R v Rogers
[2020] SADC 72
•16 June 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROGERS
Criminal Trial by Judge Alone
[2020] SADC 72
Reasons for the Verdicts of Her Honour Judge Tracey
16 June 2020
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
Trial by judge alone - accused charged with causing harm with intent to cause harm (1 count), damaging property (1 count), assault (1 count), rape (2 counts) and assault causing harm (1 count) - alleged offences committed in a domestic setting - whether complainant gave credible and reliable evidence in relation to each count.
Held: Not guilty verdict on each count.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4), s 24(1), s 48(1), s 85(2), referred to.
R v Ayles [2007] SASC 82, considered.
R v ROGERS
[2020] SADC 72
The accused is charged with six offences alleged to have been committed against the complainant, SE, between 2016 and 2018 when he and SE were in a romantic relationship and living together for periods of time. Each of the charges are said to have occurred in a domestic setting, at different addresses where SE resided. SE has three children who lived with her at relevant times, apart from periods on weekends or school holidays when they resided with their respective fathers.
Charges
First Count
Statement of Offence
Causing Harm With Intent to Cause Harm. (Section 24(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Francis Rogers between the 1st day of April 2016 and the 30th day of June 2016 at Para Hills, caused harm to SE, intending to cause her harm.
Second Count
Statement of Offence
Damaging Property. (Section 85(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Francis Rogers on the 4th day of August 2018 at Fairview Park, knowing that he had no lawful authority to so, damaged a building, intending to damage property or being recklessly indifferent as to whether his conduct damaged property, the said damage amounting to approximately $700.
Third Count
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Francis Rogers between the 26th day of September 2018 and the 28th day of September 2018 at Fairview Park, assaulted SE.
Fourth Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Francis Rogers on the 3rd day of October 2018 at Fairview Park, engaged or continued to engage in sexual intercourse with SE by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Fifth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Adam Francis Rogers on the 3rd day of October 2018 at Fairview Park, engaged or continued to engage in sexual intercourse with SE by inserting his fingers into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Sixth Count
Statement of Offence
Assault Causing Harm. (Section 20(4) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adam Francis Rogers on the 3rd day of October 2018 at Fairview Park, assaulted SE and thereby caused her harm.
The prosecution case
The prosecution alleges that the relationship between the accused and SE was from the earliest days, marred by his violence and aggression and that SE was trapped in a destructive cycle of domestic violence.
During the relationship SE was subjected to physical violence, abuse, threats and controlling behaviour, much of this allegedly occurring in the presence of SE's young children. The charges are, on the prosecution case, specific examples of a general pattern of behaviour exhibited by the accused during the relationship.
It was alleged that other instances of violence were committed by the accused, relied on as uncharged conduct. The first concerned an event in late 2015 when SE lived at an address in Blakeview when the accused kneed SE to the pelvis from behind hard enough for her to be lifted from the ground, and then dragged by the hair. The second and third uncharged events occurred when SE was living at Phillips Avenue, Para Hills. On one occasion in 2016, the accused punched SE to her ear in front of her children and on a different occasion in June 2016, an argument developed when the accused demanded that SE buy him cannabis and she hid with her sons in their bedroom. It is the prosecution case that the accused punched holes in the bedroom door, gained entry and assaulted SE, grabbing her by the neck and ripped the hooded windcheater she was wearing. The accused then placed his hands around SE's neck and choked her.
At her address on Reservoir Road, Modbury, it is alleged SE's stepfather, DC, witnessed the accused and SE arguing in the kitchen and saw the accused grab SE from behind and squeeze her chest. DC intervened and was then himself assaulted by the accused.
With respect to the charged offences:
Count 1 is alleged to have occurred at the Para Hills house a week or so after Mother's Day in 2017,[1] when the accused was alleged to have placed his hands around SE’s neck and choked her. The following morning SE awoke to the accused sitting on the bed next to her with his bags packed. The accused left the house, leaving behind a note in which he apologised to SE for his actions the previous night.
[1] Subsequently amended to 2016.
Counts 2 to 6 inclusive are alleged to have occurred at SE’s house in Fairview Park. Count 2 on the prosecution case, occurred on 4 August 2018 when the accused, who had been living away from the house, came back and banged on the front door, demanding to be let in. SE refused and the accused pushed on SE’s bedroom window, causing it to smash.
Count 3 is alleged to have occurred about a month later, in September 2018, when the accused had moved back into SE’s house. An argument developed and the accused punched SE to the face and slapped her with an open hand.
As to counts 4 and 5, on 3 October 2018, at 5.00am, SE woke to the sensation of her body being shaken and her vagina being penetrated. She reached down and pushed the accused's penis out of her vagina with her hands. (count 4)
As she tried to pull up her pyjama shorts, the accused pushed his hand between her legs and forced two fingers into her vagina. (count 5)
It is alleged that SE got out of the bed to go to the toilet. When she returned to the bedroom, the accused was angry and threw her across the bed. Standing over her on the ground, the accused stomped on her left ankle, then stood on the complainant's ankle with all his body weight, causing her extreme pain. (count 6)
On the prosecution case, SE complained to her friend, Peeta-Ann Sonntag, (Ms Sonntag) about the sexual assaults.
The prosecution had sought to rely on a propensity use of the discreditable conduct evidence, however this was abandoned at trial. Rather it was submitted that the evidence could properly be used on a non-propensity basis pursuant to s 34P(2)(a) of the Evidence Act. The proper uses of the evidence identified by the prosecution were:
•to explain why SE stayed with the accused after many instances of physical and emotional abuse;
•to explain when scrutinising her account about counts 4 and 5 why SE complained to Ms Sonntag when she did and the manner in which she did, that is, in the absence of the accused;
•to explain why SE met with police officers and endorsed the discontinuance of prosecutions against the accused for domestic violence offences;
•to explain why SE refused to provide a statement in respect of count 3 at the time;
•to explain why, after the 27 September assault and whilst the police were in the area looking for the accused, SE drove to his location and brought him back to her house;
•to explain SE’s failure on occasion to seek medical treatment following assaults or to contact the police following assaults;
• to explain why she tolerated the offending during the relationship;
•to contextualise SE’s reaction to the offending generally and her position within the relationship generally; and
• to show that the assaults themselves did not come out of the blue.
The prosecution called SE and the following witnesses: ME (SE’s daughter), DC (SE’s stepfather), Ms Sonntag, Luke Harrison (also known as ‘Turbo’), and Dr Bela Redzepajic, together with police officers Cullinan, Newell, Khor, Wood, Smith, Price, Adams and Hogan.
The Defence Case
While the allegations were denied, the defence did not dispute that there had been violence in the relationship. The issues in the trial were said to heavily revolve around the ‘on and off’ nature of the relationship; SE’s jealousy; her propensity for violence, not just against the accused but against past boyfriends, and her propensity to make false reports against the accused, to have him arrested such that she could control him, followed by her withdrawing the allegations and at times admitting she had lied to the police.
Agreed Facts
The following facts were agreed between prosecution and defence on the prosecution case.[2]
[2] Exhibit P19.
1.It was term 3 school holidays from Saturday 29 September 2018 to Sunday 14 October 2018.
2. The accused was in custody on the following dates:
a. 19 November 2015 to 14 December 2015;
b. 27 June 2016 to 19 October 2016;
c. 14 November 2016 to 20 January 2017; and
d. 10 July 2017 to 14 August 2017.
3.The 000 telephone call made by SE on 5 October 2018 commenced at 3.51pm and lasted two minutes and 56 seconds.
4.A man murdered his female partner and her two children in Hillier on 30 May 2016.
The following facts were agreed between the prosecution and defence on the defence case.[3]
[3] Exhibit D20.
1SE has not stated in any of her police affidavits or reports to police that the accused stepped on or injured her right ankle on 3 October 2018.
2At T146 SE stated she could not recall an incident at Gaza Football Club in 2008. Police detailed occurrence report number 08K77417 records that on 1 May 2015, SE contacted the police in respect of an incident at the Gaza Football Club. Police officers attended at an address in Greenacres and spoke with SE and [DN] (the father of ME). Both parties made allegations against each other but neither were willing to make a statement or press charges for assault. SE reported that [DN] restrained her in a headlock at the Gaza Football Club and again back at [DN’s] house. SE reported that at the house she argued with [DN] and his mother before pushing [DN]. She reported that [DN] restrained her in a headlock again. Once released SE called the police.
3At T147 SE denied there was an incident in April of 2013 where she took the car keys from [DF] (the father of SE’s eldest son), and the police ended up coming to the address and speaking to both parties. Police detailed occurrence report number 13K60259 records that on 12 April 2013 [DF] contacted police and police attended at their Enfield home. When police attended, a mediation between the two parties was conducted and police arranged the handover of keys for a car registered in [DF’s] name.
4A detailed police occurrence report number 14N91116 that reports that SE attended [CB’s] (DF’s) house at Salisbury North on 22/3/14 when [DF] was inside. [CB] called police. Police arrived at 10.17am and photographed a brick in the driveway and damage to a car and front door. SE was arrested at her home address at 11.05am.[4]
[4] T 150.
5Police detailed occurrence report number 15Q35591 records that on 23/9/14 SE reported to police that [DF] had grabbed her around the throat and pushed her up against the wall and then pulled her by the hair outside.[5]
[5] T 155.
6SE has never reported to police that [DF] put her head through the windscreen of a car on 10/12/14. The police detailed occurrence report number 15Q88032 for 10/12/14 has no record that SE complained to police about her head being put through the windscreen of a car.[6]
[6] T 156-7.
7Police detailed occurrence report number 15R17619 records that on 25/1/15 [DF] called police. The report notes uniformed police witnessed [DF] with his arms up for protection walking backwards and SE swinging punches at him continuously. SE continued this behaviour despite marked police patrol presence and only stopped when the siren was activated. [DF] and SE were both arrested.[7]
[7] T 167.
8Medical records from the Lyell McEwen Hospital in respect of the complainant’s attendance on 18 November 2015 do not record any injury to her head.
9On 24 September 2018, SE was contacted by a police officer by phone. The police record shows:
SE contacted via telephone at on 24/9/18. SE advised that she had allowed [DF] to stay with her short term but that he was no longer residing there. She stated that they often argued, but that was mostly due to their past history and at times got on each other’s nerves.
10At T 252 SE did not accept that the accused called police on her on 4/5/15 when living at the Marsh Avenue Para Hills house. Instead she claimed that Michael Supple called the police. A police detailed occurrence report number 15R82158 dated 4/5/15 records that the accused was the reporting person.
11At T 253 SE stated she can’t remember if the accused was arrested after she called the police on 9 July 2017. The accused was arrested.
12SE has called the police and reported the accused on 5 separate occasions following which he was arrested. She gave eight affidavits to police about the accused.
13At T 256 SE stated she had given photos of text messages by the accused to police stating that the accused was hiding in the bushes from police. No such messages have been received by the police.
14SE never told police or included in any of her eight affidavits that she was thrown by the accused two days before 3 October 2018.[8]
[8] T 277-278.
15At T 291 SE did not recall whether she told police in her affidavit that Peeta‑Ann Sonntag stayed the night of 4 October 2018. She did tell the police this in her affidavit.
16There are no police reports or affidavits where SE has alleged that the accused physically harmed any of her children.
Rulings
1The prosecution made application for the audio-visual record of ME’s evidence, made on 25 June 2019 pursuant to s 74EB of the Summary Offences Act 1953, be admitted in evidence at trial.
Having been satisfied that all preconditions for the admissibility of the interview prescribed by s 13BA were met, over defence objection, I allowed the interview to be admitted as ME’s evidence, subject to the exclusion of certain inadmissible hearsay statements.[9]
[9] Exhibit P13 – amended transcript of the interview of ME.
