R v Hanks - [2019] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HANKS
Criminal Trial by Judge Alone
[2019] SADC 139
Reasons for the Verdicts of Her Honour Judge Chapman
16 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
Accused charged with rape and violence offences against his de facto partner.
Held: Guilty of counts 1, 2, 3, 4, 5, 7, 8 and 9.
Not guilty of count 6, but guilty of the alternative offence of aggravated assault.
Nelson v Police [2011] SASC 55; R v Shah (2018) 131 SASR 491, considered.

R v HANKS
[2019] SADC 139

Anthony James Hanks is charged with four counts of assault causing harm, one count of rape, two counts of aggravated assault causing harm, one count of aggravated assault and one count of aggravated creating likelihood of harm. The complainant is his former de facto partner who is now aged 33.
The prosecution case is that from early on in the relationship which commenced in January 2011, the accused was verbally abusive toward the complainant. From about November 2011, the accused was physically violent toward the complainant. That physical violence included the accused punching and strangling the complainant, throwing objects at her, pouring petrol on her, hitting her with various objects and shooting at her with a gun. He committed those acts of violence at their home, in their car and at his mother’s address.
The prosecution alleges the charged acts were committed during the course of their de facto relationship.
On 16 July 2013, the accused punched the complainant in the right eye at their Elizabeth North address (count 1). On 17 July 2013, he punched her in the left eye at his mother’s address in Oakden (count 2). On 17 January 2014, the accused punched the complainant to her left eye (count 3). On 27 October 2014, the accused repeatedly punched the complainant as she drove home from his mother’s house (count 4). On one occasion, the accused raped the complainant at their Pooraka address by inserting his finger or fingers in her anus (count 5). On 11 October 2015, the accused assaulted the complainant by threatening her with a meat cleaver out the front of their house at Pooraka (count 6). On Australia Day 2016, the accused assaulted the complainant by punching her to the back of her head in their bedroom at Pooraka (count 7). On 1 February 2017, the accused punched the complainant as she was driving (count 8) and then grabbed the steering wheel causing the car to collide with a parked car (count 9).
The defence case is that the relationship was not such a violent one and the charged acts of violence and rape did not occur.
Proof of the offences
The accused comes to court with a presumption of innocence. The prosecution must prove each element of each offence beyond reasonable doubt. There is no onus upon the accused to prove anything. The onus is upon the prosecution to prove his guilt of an offence to the standard of beyond reasonable doubt. Nothing less than beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to prove the accused is possibly or even probably guilty.
The accused did not give evidence. That is his right. I have not drawn any inference adverse to him or the case put forward by Mr Culshaw because of his exercise of that right. It does not in any sense constitute an admission by him. I have not used his silence to fill any gaps in the prosecution evidence or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
The elements of the offence of assault causing harm (counts 1 to 4) which must be proved by the prosecution are as follows:
1.     the accused applied force to the complainant;
2.     the force was deliberate, that is, not unintentional or accidental;
3.     the complainant did not consent to the application of force;
4.the application of force caused harm to the complainant. The harm 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 effects or to require treatment. It does not matter whether the accused intended to cause the particular harm that was suffered; and
5.the accused acted unlawfully, for example, the accused was not acting in lawful self-defence.
There is no doubt that the conduct described by the complainant in regard to each of the occasions, the subject of counts 1 to 4, would satisfy the elements of the offence. The issue in this case is whether the prosecution has proved beyond reasonable doubt that each of the acts alleged on each occasion in fact occurred. The issue for each count is whether the prosecution has proved the first element of the offence.
The elements of the offence of rape (count 5) are as follows:
1.The accused had sexual intercourse with the complainant.
Sexual intercourse includes penetration of the anus with a finger or fingers.
2.At the time of the sexual intercourse, the complainant did not consent to that act.
Consent means a free and voluntary agreement to engage in the sexual activity with that person at that time.
3.At the time of the sexual intercourse, the accused either knew the complainant was not consenting or was recklessly indifferent as to the lack of consent.
There is no doubt that the conduct described by the complainant in regard to the occasion, the subject of count 5, would amount to the offence of rape. The issue in this case is whether the prosecution has proved beyond reasonable doubt that the act alleged in fact occurred. The issue is whether the prosecution has proved the first element of the offence.
For count 6, the prosecution relies upon the act of the accused brandishing a meat cleaver at the complainant. The prosecution does not allege the accused deliberately applied physical force to the complainant with the meat cleaver. The elements of the offence are:
1.The accused threatened (by conduct) to apply force to the complainant.
2.The threatened conduct was deliberate, that is, not unintentional or accidental.
3.There were reasonable grounds for the complainant to believe that the accused was in a position to carry out the threat and intended to do so; or there was a real possibility he would carry out the threat.
4. The assault caused harm to the complainant.
5.The accused acted unlawfully, for example, the accused was not acting in lawful self-defence.
6.The assault was aggravated because of the use of, or threat to use, an offensive weapon, namely the meat cleaver.
The main issue is whether the act in fact occurred, that is, whether the prosecution has proved the first element of the offence.
The defence also submits that an assault by threat is not capable of causing physical harm (the 4^th element)[1]. The defence concedes a finding of guilt of the alternative offence of aggravated assault is open.
[1] The definition of ‘harm’ in section 21 does not apply to section 20. The section 21 harm is applicable to offences found in Division 7A only.
The elements of the offence of aggravated assault causing harm (counts 7‑8) are the same as the elements for assault causing harm with the additional matter of aggravation to be proven, namely, that the accused committed the offence knowing that the complainant was his domestic partner. There is no doubt that the conduct described by the complainant in regard to each of the occasions the subject of counts 7 and 8 would satisfy the elements of the offence. The issue in this case is whether the prosecution has proved beyond reasonable doubt that the acts alleged on each occasion in fact occurred. The issue for each count is whether the prosecution has proved the first element of the offence.
The elements of the offence of aggravated creating likelihood of harm (count 9) are as follows:
1.The accused, consciously and deliberately, performed an act which, was likely to cause harm to another.
An unconscious, accidental or non-deliberate act is not sufficient.
2.     The act was likely to cause harm to another.
The act need not in fact cause harm to any person.
An act is likely to cause harm if the act gives rise to a real or substantial risk of harm.[2]
3.At the time of performing the act, the accused knew the act was likely to cause harm to another.
4.At the time of performing the act, the accused either positively intended to cause harm to another or was recklessly indifferent as to whether the performance of the relevant act caused harm to another.
A person is recklessly indifferent if he knows that it is likely that his conduct will cause harm to another and does not care, that is, engages in the conduct despite the risk and without adequate justification.[3]
5.The act was without lawful excuse. The accused must prove on the balance of probabilities that he had a lawful excuse for his conduct.
[2]    Nelson v Police [2011] SASC 55 at [13].
[3]    R v Shah (2018) 131 SASR 491 at [45].
The main issue is whether the act (the accused grabbing the steering wheel) in fact occurred. The defence also submits that even if such an act was proved, it was not an act which created a real and substantial risk of harm.
Chronology of alleged acts
The accused and the complainant were in a relationship from January 2011 to February 2017. In October 2011, they commenced living together at Davoren Park. In around February 2012, they moved to a house at Elizabeth North which belonged to the accused’s cousin. In October 2013, they moved to a house at Pooraka. The relationship ended on 1 February 2017.
Drugs/alcohol
The complainant gave evidence that before they started living together, the accused drank alcohol almost every day. He would often drink more than a four pack of Bourbon and Coke. He would get emotional about his past which would make him angry.
The complainant also saw the accused use marijuana at his mother’s house and smoke methylamphetamine. The complainant would also use marijuana and methylamphetamine. She did not use much at the Pooraka house. When the accused used marijuana his behaviour toward her was not affected; he was just calm. When he used methylamphetamine, he was a bit more agitated. The accused would smoke methylamphetamine regularly; every single day. When they used methylamphetamine together, fights would often become physical.
I have not reasoned that because the accused used drugs that he is a bad person or the sort of person who might commit these offences, and therefore committed these offences. The evidence has limited use. His use of alcohol and/or drugs may partly explain his aggressive behaviour toward the complaint and his inability to control outbursts of anger.
The complainant also gave evidence the accused would deal in methylamphetamine. It was his source of income after he stopped working a few months after they moved to Elizabeth North. He did not deal in drugs when they moved to Pooraka. They argued about his drug dealing which led to him being physically violent. Because the accused did not have a licence he made the complainant drive him. Despite the fact the complainant worked full-time, he dragged her out of bed late at night or in the early hours of the morning on about four or five occasions when she did not wake up and get out of bed herself. I have not reasoned that because the accused may have engaged in drug dealing that he is a bad person or the sort of person who might commit these offences, and therefore committed these offences. The evidence has limited use. It is consistent with his use of the drug. It is also evidence that the complainant was required to comply with his demands and if she failed to do so, he reacted violently.
Uncharged act – strangled (November 2011)
The complainant gave evidence that the first occasion when the accused was physically violent towards her was at the Davoren Park house in about November 2011.
The accused had been smoking methylamphetamine and drinking alcohol all day. They were arguing. He held her up against the wall in the hallway. He strangled her with both hands around her throat, squeezing for a few seconds. She could not breathe. She felt her face getting hot. After he let go, he walked off. It left a red mark that faded pretty quickly. She stayed in the house and they did not talk about it afterwards. She justified what he did on the basis that at the time he was a little bit emotionally messed up and sad.
In cross-examination, the complainant:
·agreed she told the police in her statement dated 6 October 2018 that the accused strangled her with his right hand. She explained this by saying he started with his right hand and then added the left one so she was on the wall; and
·said she did not leave the relationship after this because the accused would manipulate and guilt her. She felt sorry for him.
Uncharged act – strangled (November 2011)
The complainant gave evidence of an occasion in November 2011 when she and the accused had been at drinks at Mr Cooper’s house. The accused and Mr Cooper were work colleagues. She drove there to pick the accused up. She stayed, maybe had one drink, and played darts.
