobe in which there is a container of brown liquid medication. The liquid was labelled “Benzoin Tincture BP.” Mrs Woods said that the bottle had writing on it which suggested the liquid was for “inhalation … something similar to disinfection, small cuts”, etc.[133]
[133] T495
On 22 November 2010 the computer and diary were seized. There were no emails of note stored on the computer. C’s track pants, allegedly stained with “Betadine”, were not seized. There was no Betadine found, nor was a shower cap found.[134] Two electrical extension cords were seized from the computer room.[135] No punctured fly spray can was located.[136]
[134] T484
[135] T486
[136] T487
Mrs Spence, counsel for the defence, made the point in cross-examination that the police visit and search was unannounced.[137] However, it is noteworthy that the visit and search took place more than 14 months after C alleged that counts 4 and 5 took place in September 2009. The absence of such articles after that time carries little weight, in my view.
[137] T495
Medical evidence – Dr Tee
C was examined by Dr Janine Tee on 17 November 2010 at 2 p.m. at the Women’s and Children’s Hospital. Dr Tee is a staff specialist paediatrician who is experienced in undertaking forensic medical assessments of children who are suspected of having suffered sexual or physical abuse. This examination is to be contrasted with that conducted by Dr Kumar the previous year, both in terms of the purpose and objects of the examination, and the qualifications of the examiner.
Dr Tee took the photographs in Exhibit P9. She noted the following injuries over C’s body:
·a cluster of three to four red, tender, swollen, linear marks running horizontally on the ulnar side of the right forearm (photos 13 & 14) – these injuries were recent, and were typical of defence injuries where the arm is used to protect oneself from a strike – the injuries were consistent with having been caused by a linear, flexible object able to curve around the part being struck, such as an electrical cord;[138]
·a pigmented looped marking on the left upper arm (photo 10) consistent with the history given of having been struck with an electrical cord the year before;[139]
·a cluster of seven to eight red, tender, swollen linear marks running horizontally on the ulnar side of the left forearm (photos 11 & 12), which were similar to those on the right forearm and caused in a similar way;[140]
·a looped mark over the upper, outer aspect of the right buttock, which was red, tender and swollen (photos 2 & 5), consistent with having been caused by direct impact with a looped object such as a folded-over cord;[141]
·a large area of tender, purple bruising about 10 cm by 20 cm on the back of the right thigh extending around the inside of the thigh, inside which were four to five linear, red, swollen marks running horizontally from the muscle of the thigh to the back of the thigh (photo 6) – these injuries were recent, and consistent with having been caused with a linear, flexible object such as an electrical cord;[142]
·a red, swollen, tender, looped mark on the right lower leg (photo 1), also recent and consistent with having been caused by a looped electrical cord;[143]
·three red, tender, linear marks on the left buttock (photos 3 & 4), curving from the back of the buttocks around the outside, recently inflicted and caused by a flexible object such as an electrical cord;[144]
·a large area of tender, purple bruising measuring approximately 10 cm by 10 cm, on the inside of the left thigh around to the back of the thigh (photos 8 & 9), within which were several scabbed lesions which were linear and looped, consistent with having been inflicted by a looped object such as a folded-over electrical cord.[145]
[138] T384 - T385
[139] T385
[140] T386
[141] T386 - T387
[142] T387
[143] T388
[144] T389
[145] T390
Dr Tee said that the presence of scabbing on the left thigh injuries suggests that there had been a break to the skin, and that the healing process indicated that the injury was not immediately recent, but several days old. The break of the skin could have been caused by an object such as an electrical cord, struck with sufficient force to cause an abrasion, or even a laceration.[146]
[146] T390
Dr Tee said it is difficult to imagine how injuries to the buttocks and back of the thighs could have been self-inflicted, and she had never seen self-inflicted injuries in such areas in 12 or 13 years’ paediatric experience.[147] She pointed out that C’s dark skin may make it difficult to see fainter-coloured bruising, which may be more obvious in lighter-skinned people, and some characteristics are difficult to photograph.[148]
[147] T391
[148] T382
Apart from an unsuccessful attempt to demonstrate how C might have been able to inflict these injuries on herself, Dr Tee’s evidence and conclusions were largely unchallenged in cross-examination.
After Ms Spence, counsel for H, put to C that she injured herself with an electrical cord, C responded indignantly:
No. How can such a normal person do that themselves? I’m not mentally ill. … I’m in my right mind. I would never do such a thing. This came from an electrical cord.”[149]
[149] T313
I found this answer particularly convincing – both as to its content and the manner in which it was delivered. It is difficult to imagine why C would need to go to such lengths in any event. She had already had the experience of making a complaint to the police, in February 2009, and she did not need to go to such lengths on that occasion.