2The defence made application for the exclusion of text messages photographed by police of SE’s phone, said to have been sent and received between SE and the accused on 4 August 2018, and alleged to be relevant, on the prosecution case, to count 2. The basis of the application to exclude the evidence centred on the name attributed to the receiver of the messages on the phone as ‘NADAM’ which differed from the name attributed to the receiver of other messages on SE’s phone. It was submitted that failure by the prosecution to provide subscriber evidence that the accused was the receiver of the messages, or to ensure the messages were shown in their entirety, rendered the messages inadmissible. The text messages were admitted given the apparent contemporaneity with the messages being sent and police attendance following the alleged property damage. The weight to be attributed to the messages was a matter to be determined on the trial.
3The defence made application for the exclusion of the letter allegedly written by the accused and left on SE’s bed the morning after the alleged assault forming the basis for count 1.
The defence objected to the letter on the basis that it had not been produced to police until ME’s affidavit in February 2019, SE had not seen the accused write it, and there had been no handwriting analysis undertaken. The prosecution did not seek to use the letter as an admission of conduct yet to occur or to uncharged conduct in the past. While a handwriting analysis may have been useful, in my view, the failure to secure that evidence does not affect the admissibility of the evidence, rather it goes to the weight to be attributed to the letter, once I heard SE’s evidence.
4At the close of the prosecution case, prosecution sought, pursuant to s 128(2)(b) of the Criminal Procedure Act, to amend Count 1, to allege that the incident occurred between 1 April 2016 and 30 June 2016, rather than as originally pleaded between April and June 2017. It remained that it was alleged to have occurred at Para Hills. The application was made given the evidence SE gave in a circumstantial way in-chief that it had occurred in 2016 which was agreed to in cross-examination.
R v Ayles[10] dealt with the predecessor to s 128 which was in identical terms in relation to a historical sex offence which, if it had occurred after a certain date, Mr Ayles would have been charged under a new section of the legislation, with a different penalty to apply. Mr Ayles, while admitting the alleged conduct, gave evidence that it occurred outside of the time frame provided by the particulars. The trial judge on delivering judgment, and on her own initiative, amended the information to include the period during which Mr Ayles admitted the offence. It was argued on appeal that had led to a miscarriage of justice. It was held that in the circumstances of that case, the making of that amendment gave rise to no injustice to Mr Ayles.
[10] [2007] SASC 82.
Doyle CJ said:[11]
[11] At [29].
The power to amend is clearly intended to be a wide one. The Court is able to make such order “as the Court thinks necessary to meet the circumstances of the case”, subject only to that causing injustice, usually in the form of prejudice or unfairness to the accused.
Clearly the issue to be determined was whether it would be unjust in the circumstances here, for the amendment to be allowed.
The amendment was opposed by defence. It was argued that amending the particulars to reflect the evidence brought injustice to the accused and that while not necessarily always the case, the date was material. Defence counsel accepted the evidence seemed to suggest the incident occurred in Para Hills, but in 2016. It was submitted that injustice arose from the loss of the inconsistency in SE’s evidence as to the year.
Prejudice to the accused’s case was said to lie in the forensic decision defence counsel said he made regarding introducing the 2017 Modbury incident, which he would not have done had the information been drafted as it was. He had bolstered SE’s credibility by pursuing a line of questioning that established that the assault was alleged to have occurred in 2016. There was he said, evidence about the Modbury allegations, and DC’s evidence that he had only heard one incident between SE and the accused, which might have been explored in greater detail had the information reflected the actual allegations in-chief.
Amendment of the particulars would, he submitted, deny defence the opportunity to cross-examine as regards the timing of letter SE alleged was written by the accused when one month later she made no reference to the letter in a report to police. Defence counsel declined to make an application for SE to be recalled, submitting that to amend the particulars at that stage would be to remove the benefit of the unreliability of SE having said the incident occurred in 2017 at Para Hills.
The event that the prosecution opened on was an event occurring at the Para Hills house where precise conduct occurred and, following that conduct, the next day the apology letter or confession letter was provided. The forensic contest at trial had been clear that this was the occasion being addressed in the evidence, but given SE’s evidence, she was clearly alleging it occurred in 2016.
In my view, the evidence was, and would always have been, plainly apparent to all, that the event took place at the Para Hills address, which placed the timeframe in the year 2016. While it was unfortunate for the prosecution to make its application so late, I accepted the prosecution’s submission that what was being sought was not a change to the goal posts. The prosecution case was always that the particular incident SE described was in Para Hills and there was a letter left by the accused the morning after. Plainly, the details alleged by SE in relation to count 1, were markedly different to those alleged in relation to the uncharged acts alleged to have occurred at Modbury in the presence of DC. In my view, the date upon which the alleged assault was said to have occurred is not material, but rather a question of whether the incident occurred. The defence case was that there was never any such act as was alleged and not that because she said it was in 2016 it could not have occurred. SE had always attributed the letter to having been left for her on the morning after the assault alleged in the bedroom at Phillips Avenue, Para Hills. The inconsistency between what SE had always told police, that is, that the incident occurred in May 2017, remained relevant in an assessment of SE’s credibility.
5At the close of the prosecution case, the defence submitted that there was no case to answer with respect to counts 2 and 6. Taking the prosecution evidence at its highest and drawing inferences most favourable to the prosecution case which are open on the evidence, I found a case to answer in relation to both charges.
General directions
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving each of the charges lies wholly on the prosecution. The accused is not obliged to prove that he did not commit the offences charged. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of any count, I must be satisfied that the prosecution has proved beyond reasonable doubt each of the elements of that count.
The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him because of his exercise of that right. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
I must assess each witness as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
Each of the counts before me is charged as a separate offence and each must be treated separately upon its merit. Should I be satisfied of the accused’s guilt on one count, it does not necessarily follow that he is guilty of any other count.
The only relevance and permissible use I may make of the uncharged acts is as evidence which provides context to the charged offending. I must not reason, if I am satisfied the uncharged acts occurred, that it is more likely that the accused committed any one of the offences. Further, I must not reason that the accused is the sort of person who would commit such offences as those with which he has been charged, and reason from that that he did, in fact, commit any of the offences.
The prosecution led evidence of SE’s conversation with Ms Sonntag as ‘initial complaint’. The complaint evidence is relevant to how SE’s allegations first came to light, and as evidence of consistency of conduct by SE. The evidence is not admitted as evidence of the truth of SE’s complaints about the accused’s offending.
Both Ms Sonntag and Mr Harrison availed themselves of the right to claim privilege against self-incrimination. I remind myself that I must not use their claims as a basis for drawing any inference that is adverse to them or the prosecution case.
Specific directions
Dr Bella Redzepagic gave expert medical evidence on the prosecution case. The evidence of an expert witness is to be assessed in the same way as the evidence of any other witness. Such evidence is not to be blindly followed but can be accepted or rejected in the same way as any other witness. In this case, I note there was no dispute taken as to the expertise of the witnesses nor the expert evidence itself, rather the dispute lay with the inferences the prosecution sought to draw from the evidence.
Oral applications were made by the prosecution for special arrangements pursuant to s 13(1)(a) and (b) of the Evidence Act 1929 (SA) for the taking of the civilian witnesses’ evidence, without objection. Those arrangements were for a screen obscuring the view of the accused, a court companion and the recording of the complainant’s evidence and for MN to give evidence via CCTV, with a court companion and in closed court. I granted these applications. It was also requested, pursuant to s 591(q) of the Evidence Act 1929 (SA), that the witness Luke Harrison give evidence via AVL. Accordingly, I warn myself that I must not draw any adverse inference against the accused, nor should I allow the fact that these arrangements were in place to influence the weight that I give to the witnesses’ evidence.
Elements of the offences
Causing Harm with Intent to Cause Harm
To establish the offence of causing harm with intent to cause harm, the prosecution is required to prove each of the following elements beyond reasonable doubt.
1.The accused caused harm to SE.
Harm is defined to include physical or mental harm (whether temporary or permanent).[12] Mental harm is defined as psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm.[13] Physical harm includes (but is not limited to) unconsciousness, pain, disfigurement, and infection with a disease.[14] A person causes harm if the person’s conduct is the sole cause of the harm or substantially contributes to the harm.[15]
2.The accused acted voluntarily and deliberately as opposed to accidentally.
3.When the accused caused harm to SE, he intended to cause harm to her.
4.The accused must have acted unlawfully.
[12] Division 7A: s 21, the Criminal Law Consolidation Act 1935 (CLCA).
[13] Ibid.
[14] Ibid.
[15] Ibid.
Damaging Property
To establish the offence of property damage the prosecution is required to prove each of the following elements beyond reasonable doubt.
1The accused acted voluntarily to damage SE’s property.
2The accused did so either with the intention of doing so or, alternatively, being recklessly indifferent as to whether that property was damaged or not.
3The accused must have acted unlawfully.
4The accused knew that no lawful authority existed at the time of the act in question.
Assault
To establish the offence of assault the prosecution is required to prove each of the following elements beyond reasonable doubt.
1The accused directly applied force to SE.
2The application of force must have been deliberate, that is to say, not unintentional or accidental.
3The accused must have acted without SE’s consent.
4The accused must have acted unlawfully.
5The accused knew that no lawful authority existed.
Assault Causing Harm
To establish the offence of assault causing harm the prosecution is required to prove each of the following ingredients beyond reasonable doubt.
1The accused assaulted SE.
2The assault was without lawful excuse.
3The assault caused harm to SE.
Rape
1The accused engaged in sexual intercourse with SE.
Sexual intercourse is defined to include any activity that involves penetration of a person’s vagina by any part of the body of another person.
2The intercourse occurred, or continued, without SE’s consent or after her consent has been withdrawn.
Consent means a free and voluntary agreement to engage in sexual activity. A person is taken not to have freely and voluntarily agreed to sexual activity if the activity occurs while the person is asleep.
3The accused either knew that SE was not consenting or had withdrawn consent or was recklessly indifferent as to the lack of consent.
A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she –
(a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
Prosecution Evidence
SE’s evidence
SE said that she first met the accused in around 2014, when she lived on Marsh Avenue in Para Hills.[16] She had moved every 12 months, around Christmas time, to addresses in Blakeview, Phillips Avenue in Para Hills, Modbury, and finally Fairview Park.[17]
[16] T 61 ln 14-19.
[17] T 64-65 ln 38-1.
SE said the accused used cannabis nearly every day and smoked and injected methamphetamine.[18] While she had used methamphetamine on weekends through the years, when the accused came into her life, she used every day.
[18] T 74-75 ln 32-10.
SE described an injury to her hip and lower back sustained when she was working at the Lyell McEwin Hospital. The injury occurred when she was living in Blakeview.[19]
[19] T 76 ln 28.
In cross-examination, SE said that when she worked, she would arrange care of her three children with their fathers or they would stay home and the accused would be there. Sometimes they would be with her parents.
SE agreed she and the accused would argue a good deal during the on and off four‑year relationship. She had arguments with him about other women. She denied trying to slap or push the accused or that he would have to restrain her by holding both sides of her arms.
She agreed she had an addiction to methamphetamine which she said she used to numb her pain from her broken bones and the abuse.[20] She said that as a result of being thrown by the accused, she broke her spine, and had ruptured and herniated discs, about which she said there were many medical reports. She denied the accused would admonish her for using methamphetamine in front of the children.
[20] T 134 ln 26-31.
She bought methamphetamine and cannabis for the accused out of fear.[21] The accused had thrown knives at walls when a police officer was present, and had threatened to come and get the gun that he had stored in her house.[22]
[21] T 138 ln 18-21.
[22] T 138 ln 31-37.
SE said she only called police a few times and other times it was somebody else, like her neighbours. She agreed she would often get an intervention order varied back to a basic order so that the accused could live with her. She had only ever defended herself against the accused and raised her voice to scream for help. She said, ‘I love that man and I never hurt him’.[23]
[23] T 150 ln 29.
SE denied acting violently towards other partners.
She agreed they would argue if the accused did not want to look after her children when she was working, and wanting him to contribute more to household expenses.
SE agreed that on 10 May 2016 she had another fall at work resulting in a WorkCover certificate. This caused ongoing lower back pain.[24]
[24] T 194 ln 10-11.
