R v WITTER - [2011] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WITTER
Criminal Trial by Judge Alone
[2011] SASC 101
Judgment of The Honourable Justice Vanstone
28 June 2011
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
Defendant charged with two counts of rape, four counts of assault, one count of aggravated assault and one count of causing harm with intent to cause harm.
Held: defendant guilty of one count of aggravated assault - not guilty of all other charges.
District Court Act 1991 (SA) s 24; Juries Act 1927 (SA); Juries Rules 1996 (SA); Evidence Act 1929 (SA) s 9(1), 34CA, referred to.

R v WITTER
[2011] SASC 101
Criminal

VANSTONE J: The accused is charged with two counts of rape, four counts of assault, aggravated assault and causing harm with intent to cause harm. An information was laid in the District Court. The matter was transferred to this Court pursuant to s 24 of the District Court Act 1991. The accused pleaded not guilty and elected for trial by judge alone. Although the election was not made within the time allowed by the Juries Act 1927 and the Juries Rules 1996, I made an order extending the time within which the election might be made, having found special circumstances justified such a course. The trial proceeded before me sitting without a jury.
All charges arise from a train of events which commenced at about midday on 3 February 2010 at the complainant’s home at Hackham West and continued, with a number of interruptions, until about 3 am on 4 February when police attended the house and arrested the accused. It is common ground that the complainant and the accused were in a relationship from about July 2009 to at least the end of January 2010. Whether that relationship was continuing at the time of the charged events is a matter of dispute.
At the commencement of the trial there was argument as to the extent to which the prosecution might be entitled to lead evidence of the nature of the relationship between the accused and complainant, including assaults and rapes that had allegedly occurred during the relationship. I decided to hear the evidence-in-chief of the complainant going to the charged events, including any evidence she might give of her reactions to events being informed by past incidents, and then to rule, if necessary, on the admissibility of further historical material. In fact, little by way of specific previous incidents was referred to in the evidence-in-chief. The complainant made reference to having been previously “strangled” by the accused, but she did not give even a general description of any such incidents. She also touched on some other arguably unlawful conduct by him. In the event, counsel for the prosecution did not seek to supplement that evidence with further examination as to uncharged acts and I ruled that the evidence of uncharged acts, so far as it went, was admissible. Its potential uses were to provide some sort of context in which the events of 3 February occurred, to explain the complainant’s reactions to those events, and to explain her expectations in respect of the accused’s behaviour during the relevant hours. There is no question of using it in any propensity sense. Its probative value is not of the required order and, in any event, even were I able to make conclusive findings about any prior offending – which I am not – such findings would not dictate any particular conclusion as regards the charged acts.
Prosecution case
I propose to undertake a summary of the evidence which I see as most relevant to the charges. I do not propose to mention a number of witnesses called as part of the prosecution case, including crime scene examiners, uniformed police officers and scientific material, except in passing.
The complainant in all but one of the charges is 25 years of age and the mother of the child “CC” who is now aged nine years and who is the alleged victim of count 6, aggravated assault. At the time of these events, the two of them occupied the house at Hackham West where the offences allegedly occurred. The complainant met the accused through Facebook and they first met in person at an entertainment venue. There was some evidence of the complainant taking illicit drugs at the instance of the accused, but the evidence seems to be that that was not a feature of the relationship which developed. Accordingly, I disregard that evidence. A sexual relationship commenced quite soon after the first meeting. The complainant said that the relationship became “official” after three or so outings, when the accused asked her to be his girlfriend. She said that during the relationship the accused lived with his mother at South Plympton or thereabouts and, initially at least, he was working as a driver. She described a relationship in which he constantly contacted her and spent a great deal of time at her house. She described days when there would be 30 to 40 telephone calls between them, initiated mainly by him, and many occasions when he stayed overnight at her home.
The complainant said that the relationship was, quite quickly, punctuated by arguments, many of them concerned his intrusive conduct including examining her mobile telephone and the messages stored on it, insisting on access to her Facebook account and controlling her use of her home computer. She said he would send her friends messages which he had composed himself, ostensibly from her, including messages which retracted allegations against him that she had made or which he apprehended she had made. Her description of the relationship, which was sketched at many points of her extensive examination-in-chief and cross-examination, showed the accused as jealous, possessive, controlling and, to some degree, intimidating. The complainant said that when he did not get what he wanted from her he would be violent to her. She said that the accused did not trust her and was constantly suspicious of her activities.