When they got home to Davoren Park the accused was angry. He flipped out, yelled at her and strangled her. He then went to get in the car, saying he was going to crash the car and die. She got in the car with him because she thought that she could change his mind and stop him from doing something stupid.
Move to Elizabeth North (February 2012)
The complainant did not allege any further acts of violence after November 2011 to the time they both moved to the address at Elizabeth North in about February 2012.
Possession of a firearm (April 2012)
The complainant gave evidence that within a couple of months of moving to Elizabeth North, the accused told her there were two firearms in the boot of the car. They had just left someone’s house. She ‘freaked out’. He told her she had to drive or he would leave her on the side of the road. They drove to a friend’s house in Paralowie. The accused provided one firearm to that friend. When they got back home, the accused took the other firearm inside. It had a silencer and scope. The accused kept it in the house in different places. He had ammunition.
I have only used this evidence as proof of the fact of his possession of a firearm from about April 2012. That is only relevant to the complainant’s allegations of his subsequent use of the firearm to shoot at or scare her. I have not used the evidence of his possession of a firearm in any prejudicial way, namely, to reason that he must have committed the offences because he is a bad person or the type of person who commits these sorts of offences.
Uncharged acts – general (February 2012 – October 2013)
The complainant gave evidence the accused was verbally abusive as well as physically abusive. He punched and strangled her. He threatened on multiple occasions that he would go and get the firearm. They would argue; he would say she had better start running because he was going to get the gun. He would head towards the firearm but never actually got it.
The accused also had a pool cue that was snapped in half. He put staples from a staple gun in the skinnier end so it was more ‘jaggedy’. He said he was doing that to make it a more vicious weapon. He hit her across the legs with it about 15 to 20 times. He also hit her across the back. In cross-examination, the complainant agreed she did not say anything in her police statements about being hit in the back with the pool cue.
Uncharged act – assault with plank of wood (February 2012 – October 2013)
The complainant gave evidence that when they were living at the Elizabeth North house, she was assaulted by the accused with a two by four wood post. The accused had been drinking and smoking methylamphetamine. The accused had his friend, Mr Halifax, over at the time.
She and the accused were arguing in the lounge room. She went into the bedroom. The accused followed her. He pulled out the slab of wood from under the bed and started hitting her with it. She grabbed the quilt and tried to cocoon herself inside it whilst lying on the bed. He was standing by the bed, hitting her around her legs for about a minute. He then walked away.
In cross-examination, the complainant said there was no assault in the lounge room in front of Mr Halifax. She agreed she said in her police statement dated 6 October 2018 that Mr Halifax was sitting in the lounge room with the accused, that she was standing arguing with the accused when he got up and started charging at her. She did not agree that was different to what she said in evidence. She did not consider that the accused ‘charging’ at her was an assault.
Uncharged act – threat to dump at Gawler (February 2012 – October 2013)
The complainant gave evidence that one evening after they had been at a friend’s house the accused was driving, he got mad and said to her that he was going to take her out past Gawler, and dump her there. The accused had used methylamphetamine that day before they went to the friend’s house.
He stopped a couple of times as he drove down Main North Road, towards Gawler. On one occasion he came to a complete stop, got out of the driver’s side and walked around to the passenger’s side where she was seated. He told her to get out of the car. She locked herself in. He pushed the unlock button on the keys, saying ‘Get out of the fucking car’. He was bashing on the passenger window. He managed to get the door opened and was trying to grab at her. She was kicking at him with her legs screaming, crying and pleading ‘Please don’t leave me here’. He then stopped what he was doing, walked back around to the driver’s side and drove off.
On the way back he made her ring her cousin to say to him to pick her up because he was going to kill her.
Uncharged act – shooting (February 2012 – Christmas 2012)
The complainant gave evidence that the accused fired two shots at her when they were living at the Elizabeth North house.
She cannot remember what they were arguing about. The accused said he was going to get the gun and shoot her so she had better start running. The accused chased her with the gun. When she was near the laundry door the accused shot at her. The bullet hit the laundry door. She turned around and saw him pointing the gun at her. She opened the door and ran through the laundry. He then fired another shot at her that went through the laundry wall.
She got out the back door, out the gate and down the other end of the street. She hid inside a hedge. The accused came out the front with the firearm, holding it down his side, looking for her and screaming out that she would have to come home sooner or later. It was night time.
She eventually went home. She saw the accused through the lounge room window, sitting in the recliner. There was no firearm near him. She opened the front door and walked inside. He just smiled at her. Nothing was said. She walked off into one of the end rooms.
She did not go to the police about the incident. She was scared of him hurting her or killing her. He would always tell her that if she went to the police that she was a dog and she would pay for it.
In cross-examination, the complainant gave evidence:
·the accused would use the gun in the house about two to three times per week. The holes in the walls and ceiling were not repaired. When the owner visited, he did not say anything about the holes.
·the accused traded the firearm for an air rifle. She agreed the police found the air rifle at their home in October 2013. She pleaded guilty to possession of that firearm in the Elizabeth Magistrates Court. She told the police the air rifle was from Dennis and she did not know whether it worked or not. She admitted lying to the Magistrate about that as well. She said that was the story the accused told her to say. In re-examination, she said the accused had told her to say that because Dennis had recently passed away.
·she did not know why the police did not see the bullet holes in the walls when they attended in October 2013. The female police officer had her back leaning against the door frame where it was riddled with them. She agreed the house has since been bulldozed.
Uncharged act – Christmas 2012

The complainant gave evidence that at about midnight on Christmas Eve in 2012, she and the accused drove to St Kilda to go crabbing. They both drank alcohol whilst they were there; the accused also used methylamphetamine. In cross-examination, she said they both used. They were there for about six or seven hours.
When they got home the accused told her to get the crabs out of the trailer. She would not do it because they scared her. That made him angry. In the hallway, he strangled her to the point she blacked out. She woke up on the lounge room floor. The accused was leaning over her, screaming at her ‘Die you bitch, die’. Her vision was blurred and her body was shaking. The accused walked off. She tried to run away. As she went out the front door, the accused grabbed her, tackled her and she fell down. He then poured petrol on her from a jerry can that was by the front door. She heard a click which she thought was the sound of a lighter. He was a smoker and always had a lighter. She ran across the road and through the paddock bushes. She ended up falling asleep under a bush.
It was still daylight when she went back home but getting dark. She peered through the window to see where the accused was. She could not see him so she broke in through one of the windows to the spare room. She slept on the couch in that room.
The next morning the accused was in the house. There was no discussion about what had happened the day before. He walked into the room, opened the door and smirked at her. He then shut the door and walked off.
During cross-examination about how long she spent asleep under a bush, the complainant gave evidence she was on the phone to her sister for most of the morning. She agreed she did not mention that in her police statements. After she got to the paddock she walked to the service station and phoned her sister. She went in there ‘stupidly enough’ to buy a packet of cigarettes.
Uncharged act – first cigarette incident (February 2012 – October 2013)
The complainant gave evidence the accused was driving the car to a friend’s house one evening. They were arguing about the fact that he was driving because he did not have a licence at that stage. He put his cigarette out on the complainant’s neck at the front of her throat. It burnt her; she screamed. It left a big blister for a while until it went into a scab. They continued on to the friend’s house.
Uncharged act –second petrol occasion (Christmas 2012 – October 2013)
Whilst living at the Elizabeth North house, the complainant gave evidence there was another occasion when the accused poured petrol on her. The petrol was in the jerry can by the front door. It was daylight. There was less petrol poured on her than the first time. She did not run away because the accused ran back inside. She was unable to recall much more about that occasion.
In cross-examination, the complainant agreed she had not mentioned in any of her police statements that there was this second occasion when the accused poured petrol on her.
Count 1 – assault causing harm (16 July 2013)
The complainant gave evidence the accused was at the front of their house doing something with the car. She was inside watching TV. He had been drinking alcohol. He came in and started yelling at her about something. They were arguing. He came over to where she was sitting on the lounge and punched her with a clenched fist to her right eye. He then walked back outside. She packed her bag and left. She went to her friend Mirianna’s house and stayed there for the night. Her eye was swollen.
In cross-examination, the complainant:
·agreed she made no mention of this occasion in her first statement when she reported the car crash on 1 February 2017 to the police.
·denied telling her mother she was strangled to unconsciousness on this occasion. The complainant’s mother gave evidence the complainant told her that either this day or the day after the accused had strangled her to unconsciousness.
·agreed it was unusual for the accused to punch her in the right eye; most times he punched her in the left eye because the majority of punches occurred when they were in the car when she was driving.
Count 2 – assault causing harm (17 July 2013)
The complainant gave evidence that when she was staying at Mirianna’s house the night of that incident the subject of count 1, she received phone calls from the police and the accused’s mother at about 4.30 am. She was asked to pick the accused up from the Holden Hill Police Station.
When she picked him up he said he had been arrested for crossing the road. He was angry. It is an agreed fact that on Wednesday, 17 July 2013 at about 4.40 am, the accused was arrested on Grand Junction Road, Gepps Cross for an offence against r 238(1) of the Australian Road Rules (related to his actions as a pedestrian) then taken to Holden Hill Police Station before being released.
The complainant told the accused she did not want to take him back home; she would take him to his mother’s house. He started hitting her while she was driving the car, punching her in her face and neck. The closer they got to his mother’s house, the angrier he became. He said he wanted to go home.
When they arrived, his mother was out the front waiting. He was punching the complainant, pulling her hair and trying to boot the windscreen out. His mother was screaming for him to stop it and get out of the car. He was yelling. He punched the complainant really hard in the left eye causing it to instantly swell up and she lost sight out of it. Once he finished kicking the windscreen he got out of the car. She then left to go back to her friend’s house and then she drove to her mother’s house in Port Adelaide.
Her mother took photographs of her face.[4] The complainant was upset because she did not want her mother to take the photographs. She did not want any evidence. She was scared of what the accused would do.