SE said her children had seen a lot of violence inflicted upon her by the accused. Her daughter ME had seen her being hurt by the accused and she was very sure ME had never seen her smoke methamphetamine.[25]
[25] T 175 ln 11.
She denied the accused had ever reported her to police.[26]
[26] T 170 ln 18-20.
First uncharged Act - 2015
SE described an incident which occurred at her Blakeview address in 2015 when the accused had wanted her to source cannabis and had become angry. She was leaning over her kitchen bench and the accused came from behind, lifting her off the ground with his knee in between her crotch.[27] She said she went very high and hit her head hard on the range hood and then dropped to the floor. The accused dragged her by the hair to the other side of the kitchen. He let go because her youngest child and a child of one of SE’s friends was there.[28] She contacted her friend who arrived shortly afterward with her partner. When they arrived, SE had an ice pack on her crotch area and was in pain and they started laughing.[29]
[27] T 65 ln 29-33.
[28] T 66 ln 26-28.
[29] T 68 ln 6-9.
SE said that she had come out in bruising of all sorts, ‘it was like a rainbow’.[30] The accused came in from the carport and asked her friends what they were laughing at. They started to get aggressive with each other. Her friends took their child and left.
[30] T 68 ln 16-17.
SE said she was really upset and needed to go to hospital. The accused said ‘Well, if you’re not fucking going to go, I’m just going to fucking just kill myself then’.[31] He found his epilepsy medication and other tablets and threw them all in his mouth and left. She said she started receiving messages from him which did not make sense and was worried for him. She rang his phone and could hear it ringing so she knew it was not far away and went searching for him. She found him unconscious ‘down the alleyway there was a bit of a paddock, a street or two over’.[32] She dragged him back to her house and called 000 for an ambulance. She said dragging the accused back to the house was difficult and she was in pain, but she did not want to see the accused hurt.[33]
[31] T 69 ln 6-7.
[32] T 70 ln 14-15.
[33] T 70 ln 28.
Ambulance and police arrived as there was an ‘AVO’ in place. The accused was taken away by ambulance. She was also taken to the Lyell McEwin Hospital. She said she was looked at internally and had scans. She remained in hospital all night and was released the next afternoon.
In cross-examination, SE was asked about her ability to drag the accused back to the house she said, ‘It’s called mind over matter and you’ll do what you do for love’.[34] She said that the accused was unconscious at the time and agreed he weighed ‘a lot’.[35][36] She said she was accustomed to being able to lift and move the accused when he had seizures. She dragged him from the paddock through the rolladoor at her house and called an ambulance. This occurred a few hours after he had kneed her.
[34] T 136 ln 5-6.
[35] Estimates ranged from 90-120 kg.
SE agreed that the day prior to these events, police had attended and she had told them she was having an argument about the accused looking after the children while she went to work. The accused was reported for breaching the intervention order, but not arrested.[37]
[37] T 176 ln 22-24.
SE agreed she had said she had fallen down the stairs, but that this was untrue.[38] Hospital staff told her she had suffered a displaced fracture, but had not said this represented a longstanding abnormality. She said, ‘The doctors spoke to me at the hospital mentioning fractures and then I left the hospital’.[39]
[38] T 178 ln 30-32.
[39] T 180 ln 23-24.
She agreed that in 2014 she had coils inserted as a contraceptive device. Her medical follow-up was not because she continued to experience bleeding. Her presentation at hospital on 18 November 2015, complaining of swelling and pain to her vagina, was not because of the coils and pelvic inflammatory problems. She agreed the coils were meant to stop her periods but they were not effective.
SE agreed she had told police in February 2019 that other people had seen the accused assault her on this occasion and spoken to police.[40]
[40] T 183-184 ln 2-6.
She agreed she would get methamphetamine from her friends Mr Harrison and Ms Sonntag.
On 14 December 2015, SE signed a PD207B form saying that she would like to continue her relationship with the accused and did not feel intimidated or threatened by him. She told police that the allegation of being kneed in the vagina never occurred. SE said she wanted the intervention order completely removed because she loved him.[41] In re-examination, SE explained that at the time she told doctors that she had fallen down stairs. She said she felt humiliated as she was working at the hospital. She said that when she signed the police forms she felt she was in love and that sometimes it was safer to ‘know where they are than when you don’t know where they are’. She said she was scared, was in love and was a mess.
[41] T 194 ln 2-3.
Count 1
SE said that the accused had been living at his mother’s house. She had been talking to him over the phone trying to fix her relationship. The accused became very frustrated one night and threatened to jump off a cliff near his mother’s house.[42] He was screaming and his mother demanded that she pick him up so she drove to Hallett Cove and collected him on the street where his mother lived. She brought the accused back to where she was living on Phillips Avenue and he stayed with her at the house.[43] She said the accused was very controlling and abusive and she was walking on egg shells and did not think she was going to survive. She said she was not allowed to speak to people or leave her house. She described it like being in prison.[44]
[42] T 78-79 ln 38-2.
[43] T 80 ln 4-6.
[44] T 80 ln 18-19.
A few weeks later she was in her room messaging her mother. The accused thought she was messaging ‘a bloke’ and took her phone from her. He shut the windows and the door and threw her on the bed with his arms around her neck, squeezing tightly.[45] SE described the accused’s thumbs on the front of her neck with his fingers wrapped tightly around the back of her neck so she could not breathe. She said the accused knew the family who had been murdered by a man he was friends with at some stage and said ‘Do you know why we do what we do? It’s because cunts like you don’t want to listen’.[46] She said she was getting dizzy and feeling weak. She said she felt suffocated and it was hurting. Her youngest son walked into the room and the accused stopped. She said she was close to blacking out. She grabbed her child and curled up at the end of her bed and slept.[47]
[45] T 80-81 ln 34-27.
[46] T 81 ln 36-37.
[47] T 83 ln 11-13.
When she woke the next morning, the accused was sitting on the bed next to her with a bag packed and there was a letter next to her head.[48] Her throat felt sore and she was a bit croaky. She did not seek medical treatment for her throat or neck. She believed the accused left the house.
[48] Exhibit P1.
In cross-examination, SE said she did not know what year this event occurred. She said it was a little while before the accused got out of gaol. In her affidavit dated 22 February 2019, she told police that at the time of the assault she had been living at Phillips Avenue, Para Hills in 2017; the accused had just been released from gaol; and, it was around Mother’s Day. A week after that he strangled her on the bed.
In court, SE said she thought it was around 2017. She said ‘I’ve moved every year from each house. I’m trying my best to remember what years it was but I know what situations happened at what houses’.[49] She said she had a distinct memory that this incident occurred at Phillips Avenue. When asked whether it was 2016, rather than 2017 as she had told police, she said ‘I guess so’.[50] She was then asked whether she called police on another occasion alleging that she had been strangled. She said possibly, but that had been a separate incident at Modbury in 2017.[51]
[49] T 206 ln 21-23.
[50] T 208 ln 2.
[51] T 208 ln 8-19.
SE agreed she had not called police after the Phillips Avenue assault and said this was because the accused had her phone. She agreed the first time she referred to the letter was when she spoke to police on 21 February 2019. That was despite reporting the accused in 2017 and despite the other three affidavits she had provided since his arrest on 5 October 2018. SE said she did not take it immediately to police because he was meant to have loved her like she loved him.[52]
[52] T 210 ln 8.
In re-examination, SE explained that the first statement she had given to police regarding the accused since the events alleged in count 1, was the statement to police about the events she alleged had occurred in October 2018. In her October 2018 statement, she had told police that throughout the course of the relationship, the accused had committed acts of violence against her. In the next statement dated 21 February 2019, she had been asked to elaborate and provided the letter to police.
Uncharged punch to ear
SE described an occasion when the accused punched her to her ear. She had a male friend over at the time and her children were in the room. Her friend had put his headphones on and walked away. The children followed her friend down the hallway. SE said the accused had punched her right ear and she went to the GP the next day about it.
In cross-examination, SE said this event occurred while she was living in Para Hills. She agreed that while she had said in her 21 February 2019 affidavit that it was 2017, if she was at Para Hills in 2016, that was when it occurred. She said, ‘I’ve obviously got my years mixed up’.[53] She maintained the punch had been to her right ear,[54] causing her ear drum to burst, and requiring antibiotic treatment. She agreed that in her statement to police she had made no mention of another male being in the house when she was punched in the ear.
[53] T 212 ln 25.
[54] T 86 ln 30-32.
Uncharged assault re hoodie
SE described an incident where the accused had wanted cannabis and threatened to kick in the windows of a vehicle SE had loaned from a friend. As the accused left the house, she closed the door to keep him out and ran into her son’s room. She was screaming for the accused to go away and she shut the bedroom door and stood up against it forcefully holding it shut. She was feeling scared and called police. She could hear the accused back in the house and was ‘storming’.[55] She quickly hid her phone down her bra and she stopped talking to police. The accused opened the door and she was thrown to the floor, head first, face down. She was still on the phone to police and her sons were screaming. The accused grabbed the back of her head and started smashing it into the floorboards. She said ‘He was smashing my head, my face, into the ground of the floor. I had a hoodie on so that got ripped from behind me as well where it ripped and I just remember going up and down and my face and then back up.’[56] As the accused smashed her head back into the ground, he said to her boys ‘This is what Mummy deserves because Mummy doesn’t listen’.[57] She said she blacked out and when she came to there were empty packets of tablets being thrown into her son’s room. The accused was screaming out ‘See what Mummy makes me do’.[58] She said she knew the accused was trying to overdose again. Eventually police arrived and took photographs of the damage to her son’s door, the jumper which was torn at the neckline, and her face.
[55] T 88 ln 24-26.
[56] T 89 ln 15-18.
[57] T 89 ln 30-31.
[58] T 90 ln 7.
In cross-examination, SE agreed she had made no mention to police in her affidavit dated 24 June 2016 that she had put her phone down her bra. She said she could not recall how many times the accused smashed her face into the floor or what injuries were caused to her face. She maintained the photographs in Exhibit P2 showed marks made by her hoodie jumper and denied damage to the door had not occurred on that night.
In her statement dated 23 June 2016, SE had said that the accused ‘forced’ his way into the room and was then looking through drawers to find her bag because he wanted a cigarette. She had said that she told the accused to get out and the accused walked out and then she called the police. When asked why she had said she called police after the accused was in the bedroom, SE said it was because she did not want to lose her children and his violence was costing her the children. While Families SA was not involved, police had told her that if she took the accused back, they would take her children from her.
SE agreed she had never told police that the accused grabbed the back of her head and smashed it onto the floor boards, or that he had made the comments to her sons that she had spoken of in her evidence. She said ‘No, I probably didn’t because I didn’t want to tell them anything’.[59] When pressed further, SE said it was ‘Because that’s just not what you do’[60] and ‘It’s because I loved him’.[61]
[59] T 200 ln 15-16.
[60] T 201 ln 19.
[61] T 201 ln 22.
SE said she did not know why she did not describe the accused strangling her when she gave her evidence-in-chief, as she had alleged in her police statement. SE agreed she threatened to call the police and have the accused arrested. This resulted again in him taking an overdose of medication. She said, ‘He would do that after he’d hurt me, to make me feel bad’.[62]
[62] T 201 ln 37-38.
On 23 August 2016, SE signed another police PD207B to try and get the intervention order varied to allow full contact. She denied she had done this because she made it up, rather it was because she loved him. SE agreed she went to court to apply for the intervention order to be varied to a basic order and for the accused to be bailed to her address. She had written that she wanted to continue her relationship with the accused, did not feel threatened by him, and was not willing to attend court against him.
Uncharged act at Reservoir Road, Modbury
After the Phillips Avenue address, SE said she moved into a house next door to her parents on Reservoir Road, Modbury. SE said that if she was in the same area of her house as her parents were, she could hear their TV or her father talking at times.