Defence version
Mr H denied beating C on either 13 or 14 November 2010. He said:
I never hit C because we were going to Africa, we would discuss it as a family in Africa. Even if I (sic) not happy with what she did, we were going to discuss it in Africa so I did not touch C on the 14^th, I did not touch her, I did not hit her, I did not do anything on that day. On the 14^th and the 13^th I didn’t do anything to C. I didn’t even touch her.[150]
He added:
I never hit anybody, I never hit C at all in any other time, never hit C except 28 February 2009 when I was arrested. I have explained to everyone how it happened.[151]
[150] T565
[151] T566
When the photographs in Exhibit P9 were put to him in cross-examination, he denied even seeing such marks on C’s body.[152]
[152] T747
Mrs H described how C was extensively “counselled” over that weekend. She denied seeing her husband beat C with an electrical cord, and denied that she told C to “just take the pain” while her husband was beating her. In fact, she denied ever seeing her husband beat C, or ever intervening when he did so.[153] She had never noticed any injuries on C’s body.[154] When the photographs from Exhibit P9 were put to her, her response was evasive and somewhat odd:
I never saw – even if she had bruises, but probably old ones, but I don’t know what kind of bruise this one is from or what kind of bruise this one is from. I never saw any bruise which is fresh at that time.[155]
[153] T792
[154] T878
[155] T878
C’s credibility
C was cross-examined at length by Ms Spence, and almost every aspect of her life from the time she was a small child was examined in detail. Her father attacked her honesty and reliability aggressively. For example he said:
·“she was just a problematic child who didn’t want to take instructions from anyone”[156]; and
·“as a child (C) was just good at telling lies, she would not tell you the correct information whenever asked anything, she would always be trying to trick, you know, tricking people, not to know what has actually happened”.[157]
[156] T575
[157] T579
It was alleged that, as a small child in Zimbabwe, C had poured salt in the family’s food to punish the maid, stolen family money, attempted to steal bags of clothes from a neighbour’s house, and injured herself deliberately and then lied about how it had happened.
These allegations were all denied by C, and I ruled that evidence, other than from Mr H (which was led without objection), was inadmissible – see ruling at T808 delivered on 4 April 2012).
C was a loquacious, even verbose witness, always seeking to explain and justify her position. I agree with Detective Brevet Sergeant Wood’s comments:
She would often try and give me too much information at once or justify things that she was saying to me and repeat herself a lot. It was hard to get her to just answer a particular question.[158]
[158] T482
It is difficult to know whether this is an aspect of her personality, or whether it is a cultural issue. I think it is fair to say that Mr H also displayed these traits, although he was a more confident and articulate witness, who had deeply researched and studied the evidence, the transcripts, the exhibits, and all aspects of the case.
Ms Spence pointed to a number of aspects of C’s evidence which she suggested should lead to a conclusion that C was not a witness of truth. I will briefly summarise some of these issues and comment upon them:
·C’s evidence about the timing of the various incidents does not stand up when compared with objective evidence about when, for example, Families SA visited the house.
I do not find this the least bit surprising in the context of this case. This is the second time C has given evidence about these matters, the events are spread over a period of nearly two years, and she was young at the time, and emotionally distressed. The allegations were made initially, then withdrawn. C left the house and then returned. There were visits by various agencies, and C was obviously deeply ambivalent about getting her father into trouble, particularly after what happened in relation to the February 2009 incident. Indeed, after the events of 4 August 2009, C also indicated to the school counsellors that she did not want the police involved, and said the same thing on 26 August 2009.[159]
·C contradicted the police evidence in that she said she told the police her father had beaten her and was demanding sex, whereas the police officers said she did not make any allegations to them.
Clearly, C told Mr Armonis that her father had beaten her – that evidence was admitted by consent. That was the reason the police attended. Again, I do not regard C’s evidence about this as reflecting badly on her, for the reasons already discussed above. In re-examination, she said she was uncomfortable about telling two male police officers about her father putting his fingers in her vagina.[160] She gave evidence inconsistent with that in cross-examination at T139, although I was not certain she fully understood the line of questioning.
·Ms Spence mentioned many inconsistencies between C’s evidence and other evidence, with earlier statements by her, and at various times, an inability to remember details.
I do not propose to deal with these submissions in detail. Many examples were given by counsel, but they were randomly scattered through the evidence. It is sufficient for me to say that I do not regard most of the examples given as significant in the context of this case, or causing me to doubt the honesty and reliability of C’s evidence.