[4] Exhibit P2.
The photographs show the complainant to be in a distressed state. Her left eye is black and significantly swollen. Her right eye is also black.
The complainant’s mother gave evidence she took the photographs on 17 July 2013 on her mobile phone. The complainant arrived at about 8 am to 8.30 am, very upset, crying and with a black eye. She took the complainant to the Trinity Medical Centre and the Port Adelaide Police Station. Her daughter would not speak to the officers at the police station.
It is an agreed fact that at about 11:51 am on 17 July 2013, the complainant went to Trinity Medical Centre in Port Adelaide with her mother. She was examined by Dr Pllana. Bruising was noted around her left eye and her left upper check was tender when touched.
In cross-examination, the complainant:
·said that as she recalled, the accused did not strangle her to unconsciousness on this occasion. She denied telling her mother that he did so. The complainant’s mother gave evidence the complainant told her that either that day or the day before the accused had strangled her to unconsciousness.
·agreed that when she gave her police statement in October 2018, she did not say anything about the accused punching her when she was driving to his mother’s place. She said there are things the police did not put in the statement. After sitting in the police station numerous amounts of times for hours, she read the statement and signed it. She was not going to sit there and ‘nit-pick’. In re-examination, the complainant said she included that detail in her statement dated 27 March 2018.
·did not remember saying in her statement dated 6 October 2018 that the accused punched her once with a clenched left fist in a swinging motion which connected with her left eye. It is an agreed fact that she did make that statement at that time. She gave evidence he punched her with his right fist.
Admissions – February 2012 to October 2013
The complainant gave evidence that on two occasions when they were living at the Elizabeth North house. The first occasion was after he shot at her but before Christmas 2012. The accused was in the shower crying saying he felt bad about all the things he had done to her. He said he was a bad person and some of the things he cannot remember because he blacks out. She got in the shower fully clothed and held him. She felt sorry for him.
Move to Pooraka (October 2013)
The complainant gave evidence they moved to live together at Pooraka in October 2013.
Uncharged act – split lip (29 November 2013)
The complainant gave evidence that when they were living at the Pooraka address, the accused kept nagging at her to do the dishes after she came home from work. She said she would do them later. He began throwing them in the wheelie bin. He cornered her against the kitchen bench and punched her in the mouth causing her lip to split and bleed. He turned around and sat in the lounge. She got in the car, rang her mother and went to the doctor.
It is an agreed fact the complainant was examined by Dr Tang at the North East Modbury Medical and Dental Centre on Friday, 29 November 2013 at about 4.08 pm. She required a total of eight stitches – four to her outer lip, two to the surface of her inner lip and two inside the lip.
She went back to her mother’s house afterwards, then went home. The accused was sitting watching television. He looked at her and said it looks disgusting. There was no further discussion about what happened.
A small scar remains on the top of her lip.
Uncharged act – pick fork/axe (16 January 2014)
The complainant gave evidence there was an occasion in around January 2014 when she and the accused went for a barbecue at her friend Michael’s house. The accused had four or five drinks before they left. They were both drinking alcohol at the barbecue. The accused was making comments about the two of them being swingers. Michael’s partner Eileen tried to kiss the complainant who then pushed her away. The complainant asked the accused straight away, ‘Are you okay’. He said he was fine. She said to him ‘No you’re not, I can tell you’re not’. He was swinging back on his chair and then he kicked it out from underneath the complainant and said, ‘Now I fucking am’. He stormed off and grabbed the keys to the car.
The complainant tried to follow him. Michael got into the car with the accused and they left. They both returned an hour or two later. The accused told her to get in the car. He was very angry. The accused was driving and ran a red light. The complainant was getting angry because the car was registered to her. She made the point that if they get fined then she will lose demerit points. He said that he did not ‘give a shit’.
As soon as they got home, he threw the car keys over the fence, then walked off inside.
The complainant rolled underneath the gate to try and retrieve the keys but could not find them. As she was walking back towards the car the accused came out with a Maglite and what she described as a pick fork or pickaxe. He started chasing her. She ran off toward Main North Road. As she got to the corner, the accused threw the Maglite at her. It hit her in the back of her right leg. She ran straight across the road to the service station and hid there for a while until she saw the accused turn around and walk off in the direction of home. She rang the friend, Michael, and asked him to come and pick her up. He took her back to his house and she slept on the couch.
In cross-examination, the complainant agreed the accused did not throw the pickaxe at her. She denied telling her sister that. The complainant’s sister gave evidence that soon after the complainant and the accused broke up, the complainant told her she was running across the road and she felt what she thought was an axe thrown at the back of her leg. The complainant’s sister gave evidence she did not remember the stories exactly and she may be putting a few stories into one; when the complainant came to her place she went through everything that happened and there was so much that happened, it is hard to remember it all.
Count 3 – assault causing harm (17 January 2014)
The morning after the incident described above, the complainant asked Michael to drop her off at the accused’s mother’s house. The accused had been sending the complainant text messages calling her a slut and saying that when he sees her she is ‘fucked’.
She arrived there at about 8.30 am. At one stage, she was sitting at his mother’s house out the front having a cigarette. She heard her car coming and the accused pulled up in the driveway. The complainant was sitting on the couch. The accused came in and punched her in the left eye. He started strangling her using one hand and then tried to pull her hair to drag her flat onto the couch. His mother was screaming saying ‘Anthony, stop’. He turned around and walked off, got in the car and drove away.
The complainant’s left eye was very swollen. The accused’s mother arranged for the complainant to go across the road to stay with the woman who lived there. The complainant then called her mother to pick her up. Her mother took her to her place in Port Adelaide and took some photographs.[5]
[5] Exhibit P3.
The complainant stayed at her mother’s house for about three or four days. The accused was continuously calling her. The complainant answered the phone believing that if she let the accused abuse her for a few minutes it would calm him down and stop him calling for an hour or so. That caused an argument between the complainant, her mother and her mother’s partner during which the complainant’s phone was damaged. As a result of that argument, the complainant became estranged with her mother.
The complainant left her mother’s home, borrowed someone else’s phone and called the accused, asking him to come and pick her up. She explained she had nobody else to call and did not know anyone else’s number. The accused came and picked her up. There was no discussion about what had happened between the two of them.
In cross-examination, she agreed she said in her police statement in October 2018 the accused placed both of his hands around her throat and tried to strangle her. She did not know whether it was correct that he used one hand or both; ‘I just know that he strangled me’.[6]
[6] T273.
The complainant’s mother gave evidence she collected the complainant from a neighbour’s house across the road from the accused’s mother’s house. She was very upset and crying. Her daughter had a black eye and scratches on her neck. She drove her to her home in Port Adelaide and took photographs.[7] She recalled an occasion when the accused kept ringing and texting the complainant which eventually led to her partner picking up the complainant’s phone and smashing it. The complainant then left and she had no further contact with her daughter. She believed that was in March 2014.
[7] Exhibit P3.
Uncharged act – second cigarette incident (1 April 2014)
The complainant gave evidence they were home watching Revenge on television. The accused had been drinking and using methylamphetamine that evening. His eyes were very glassy and his speech was slurred. The accused became angry because the females on the TV show had revenge. He decided he was going to go to his ex-partner’s mother’s house and throw a paver through the front window. The complainant tried to get him to let her drive so that he did not actually go to the destination. She wanted to diffuse the situation. She thought he would then have time to calm down whilst in the passenger seat.
He did not let her drive.
When they got to Hope Valley, the accused got out, took a paver from the car and ran down the road towards the house. The complainant heard a smash. The accused came running back, jumped in the car and drove off. He was angry, yelling and screaming.[8]
[8] I have not used that evidence of the accused committing property damage in any way prejudicial to him. I have not reasoned he must be a bad person or the sort of person likely to commit these offences, and therefore must have committed these offences. I have only used the evidence as part of the narrative and as indicative of the accused's level of anger that night just prior to committing the alleged uncharged act.
When they got back home he started abusing her, saying things like ‘females are pieces of shit’. He threw the griller toaster tray from the oven and a saucepan at her. The two items went flying past her. She snuck out of the house and drove to his mother’s place.
About half an hour later the accused arrived on his motorbike. He came in and walked down the hallway into the room where the complainant was sitting. He punched her on the cheek, pulled her hair and put his cigarette out on her cheek. He was also smashing things up, including a glass cabinet with ornaments in it. His mother was present as well as his mother’s boyfriend. The police attended.
Photographs were taken by the police.[9] There is redness visible around the complainant’s eye and a red patch lower on the side of her face. The complainant gave evidence that the redness around her right eye was the result of the accused punching her. The mark in line with the right-hand corner of her lip, around her cheek was from the cigarette.
[9] Exhibit P1.
In cross-examination, the complainant:
·admitted she did not make any reference in her affidavit dated 1 April 2014 about going to the accused’s ex-partner’s mother’s house. She gave evidence there was a lot in that affidavit that is not true;
·admitted she did not make any reference in her affidavit dated 1 April 2014 to the accused punching her. She gave evidence she left that out because she wanted to make things sound not so bad for the accused and for herself;
·expressed some doubt about whether this was the occasion when the occasion was smashing up the glass cabinet with ornaments. She said there were other things that happened at his mother’s house; she did not know whether they all happened on the same occasion or not. She agreed she made no reference to the smashing up of the glass cabinet in her affidavit dated 1 April 2014 for the same reason as before. She was not going to nit-pick and ‘dive into the little, little things. Like, does it really matter that budgie ornaments got smashed? No, it doesn’t. He smashed a cabinet’;[10] and
·agreed she said in her affidavit of 1 April 2014, the accused pushed his cigarette into her face at the side of her right eye. She said she had two burns to her face. The actual head of the cigarette stuck to her face and as she wiped it away it burnt the bottom part of her face. She agreed she had not said that before, but she had mentioned it to the police. She disagreed that the mark in the photo near her eye did not look like a cigarette burn. She said it was the whole cigarette; the mark on her eye was a combination of the punch and the burn.