In cross-examination, SE said she reported a matter to police in 2017, because that was the time the accused assaulted her father. Her children had run next door to her parents. She denied she and the accused were arguing, screaming at each other, and the accused was having to restrain her by holding her arms on the side. She denied that she had stepped towards the accused when he was calming down and he had to put her in a bear hug from behind to stop her trying to hit him.
Count 2 – 4 August 2018
SE said that there were many instances where the accused caused damage to her property. In 2018, she and the accused had not been in contact for a lot of that year. There was an occasion when he came to the front door and she would not let him in as she had found out he had been lying to her. She had told him before he arrived that day that she did not want him to come to the house.
The accused went to her bedroom window as she tried to wind the window in, and it was smashed by the accused. She described a lace curtain and a fly screen that were already damaged. She said the accused punched the glass in and it shattered. She saw the window being punched as she was right on the other side of it. After the window broke the accused walked off, screaming and stopping in her driveway, banging something out of his shoe. There was glass both on the ground outside the window and inside the house.
SE said she could not remember how it was that police were contacted but thought they came to the house that day. She said her window got broken quite a bit and the police came a few times.
SE was shown text messages between herself and the accused which she said were sent and received after the window got smashed.[63]
[63] Exhibit P5.
In cross-examination, SE was asked whether she had invited the accused over to collect some of his belongings and so she could pay him back some money that she owed him. SE denied owing money or asking for the accused’s help to close the window.
SE said she did not know if the accused was bleeding as he had walked away. She agreed that one of her son’s fathers called police on that occasion. She denied breaking the window herself from inside the house. There was glass on the inside of the room. She said she had a clear view, standing on the other side of the window, as the accused punched the window.
In the statement SE gave to police dated 4 August 2018, she had said ‘Adam pushed the security screen inside the bedroom. By then I was standing at the window. I heard Adam smash the window but I did not see it’.[64] SE said it was not the same occasion and that there were ‘many occasions’. She said she had given her evidence that she saw him punch the window because he did it many times and that somewhere in her reports to police she had spoken of an occasion where the accused punched her window with his fist at Fairview Park. She denied that she broke the window in a fit of rage when finding out that the accused was going back to his girlfriend, Belinda. She denied that in August 2018 she was jealous of Belinda and said she had only just found out about her. She agreed that she knew about Belinda from early 2018.
[64] T 219 ln 16-19.
Looking at the text messages sent between the accused and herself,[65] SE denied the accused had come to her house at her suggestion, and that he was helping her with the window when the topic of Belinda came up and it had turned nasty. SE explained the text messages as examples of the accused setting her up, sending them to make it look like he had done something nice. When asked why she did not immediately reply to him that he broke the window, she said ‘I don’t need to explain myself to him’.[66] She said she would not smash up her own property for which she pays rent.
[65] Exhibit P5.
[66] T 224 ln 22.
Count 3 - 27 September 2018
SE said that she had let the accused back in her life in around September 2018 because she thought she loved him.
There was an occasion when the accused was in the Littler Drive house when he slapped her to her face and police attended. She had found out the accused was seeing someone named Belinda, who had contacted her. SE said it got nasty. She sent the accused a message asking who Belinda was. He came to her house and she went to the doorway to speak to him. The accused slapped her in the face and punched her with a closed fist. The punch and slap left marks on her face. The accused left and police came. While she was speaking with them, the accused contacted her saying that there were police everywhere and that he was hiding ‘in bushes’. She said she replied to his messages while police were still at her house. She said messages at 12:36am and 12:45am were sent after police had left.[67]
[67] Exhibit P6.
SE said that she drove to the accused’s location because she loved him. He told her to come and pick him up and that he was not going to go back to gaol and lose his daughter. She collected him off the side of a road about 5 minutes away from her house. SE said that all she wanted was to be loved by the accused.
In cross-examination, SE agreed that she called police who came, but she did not give them a statement.
The text messages sent between SE and the accused on 28 September 2018 start at 12.25 am, with SE accusing the accused of being a ‘lying using piece of shit u did it again’. At 12.34 am she adds, ‘Maggot fake dog’. At 12.36 the accused responded abusively and alleged he had recorded her ‘crazy shit’. There was then a stream of abusive texts between them from 12.45 am to 2.34 am, where SE referred to having been fooled by the accused again, the accused having ‘mentally and physically destroyed’ her, taking her ‘heart for a ride’, ‘breaking’ her every time she ‘gets a bit strong’ and which are peppered with references to Belinda. At 1.42 am the accused threatened SE that ‘If you don’t call me real soon’ he would message her family and call her work to let them know ‘what u are’.
SE said the messages she had sent were referring to the accused’s physical abuse, rather than about his relationship with Belinda. At 2.34 am the conversation appears to have changed to where the accused was located and at 2.37 am, the accused sent SE a text telling her ‘pigs r everywhere’, to which SE replied:
Yeah I fukon know they wouldn’t leave me alone I wouldn’t give them a statement but cause of that they did their own and done a risk assessment im gonna lose my kids just hide I have to go to servo for smokes but they gonna pull me over I bet ya stay hidden adam
Just hide
The text messages continued with reference to the accused’s location and where SE could pick him up, with SE telling the accused he would have to ‘get in my boot to get home’.
SE denied there was any arrangement that the accused go out and find methamphetamine. She maintained there were messages from the accused saying he was hiding in the bushes from police and knew they were there somewhere. She denied altering the messages. SE agreed she was encouraging the accused to hide from police. She agreed the accused had not asked her to pick him up and did not know how long after the accused slapped and punched her that he left her house.
Defence suggested SE and the accused had an argument, he had stormed off, and immediately she chased him with text messages. She denied it was because she had threatened to get him arrested again, or because he would not go out and get drugs. When explaining the apparent change from having called police, to offering to put the accused in the boot of her car, she said, ‘Yeah, the damage that it’s done over the years that I deserve it’. The message she had sent at 2.44 am, ‘I’m sorry’ was she said, apologising for calling the police, not making false allegations.
When asked whether the accused had been obtaining methamphetamine from Mr Harrison she said, ‘I wouldn’t recall that, I don’t have a clue’. She denied that when she and the accused returned to her house they smoked methamphetamine together.
Later in the day, at 2.07 pm, text message communication recommenced. It is apparent from the messages that SE is angry at the accused and is trying to find out where he is and where he has been. SE agreed she was trying to find out whether the accused had been with another woman or not ‘because it happened so many times’.[68]
[68] T 267 ln 28.
SE said she had ‘no clue’ what she had been talking about when she said, ‘You never planned nothing with Turbo, you lying fuck’. SE’s texts continue accusing the accused of being dishonest about who he is with and that the accused was ‘meant to let me know about Turbo’. SE agreed the message at 6.24pm ‘What you get off Turbo?’ was probably asking what drugs the accused had sourced from Mr Harrison.
At 12.26pm the following day, SE messaged the accused about ‘Tim’ ‘needing an oz of gear’. She agreed she was organising a price of methamphetamine for Tim.
SE agreed that text messages on 30 September 2018, show that she and the accused were then on good terms.
SE said she could not be sure when her relationship with the accused started up again in 2018. She denied being fiercely possessive of the accused in September 2018. She denied contacting Belinda asking if she had seen the accused. SE denied threatening Belinda to stay away from the accused, but ultimately agreed that she had arguments with Belinda over Messenger. Text messages she had sent to Belinda were put to her. She said messages over Messenger can be edited by people and suggested what was being put to her had been edited because ‘it doesn’t all add up’.[69] SE denied having sent a message to Belinda saying that the accused was SE’s man. When shown the screenshots of the Messenger messages,[70] SE said that she believed the messages had been changed. She said that some of the messages were from her, but they must have been edited. She maintained that she did not threaten Belinda. Ultimately, SE agreed she had probably said to Belinda, ‘I’ll destroy you, you don’t know who you’re fucking with’ but was not prepared to accept that all of the words used in the messages were hers.
[69] T 233 ln 16.
[70] Exhibit D10.
SE maintained that she did not care if the accused was talking to Belinda. She said, ‘I didn’t care, I told him to run to her, I didn’t care because he destroyed my heart and my happiness and my everything’.[71]
[71] T 241 ln 22-24.
When asked why the messages made no reference by her to the accused slapping and punching her she said, ‘Because I was so used to it… That’s what I became so used to’.[72]
[72] T 244 ln 27-28.
Counts 4 and 5 - 3 October 2018
SE said on occasion her children would play with Ms Sonntag’s children and when she went to work, Ms Sonntag would sometimes look after her children.
When asked to describe her relationship with the accused on 1 October 2018, she said ‘I was scared and – it wasn’t good’.[73] She said the accused was sleeping at her house and would not leave. Between the time she had collected him on 28 September 2018 and that day, he had been sleeping at her house each night. She said they were fighting a bit and that she could not ‘have that’ around her kids anymore.
[73] T 111 ln 1.
She thought she went to work on Tuesday 2 October 2019 and the children were at home with the accused. When she got home from work, the accused told her that police had attended the house and he had pretended he was his brother. The accused was annoyed and said that he did not want to lose his daughter, was not going back to gaol, and she was to get the police ‘away’. They had spoken about this earlier in the day over the phone.
That evening she laid down to sleep. The accused was on her bed, sitting up, rolling smokes. When asked to focus on the specific occasion and what if anything the accused was smoking, she said he was smoking his glass pipe with methamphetamine. He wanted her to have some as well and when she said no, he told her she needed to cheer up as there was always something wrong with her. The next she recalled was waking up looking at her alarm clock which read 5am. Her body was rocking back and forth. She was laying on her right side. She said ‘Adam was – had my legs jarred and was inside me. I pushed my hand down and pushed him out’.[74] SE said the accused’s penis was inside her vagina and she was just rocking. When she realised what was occurring she pushed him out and he came back for more. She said when she was woken, her singlet was on and her shorts were far down her legs. She said she pushed him away and said, ‘Who the fuck does this while you’re sleeping?’.[75] He came back with his hand. He put his fingers inside her. She said she did not know how many fingers he used as she was ‘feeling pretty dead’.[76] She got up and went to the toilet.
[74] T 114 ln 29-30.
[75] T 115 ln 37-38.
[76] T 116 ln 7.
The accused told her ‘…if I treated him right and pleased him, he wouldn’t have to cheat on me’.[77] She was in pain. She went back to the room and a fight broke out. The accused was on the other side of the bed near the window and she was on the other side. He came over to the bed and threw her across the room, smashing her head on the bed post. She said she landed hard, hurting her back as well, and he came over and picked her up again and threw her over to where she had first started.
[77] T 116 ln 27-28.
Count 6
SE said that after she had been thrown by the accused, he came over and stood on her ankle. She said she was sitting with her legs out to the side and he stepped on it, pushing it more in the wrong way towards the floor. She believed it was her right ankle. She told him that her ankle was hurting and she was crying. She asked the accused to go and get her something and he went and got frozen peas. She was biting on her jumper cord because she was getting upset and the accused came behind her, put his hand over her mouth and told her to ‘Shut the fuck up’. He then stood on her ankle again, this time using all his weight saying, ‘That wasn’t standing on your ankle, this is standing on your ankle’.[78] She dragged herself back up to her bedhead and climbed into bed. She crawled into bed and went to sleep. She thought the accused was still in her room.
[78] T 121 ln 10-12.
When she woke she had messages and missed calls on her phone. She said that at that point she had messages back and forth between herself and Ms Sonntag, who suggested that she take the children and go to her house. Ms Sonntag did not want her to be alone. The accused was still in the house.
SE said she did not know what she did on 4 October 2018. She said part of the time she was not allowed to leave the house and believed the accused was there. She remembered asking Ms Sonntag to get help if she did not hear from her. SE said that she had a conversation with Ms Sonntag in her lounge room on Thursday 4 October, at Ms Sonntag’s house, having driven there. Ms Sonntag said, ‘You know it’s rape what he’s done to you’.