·One exception to the above is the issue of C’s inconsistency over whether she was in the bath or the shower when count 5 (the vagina-washing incident) occurred.
Ms Spence pointed out that C initially told the police she was sitting in the bath when her father washed her vagina. She admitted that she said this to the police.[161]
[159] T473
[160] T318
[161] T185-192

This is a significant inconsistency, but C explained:
I said the bath referring to a shower. In my country, like, if I say I want to go and take a bath it’s the same like taking a shower. I don’t know if I pronounced it wrongly.”[162]
[162] T185
C said she corrected this mistake in a later statement.
After considering the evidence when taken as a whole, I do not consider that this inconsistency detracts from the credibility of C’s evidence.
Motive to lie
It was alleged by Mr H and other witnesses that C had a specific motive to lie in this case. The family had planned a holiday to Zimbabwe in around November 2010. In cross-examination, C said that her mother had told her that her father was so unhappy about her relationship with A that he would leave her in Africa at the end of the holiday. She told a school counsellor about it.
It was then put to her:
QAnd is that what you were doing, you told the counsellor ‘I don’t want to go to Africa’ and then you went home that night to think about an excuse why you could stop going to Africa.
AI did not think of an excuse, but on that day when I came back home I slept in the corridor like before, and it was getting so painful and the next day when I came I just thought I should just tell them everything that’s happening at home because it was hard for me to take in.[163]
[163] T271
Mrs Mpofu said that C told her:
AShe said that she would never go back to Zimbabwe, she said she would leave her parents here – she said she would – she said her parents would go to Zimbabwe and leave her here. In her own words, she said ‘I do not go back to Zimbabwe, they will go and leave me here’ and she said she would go to foster care where the other children are there being paid fortnightly.[164]
[164] T889
Mrs Mpofu said she tried to get C and her mother to talk about this and resolve the issue (ibid).
In fact, Mr H denied ever making such a threat,[165] and C’s return ticket was tendered (Exhibit D37). Mrs H also denied telling C any such thing.[166]
[165] T594
[166] T799
I reject beyond reasonable doubt the idea that C has manufactured these allegations to prevent being left in Zimbabwe. It does not enhance her credibility. It is difficult to understand why she would volunteer this information, when it is denied emphatically by both parents. Whether her mother simply expressed a fear to C that her father might leave her in Africa and C has interpreted that as a threat, cannot be known. There are complicated dynamics in this family, with an overlay of cultural and religious issues, which seem somewhat impenetrable. However, C is an intelligent young woman, and I reject the suggestion that she would concoct a scenario which suggests that she had a motive to lie.
I must remind myself that even if I reject the idea that there was a motive for C to lie, it does not follow that C must be telling the truth. There are many reasons why people may lie, and the reason is not always apparent.
The critical issue remains whether the prosecution have proved beyond reasonable doubt that C is telling the truth.[167]
[167] See R v Costin [1998] 3 VR 659 at 668 referred to in R v Sluczanowski [2008] SASC 185 per Duggan J.
Character evidence
Mr H referred to his own character on several occasions during his evidence. For example, when C’s evidence that he had told her she needed “purification” after having had sexual intercourse with A was put to him, he said:
I never said any of that. Myself, I’m family orientated. I’m also a practising Christian, I wouldn’t talk such things to my daughter, what for?[168]
[168] T540
In addition, Mrs Mpofu, Shepherd Mutusva and Chiedza Nzvede also gave evidence of Mr H’s good character.
Mrs Mpofu has been a friend of Mr and Mrs H since they were nurses training together in Zimbabwe. C lived with Mrs Mpofu after the events of February 2009 for about two months. She said she also had problems disciplining C.[169]
[169] T885
As to Mr H, she said his reputation in the community was:
A family man who always looks after his family. He is an honest man, a reliable and God-fearing man.[170]
[170] T890
There is no doubt that Mrs Mpofu is a close friend of Mr H.[171] She denied hearing Mr H say to the police officers, on the night when C was brought home by the police from the church hall on 1 August 2009:
If she can do that with this young man she can do it with me.”[172]
[171] T891
[172] T893
Mr Shepherd Mutusva has also known Mr H since they lived in Zimbabwe. He is a teacher, and taught C when she was newly arrived from Zimbabwe. He described Mr H’s reputation as a person who is respected in the Zimbabwean community, who is “deeply cultured, someone of very good morals, someone of good family ethics …”[173]
[173] T904
Mrs Chiedza Nzvede, who knows Mr H through their church, described his reputation as “a loving, caring man”.[174]
[174] T906
I take into account this evidence on two bases:
(1)as a factor affecting the likelihood that Mr H committed the crimes with which he is charged; and
(2)as a factor affecting the credibility of the evidence given by Mr H.[175]
[175] See R v Sluszanowski (supra) per Duggan J.