[10] T279.
In re-examination, the complainant gave evidence she recalled two occasions when she went to police to try and get charges against the accused discontinued, but could not say whether this was one of those occasions. There was an occasion when an intervention order was put in place but when it got served on the accused he was not allowed to come home and he ‘pretty much beat me up and made me go there and change it’.[11]
[11] T330.
Detective Gibson gave evidence she attended at the Oakden address. The mesh of the front screen door was damaged and the metal frame was out of alignment. The complainant had some redness to her face and a mark just below the right eye around the cheek area. She was very upset. She could not recall if there was smashed glass inside the house.
Count 4 – assault causing harm (27 October 2014)
The complainant gave evidence about an occasion when she and the accused had been at his mother’s house. He had been drinking and appeared affected by alcohol before they had arrived. When they left his mother’s house, the accused was in a bad mood and started yelling at the complainant as she was driving. He punched her in the side of the face and neck. She was yelling at him to stop. She stopped the car at an intersection and refused to move which made him angry. He got out of the passenger door and came around to her door. He tried to get her out of the car. People were beeping and yelling so he got back in the car and she drove off. He continued to hit her. She did a U-turn and drove straight to the Holden Hill Police Station. As she got to 60 km/h, he slammed the transmission into park. She had to quickly put the car back into drive again. He did that multiple times. When she stopped at a give-way sign, the accused got out of the car and ran across the road to a school oval. She drove to the Holden Hill Police Station which was diagonally opposite.

When she pulled into the carpark she asked two police officers for help. She did not let them take any photographs because she did not want more evidence. She had scratches and slight bruising on her face and neck. She then went home to get clothes and drove to her cousin’s house in Golden Grove where she stayed the night.
In cross-examination, the complainant:
·said the accused was punching her in the car in day light on busy main roads. She was able to keep control of the car; and
·agreed she could have said on a police form that she was the one to hit him but she might have said that ‘to get it waivered’.[12]
[12] T285.
Constable Jonathan Roberts gave evidence he was approached by the complainant in the car park of the Holden Hill Police Station shortly after his 3 pm shift started. She was quite upset and distressed. He took her into the police station and started taking an account from her. She said she was in the passenger seat and the accused was driving. She then changed her mind and decided she did not want to say what had happened. He was in the middle of the notebook statement when she changed her mind and does not know if she read over it. He had a very vague memory of injuries. He thought she had some scratch marks on her chest which were partly concealed by her clothing.
On 28 October 2014, the complainant saw Dr Imgraben at the North East Modbury Medical and Dental Centre. She had bruising over her left mandible (jaw), multiple scratch marks to her left brow, bridge of her nose, front and left side of her neck and two small scratch marks to her right cheek.
Uncharged act – Albion Hotel (3 July 2015)
The complainant gave evidence of an occasion when she and the accused were at Darren’s house for Darren’s son’s 18^th Birthday.
The accused been drinking all day and had a fight with Darren.[13] The accused told the complainant to get in the car because they were going home. It was night time. As she drove home, the accused was punching at her, pulling her hair to drag her head down to the centre console and trying to choke her. By the time the car was near the Bombay Bicycle Club, he had punched her about 15 to 20 times. She stopped at the traffic lights near the Bombay Bicycle Club. He got out of the passenger door and walked towards the bottle shop. When the lights turned green, she continued on. She then did a U-turn, went back and picked him up because she felt bad about leaving him there. He laughed at her.
[13] I have not used that evidence in any prejudicial way against the accused. I have not reasoned he must be a bad person or the sort of person likely to commit these offences, and therefore must have committed these offences. The only uses I have made of that evidence as part of the chronological setting for the allegations of violence toward the complainant that evening or an indication of the accused's level of anger that night just prior to committing the alleged uncharged act.
He had a four pack of Wild Turkey 101s. He was drinking when she picked him up.
When he got back into the car, he ripped the rear vision mirror off and threw it out of the passenger window. He was very angry once he realised there was an item on the mirror that had been passed on from his dad.
He continued to punch her. She stopped the car near the Albion Hotel and told him he seriously needed to stop punching her whilst she was driving. He laughed at her. She got out of the car and walked towards the drive-through bottle shop of the Albion Hotel. She was angry, upset and crying. He held the horn down on the car so it made a continuous noise. She did not want to cause any more of a scene so she turned around, walked back to the car and got in.
He started hitting her again. She immediately turned into the side road and pulled over. He opened the passenger door which hit a no standing or parking sign causing the door to be dented. She got out and walked off through the drive-through bottle shop.
The accused followed her. She ran into a store room then walked back out. They were yelling and arguing. He tried to grab her and get the keys out of her handbag. She managed to get away and walk into the entry of the pub and go to the toilet. He was screaming for her to come out so she did. He was arguing with a worker and security guard. He grabbed her and pulled her hair. They were rolling around on the floor. People were saying to him ‘What are you doing, what are you doing’. The accused said, ‘She’s my fucking missus, I’ll do what I want’. The worker and security guard separated them. The complainant managed to get away to the car and drove off.
After that the accused made some attempt to repair the door of the car, but visible damage remained. According to the complainant, that damage is visible in the photographs taken on 1 February 2017.[14]
[14] Exhibit P6.
In cross-examination, the complainant:
·agreed she did not say anything in her police statement in October 2018 about the accused punching Darren Cooper;
·agreed she did not say anything in her police statement in October 2018 about the accused punching and strangling her in the car before they got to the Bombay Bicycle Club;
·could not recall speaking to a police officer on the phone at about midnight, telling him there was an argument and that the accused did not physically assault her; she was not sure about speaking to the same police officer again on the phone later that morning and saying the accused had just pulled her hair. She agreed she did not tell him about the accused punching her – ‘yes, I guess so. I never said anything to the police officers’;[15]
·agreed she probably asked police to take no action. She probably wrote on the form there was no assault so that it would get changed; that’s what the accused told her to say.
[15] T291.
Senior Constable Nicolas Sandona gave evidence he was on duty on 3 July 2015. He was tasked to attend at the Albion Hotel. He was directed by security to the bottle shop area where he saw the accused. He formed the view the accused was moderately intoxicated based on his glassy eyes and slurring of words; his demeanour was up and down; he said, ‘shoot me or taser me’ and threatened to ‘burn down her house and slit her throat’. He was detained under the Mental Health Act (2009) (SA). Later, the complainant said she had an argument with the accused, he pulled her hair but she was not otherwise physically assaulted. She declined to provide a formal statement.
Count 5 – rape (months before 10 October 2015)
The complainant gave evidence there was an occasion when she spent a few days at her cousin’s house after she and the accused had an argument. When she came home the accused was laying on a fold-out sofa bed with his hands behind his head and eyes closed. She thought he was asleep.
She walked past the bed and into the dining room. He jumped off the bed and tackled her to the ground. He had her face-down into the carpet. He said to her that because she had been at her cousin’s house she must be slutting around and, ‘If you want to act like a slut I’ll treat you like a slut’. He then pulled her pants down and ‘rammed his finger up my bum’. She was screaming, crying, asking him to stop. He kept pushing her face into the carpet. He held her down with his left hand on her head and kept his finger inside her bottom. The dog came around to try and help her; licked her tears. The accused had his finger in her bottom for a couple of minutes. He then walked off towards the lounge room, lit a cigarette and lay back on the bed.
The complainant lay on the floor for a while with the dog, crying. She then got up, walked into the bathroom and locked herself in. Her bottom was bleeding. She had a shower. After about five minutes the accused began knocking on the door. He told her she had to hurry up so that she could take him out and get some food. She did what he asked. They did not speak about it again. There was an injury to her bottom which was painful for days.
The complainant gave evidence that the first person she told about that sexual assault was her sister in about March 2017. It was just the two of them in the lounge room at her sister’s house. She was talking about everything that had happened during the course of her relationship and told her sister the whole story, how she came to be in the house and how the accused pinned her down and put his finger ‘up my bum’.
In cross-examination, the complainant:
·agreed in her police statement in October 2018 it is written that the accused was lying on a mattress on the lounge room floor; she said she explained to the police officer it was a mattress on a fold-out bed but said the way they’ve written it is beyond her control: ‘yes I should read them word-for-word and say ‘No, this is’, you know, ‘technically it’s not how it happened’ or ‘It’s not where the bed was located. But like I said to you, I’ve got so many statements, this statement over here ran over the course of two days til the early hours of the morning. I’m just going to sign it’;[16]
·gave evidence the dog, Cougar, got excited when people came home and would howl. He did not on this day. He was good at sensing things; he would hide. He came down the hallway from the bedroom. He was deaf and did not hear her come home. He had been going downhill for two years;
·said the accused was laying half on her next to her on the floor with one hand on the back of her head. He pulled her leggings and underwear down with the other hand. She could not remember how many fingers he put inside her anus; ‘it was done rough so it hurt, I was just in pain’;[17]
·agreed Cougar was the accused’s dog; she described Cougar as ‘my dog’ in her police affidavit in April 2019 but said she was part of his life for five or six years; ‘Yes, he was Anthony’s dog before I came along but he was my dog. He was our dog’;[18] and
·agreed she did not go to see a doctor even though the rape caused her to bleed and it gave her pain and difficulty for weeks afterwards.
[16] T296.
[17] T300.
[18] T301.
The complainant’s younger sister gave evidence of a complaint made by the complainant when the complainant’s relationship with the accused ended and then again earlier in 2019. On the first occasion, the complainant was at her house, they had not seen each other for a long time and she was pretty upset. They were both crying. The complainant was ‘basically telling me everything that had happened in their relationship’.[19] In relation to sexual offending, the complainant said she was at her cousin Kimberly’s house and when she got home the accused was angry and accused her of not being faithful or something similar. He said if she was going to behave like that he was going to treat her like that. He was on a mattress in the lounge room. He pushed her down, pulled her underwear and pants down and ‘stuck a finger…in her bum’.[20]
Complaint – s 34M of the Evidence Act 1929 (SA)
[19] T371.