When asked what words she had used to Ms Sonntag about the incident, she said ‘I woke up and he was inside me’. Ms Sonntag made a comment and sort of ‘harped on’ about it being rape and ‘you can’t do that no matter what’. SE said she just changed the subject at that point. She left Ms Sonntag’s house and drove home, picking up her boys from two separate places. The accused was at home when she arrived. He told her he had a seizure and needed to lie down.
On Friday 5 October 2018, she had a shift at work. When returning home, Mr Harrison contacted her regarding something to do with the accused and car payments, saying he needed to speak to the accused. When she got home the accused was asleep. Mr Harrison arrived out the front in his car so she woke the accused, telling him Mr Harrison was there regarding something to do with the car and registration. The accused got up very quickly and stormed outside. He was wearing only his underpants. SE said she stayed inside the house and locked the doors. She called police. She put her sons in the bathroom and heard Mr Harrison’s car take off down the road and then the accused screaming. She said the house was unsafe and it was only a matter of moments before the accused was going to be inside. She heard the side gate being opened which led into the backyard and the windows to the bathroom and toilet could be climbed straight through. She opened the bathroom door and in a panic decided to run. She and her sons left through the front door and ran to the Blue Gums Hotel. SE said she went into the drive thru and asked a worker for help. Her boys did not have shoes or shirts on. Once she arrived at the hotel she called 000. She thought she might have been still on the phone when police arrived. She returned with police and her children to the house and spoke further with police officers.
In cross-examination, SE agreed that the accused had stayed overnight on Monday 1 October, but denied she and the accused had consensual sex. She could not recall if the accused was not at the house during the day on 2 October. She said if that was the day police came past and he pretended to be someone else, he was there. SE said that by 3 October she did not care about Belinda, despite the text messages on 28 September, where she appeared to abuse him about Belinda.
She said that she had been thrown by the accused a few days before the rape. She was due to go to the doctors for it. She agreed she had not said anything to police about that, explaining she ‘did not say a lot to police’.[79] She agreed the accused let her get up and go to the bathroom and did not do anything to physically restrain her. She did not think of calling police or leaving the house. She agreed that when she pushed his penis out of her vagina the accused stopped immediately and had not tried to put his fingers inside her vagina again after she pushed his hand out.[80] SE said she did not know when it was the accused left the house after that. He had taken her phone and she did not care what she did, or what happened. In her affidavit dated 6 October 2018, SE agreed she had told police that she heard the accused leave and slam the door, shouting some abuse at her.
[79] T 277 ln 16.
[80] T 285 ln 2-10.
SE agreed that in the first text shown in Exhibit D11 between herself and Ms Sonntag, at 3.22pm on 3 October 2018, where she was complaining about the accused, she did not refer to the accused having sex with her without her consent. She said she did not know it was classed as rape when it concerned her partner.
The text read:
Not really but that’s life hey :( im just pulling my self together to go take boys to shops cause im a shitty mum then once ive made them hopefully smile ill call u and come round…adams back i copped a flogging last night welp know 5am when he woke me up threw me from one side of room to other jumped on my ankle and u can hardly move smashed me in chin so my face is fuked took my ohone so i couldn’t call cops cover3d my mouth so i would stop crying boys heard it anyways so ill come see u today cant talk when hes near me ge will go me again sorey babe i am so over this its never gonna stop though so i just deal with it now
SE agreed she had not told police that the accused was still in the house at that time and would not let her out of the house. SE agreed that the text messages she received from Ms Sonntag could relate to Ms Sonntag needing a lift or for her to sit with her children.
SE denied that in her text she was telling Ms Sonntag what the accused had done because she did not want to get involved in what Ms Sonntag was asking of her. That is, needing to get to her ex-partner’s house to collect money, retrieving her house keys and a car seat back from a friend and to ‘fuck some shit up’ at her former partner and his new girlfriend’s house. SE said she did not remember if her face was ‘smashed in’ as she had said in her text to Ms Sonntag.
On Thursday 4 October 2018 at 6.57pm, SE sent a text to Ms Sonntag wherein she referred to the accused as ‘a fucking mutt’ and said that ‘he’s been leaving the kids and seeing some slut down the street’. She then said:
why the fuk wont he just fuk off i don’t want him here so im bout to say fuk off if i send u a blank text or anything that is weird it means call me 000 can u do that if i need help its gonna get nasty im hoping hes gonna go with no dramas but that’s just impossible i need to go to hospital and get checked my back is getting worse cause of him throwing me around i can hardly walk i need this to stop…im trying 5o just keep cool cause my boys are freaking and walking on egg shells they can feel somethings upsetting me
SE said that when she met with Ms Sonntag she told her ‘I woke up and he was inside me’. She told police she remembered Ms Sonntag made a joke saying, ‘Oh yeah, because that’s what we do, isn’t it and then we changed the subject’. SE maintained that Ms Sonntag had said ‘You know it’s rape what he done to you’.
The conversation took place in Ms Sonntag’s loungeroom and Ms Sonntag had not come back to her house. She could not remember whether Ms Sonntag was there in the morning when she woke up on 5 October.
In speaking with police on 6 October 2018, SE had said that Ms Sonntag came over on 4 October and slept at her home. The following morning, she had dropped Ms Sonntag off at her house and then had to come back home before a short shift at work. SE said she did not ask the accused to babysit her children on 5 October 2018.
In her statement to police, SE had said she got home from work just before 2.00pm and the accused was still in her bed. She agreed she told police that as she was about to leave for work that morning, the accused came to the door and she told him ‘I’m going to be late for work. You are jeopardising my job and my livelihood’.[81] When asked why she let the accused into the house she said ‘I was going to go. The screen was unlocked and he said he’d had a seizure’.[82] She disagreed that she left the accused at the house with her two boys that day. She did not know if it was school holidays.
[81] T 293 ln 27-28.
[82] T 294 ln 21-22.
It was put to SE that when Ms Sonntag arrived to speak with police on 6 October 2018, ‘the game was up’ so she told police officers about the rape allegations. SE said she had started speaking to police providing them with information prior to Ms Sonntag arriving.
SE said she was unable to recall speaking to a probationary constable at 5.10pm on 5 October saying, ‘I woke up to Adam who was in the bed with me, he was behind me trying to have sex with me’.
With respect to the events concerning fleeing her house to run to the Blue Gums Hotel, SE denied knowing anything about the deal between the accused and Mr Harrison until that day. She denied Mr Harrison had indicated to her that she had to pay her drug debt before he was going to give her methamphetamine or that she wanted the accused to pay for it for her. She did not come to an agreement with Mr Harrison that she would meet him around the corner at the pub so she could get her drugs. While the accused had not hit her that day, he was ‘storming out’ the front and she knew that she was about to be in more danger.
She said she ran to the Blue Gums Hotel with her boys. Mr Harrison was parked in the carpark. She ran straight to the bottle-o and did not speak to him. She ran up to the bottle-o and the staff member took her inside the hotel. She had already been calling 000. She believed she called them again. The first time she called them she did not know where she was standing but she was not standing with Mr Harrison. The hotel workers let her sit in the outside beer garden with her children. She said it was a coincidence that Mr Harrison was at the hotel. She then said that she spoke with Mr Harrison after she called police. When asked what she was talking about she said ‘nothing’. She told him she had called the police. She said she had not noticed where his car was until she had gone into the beer garden area. SE denied she went to the carpark, met Mr Harrison and then called 000. She said she ran straight into the bottle-o part with her boys before she called police.
SE said she could not remember speaking to the 000 operator at 3.51pm on 5 October 2018 saying, ‘I’m at the back part of the carpark’ and when asked whether she wanted to go into the premises she said ‘I’ve got no shoes on’, or the operator advising her to her to go into the hotel as it was safer. She denied she was at the back part of the carpark with Mr Harrison and said she did not speak with him before she spoke to police.
It was put to SE that she was angry and uncooperative when police arrived and wouldn’t tell them what happened. She said, ‘because I wanted them – they needed to go to my house’.[83]
[83] T 311 ln 2.
DC’s evidence
SE’s stepfather, DC gave evidence recalling that SE and the accused were in a relationship when they were living next door to himself and SE’s mother in Rostrevor. He said he had an amicable relationship with the accused.
He said that he only once had witnessed an argument between the accused and SE. SE’s children knocked on his door and he and his wife went to SE’s house where SE and the accused were going ‘hammer and tongs’.[84] They were in the kitchen and they were standing ‘pretty much together’.[85] The accused was holding SE in a bear hug. DC said, ‘It didn’t look good’.[86] SE look terrified and the accused looked angry. DC said he stood his distance and tried to talk to the accused and SE but stepped back because he could feel the tension. DC described SE shouting and then the accused move his hands from a position at her chest area up to her neck area in what he described as a choke hold. He said stupidity took over him and he dived in,[87] intending to push the accused away. Instead he went flying through the air to the gas stove which he hit and then hit the ground, ending up two or three metres from where he had been standing. He got up and the accused took off to the bedroom at the other end of the house. DC said he followed the accused to try and calm him down and he and the accused sat on the bed and talked. The accused had calmed down and SE came and knocked on the bedroom door and shouted something. The accused retaliated with verbal abuse. DC said he shouted through the door, telling SE to go away. At some point that evening police arrived and he spoke with them.
[84] T 363 ln 5-9.
[85] T 358 ln 32.
[86] T 358 ln 38.
[87] T 360 ln 7.
When asked whether he knew what SE and the accused had been arguing about he said ‘To be honest with you, I’ve got no idea. It was just – to me, it was a load of screaming match to one another’.[88]
[88] T 362 ln 1-2.
In cross-examination, DC denied that the moment after the accused had placed SE into a bear hug, DC had moved in straight away to break them up. He maintained that what he had seen the accused do was to perform a ‘choke hold’. He said he knew it was called a choke hold because he had watched fights on television and a police program. He denied that his recollection of the event might be ‘a bit off’ given what he had been watching on television.
In his statement to police given on 24 September 2019, DC had said he had told the accused and SE to calm down and thought the accused was doing so but then SE stepped towards the accused. The accused then grabbed her with both arms and pulled her towards himself, and turned her around so that her back was towards his chest, with both arms around her chest level like he was about to squeeze her. He said he moved in straight away to break them up.
DC agreed he had not referred to the accused having SE in a choke hold when he gave his statement to police. He maintained that he moved when the accused moved. He agreed that when police arrived that evening, he told them that they were going to sort it out themselves and had sent police on their way.
ME’s evidence
At the time of the interview which comprised ME’s evidence in chief, ME was 12 years old, having been born in December 2006. ME described an incident where the accused and her mother were having an argument and ‘he hit her in the left ear I think it was and she couldn’t hear out of it’. ME said that the accused had his hands on her mother and it was very scary. She yelled at him to stop. ME also described times when the accused would ‘just lay around all day’ which would annoy her mother and she would ‘not yell at him or get violent but she’d be like ‘you could have done something’’. She said ‘… he eventually stopped but they were, he was still yelling at her and Mum would yell back because but it would basically only to be say ‘Stop my kids are here’’. She said that this occurred when she was about eight years old.
ME described another incident concerning the accused becoming angry because he did not have any marijuana and he was ‘like bashing her and hitting her’. ME said she did not exactly see what he was doing but she knew that he was doing something to her because she was screaming for help. She and her brothers went over to her nana’s house and her nana and pop went over to help. ME said that all she could hear was screaming.
The interviewer asked ME what she saw between the accused and her mother. She said ‘Well what I saw was Mum really scared but Adam – I just saw him grab her arm like to pull her back ‘cos we were going to go away, but other than that I didn’t see anything much but I did hear a lot like screaming like her screaming for help and telling him “Stop”’.
The interviewer asked whether she had seen any injuries on her mother. ME said that her mother always had bruises but she was not sure what they were from, whether from the accused or from working. With respect to her mother’s ear, she said it was really red and she was holding it and she was in pain and could not hear out of it. Her mother said that she could only hear out of one ear.