The complainant said that in the days leading up to 3 February 2010 they were not together and that they did not speak for a couple of days. She said they had broken up for about a week before. She said she spoke to the accused when he telephoned her house on 3 February and during the conversation she had told the accused that a friend, Bruce, had visited her the night before and had stayed the night and had sexual relations with her. She related the accused saying that he wanted to come down and talk to her about everything and that he would not get angry with her.
The complainant said the accused arrived at her house at about midday and immediately she was told to go to the kitchen and take her clothes off. He told her to heat up food for lunch that he had brought. They both had lunch while they were naked and then he started taking photographs of her with her digital camera. These photographs were later deleted by her but, notwithstanding that, were later retrieved and were tendered in evidence as exhibit P5. The complainant said that initially he photographed her sitting naked on a kitchen chair but then made her lie on the floor. In the latter photographs the complainant is seen lying on the timber floor, naked, though attempting to cover herself with her hands and the accused is seen, in part, standing either alongside or over her, with his penis visible looming over her. The photographs show that the complainant was distressed. The complainant said that the taking of the photographs was punctuated by the accused demanding that she get on her knees and “suck his dick”. She said he grabbed her by the hair and forced his penis into the back of her throat. He told her “If you are going to act like a whore, you will get treated like a whore.” He told her to beg his forgiveness. This allegation of rape is count 1 on the information. The complainant said that the photographs of her which show her on the floor were taken after that episode.
The complainant said that they then went to the bedroom. She said she could not recall what led to that, but she then had a shower and the accused joined her. She said she had a headache by that time and hoped that the shower would make her feel better. She said the accused’s mood was now “OK” and he gave her a hug.
The complainant said that after the shower he pulled her by her hair onto the bed, then asked her to come to him. She said she thought he was “OK again” and she went to him but he pushed her back onto the bed, got out a condom and stuck it into her mouth, saying “I hope you choke on it”. Then she said he got out another condom, put it on and had vaginal sexual intercourse with her, saying “Would you consider this rape?” and “It’s teaching you a lesson, you dirty whore”. Count 2 refers to this intercourse. The complainant said that after a while he withdrew from her vagina and told her to take the condom off him, because “he wanted [her] to be his whore”.
The complainant said they both then went to the lounge room and sat down. She said that the accused was still calling her a “dirty whore” and telling her to beg him for forgiveness for having sex with Bruce. At times he was squeezing her feet and bending her toes, “torturing” her, as she put it. He also “smacked” her over the side of the head many times. This conduct is charged as count 3.
Shortly afterwards the two of them went to collect CC from school. It was now approaching 3 pm. On the way to the school they sat at a bus stop. The complainant said that while there two police cars and a friend went by, but she was restrained from summoning help. They then went into the school grounds and stood outside CC’s classroom, where the accused held her very tightly. When CC appeared they all went back to the house.
The complainant said that the accused then started drinking white wine from a cask, consuming a great deal of it. At some point she fell asleep on the three-seater sofa and when she awakened she found that the accused was asleep on her bed. She went outside for a cigarette and also swept some leaves near the front door. After a time all three of them watched several programs on television, during which time the accused’s mood was “fine”. The child CC went to her room and then the accused said he wanted to have anal sex with the complainant. She said he then “strangled” her in the lounge room. This is count 4. That led to her going to the bathroom. She took her mobile telephone with her. She said she planned to call the police. He then started “smashing” her over the side of the head and the back of the head, causing her head to repeatedly make contact with one of the bathroom tiles, cracking it. She said she put her hands up to stop it because it was hurting so much. The hitting on the head is count 5, assault. The complainant said that from this she suffered swelling and bruising to her right hand and lower wrist. Photographs of her right hand showed some reddening.