[20] T369.
The evidence of the complaint by the complainant to her sister is not evidence of the truth of what was alleged. It informs me as to how the allegation first came to light. I am satisfied the complainant first told her sister soon after February 2017. In cross-examination, the complainant’s younger sister agreed she said in her affidavit in May 2019 that the first time the complainant told her about the assault was a couple of months ago. In evidence, she explained she remembered more clearly when she was told a couple of months ago but she was in fact first told a couple of years ago. I accept her explanation and consider she was essentially told the same thing on two occasions. I have not used the evidence of what was said by the complainant in 2019 as evidence of a complaint or subsequent complaint by the complainant. That evidence was only relevant in regard to the reliability of the evidence that the first complaint was made soon after February 2017.
The content of the complaint is generally consistent with the complainant’s evidence of the alleged offence. There may be varied reasons why the complainant made a complaint to her sister then. In this case, it is understandable she complained to her sister soon after the relationship with the accused ended in the context of talking about the relationship generally.
Count 6 – aggravated assault causing harm (11 October 2015)
The complainant gave evidence that on 10 October 2015 she and the accused went to a wedding reception for one of the accused’s best friends, Lawrie. Some of them ended up at a cocktail bar which the accused was saying was a gay bar. He was calling his friend’s new wife a slut. He smashed glasses on the table and was removed by security.
As they were driving away, the complainant saw a young boy passed out in the gutter. She stopped on the corner and put her hazard lights on. They tried to help him and give him water. They managed to ring his mother from his mobile and organise for her to come and pick him up. The police arrived and told them to leave. The accused got angry.
As they drove home, the accused yelled at the complainant. He punched the windscreen and kicked underneath the glovebox.
Once they got inside, he yelled and screamed at the complainant. The accused tried to get their 18-month-old dog off the recliner seat using a vacuum cleaner pole. The complainant yelled at the accused for trying to hit the dog. The accused grabbed a miniature meat cleaver and grabbed the dog by the scruff of the neck. He said he was going to slit the dog’s throat. The complainant tried to push him off and told him to stop. He put the dog down, turned around, pulled the complainant’s hair, strangled her and he pushed her onto the couch.
The complainant walked out the front of the house. The accused followed her. She opened the driver’s side door, but he kicked it shut. She turned around to face him and tried to open it from behind. He kept shutting the door every time she managed to get the door open. He yelled at her, trying to punch at her. She punched him in the nose to try and get him away. He then pulled out the meat cleaver and was swinging it at her (count 6). The next thing she knew, there was blood all over her dress and down her arm. He had sliced her right forearm. The accused snapped out of it and walked away like nothing had happened.
The complainant got in the car and drove to the accused’s mother’s place. The accused kept ringing her saying he wanted to go and get some drugs. She and the accused’s mother took him to get some drugs then dropped him back at the Pooraka house. I have not used the evidence of the accused purchasing drugs in any prejudicial way against him. I have used it as evidence of the accused’s drug use and how his use of drugs or need for them may affect his behaviour toward the complainant. I have also used it as evidence of the extent of the complainant’s fear of the accused, namely, that she was prepared to acquiesce to his demand and she drove him to get drugs.
The complainant stayed at the accused’s mother’s house for a couple of days.
In cross-examination, the complainant:
·agreed that 10 October 2015 was also the accused’s son’s birthday and his friend, Lawrie, had been saying things on Facebook which angered the accused;
·agreed she did not say in her police statement of 6 October 2018 the accused was punching and kicking the windscreen of the car on the way home;
·said the accused got the miniature meat cleaver from his dad and it was kept in the display cabinet;
·agreed she said in her evidence there was just a verbal fight after they got inside before the accused threatened the dog. She then agreed she said in her police statement in October 2018 that he ‘pushed me with both hands and I fell over the clothes horse and into the sliding door’ before he threatened the dog. When it was suggested to her she had previously said there was physical violence before the dog was threatened she said, ‘It’s, it’s stupid, I don’t consider that as physical violence. When it happens every day you kind of, it’s just normal’;[21]
·agreed the dog was a big dog, a Husky Malamute; the accused had him up by the scruff of his neck with just one hand, by the throat; and
·gave evidence the accused was swinging the meat cleaver around. He did not look at her arm and line it up and cut her.
[21] T304.
Count 7 – aggravated assault causing harm (26 January 2016)
The complainant gave evidence that on Australia Day 2016, she and the accused went to Semaphore Beach. The accused had had about four cans of alcohol before they left. He was a little bit affected. He probably drank another two cans on the way. He made her park in an area that had been cordoned off. They were drinking whilst at Semaphore.
When they returned to the car they had a parking fine, which made him angry. They went and bought some more alcohol. He drank on the way home. As they got closer to home, he started hitting her in the side of the face. He took hold of the steering wheel so she could not veer to the right. She got close to the gutter and the car skidded a bit.
They eventually got home. They argued in the hallway about him grabbing the steering wheel and hitting her whilst she was driving.
She went into the bedroom to try and relax before she went to work. The accused came into the bedroom and punched her in the back of the head, causing her to fall onto the bed. She had an egg on the back left side of her head. The accused turned around and walked off.
After she was punched, the complainant stayed in her bedroom packing a bag. She left a little bit later and went to the accused’s mother’s house where she stayed overnight. The swelling on the back of her head remained for a few days.
In cross-examination, it was suggested to the complainant the accused did not threaten her with violence in any way if she did not park in that spot. She responded, ‘When you’re in a domestic violence relationship it gets to the point where they don’t need to threaten you. I’m terrified. He controlled absolutely everything that I did, the whole aspect of my life he controlled. I’m not going to argue against him. If he says to me ‘Park there’, I park there because it’s either park there and risk a fine and that later or don’t park there and get hit, and to me I take the easy option’.[22]
Uncharged act – 30^th Birthday (March 2016)
[22] T308.
The complainant turned 30 in March 2016. The accused punched her in the left eye that day when she was sitting in a computer chair in the bedroom at the Pooraka house. Her eye was instantly swollen. She had been asking him about whether he was being unfaithful. From that point, she started to think about leaving the relationship.
In cross-examination, the complainant gave evidence she remembered the day not because it was a milestone birthday but because she got a black eye. She remembers it because it was one of those times that emotionally scarred her. She did not recall whether she only mentioned it to the police when she gave a statement she signed last week. It is an agreed fact she did not mention that occasion in any of her statements made before 5 August 2019.
Uncharged act – car battery through window (September 2016)
The complainant gave evidence about an occasion in September 2016 when she was at her cousin’s house, Kimberley Morton. The accused was ringing the complainant wanting her to go and pick him up. The complainant and her cousin drove to Pooraka to pick him up. When they arrived, he decided he did not want to leave. They went back to her cousin’s place.
Later that afternoon, he rang again and said he wanted to be picked up. The complainant told him they were not going to do it because he did not want to come earlier.

A few hours later, the complainant heard the creak of the roller door so she went outside with her cousin. The complainant saw the accused standing in the driveway. They had an argument, then the complainant went back inside.
The complainant then heard the bonnet of her car slamming down. She and her cousin went back outside. She saw the accused come out of the bush. He said, ‘This is what you get for not coming home or picking me up’. The complainant said, ‘I don’t care anymore, smash up the car, whatever’. The complainant and her cousin then went back inside.
A few minutes later, she heard a big bang and a smash. They both went outside again. They saw the car battery had been thrown through the driver’s side window.
Ms Morton gave evidence of an occasion when the complainant was at her home and the accused turned up. She answered the door to him. He was confronting and very aggressive. The accused and the complainant had a verbal argument whilst he was at the door. They went outside and saw the accused on a little grass area in the middle of the street. He and the complainant had words. He was aggressive, very frustrated and angry. She and the complainant went back inside. There was a bang outside which caused them to go outside a second time. They saw the car battery on the car seat and the car window smashed. She did not see the accused that second time.
Uncharged act – visit to Dean Halifax’s house
The complainant gave evidence of an occasion when the accused had the complainant drive him to Dean Halifax’s house. He believed Mr Halifax had dobbed him in about something to do with his car.[23] The complainant saw a physical altercation between them. The accused eventually returned to the car and was angry. The complainant started driving home. The accused was yelling at her, grabbing at her and punching her, then would go back to being silent, then he would punch her again and then go silent again. He was punching her in the face and neck on the left-hand side. He was swearing in general about the whole situation. She kept saying to him that he needed to stop hitting her whilst she was driving.
[23] I have not used that evidence in any way which is prejudicial to the accused. I have not reasoned he must be a bad person or the sort of person likely to commit these offences, and therefore must have committed these offences. I have only used that evidence as part of the narrative of events by the complainant which may explain why the accused was angry and his level of anger leading up to the alleged violence toward the complaint.
She estimated he punched her about 20 to 30 times.
Admission – 6 November 2016
On 6 November 2016, the complainant sent a text message to the accused as follows:
‘Hey baby. I love you, can’t wait to get home to see you. Hopefully your awake today lol. Mwahhh’.
The accused responded as follows:
‘I love you to…and im so sorry for hitting you that fucks with me every day I can never take that back but im going to try so fucking hard to be a better person I mean come on we both no that’s gona take time lol but im gona fucken try love you baby girl you do mean everything to me’.
In cross-examination, the complainant said she interpreted the message as the accused apologising, not for a specific incident, but for generally what had happened over the course of the relationship.
Counts 8 and 9 – aggravated assault/aggravated creating likelihood of harm (1 February 2017)
On 1 February 2017, the complainant and the accused went to a barbecue at Jason Clark’s house, arriving before lunch time. The accused had been drinking alcohol before they left. Both of them drank alcohol when they were at the barbecue. The accused became intoxicated. He started getting a bit loud and a bit rough.