In cross-examination, ME denied that her mother had told her what sort of things to say in her evidence. She agreed that while the accused had smacked her younger brother, he had never ‘hit’ him or yelled at her or acted violently towards her in any way. He never hit her older brother.
She said she had never seen the accused steal from the house. She agreed there would be a lot of verbal arguments when she was growing up that she would hear. She would hear a lot of screaming and the accused yelling and her mother yelling back. She said she would try and stay away from that. She denied that she heard her mother and the accused arguing about Belinda. ME said she spent most weekends at her father’s house. The accused would rarely look after her during school holidays as she was mostly with her father. She said she had looked after the boys alone while her mother went to work.
In relation to the occasion when her mother had a sore ear, she said it was in the morning and she had school that day. The accused and her mother were arguing in the bedroom. She saw the accused’s hands on her mother’s arms. There was no one else in the house other than her brothers. She agreed that in effect she heard them arguing, walked into the room and saw the accused with his hands on her mother’s arms. She went to school that day and when she came home, saw her mother’s ear was red.[89]
[89] T 348 ln 21-23.
ME agreed there were arguments between her mother and the accused about cannabis. She said she did not know what methylamphetamine was. When asked whether she knew what cannabis was smoked in she said no and then asked for a break, appearing distressed.[90]
[90] T 348 ln 34-36.
After the break, ME repeated she did not know what methamphetamine was and had never heard about it.[91] She knew what cannabis was but did not know how it was smoked. She said she had seen a glass pipe inside her home at her mother’s house and assumed that it was for marijuana. She said she had never seen her mother use a glass pipe or seen her taking drugs inside the house.
[91] T 350 ln 14-17.
In relation to the incident that occurred on Reservoir Road in Modbury, she said she heard a lot of yelling and again saw the accused putting his hands on her mother’s arms during the argument. She agreed that was all she saw in terms of physical contact. She said it was scary so she went and got the boys and went next door. Both the accused and her mother were yelling. She did not remember what they were arguing about.
Luke Harrison’s evidence
Mr Harrison explained that he is currently a sentenced prisoner at the Cadell Training Centre, having been sentenced in February 2020 in relation to firearms and traffic offences. He said he suffered slight brain damage from an aneurism when he was 25 which continues to affect his memory and speech.
He said he had known SE for about 4-5 years, meeting through a mutual friend. He met the accused through SE. The last time he saw the accused and SE was when there was an altercation at their house.
He said he purchased a Holden Astra motor vehicle for his girlfriend from the accused. The accused had turned up at his house and offered him the car at a reasonable price. The purchase price was about $500-600. As the registration was due to run out in about a week, the accused agreed he would register it for a further three months. Within a few days of the purchase, his girlfriend checked the registration online. When it was the last day of registration, or the second to last day, he checked the registration again and noted that it had still not been registered. He tried to call the accused but he would not answer the phone. He went around to SE’s house and asked if he could put the registration on the car.[92] He said he tried to call the accused and did not know whether he tried to call SE as well. He thought he purchased the car on a Monday and went to the accused’s house on the Friday when the registration was due to run out. He drove there in his own car, a Nissan Skyline, which he described as having a pretty loud exhaust. He parked across the road on the street. SE came out and approached him. They had a conversation and he saw SE go into the house through the front door. The accused came running out in his boxer shorts yelling. He had heard the accused and SE yelling inside.[93] The accused was very angry and yelling things, but he was not sure what he was saying. Mr Harrison said he decided that he did not want an argument or a fight or anything so he quickly drove off to the carpark of the Blue Gums Hotel and messaged his brother. He said he went there ‘just to get away from the situation’.[94] He said he was sitting in his car for perhaps a couple of minutes waiting for a reply from his brother and noticed SE come running up behind him up the street. She was with her two boys. One of the boys was running and SE was holding the other. She looked upset. She spoke to him and then went over towards the pub to wait there for police.[95] He remained in the carpark for a couple of minutes and then left. He saw a couple of police cars turn up at the carpark entrance and police officers talking to SE.
[92] T 381 ln 18-19.
[93] T 383 ln 24.
[94] T 386 ln 1.
[95] T 378 ln 3-7.
In cross-examination, Mr Harrison said he could not be sure or could not remember whether he had seen SE or the accused use methamphetamine. He thought that was linked to his poor memory from his brain aneurism. He agreed he could have used methamphetamine himself in front of SE but had no memory of that.
When asked, bearing in mind the caution that he was given against answering questions that may tend to incriminate him, whether it was the case that as at October 2018 he was selling methamphetamine to SE, he said he was not sure. He could not be sure if he was selling methamphetamine to SE on tick.
He denied that on 5 October he had turned up to SE’s house to sell her methamphetamine. He could not be sure whether he had spoken to SE on the phone before arriving at her house. Mr Harrison said he did not recall arriving at SE’s house and telling her she owed him for half an eight ball of meth and had to pay that debt before he gave her any more. He denied there was any discussion about meeting SE at the Blue Gums Hotel. The registration for the car he understood would have been for about $150. He described the car as an average run-about car with faded paint.
He agreed in his statement to police he had not said that he was purchasing the car for his girlfriend. When asked why he did not ask for an extra $150 and register the car himself, he said that at the time it was what the accused asked for, so he agreed to it and did not think of knocking off the registration price from the purchase price.
He thought that when SE was at his car in the carpark that she had said she had already called the police, but he was not sure.[96] She was at his car for a minute or two. He did not see her go into the hotel. He was pretty sure that SE went up to the meals area at the hotel and waited until police turned up. He did not wait to speak to police and did not think he needed to. He had not given anything to SE in the carpark. He had no memory of giving the accused methamphetamine at Foodland near their house on 28 September 2018.[97]
[96] T 394 ln 23-24.
[97] T 395 ln 28-31.
SE directed him to the start of the conversation chain in relation to the messages between herself and the accused. He then took control of her phone and flicked through it to the start of where he needed to take the photos. He did not look through the phone at large as to other conversations she might have had.[144]
[144] T 497 ln 14-16.
His recollection of the Sonntag messages was that SE found the messages that were relevant to this matter and forwarded them to him.[145]
[145] T 497 ln 18-22.
In the phone call between SE and Ms Sonntag, there was no reference to sexual assault or anything about what she might have told her. A full statement was taken from Ms Sonntag while sitting at the kitchen table in the dining area. SE was sitting in the loungeroom. He said it was his normal practice to ensure that they were separated.
BS Hogan estimated the accused’s weight at that time would have been around 120kgs.
In re-examination, BS Hogan said that no affidavit was taken from SE in her house on 5 October 2018 but was taken the following day. He said that at the time she was obviously very upset. Her children were present and it was decided that a better setting would be to take the statement at the station.
Dr Bela Redzepagic
Dr Redzepagic works at the Modbury GP Plus super clinic.
From the clinical practice notes, SE saw another GP on 10 May 2016 reporting a fall on 7 May 2016 while at work. It was said she landed on her right hip and hurt her lower back and right hip as well as her knee. X-ray examination revealed it to be most likely a soft tissue injury. SE sought Dr Redzepagic’s opinion on 12 May 2016, asking for a second opinion in relation to the work injury. On 18 May 2016 SE described still being in a lot of pain in the right buttock radiating down the right leg.
On 19 May 2016, SE presented with symptoms of left ear infection.[146] She was examined and there appeared to be a lot of wax in the ear. Because of SE’s pain, it was decided not to go ahead with ear syringing as it was unknown whether there was a ruptured tympanic membrane.[147] She commenced treatment for the infection. Antibiotic eardrops and oral antibiotics were prescribed. Dr Redzepagic said she would have advised SE that she suspected a ruptured eardrum.[148] She noted that there was no reference to an issue with the ear on the day prior, that is Wednesday 18 May.[149]
[146] T 502-503 ln 33-1.
[147] T 503 ln 11-13.
[148] T 504 ln 8-10.
[149] T 504 ln 17-24.
Dr Redzepagic saw SE again on 23 May 2016. The ear was seen to be slowly improving but still painful. She again queried whether there was a perforation, which would have been communicated to SE.[150]
[150] T 505 ln 23-24.
On 27 May 2016, SE reported that her right buttock pains had improved after physio but had been bad again since yesterday.[151] She recommended physiotherapy.
[151] T 505-506 ln 36-1.
On 10 June 2016, SE inflammation in the left ear was still ongoing and antibiotics were continued. SE’s injury to her back was also discussed. On 15 June 2016, a case conference was conducted in respect of the WorkCover injury.
SE’s weight was measured on 27 June 2016 at 78.4 kilograms with a height of 167cms.
On 24 March 2017, SE attended at the surgery complaining of lower back pain and pain to the leg.[152] At some point, a multiple level disc bulge lumbar spine with nerve root impingement was diagnosed.[153] Dr Redzepagic described this as prolapsed discs on multiple levels in the lumbar spine and nerve root impingement. Analgesia was prescribed as was a low dose of Lyrica, which is usually prescribed for neuralgia pain. Side effects for the drug include drowsiness. SE complained of swelling of ankles and legs. On 23 June 2017 and 27 June 2017, pelvic ultrasounds were conducted and blood and urine tests undertaken.
[152] T 507 ln 33-1.
[153] T 508 ln 31-34.
On 10 August 2017, SE presented with neck and upper back strain and nerve impingement. This was new in the sense that it was neck and upper back rather than lower back which had been the previous focus. She was referred for a CT scan and for orthopaedic review. On 15 August 2017, multiple thoracic spine wedge fractures were diagnosed.[154]
[154] T 511 ln 21-26.
Dr Redzepagic explained that wedge fractures are seen in very old women with severe osteoporosis and described osteoarthritis as ‘ageing arthritis’, coming with age or increasing use of certain joints.[155] When asked whether it was unusual to see osteoarthritis in the thoracic spine of a 30-year-old woman, Dr Redzepagic said:[156]
When I think of, like, you know a lot of patients that I see, I could say that not unusual, depends how much of osteoarthritis we see actually. You know, it can be mild, it can be moderate, it can be very severe osteoarthritis. The younger the person the less osteoarthritis we expect, of course, if any, to be honest but, yeah - so less likely will be kind of my answer.
[155] T 511-512 ln 29-1.
[156] T 512 ln 30-37.
She saw SE on 29 August 2017 when the neck and upper back were discussed. On 19 January 2018, she saw SE in respect of lower back pain.[157] SE said she was working at the time doing work that required her to stand. She was prescribed anti‑inflammatory painkillers.
[157] T 53 ln 13-18.
On 27 March 2018, SE complained of shortness of breath and bilateral leg pain since the prior Saturday.[158] She said she had a swollen calf and shoulder pain. Both calves were noted to be swollen and tender.
[158] T 514 ln 18-28.
On 25 May 2018, SE complained of upper back pain.[159] There were also symptoms of a numb right calf. The notes reveal that there was no serious kind of findings. Lyrica was prescribed at 75mg.
[159] T 515 ln 20-25.
On 11 October 2018, SE complained of left sciatica pains.[160] That is, pain experienced through the buttock down to the leg and into the foot. Straight leg raising was conducted showing less range of motion in the right leg. Dr Redzepagic did not note any examination of SE’s back without clothing. She could not recall examining her ankle on 11 October 2018.[161]
[160] T 515-516 ln 38-7.
[161] T 517 ln 15-16.
On 12 October 2018, CT scan results showed mild disease progression since the CT scan in May 2016. An MRI was recommended.
On 8 November 2018, SE reported lower back pains much worse ‘since last night, pain shooting up and down the right leg’. The right leg felt numb. The finding of reduced sensation to the right foot could, Dr Redzepagic said, be attributable to the lower back.[162]
[162] T 518 ln 21-27.
In cross-examination, Dr Redzepagic agreed that she would not have told SE that her ear was ruptured if she had a doubt as to whether it was. She would have recorded in her notes if there were any swelling, bruising or marks to the outer ear.[163] She never saw SE for an infected right ear.
[163] T 520 ln 22-25.