From there the complainant said she went to the lounge room and CC joined her on the three-seater sofa, sitting on her lap. She said the accused came and sat with them. She said that the accused then pushed CC off her lap and took the complainant in a headlock. She said he started to “strangle” her again. He was leaning over her and holding her nose and throat with his hands, restricting her ability to breathe and using his body weight to pin her down. CC was screaming to him “Stop hurting my mummy”. The complainant said that CC tried to get the accused off her and then the accused elbowed CC, and next thing, CC was recoiling across the room. The blow to CC was really hard and inflicted with the accused’s elbow. The complainant said that the accused then screamed at CC to get to her room and CC was crying. Then her body began to go “floppy” and weak because of the lack of air. This is count 7. The accused appeared to step back in shock. The complainant grabbed CC and ran outside with her. They were outside on the driveway screaming and crying when a neighbour, Mr Weymouth, intervened. The accused then walked away and Mr Weymouth said he would call the police. Police arrived soon afterwards, at about 10:30 pm. They spent some time with the complainant. They provided her with a police issue mobile telephone, as hers was missing. The complainant made a complaint to Senior Constable Thompson about having been raped.
After the police left, the complainant said there was a knock on the door and looking through the peephole she saw a person wearing, not a red T-shirt as the accused had been, but a darker browny T-shirt. She said that, thinking the police had returned, she opened the door and the accused pushed in and ran straight to the kitchen, grabbing the police mobile telephone. She said the accused asked her what she had said to the police, referring to the police as “the enemy”, as she said he customarily did. Shortly afterwards they went to the bedroom where once again he told her to take her clothes off. She asked whether she could have a shower and did so. She said the accused was laughing about the fact that he had been in the neighbour’s house throughout the time of the police attendance and how stupid were “the enemy”. She said he had the police telephone and was smashing it on the ground and then looked through its memory. He instructed her that when she next spoke to the police she was to tell them that her allegations were untrue.
The complainant said they then went back to bed and he again started strangling her. He got right on top of her, kneeling over her, and again placed one hand over her nose and mouth and his other hand on her throat. He repeated such actions. This is count 8 on the information, common assault.
The complainant said that the accused suddenly stopped and laid down and they heard a knock on the door and it was the police. She went to the door and police entered and arrested the accused. It was now 2:50 in the morning of 4 February. Evidence from police established that, being unable to find the accused, or to contact the complainant on the mobile telephone they had left with her, they re-attended in case he had returned.
When the complainant was asked why she stayed in a relationship which was, according to her, a violent one, she explained that:
There were times when we would have the best times at the football and he would be really good to me and then when he got jealous it would be really bad … and I could never understand why I felt so safe with him at the same time as being so scared of him and that was because I knew he would never let anybody near me, never. He was always the one that was hurting me. I know that doesn’t make sense, but it’s the only way I can explain it.
I turn to the evidence of the child, CC. Although it seems to me that s 9(1) of the Evidence Act 1929 creates the presumption that all persons (including children) are capable of giving sworn evidence and, despite the fact that I saw nothing to displace that presumption, I asked CC some questions to satisfy myself that she had an understanding of the task at hand and had sufficient understanding of the obligation to be truthful to enable her to be sworn. I was so satisfied. That opinion was fortified by the evidence she gave. It was given via closed circuit television. Subsequent to her having given evidence, prosecuting counsel advised me that, in the light of the evidence, she would not tender the videotape interview of CC created on 4 February 2010 (MFI P7) which was otherwise admissible pursuant to s 34CA of the Evidence Act.
In her evidence CC described fighting between her mother and the accused occurring on the night before her interview with a police officer. She said the fighting took place in the lounge room. She saw the accused putting his hand around her mother’s neck. They were on the bigger of the two couches. She said that when she saw the fighting she tried to get the accused off her mother and that he hit her in the rib cage. She said that he had hit her in the rib cage with his elbow and that, in response, she had cried and it was sore. She could not remember whether it made a mark. She could not remember what occurred after being hit. In cross-examination she agreed that immediately before feeling the hit to her rib cage she thought the accused was looking at her mother rather than at her. She said at the time she was struck, she was to one side of the accused.
Defence case
I turn to the evidence of the accused. He said that he had met the complainant on 10 July 2009 and that the relationship which they established contained “some good and some bad”. He said he loved the complainant. In January 2010 the relationship was “slightly rocky” and the common theme in their arguments was the complainant’s drinking. He said he had tried to put his foot down about it and had discussed with the complainant’s sister various ways to try and keep the complainant in control when it came to her drinking. One night he had videotaped her when she was very drunk at a party so that he could later show her how she had behaved. He said it was untrue to say they had broken up at the end of January 2010.