They left the barbecue at about 4.30 to 5 pm. His words were very slurry and he had glassy eyes. The accused was singing along to a song on the radio out the passenger side window. He was kicking the glovebox. He then snapped the indicator arm off the car.
The complainant kept on driving even though the accused was pulling at her. When they were stopped in traffic, the accused got out of the car and bashed on the window of another car in which two African girls were sitting, saying, ‘You black sluts, go back to your own country’.[24]
[24] I have not used that evidence in any way which is prejudicial to the accused. I only used that evidence as part of the narrative of events by the complainant and as being demonstrative of his level of anger at that time.
The complainant yelled at him to get into the car whilst other people were beeping at her. He finally got back in the car then told her to drive him to someone’s house so that he could ‘kick the shit out of him’[25]. He said if she did not do that then he would ‘kick the shit out of me’. She said she would drive him there but not take him to the actual house. He said ‘that’s fine’.
[25] I have not used that evidence in any way which is prejudicial to the accused. I only used that evidence as part of the narrative of events by the complainant and as being demonstrative of his level of anger at that time.
She turned onto the street of their home and pulled up their driveway, which made him angry. He pulled her hair down to the centre console and said that she had ‘fucking lied’ to him. She said to him ‘I just need to go inside for a minute’.
She gave evidence her plan was to drop him off, then return to get clothes and leave. She wanted to unlock the front door so that when she came back it was easier to get in. The accused remained in the car yelling out abuse at the neighbours. He yelled at her to hurry up and get back in the car. She eventually got back in the car and headed towards the person’s house. As she drove the accused punched her in the side of the neck on the left-hand side. He was trying to kick the windscreen out and was kicking the glovebox. She continued to drive and got to a T-junction of Lake Drive and Pratt Avenue. She slowed down to see if there was any traffic.
She turned left and as she just got the car straight, the accused lent over to the driver’s side and grabbed the steering wheel from underneath with his right hand and pulled it up so that she veered to his right. She was screaming at him saying, ‘Are you fucking serious’. She tried to slam on the breaks but the car slid into a parked car on the opposite side of the road and went up the gutter. As the car was mounting the gutter, the accused got out the passenger side door and ran off down the street.
The owners of the car came out of the house and yelled at the complainant. They did not have good English and were trying to call the police. She called the police to explain what was going on.
The police arrived and took some photographs.[26]
[26] Exhibit P6.
The complainant said that was the day the relationship ended. She did not have any further contact with the accused.
In cross-examination, the complainant:
·gave evidence when the accused put his hand through the steering wheel, he leaned over with his body. He had done that on maybe 10 different occasions but he would yank the steering wheel and then let it go almost immediately or after a few seconds, not hold it there;
·denied misjudging the corner and crashing into the car on the other side of the road; and
·denied saying almost immediately after the crash to the accused something like ‘Oh fuck, I’m not insured’ to which he responded, ‘sucked in, it’s your problem’ then walked off. It was suggested that one of the first things she said to the 000 operator when she called was about insurance. She did not remember. Mr Culshaw played a portion of the 000 call. I do not consider insurance was one of the first things she mentioned.
Ms Thorpe gave evidence that on 1 February 2017 she was sitting in the driver’s seat of her car parked on Pratt Avenue waiting for her son. She looked up and saw in her rear vision mirror a car behind her which she then watched through her car window. The car drove straight into a parked car on the opposite side of the road. She saw a man get out of the passenger side and said to him ‘are you alright mate?’ He looked at her, leant back into the car, got something which may have been a phone and walked away. The girl got out from the driver’s side, upset, shaking. Ms Thorpe stayed until the police arrived.
Senior Constable Alice Schaij arrived at the scene shortly after 5.30 pm. The complainant returned a negative breath test. The speed limit was 50 km/h. She does not recall whether there were any skid marks.
Assessment of complainant’s evidence
The prosecution case relies heavily upon the evidence of the complainant. Because of her admitted lies to the police and to the Magistrate, prior inconsistent statements, failure to mention various matters in police statements and what Mr Culshaw has described as the implausibility of some of her accounts, I have scrutinised her evidence with care. I have considered what she said, how it fits in with other evidence in the case, how she responded to cross-examination and her presentation in the witness box over a number of days. There is support for some of her allegations in the form of photographs and medical treatment of her facial injuries. There is also support from others who observed her distress at times, however, I have given that evidence either very limited or no weight. There is also the admission by the accused via text message on 6 November 2016 of him hitting the complainant to which I have had regard in a very limited way.[27]
[27] At paragraphs [183] and [184] below.
I found the complainant to be a cogent, credible and reliable witness. I am left with no doubt that she was in a violent relationship with the accused over a period of about five years during which he had outbursts of anger often fuelled by alcohol and drugs. During that time, he controlled her by his threatened and actual violence. He often physically hurt her. Having considered the evidence of each of the charged occasions separately, I am satisfied beyond reasonable that those occasions did in fact occur as described by the complainant.
Prior inconsistent statements
Prior out of court statements made by the complainant are not evidence of the truth of what she then asserted. They are only relevant to my assessment of the reliability or credibility of the evidence she gave in court. I have assessed whether there is an inconsistency and if so, the significance of that inconsistency. In doing so, I have taken into account whether the complainant accepted there was an inconsistency and her explanation for the inconsistency. I have considered each inconsistency individually as well as the cumulative effect of the inconsistencies in my assessment of the complainant’s overall credibility and reliability. They are discussed below in the consideration of the uncharged acts and charged acts.
Lies to police in affidavit and to the Magistrate
The complainant admitted she lied:
·when she spoke to the police in 2013 when they found an air rifle at the house. She lied about where the rifle came from and whether it worked. She said that was the story she was told to say.
·to a Magistrate about the circumstances of her possession of the air rifle, namely, that the rifle had come from Dennis and that she did not know whether the rifle worked. She said she lied to the Magistrate because she had never really been taken to court before and that is what the accused told her to say, so that is what she said.
·in an affidavit/statement to the police on 1 April 2014 about what happened that night. She said ‘…that’s the story I told them at the time. I would always change stories, make it not as bad as what it is or I would take the blame’.[28] She said it protected them both, ‘because if he gets in trouble, then I’m in trouble…because he will hurt me’.[29]
[28] T275.
[29] T275.
Mr Culshaw submitted this demonstrates the complainant is a person willing to lie to a court to achieve the end she is interested in at the particular time.
It is a serious matter for the complainant to have told those lies. I have considered the extent to which her admitted lies impact upon her credibility. Whilst I do not condone or excuse that conduct, there is a credible explanation. She was in a violent and controlling relationship with the accused. She was in fear of him. She knew that if he was angry, she was in danger of being harmed. She adopted behaviours which she believed would minimise his anger. They included not informing on him to the police and doing what she was told to do. I accept her explanation. I do not consider her admitted lies detract from her credibility.
Uncharged acts
The complainant gave evidence of multiple uncharged acts of violence or threatened violence by the accused toward her over the course of their relationship.
I cannot use the evidence of any uncharged acts unless I am first satisfied the act/s occurred.
Mr Culshaw submitted the uncharged acts do little to advance the prosecution case; the inconsistencies and the fanciful nature of some of them impact adversely upon the complainant’s credibility and reliability. He submitted I should not be satisfied they occurred.
Mr Culshaw initially submitted it was not in dispute that it was a volatile and violent relationship; the context in which the charged conduct occurred is not particularly controversial. I do not agree with that submission. The volatile and violent nature of the relationship was largely disputed. Mr Culshaw finally submitted that the only aspect not in dispute that the accused slapped the complainant during confrontations. In my view, that was a very small part of the uncharged violence alleged by the complainant.
Mr Culshaw submitted there are three aspects of the alleged uncharged conduct which raise significant doubt about their occurrence and about the complainant’s overall credibility. The first is the inherent implausibility of many of the allegations. The second aspect is the inconsistencies of her accounts. The third is the complainant’s attempt to explain the inconsistencies.
I have carefully considered the points made by Mr Culshaw in regard to the particular uncharged act concerned as well as the cumulative effect of those points upon the course of conduct alleged by the complainant.
In relation to the first occasion when the accused allegedly strangled the complainant,[30] Mr Culshaw referred to the complainant’s evidence that the accused used both hands around her neck compared to her prior statement that he used his right hand. He submitted her explanation was a concocted story to try and make both correct. I do not agree with that characterisation of her explanation. Her inability to accurately recall the minutiae of such an incident years ago does not concern me nor does her endeavour now to reconcile her two descriptions.
[30] T76-77.
Mr Culshaw described the gun incident as fanciful.[31] He submitted it is difficult to believe that the accused was outside with a gun in his hand yelling at the complainant and no-one noticed. There is no evidence the firearm in question ever existed. It is inherently unlikely the accused was firing the gun inside so often and no-one heard the sounds or saw the holes in the walls, including the owner of the house, neighbours and the police. There is no way of checking because the house has been bulldozed.
[31] T440.
I do not agree with Mr Culshaw’s characterisation of this allegation as fanciful. The complainant’s evidence was that the accused was outside with a gun down his side at night time. There is no evidence on the topic of whether he was seen or heard by anyone; nor whether the firing of the gun inside was heard by anyone. I cannot speculate about that. The prosecution has not called any evidence to support the allegation that there were bullet holes in the walls. It is for the prosecution to prove this allegation. I take into account the forensic disadvantage to the accused given the destruction of the house prior to trial. None of those matters cause me to doubt the complainant’s account of this incident.
Mr Culshaw made a number of submissions in relation to the occasion when the complainant alleged the accused first poured petrol over her.[32] She initially gave evidence only the accused used methylamphetamine that morning. In cross-examination, she agreed they both used that morning. He submitted this was an example of the willingness of the complainant to downplay her own involvement in relationship issues. He further submitted her evidence was confusing about whether the accused in fact had a lighter or not. She made deliberate attempts to shorten the time she spent alone in the paddock that day because it was so unlikely. Before she gave evidence, she had never mentioned leaving the paddock that morning to go to the petrol station where she called her sister. Her claim that her skin was burning from the petrol but she made no attempt to wash in the toilets was not believable. Her evidence of having petrol poured on her a second time was a fabrication in the witness box. She had never mentioned that before to the police despite her evidence she told the police everything in her statement in October 2018.