Dr Redzepagic agreed that it is quite common to see accidental injury, people losing their balance and falling when prescribed Lyrica.[164] She said that while less common, abnormality in thinking can be experienced. Rarely do patients experience burning and tingling and numbness of pain in the extremities. SE never told her that she stopped taking Lyrica because she did not like the side effects.[165]
[164] T 523 ln 1-3.
[165] T 523 ln 33-36.
Dr Redzepagic said that we knew SE has lower back pain issues and chronic pain issues but she was not in pain all the time. Certain things would exacerbate this pain or flare up the pain. SE’s weight on 30 April 2020 was recorded as 92 kilograms.
On 15 February 2017, there was a discussion of a Mirena device for contraception, different to coils in the fallopian tube.[166] SE reported that the Mirena had been in for three years and did not feel that it had done the job properly. She was still having periods and abdominal discomfort and cramping and wanted it removed. On 15 February 2017, tests were positive to sexually transmitted diseases.[167]
[166] T 528 ln 3-10.
[167] T 528-529 ln 37-2.
On 13 November 2016, SE was diagnosed with pelvic inflammatory disease.[168] Dr Redzepagic said this can cause inflammation and tenderness of the pelvic region, the cervix and the uterus. Pelvic inflammatory disease is usually related to the uterus, fallopian tubes and possibly ovaries. The infection is spread from the vagina to the cervix.
[168] T 529 ln 16-18.
The Lyell McEwin Hospital clinical record dated 15 November 2016, noted positive results for gonorrhoea and positive for gonorrhoea and chlamydia on 15 February 2017. Dr Redzepagic said there is not necessarily inflammation of the vagina with these diseases. Patients usually have a discharge but not necessarily redness. Pelvic pain is usually associated. Vaginal bleeding can be a sign of gonorrhoea.
On 13 September 2016, SE had reported pelvic pain with her vaginal bleeding.[169] It was reported that SE had a coil and Mirena device for nearly two years. Dr Redzepagic said that with the coils, it looked like SE was still getting irregular perivaginal bleeding despite the coils.
[169] T 531 ln 13-20.
Dr Redzepagic said that degenerative changes referred to could be a consequence of trauma or some outside impact.[170]
[170] T 533 ln 27-28.
A letter from a resident medical officer (RMO) dated 18 November 2015, showed a summary of the diagnosis to be swelling and pain to her vagina. On speculum examination, the cervix was shown to be swollen and there was some mild vaginal bleeding. A pelvic ultrasound was conducted and an x-ray. It revealed slight displacement in the pubic rami, however this was possibly a chronic finding. Dr Redzepagic described this as showing the bony part of the pubic bone looked like it had moved, that is, was not in exactly the place where it should be. This was distinguished from a fracture. It was either a natural deformation or trauma related. The x-ray revealed that this had been present for a while. The clinical details are said to be swelling to the vagina and tenderness to the pelvic region radiating to the lower extremities. While there are no acute displaced fractures, mild asymmetric vertical displacement of the left pubic bone is described with sclerosis along the symphysis pubis. According to Dr Redzepagic, the radiologist confirmed what the doctor in the emergency department thought, that is findings that were chronic or longstanding.
In re-examination, Dr Redzepagic agreed that on 8 February 2019, the medication Lyrica was recorded as being ‘non-current’ rather than being prescribed.[171]
[171] T 539 ln 27-31.
With regard to her evidence that there was a positive test for gonorrhoea on 15 February 2017, Dr Redzepagic agreed that at the attendance on 18 November 2015, there was no mention of a sexually transmitted disease or pelvic inflammatory disease having contributed to the pelvic injury.[172] Dr Redzepagic agreed that displacement of the pelvic bone was related to a chronic condition however the presence of a chronic condition would not explain all symptoms with which SE presented on 18 November 2015.[173]
[172] T 541 ln 20-24.
[173] T 542 ln 5-8.
Analysis
SE’s timing of the events of count 1 was inconsistent with the year she had given to police in her statement. That of itself is in my view of little consequence here, as was placing the events close to a time when the accused had recently been released from custody. SE consistently attributed the death of the family at Hillier, agreed to be May 2016, to the timing of count 1. I am, however, troubled by the delay SE made in reporting this matter to police and in particular, her delay in providing the letter prosecution rely on as the accused’s acknowledgment of the violent acts that had occurred the previous night, as opposed to just another argument. SE had ample opportunity to disclose the letter on the three occasions she spoke to the police in relation to the accused about this particularly violent example of the accused’s behaviour towards her.
The relevant parts of the letter are as follows:
… I am sorry 4 it all… I never can forgive myself for tonight …..I hurt u to [sic] much …..I’m just doing more damage to u and us and its not right ….I don’t know where I am going but u won’t have to be scared of me anymore…I’m so so sorry.
Clearly it can be inferred that the accused was writing about an event where he strangled SE as she alleged. Equally in my view, it could be viewed as an apology for calling her a bad mother, threatening suicide, punching the wall and grabbing her by the arms as the defence alleged. Furthermore, and contrary to the prosecution submissions, the events described by SE as to how the injury occurred cannot be isolated from the evidence she gave as to other events of that evening.
Regarding the punch to SE’s ear in the bedroom at Phillips Avenue, SE said she visited her general practitioner the following day or thereabouts. The prosecution submitted that the evidence of ME corroborated SE, when she described an occasion where the accused grabbed her mother's arm and afterwards observed her mother holding her ear, which was ‘really red’, and her mother being in pain. In my view, the evidence of ME can add little to an assessment of this event. SE’s evidence was that she was struck in the right ear in 2016, while ME said her mother complained of a sore left ear in 2015 and there was no man in the house at the time. ME did not see the punch to her ear that SE said ME had witnessed. All she saw was the accused’s hands on her mother’s arms. Dr Redzepagic had treated SE for a left middle ear infection in 23 May 2016.
I accept that SE may, from her discussion with Dr Redzepagic, have thought that her eardrum was perforated. However, Dr Redzepagic noted no mark, swelling or bruising to the outer ear. SE was treated for an ear infection, the progress of which was monitored. It was, as counsel for the accused submitted, an example of embellishment on SE’s part.
With respect to the hoodie incident on 23 June 2016, SE called police and put the phone in her bra, which the prosecution suggested was reasonable given her earlier experience of the accused taking her phone prior to assaulting her. The photographs show wood on the spine of the door just below the barrel and the locking mechanism has been torn away, consistent with the door being shut as described by SE and forcibly pushed open by the accused, as are the puncture‑type marks on the outside of the door where the accused was standing. Photographs show the torn collar of the red hoodie, which the prosecution submitted were entirely consistent with both the allegations made by SE and the degree of force described in those allegations. BS Cullinan's evidence was that he saw scratches and redness to the side and front of SE's neck.
There was no damage to the back door, despite SE agreeing she heard the accused kick the backdoor in. BS Cullinan's evidence was that any damage to the back door would have been photographed. In her evidence-in-chief, SE made no mention of strangulation. Rather SE’s focus was on having had her face smashed multiple times into the ground by use of the hoodie to lift her up, causing it to tear. Nothing in the prosecution opening had identified smashing her face to the ground. When asked in cross-examination why the acts of smashing her face to the ground had not been mentioned in her affidavits, SE said it was because she loved the accused and did not want to tell police ‘everything’. She maintained that the accused smashed her head on this occasion. Examination of the photographs police took of SE that evening do not show damage to SE’s face consistent with the acts she described. In any event, the marks that are seen in the photographs were attributed by SE to the accused’s fingers. There was in my view, no satisfactory explanation for having omitted any reference to smashing her head to the floor, given SE was prepared to tell police she had been subjected on that occasion to strangulation.
In relation to count 2, SC Newell attended the house and photographed the broken window and the glass on the ground beneath. He confirmed that he did not move the window or any part of it before taking the photographs. He said he was directed by SE to text messages said to be relevant to this incident, which, as the prosecution noted, meant she had directed police to messages including those that did not paint her in glowing terms. As to the suggestion to SE that she had broken the window herself, this would, in the prosecution’s submission, not sit with the risk she would face in securing future rental accommodation and the evidence she gave that she would not damage her own property for which she had to pay rent.
In her evidence, SE said she saw the accused punch the window. This was at odds with what she had told police in that she had previously said she heard the window break. SE said she had reported the accused to police many times regarding him breaking her windows. This appeared not to have been the case.
I cannot exclude the defence version of events beyond a reasonable possibility. The window was still open and not closed, consistent with the defence case that it was jammed. The defence case was that the accused attended at the house to collect his belongings, SE became upset again about his relationship with Belinda, and broke the window herself. The defence say that the text messages between SE and the accused assist the defence case in this regard. In the first of those messages, the accused threatened SE with the loss of her children. He accused her of telling him ‘to come and get my stuff’ and the money she owes him and ‘cry wolf smash a window and think U can have me in jail again for false crap’. In her reply, SE said she was glad she had not trusted the accused. He had showed that he was nothing in her life but had still ‘played’ her again to get anything he wanted. The accused then told SE that someone would come and collect ‘all my stuff please stop Ur childish games and give me what is mine’. It was not until a further two messages on that SE referred to the accused having smashed the window, to which the accused replied that SE had hit the window while asking him to push it closed.
While I have found it difficult to place too much store in any of the various text messages that are before me, it was clear from those messages that, despite SE’s denial, the accused was at her house that day to collect his belongings.
The assault alleged in count 3 concerned the accused punching SE with a clenched fist to the face and slapping her with an open hand to the right side of her face, both of which SE said were of sufficient force to leave a mark on her face. Following the incident, the accused left the house and police came. SC Wood gave evidence that he and his female partner, PC Johnson, attended the house at 12.26am on 28 September. They went into the house and spoke to SE who appeared extremely upset and was crying. SE was asked to provide a statement about what had happened but refused. SC Wood said police officers were there for about two hours, leaving therefore at around 2.30am.
In cross-examination, SC Wood agreed SE was not sending and receiving text messages in his presence at the house. The prosecution submitted that SC Wood was either wrong about that or simply did not see it because between 12.26am when he arrived at the house, and two hours later when he left, many text messages as shown in Exhibit P6 were sent and received by SE.
SE denied that the text messages in Exhibit P6 showed nothing more than she had lied, telephoned police and then allowed the accused to come home because he had obtained drugs, and that she wanted those drugs. On the accused's version, he had not assaulted SE, but left the house before police arrived. It might be thought, the prosecution submitted, that the accused would, given an entirely false allegation had been made against him, have wanted nothing more to do with SE that night and gone anywhere rather than back to his accuser. It appears from the message sent at 1.42am the accused is threatening SE that she must call him ‘real soon’ otherwise he will message her family and workplace to let them know ‘what you are’. He then added ‘because that is not how a human acts’.
SE's unchallenged evidence was that she went to collect him and brought him to her home. It is clear SE was upset and angry with the accused, blaming him for ruining her life, ‘breaking’ her and hurting her. The messages, in the prosecution submission, show the day-to-day struggle of someone who is in love with the very person that is causing them pain, evidenced by the warts-and-all text messages exchanged between the two. Consistent with this oscillation between fear and love, the messages show that after SE forgave the accused's violence towards her and agreed to pick him up, the pair are civil, expressing their love. The defence submitted that the timing of the messages and the evidence from SC Wood suggested that SE complained to police that the accused smashed her in the face, which while enough to get him arrested, was not a full statement so she could withdraw the charges and have control again.
SC Wood’s evidence was that there were no visible injuries or marks on SE. She told him that she did not want the accused in her house, inconsistent with the tenor of messages referring to Belinda and her reference to the accused as ‘her man’ on 26 September 2018. In my view, SE’s insistence in cross-examination, at least initially, that the messages that went between herself and Belinda had been altered in some way did little to assist her credibility. SE admitted that the messages did not demonstrate that she was ‘caving in’ to pressure to go and pick the accused up, as the prosecution had suggested, but was her offering to go and get him.
Having considered the messages between SE and the accused in some detail, I cannot be certain of their meaning and the inferences that can safely be said to arise from them.