Reasonable chastisement
Counts 1, 3, 6, 7 and 8 are offences created by Part 3, Division 7 of the Criminal Law Consolidation Act 1935 (“CLCA”).
Each is a charge of aggravated assault causing harm (CLCA, s 20(4)). The elements of that offence are:
there was an intentional application of force;
the application of force was without lawful excuse;
harm was thereby caused.
Section 20(2) of the CLCA provides that certain applications of force do not constitute offences against that Division:
(a)conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and
(b)conduct that is justified or excused by law cannot amount to an assault.
Section 22(4) of the CLCA provides a qualification to the exception in (a), in that it does not apply if the prosecution establishes that “the defendant intended to cause harm”. The same qualification does not appear to apply to (b).
At common law, a parent may lawfully apply force to a child so long as it amounts to “reasonable chastisement”. However, the punishment must be moderate and reasonable, must have a proper relation to the age, physique and mentality of the child, and must be carried out with “reasonable means” (R v Terry[176]). The onus is on the prosecution to prove beyond reasonable doubt that the punishment was excessive (Byrne v Hebden[177]).
[176] [1955] VLR 114
[177] [1913] St R Qld 233
The question whether this principle has any role in the present case was not raised by counsel.
In each of these counts, except counts 3 and 6, I am satisfied beyond reasonable doubt that harm was caused. The photographic and medical evidence is conclusive in that regard. Even though such behaviour may not be prohibited by law, it was clearly excessive in the circumstances of this case. C was a physically mature female, the acts were performed in anger and were intended to intimidate, and were not with a view to reasonable correction.
In all the circumstances, I find that the issue of reasonable chastisement does not arise.
Conclusions
I have no doubt or reservation in accepting C as a truthful witness. She was subjected to a most searching and uncomfortable examination of much of her life since she was a small child. There have been inconsistencies and inaccuracies established, but none of them causes me to doubt the essential truth of her evidence.
As to count 1, C’s evidence about the beating is corroborated by the injuries she received, as photographed by the police, and by the evidence of the officers who observed them. Dr Kumar also observed the facial injury, but he did not conduct a full forensic examination, and his failure to note the other injuries does not detract from C’s evidence.
Mr H’s denials, his almost ludicrous evidence about the twig, and his evasions when the photographs were put before him were entirely unconvincing, as were the denials and evasions of Mrs H on the same subject.
My confidence in the truthfulness of C’s evidence is not shaken by her requests to withdraw the charge. This was clearly, in my conclusion, encouraged by Mrs H and was motivated by fear and by a desire not to break up the family. I am satisfied beyond reasonable doubt of Mr H’s guilt of count 1.
As to count 2, C’s evidence about that is not corroborated, nor is it asserted that her evidence is bolstered by distress or initial complaint. When speaking to the police, C referred to beatings rather than sexual assault. The police officers, although their investigation efforts were inadequate, did not receive a complaint of sexual assault. I think it likely that, even if they had been told that C’s father had been saying she should act “like a wife” to him, alarm bells would have rung, and more positive action taken. The evidence that Mr H said “If she could do that with somebody else, she could do that with me” is troubling, but in the final analysis, and without detracting from my view of the veracity of C’s evidence, I am not satisfied beyond reasonable doubt of Mr H’s guilt on count 2.
As to count 3, for reasons I have already expressed, I am not satisfied beyond reasonable doubt of guilt.
For similar reasons to those I have given in relation to count 2, I am not satisfied beyond reasonable doubt of guilt on counts 4, 5 and 6. C’s evidence was, in my opinion, honest and detailed. But it was not corroborated in any way, nor even bolstered by an initial complaint. C continued to live with the family for another 14 months afterwards, although there is evidence of dealing with school counsellors after the events in question.
I am deeply suspicious, but in the final analysis, any lingering doubt must be resolved in favour of Mr H.
As to counts 7 and 8, C’s evidence is clearly corroborated by Dr Tee’s evidence, the photographs taken, and by Ms Retallick’s observations. I reject Mr H’s evidence to the contrary, and that of his wife. I am satisfied beyond reasonable doubt of Mr H’s guilt on counts 7 and 8.
I am satisfied beyond reasonable doubt that each element of each of those charges has been proved.
My verdicts are therefore as follows:
Count 1     -       Guilty
Count 2     -       Not Guilty
Count 3     -       Not Guilty
Count 4     -       Not Guilty
Count 5     -       Not Guilty
Count 6     -       Not Guilty
Count 7     -       Guilty
Count 8     -       Guilty