[32] T441.
None of those matters cause me to doubt the complainant’s account of the incident. I do not consider she was a witness trying to downplay her involvement in the relationship at all, which included her use of methylamphetamine. In my view, her ‘involvement’ in the relationship was minimal. She was dominated by the accused. A conflict in her evidence about whether she used methylamphetamine on one occasion or not does not detract from the credibility of her account. I do not consider her evidence about the lighter was unclear; she said she believed he had a lighter, but did not know as a fact whether he did or not. Her failure to mention her attendance at the petrol station in her police statement is not significant. It is understandable she was focussed on the accused’s conduct rather than the details of what she did afterwards.
In relation to the uncharged conduct on 1 April 2014, Mr Culshaw referred to her admission that a lot of information in the affidavit she gave to the police about that occasion was untrue.[33] She claimed not to have read it before she signed it. She was initially definite the glass cabinet was smashed during the incident but then did not know whether it did happen that time or not. It was unfathomable that the police officer who attended would not have noticed a smashed glass cabinet. She gave inconsistent evidence about where on her face the accused burnt her with a cigarette and attempted to give an explanation to reconcile both versions.
[33] T444.
I have already addressed her admission to lying in the affidavit. I do not consider her change in certainty about the smashing of the glass cabinet on that occasion to be detrimental to her credibility. I accept her explanation that there were many occasions of violence which occurred at the accused’s mother’s house which made it difficult for her to be sure about that aspect. I also consider she was making her best endeavours in the witness box to look at photographs of herself and explain the cause of redness on different areas of her face. Her evidence about the damage to the screen door is supported by photographs and the evidence of Detective Gibson.
I have taken into account that the signs of distress described by Detective Gibson may result from one or several possible causes other than the conduct alleged. For example, it may have been caused by the accused and the complainant having a heated but non-violent argument or by the complainant witnessing the accused damage the screen door. I must exercise caution because of the multiplicity of causes. The distress is not evidence of the accused’s guilt. Based on the evidence of the complainant about what happened at the house, the damage to the screen door, the photographs of the complainant’s face and the temporal proximity of the distress, I consider the distress was due to his violent conduct toward her at his mother’s house that night. I have used that evidence only in support of her credibility regarding her account of that violent conduct.

Her evidence about the accused throwing a Maglite at her in January 2014 was inconsistent with what she told her sister, namely, that she thought the accused threw a pickaxe at her.[34] It is a real possibility the complainant’s sister has an inaccurate recall of the conversation. She said there was a lot to take in when the complainant was telling her about what had been happening. Even if her recall is accurate, the inconsistency does not cause me to doubt the complainant’s evidence. She was clear the accused threw something at her and that he had the pickaxe and Maglite in his possession that night.
[34] T373.
In relation to the incident at the Albion Hotel[35], Mr Culshaw submitted the complainant’s account should not be believed because it is unlikely there would have been no CCTV footage of her claim they were ‘rolling around’ in the entry way. There are agreed facts[36] that a police apprehension report records that on 4 July 2015 Officer Porter ‘attended the Albion Hotel and viewed CCTV footage of the incident, which showed the accused and victim in company of each other, but did not show any physical assault’; the report makes no reference to the areas of the Albion Hotel which were covered by CCTV footage at the time, or which of the footage from any areas at the hotel were reviewed by Officer Porter; there is no mention in the report of the CCTV footage being seized as an exhibit.
[35] T157-160.
[36] Exhibit D9.
In my view, there could have been further police investigation undertaken at the Albion Hotel. I cannot speculate about what may have been the outcome of those investigations. The agreed facts do not assist one way or the other in regard to what was or was not on the relevant CCTV. Neither the staff nor Mr Cooper were called as witnesses by the prosecution. I remind myself that the onus is on the prosecution to prove the allegations. The complainant made inconsistent statements to the police at the time about what had happened, including telling Senior Constable Sandona she was not physically assaulted other than the accused pulling her hair. She agreed she probably asked the police to take no action and wrote on the form there was no assault. I accept her explanation for that prior inconsistency, namely, that she was told by the accused to say that. The accused controlled her through his violence. She tried to manage her safety by doing as he said and by minimising police involvement. I do not consider the failure of the complainant to mention various matters to the police in her subsequent statements about every aspect of the course of events that day (the accused fighting with Mr Cooper; the accused punching her in the car) detracts from her credibility or reliability.
Mr Culshaw submitted the complainant never made mention of violent conduct on her 30^th birthday in any of her statements before a statement she gave the week before trial but claimed it was a significant occasion because that was when she started thinking about leaving the relationship. I am not troubled by her failure to tell police about that occasion in the scheme of things, even though she now considers the occasion had significance. This was one occasion among many during a lengthy relationship.
In regard to the occasion when the complainant alleged she was assaulted by the plank of wood, I do not consider there was any significant difference between her evidence there was no assault in the lounge room and her prior statement that the accused got up and charged at her in the lounge room. I accept her explanation that she does not consider ‘charging’ at her to be an assault. That is understandable given the level of violence to which she was exposed during the relationship.
I accept the complainant’s evidence about the occasion the accused strangled her in November 2011 and his use of a pool cue to hit her across the legs and back. I do not consider it significant she only described being hit in the legs in her police statement. Such a discrepancy is minor.
I accept the complainant’s evidence about the accused’s behaviour on the evening he threatened to dump her at Gawler. It is evident to me that the accused was unable to control his angry outbursts even in public places. He often did that in the car as described by her after the visit to Mr Halifax’s house.[37]
[37] T180.
I have considered each of the uncharged acts individually and in the context of the evidence as a whole. I have not reasoned that because the accused might have committed one uncharged act he must have committed them all. Nor have I reasoned from the evidence of an act or the acts that he is a bad person or the type of person who must have committed those acts.
I found the complainant’s evidence regarding the uncharged acts to be credible and reliable. She was a compelling and thoughtful witness. The occasion on 29 November 2013 when she alleged she was punched by the accused in the mouth was supported by the evidence of her examination by Dr Tang and requirement for eight stitches. The occasion on 1 April 2014 was supported by photographs taken by her mother and the observations of Detective Gibson of the complainant and the damaged screen door. The attendance by the accused at the complainant’s cousin’s house in September 2016 is supported by evidence from her cousin about the accused’s aggression and his conduct. I have no hesitation in drawing the inference that he did smash the car window with the car battery.
I find that the accused made an admission in his text message on 6 November 2016 to hitting the complainant[38]. I cannot attribute that admission to any particular uncharged act (or charged act). As described by the complainant, it is a general apology. I do not consider he is referring to a particular occasion. Rather, he is referring to a course of conduct (of hitting), although over what period of time is not known. The use I can make of that admission is limited. It supports the existence of some level of violence in the relationship. It may be limited to the accused slapping the complainant, although I consider that unlikely. However, because of the generality of the terms of the text, I have not placed much weight upon the admission in order to be satisfied of the occurrence of the uncharged acts.
[38] Exhibit P4; T185.
I accept the complainant’s evidence about the two occasions when the accused was in the shower and said he felt bad about his behaviour. The admissions are in general terms. The evidence of the admissions is not independent of the complainant (unlike the text message). Nevertheless, I accept it and consider it supports the existence of some level of violence in the relationship. However, because of the generality of the terms of the admissions, I have not relied upon that evidence in order to be satisfied of the occurrence of the uncharged acts.
I am satisfied all the uncharged acts occurred as described by the complainant.
The uses of that evidence are linked. It is evidence that the charged acts did not come out of the blue. The evidence explains why the complainant reacted on the charged occasions as she did. She did not react with shock or outrage. It was conduct to which she had become accustomed. It also explains why the accused committed some of the charged offences in public view. He knew the complainant was not going to report him and if she did, she would withdraw the allegations if he told her to do so. He had that confidence. The evidence also explains why the complainant is now unclear about some precise dates and details of the offences charged, namely, because there were so many occasions of violence over years.
I have not used the evidence in any prejudicial way against the accused. I have not engaged in propensity reasoning. I have not used the evidence to reason that the accused is a bad person therefore he must have committed the charged acts; or the type of person likely to commit the charged acts. Nor have I used the evidence to reason that he was generally violent therefore he must have committed the charged acts.
Counts 1 and 2
I am satisfied beyond reasonable doubt that the accused punched the complainant with his clenched fist to her right eye on 16 July 2013 (count 1) and then punched the complainant in the left eye the next day (count 2).
The photographs taken by the complainant’s mother on 17 July 2013 show the complainant with a black and swollen left eye. Her right eye is also black. The photographs support her allegations in relation to both counts.
The complainant’s mother gave evidence the complainant was very upset and crying. The photographs show the complainant to be in a distressed state. The evidence of distress may be supportive of count 2 only. It was contemporaneous to the events the subject of count 2 and proportionate to those allegations in the context of their relationship. The complainant said she was upset because she did not want her mother to take the photos because they would become evidence. That does not detract from the fact she was distressed when she arrived at her mother’s place and the distress visible in the photos themselves. It is circumstantial evidence of her involvement in a violent incident. I have not used it as independent corroborative evidence of the complainant’s account.
The two acts of violence did not come out of the blue. There were prior acts of violence which explain why the complainant was not surprised by their occurrence at the time. Those uncharged acts also explain her reluctance to have her mother record the injuries. She was fearful of repercussions. Her relationship with the accused was one in which he kept her in fear of his violence. She tried to manage her safety by not reporting him.