The prosecution submitted that SE’s account in relation to counts 4 and 5 was given in a rational, detailed way. SE complained to her friend at the first opportunity to speak face to face.
While acknowledging the differences as regards where Ms Sonntag slept on the Thursday night, in the prosecution’s submission, nothing much turned on the inconsistency. Furthermore, Ms Sonntag’s credibility was not undermined because of the fact she was a drug user and dealer, perhaps even to SE.
As to count 6, the prosecution said there were obvious reasons why SE did not run from the house. Her boys were both sleeping in the house; it was 5.00am; she was in her pyjamas; and, it was her house.
The evidence of Mr Harrison in the prosecution submission, established that the accused and SE had a loud argument in the house immediately after he arrived and after SE went inside to wake up the accused, fitting with SE’s evidence. It also showed the accused was angry enough, on the afternoon of 5 October, for him to come outside in just his underwear and run at Mr Harrison. When Mr Harrison left the accused was standing in the middle of Littler Drive looking angry, fitting with SE's evidence about her decision to flee with the children because of the accused's anger at Mr Harrison and, in turn, at her.
The accused's case was that Mr Harrison had come to collect money owed by SE for half a ball of methamphetamine and that the accused was angry at him for providing drugs to SE on credit and that Mr Harrison attended the Blue Gums Hotel to rendezvous with SE, where he could sell her drugs away from the attention of the accused. The prosecution queried why SE would bring her boys half‑dressed to score drugs when she could have left them at home for five minutes and why she would purchase drugs from Mr Harrison in broad daylight in a carpark, knowing that the police had been called and would be arriving shortly.
SC Smith and Price and Constable Adams all gave evidence about attending the Blue Gums Hotel following SE’s 000 call, which was agreed to have been at 3.51pm. SC Smith and her partner arrived at about 4.00p.m. SC Smith described SE as 'despondent, distressed in a way and not communicating very well'. Under cross-examination, she agreed SE was difficult to get information from and then became argumentative when asked to describe what had happened at the house and some outstanding matters involving the accused. The prosecution suggested this might be thought of as unremarkable given that less than two weeks earlier police had come to look for the accused and SE did not co-operate, consistent with SE being apprehensive about what the accused would do if he found out she had reported him to police. SC Price noticed that SE was upset and had a limp. Under cross-examination, she said SE was hobbling and holding her right lower back. SC Price’s evidence that SE did not exhibit behaviour leading him to suspect that she was under the influence of drugs goes, in the prosecution’s submission, to whether or not SE had obtained and perhaps used drugs from Mr Harrison.
BS Hogan later observed SE was distressed and crying. She was seen to limp and appeared to be in pain. His evidence was that Ms Sonntag was not told by SE that police were investigating a sexual offence.
The defence case was that the accused and SE did not have sex that morning. Rather, there had been an argument about Belinda. SE complained to Ms Sonntag about being thrown around the room, because she did not want to join her in starting ‘some shit’ and SE’s text messages show she was using the accused’s behaviour towards her as an excuse for why she cannot give her friend a lift and join her. In any event, while apparently complaining about a physical assault, SE said nothing about a sexual assault.
The defence submitted that for counts 4 and 5, SE’s actions were not consistent with the accused having sex with SE without her consent. She could leave the bedroom and then chose to return. The accused was said to get frozen peas for her. She did not call police or leave when he left to get the peas. That she did not go to the police on 3 or 4 October was inconsistent given SE’s previous complaints she had made to police about the accused. SE let the accused back into the house on 5 October. She agreed she told police 'The accused turned up', she opened the door and said 'What are you doing here? You're going to jeopardise my job'. The defence case was that the accused was asked to babysit by SE.
I dismiss the defence submission that if the accused was as violent towards SE as she alleged, it would make no sense for there to have been no violence used to perpetrate the rape. I also reject the submission that it would be wrong to infer the accused knew SE was asleep.
There are inconsistencies between the versions of the conversation between SE and Ms Sonntag and differences about where the conversation occurred. The version of her conversation to Ms Sonntag that she gave to police was put to her in cross-examination and she said it was completely wrong, however, putting aside the exact words used, Ms Sonntag described being told what was generally consistent with SE's evidence of her complaint.
Given Ms Sonntag’s acknowledged criminal history I have exercised caution in assessing her evidence. Ms Sonntag described seeing swelling and bruising on SE, however police saw none. Ms Sonntag, in contrast to SE’s evidence on the topic, denied that she had ever supplied drugs to SE and denied that she had taken drugs prior to coming to court. Her presentation however, caused me concern. While Ms Sonntag was coherent, her response to questions was delayed and her manner appeared somewhat apathetic. Her presentation may of course be explicable from some other cause, but I was not offered any. In the end however, I have not been particularly assisted by the complaint evidence in the task of assessing SE’s credibility, having found it difficult to place reliance on Ms Sonntag’s evidence.
In the text message SE sent to Ms Sonntag, she said she copped ‘a flogging last night’, from the accused who ‘threw her’ from ‘one side of the room to other’, ‘jumped on my ankle’ and ‘smashed me in chin so my face is fuked [sic], ‘took my phone so I couldn’t call cops covered my mouth so I would stop crying’. While on the face of it the correspondence appears to detail an assault by the accused to her not entirely inconsistent with her evidence and SE’s complaints regarding the allegations in counts 4 and 5 were not unconvincing, I have also found it difficult to reconcile SE’s apparent preparedness to complain to Ms Sonntag about the accused’s physical assault and yet not make any reference to the sexual assaults in her communications. There was no evidence from police of injuries consistent with SE having been smashed in the chin.
Even allowing for SE being unaware that the accused’s acts constituted rape, given the violence she described in her text, it was difficult to understand why this was a situation where police were not called.
Finally, I find it is of some, albeit limited note, that SE’s first statement to Constable Adams at 5.10pm on 5 October 2018, was that the accused ‘was trying to have sex with me'.
In terms of count 6, defence emphasised that SE said on numerous times it was her right foot yet the prosecution opened on the left foot and it was agreed SE never told police she was stomped on her right foot. Her evidence that the accused fetched frozen peas was in my view, difficult to reconcile with his alleged conduct moments before. SC Price described SE limping, holding her back right side while SC Smith said she observed no obvious limp or problems walking. SE’s degenerative back condition, and her run to the hotel holding her young son, might explain such a presentation.
In any event, medical records showed swelling to SE’s right foot was related to her spinal condition and thereby are not necessarily consistent with an injury caused by the accused.
I have also treated the evidence of Mr Harrison with some caution given his criminal antecedents. It was troubling that he prefaced his evidence with a statement regarding the effect of a brain injury upon his memory and speech in the absence of any apparent difficulty with either his speech or his recollection of events as he told them.
The defence case was that Mr Harrison was at SE’s house to sell methamphetamine to SE. SE admitted Mr Harrison had supplied her with drugs previously. It is not, on the defence case, a coincidence that Mr Harrison made his way to the Blue Gums Hotel as did SE. Nor that SE did not tell police she met him in the rear carpark before calling police to have the accused removed from her house or that she said she went straight to the bottle shop, straight past where Mr Harrison was parked and calling police.
Mr Harrison recalled SE spoke with him and that she then sat outside the hotel. It is no coincidence that Mr Harrison was gone when police arrived.
When police attended, SE was not cooperative, but rather, was combative and walked away calling Ms Sonntag. The defence suggest this was because SE wanted the accused removed from her house and arrested, having got her methamphetamine from Mr Harrison. I have found that I am unable to exclude that scenario as a reasonable possibility.
Much of the defence case was focussed on blaming SE for difficulties in the relationship, akin to and consistent with, the threatening and intimidating abuse SE alleged she had suffered. I reject the defence case that SE was often the perpetrator of violence. In my view, the matters put before me concerning her previous relationships have not demonstrated a propensity on her part for violence or false reporting to police. It was apparent that she had indeed on some occasions not been the instigator and/or was the victim in those scenarios. Her violent behaviour towards CB was isolated. I formed the impression that the accused’s behaviour was indeed manipulative.
SE’s behaviour in contacting police, making statements on some occasions and not others, withdrawing complaints, denying incidents occurred, allowing the accused back into her life and seeking variation to intervention orders, are behaviours that too commonly feature in cases involving serious domestic violence. Abusive and violent relationships give rise to behaviours that to anyone who has not had that experience, may seem simply too odd or counterintuitive to be believed.
I do not doubt that some aspects of SE’s evidence were true, or that she loved the accused. I have however found it difficult to assess SE’s evidence overall. There were times when she appeared to be focussed and doing her best to describe the events, and yet at other times appeared distant, non-committal and prone to exaggeration. SE was candid about her methamphetamine use and freely admitted in cross-examination that she had used the drug in her home, albeit not in front of her children.
Even allowing for the unnecessary length of time taken in formulating questions and a somewhat disjointed cross-examination, SE’s manner was at times perplexing. Her ready resort to denial and challenge of relatively straightforward matters left me with uncertainty as to what aspects of her evidence I could accept and which I should reject. It was difficult to accept the version of events she gave in evidence as credible. The differences, which were sometimes marked, between her evidence and what she told police was troubling. Even allowing for the passage of time, the frequency and repetitive nature of alleged abuse clouding a distinct memory of an event, or perhaps chaotic lifestyle that often goes with drug use, those inconsistencies could not be excused.
It would appear clear, despite SE’s evidence to the contrary, that the accused’s relationship with Belinda was the cause of much of her angst. Her initial refusal to accept the accuracy of texts she had sent to Belinda and her continued denial that the relationship between the accused and Belinda was of no consequence to her, despite the text messages clearly stating otherwise, undermined SE’s credibility.
With respect to the first uncharged act said to have been committed at Blakeview, plainly SE sustained an injury to her vaginal area. She attended at hospital via ambulance with bleeding per the vagina. I dismiss defence’s characterisation of Dr Redzepagic’s evidence that the hospital records or SE’s test results allow for a reasonable possibility that SE’s presentation at hospital could be accounted for by the abnormality found on x-ray, her subsequent diagnoses of pelvic inflammatory or sexually transmitted disease. Evidently, SE’s perception that her pelvis had been fractured was incorrect, but in the circumstances, not surprising.
However, my rejection of the evidence SE gave regarding dragging a man the size and weight of the accused from a nearby paddock back to her home, which I regard as an embellishment, has negatively impacted my assessment of her evidence as to how the injury alleged to have occurred in 2015 was sustained, and of her evidence more generally.
While victims of domestic violence may not necessarily seek attention for the injuries inflicted upon them, and may go to extraordinary lengths to conceal signs of abuse, SE’s sometimes graphic descriptions of the injuries she sustained and episodes of violence, were not borne out by other evidence. The photographs in Exhibit P2 do not show any mark which could be thought of as consistent with SE’s head being smashed repeatedly into the floorboards. There was no evidence from the multiple occasions when SE consulted general practitioners of any bruising or injury consistent with the allegations, and while ME described seeing bruises on her mother’s arms, she was uncertain whether it had occurred while her mother was at work. ME’s distress, apparently in response to questions about drugs, raised in my mind the question of whether there had been some discussion between ME and her mother before ME gave her evidence, particularly given the emphasis placed by defence on SE’s drug use in front of her children in SE’s cross‑examination. That Ms Sonntag made no reference to having observed bruising until close to the trial, even though not having been specifically asked about it previously, was difficult to understand, given her apparent concern for her friend as expressed in her text messages.
Each of the police officers who gave evidence before me were careful and impressive witnesses who appeared to have approached SE’s allegations with care and attention. I do not doubt that any sign of injury to SE would have been assessed and recorded, particularly given the time over which police had contact with SE and the intervention orders said to have been in place.
In the end, I am uncertain where the truth lies and the prosecution has not excluded the defence case as a reasonable possibility on any of the charges.
I find the accused not guilty of all charges.
[36] Medical records indicate that SE was around 78 kg at the time and 167cm tall.
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