I do not consider it to be significant that the complaint failed to mention this assault when she gave her first statement to the police when she reported the car crash on 1 February 2017. That was not the occasion for telling the police all about the five years of violence. Nor, in relation to count 2, do I consider it significant that she stated that he punched her with a left fist, but gave evidence that he punched her with his right fist. I have no doubt from her evidence that she was punched in the eye and that it was her left eye based on the photographs.
In relation to count 2, the complainant was cross-examined about not mentioning in her police statement in October 2018 that the accused punched her when she was driving him to his mother’s place. I find her explanation to be acceptable. She said that she was sitting in the police station for hours. She was not going to sit there and ‘nit‑pick’ when she read and signed the statement. In any event, she included that detail in her statement earlier in March 2018.
There is a possible prior inconsistent statement made by the complainant to her mother that morning. Her mother gave evidence the complainant told her that either that day or the day before she had been strangled to unconsciousness. The complainant denied saying that to her mother because that was not right. She said her memory is that she was only strangled to unconsciousness at Christmas time. Even if the complainant did say that to her mother, I do not find that detracts from her credibility. I do not accept Mr Culshaw’s submission that she presented as a witness who was prone to exaggeration. Her evidence was clear that she was not strangled to unconsciousness on either of these two occasions. The photographic evidence supports her account that she was punched to the right eye (count 1) and then the next day, to the left eye (count 2). The complainant gave a cogent account of the cause of her injuries.
Mr Culshaw submitted his client was at a forensic disadvantage now trying to recall how injuries sustained some five years ago could have occurred. That difficulty is exacerbated because the injuries were in a period when he was using methylamphetamine and alcohol. I have carefully considered those submissions. This is not a vague allegation. Whilst there is a period of time that has passed, the type of injury to the complainant’s eye is such that it might be expected to be recalled. It was certainly not trivial. I do not consider any disadvantage to the accused is significant but I have taken it into account when scrutinising the complainant’s evidence. Of course, the accused has not given evidence that he is unable to recall how that injury occurred, or that his memory is affected by his drug/alcohol use, nor is he required to do so. There is no onus on him at all.
Count 3
The complainant’s evidence she was punched in the left eye is supported by the contemporaneous photographs taken by her mother which show her facial injuries. She has a black and swollen left eye. Mr Culshaw submitted the cause of that injury is not corroborated. He also submitted there was no evidence from the mother of the accused and the police made very late effort to obtain a statement. She declined to give a statement. I cannot speculate about what her evidence may have been.
The complainant’s mother gave evidence of the complainant’s distress, namely, her daughter was very upset and crying.
I have taken into account that signs of distress may result from one or several possible causes other than the conduct alleged. I must exercise caution because of the multiplicity of causes. The distress is not evidence of the accused’s guilt. I have not used that evidence as independent corroborative evidence of the complainant’s account. Based on the evidence of the complainant about what happened at the house, the photographs of the complainant’s face and the temporal proximity of the distress, I consider the distress supports her account that of the accused’s violence toward her on this occasion. I have used that evidence only in support of her credibility regarding her account of that violent conduct.
There was a slight difference between her evidence that the accused used one hand to strangle her and her police statement saying that he used both of his hands around her throat. The difference is slight and of no consequence. She ultimately did not know which was correct, whether he used one hand or two. That is understandable in light of the nature of the act alleged.
This act of violence did not come out of the blue; nor was it unusual. The prior uncharged acts explain her lack of surprise as well as her return to the relationship. The fact it was not an isolated incident also explains why the complainant might not be able to say whether he used one or two hands when he strangled her. I am satisfied beyond reasonable doubt the accused is guilty of this offence.
Count 4
The complainant’s evidence about the accused’s violence on this occasion is supported by the medical evidence of her injuries the next day. They are consistent with violence to the left side of her face, which is supportive of her allegation the assault occurred when she was driving and the accused was in the passenger seat.
There is also evidence of Constable Roberts that the complainant was quite upset and distressed. I have taken into account that signs of distress may result from one or several possible causes other than the conduct alleged. I must exercise caution because of the multiplicity of causes. The distress is not evidence of the accused’s guilt. I have not used that evidence as independent corroborative evidence of the complainant’s account. Based on the evidence of the complainant about what happened in the car, the temporal proximity of the distress and the medical evidence, I consider the distress supports her account of the accused’s violence toward her on this occasion. I have used that evidence only in support of the credibility of her account of this occasion.
The fact the complainant changed her mind about pressing charges against the accused and said she was the one to hit the accused does not cause me to doubt her evidence about what happened. This assault is alleged to have occurred against the background of a violent relationship in which the accused controlled and manipulated the complainant. She was scared of him and what he might do to her if she proceeded with charges against him.
Contrary to Mr Culshaw’s submission, I do not consider her evidence that the accused was punching her in the car in daylight on busy main roads to be incredible and that she was able to keep control of the car at the time.
The evidence of their relationship demonstrates that the accused, at times, became extremely angry. He was violent toward her many times when she drove, hitting her in the face. It was not behaviour which was unexpected or new to her. She must have become practised in keeping control of the car in those circumstances.
It is also clear from the evidence of their relationship that the accused was unable to control his anger, even when he was in a public place. On this occasion he had been drinking, which made him more aggressive. He was also emboldened because he knew the complainant was unlikely to report him and if she did, then she would not proceed against him.
I am satisfied beyond reasonable doubt that the accused is guilty of this offence.
Count 5
Mr Culshaw was critical of the complainant’s evidence in relation to the alleged rape. He submitted there was no satisfactory evidence the event ever occurred and that the real difficulty about the allegation was the complainant’s evidence about the dog. Her initial evidence was that the dog would bark and get excited when someone came home. He said she then modified that evidence to say he would howl. When he cross‑examined her about this particular occasion, she realised that evidence undermined her claim to have come in to the house thinking the accused was asleep in the lounge. She changed her position and said the dog was good at sensing things and would hide. She then subsequently said the dog was deaf so he did not hear her come home. He submitted that shows her willingness to make up a story when confronted by its implausibility. He also submitted it was implausible that she was bleeding from her anus for weeks afterwards, but never sought medical attention.
I do not consider the complainant shifted in her evidence regarding the dog. She always said the dog was not present until towards the actual rape itself. She made it clear that it was the dog’s behaviour to howl when people came home before his hearing went. She also agreed with the proposition that the dog was going downhill during the time they were living at Pooraka.
I do not consider it implausible that she did not seek medical attention. During the relationship, she avoided going to the authorities and drawing attention to the accused’s violent conduct. She went to the doctor on a couple of occasions at her mother’s instigation. It is not surprising she did not seek medical treatment in relation to this bleeding.
I am satisfied beyond reasonable doubt the accused is guilty of this offence.
Count 6
Mr Culshaw was critical of the complainant’s description of these events and described them as shifting sands according to the question such that her evidence does not bear scrutiny. I do not agree. The occasion the complainant described was one that began at the wedding reception and ended at their house. During cross-examination about what she considered to come within the meaning of physical violence, the order of events and why she had not mentioned certain matters in her police statement, she said ‘…I don’t remember the time lines. To me it’s a massive ordeal for me’.[39] Her explanation is compelling. She was recounting a traumatic event against the background of many similar traumatic events at the hands of the accused. There were many acts which occurred during their relationship which explains why it was difficult for her to remember the precise order and every act of violence during a particular occasion.
[39] T304.

Mr Culshaw submitted the complainant’s account of the accused picking up a big dog by the scruff of the neck is unlikely. I do not agree. He was behaving recklessly that night. He had been drinking alcohol and his behaviour earlier in the evening was such that security staff had removed him from a bar. He was very angry by the time they got home. There is no evidence to suggest he was incapable of picking up a big dog in the way described.
I agree with Mr Culshaw’s submission about the difficulty for the prosecution in relying upon the threat as the assault but then alleging that threat caused the physical harm. I am not satisfied beyond reasonable doubt that the assault relied upon by the prosecution caused the harm alleged. On that basis, I find the accused not guilty as charged but guilty of the alternative offence of aggravated assault.
Count 7
Mr Culshaw submitted this is an uncorroborated allegation. I should not rely upon the complainant’s evidence alone to convict the accused.
For the reasons already outlined, I found the complainant to be a credible witness such that corroboration of her account is not necessary for me to be satisfied beyond reasonable doubt that the accused committed this offence. The accused had been drinking on Australia Day. He was angry after getting a parking fine. He became violent towards the complainant. I am satisfied beyond reasonable doubt he punched the complainant in the back of the head.
Counts 8 & 9
Mr Culshaw made the same submission in regard to count 8 as he did in relation to count 7, namely, there is no corroboration for the complainant’s evidence. As already outlined, I do not consider it necessary for her evidence to be corroborated in order to find the accused guilty of this offence.
Mr Culshaw submitted the complainant shifted her evidence about insurance when she became aware there was a recording of her conversation with the police. I have listened to that recording and do not agree it shows that insurance was her concern. She sounded distressed. That may be attributable to the fact of the collision with the parked car and pressure from the owner/s of that car. I have not used that evidence of distress at all as support for her allegation in regard to the accused’s conduct, the subject of these two counts.
Mr Culshaw submitted there was no evidence of whether there was any damage inside the car consistent with what she alleged nor was there any accident reconstruction. I have taken into account the discrepancy of Ms Thorpe’s description of the accused leaving the car and the complainant’s description. I do not place much weight on that. The complainant was distressed by the collision. She cannot be fairly criticised for her inability to be precise about the accused’s movements after the collision. I have only used the evidence of the accused leaving the scene as part of the narrative which explains why he was not present when the police arrived. I have not used that evidence as consciousness of guilt.
I find there was a real and substantial risk of harm by the accused’s action in taking hold of the steering wheel from the front passenger seat. The car had come around a bend and was travelling about 40 to 45km/h. It was a suburban street. There were at least two cars parked on the street. The collision caused a loud bang. The photographs show considerable damage to the front of both cars. There was a real and substantive risk of harm to the complainant, although the harm itself may not have been significant.
I find the accused guilty of counts 8 and 9.