On 3 February he had a toothache and took the day off from his work for one Mr Stuart at NAP Finance. He had telephoned the complainant at about 9 o’clock in the morning and she had sounded tired and said she had been drinking the night before. He said he was angry at that because:
It was a school night and there had been times when she hadn’t been getting out of bed early enough to get [CC] to school so I was pretty angry with her about it. … I told her to get her shit together.
He said there would have been other words as well, but that it was “a recurring theme, so it would have been ‘you’re a fuckhead’ and ‘grow up’”. He said that he then asked her whether she would like to have lunch and that he would come and see her. He was not driving at that time and planned to catch the train. He prepared some food to take to share with her.
He said he arrived at the complainant’s house at about midday and found her still in her pyjamas. He was a little bit annoyed and asked her what she was still doing in bed. He joined her in the bedroom; she asked him for a cuddle and they started hugging, kissing and chatting. They then had consensual sexual intercourse. After that they had lunch. They both sat in the kitchen, each clothed only in a towel. The accused served the lunch he had brought and asked her what she had done the previous night. She then told him that she had been with a man called Bruce. She was crying when she said it. He said he got angry at that and felt humiliated. He called her a “slut”, and told her “she needed to pull her head out of her arse, stop doing such stupid shit”. He said “I drilled her”. She was crying and apologising. He told her she needed to take a good long look at herself and the things she did, to think about herself and her daughter and their relationship. He told her he wished he could see the lying look on her face when she said she was sorry and at that point he picked up her camera and took a photograph of her. She was then sitting opposite him. He kept on abusing her, calling her various names including a “dirty slut”. He said at that she jumped up from the table and tried to take the camera from him and so he lifted it above his head and beyond her reach. She then fell over onto the floor and he took the balance of the photographs of her. He said the towels they had each been wearing had come undone when they stood up from the chairs. He denied that he intended to have his penis in the photographs and denied that he was looking at the viewer when he took them. He said he was “just randomly pressing the button”, and abusing her. He said he possibly took the photographs to punish her, although he had no particular purpose in mind. He went on:
I wanted [her] to see the look on her face when she lied to me when she said sorry. When she tried to grab the camera from me, it just all went blurry, went crazy. (263)
He then threw the camera on the table and said to her “Here’s some photographs to share with your friends on Facebook”.

He was intending to leave at that point but the complainant was at the front door crying hysterically and rather than have another confrontation he went and sat down in the living room. The complainant sat in another chair there and was sobbing. She told him she loved him and was sorry. He said he then went and had a shower and she joined him there. At that point they expressed their love for each other. They then both dressed and he went and cleaned up in the kitchen and after that he turned on the television.
A little later the complainant asked if he wanted to go with her to pick up CC from school and that is what they did. On the way they sat at a bus stop and he recalled the police car going by. After CC was collected they went back to the house and the complainant brought him a glass of wine and had one herself. They were watching television and CC was playing in her bedroom. The accused said he had a sleep on the complainant’s bed and woke up at about 5:30 pm. He said that by about 7 o’clock he was getting affected by the wine he had consumed.
The accused said things started to get “scratchy” when he told her he wanted her to move away from Hackham because he did not like the people she hung around with and told her he wanted her to get a job or do some study to be more proactive with her life. He named specific persons whom he wanted her to give up. An argument developed. It continued on and off during the course of the evening and they ended up yelling at each other. The accused said that the complainant then jumped up and attacked him in the corner of the room, jumping on top of him and starting to strike him about the face and head. He was deflecting the blows. They ended up on one of the sofas with the complainant on her back and the accused straddling her with one leg on the ground and the other knee on the other side of her. He said he was trying to stop her hitting him. He tried to take hold of her hands. He said the next thing he knew CC was on the floor crying, but he had no idea how that had occurred. He said immediately beforehand his arms were moving in a “lateral side to side type motion” and that he could possibly have elbowed CC during that interlude.
He said when he saw CC on the ground he was “shocked” and stopped immediately. He said he tried to pick up CC but the complainant took hold of her first. CC was crying loudly. Both the complainant and CC went out of the front door. Outside, he said to them “How is she?” and “It wasn’t my fault, fuck it, you caused all this.” The accused said that a neighbour then came out and told him he should leave to which the accused replied that the neighbour should mind his own business. The accused then left. He said he intended to go home but was not sure how he was going to get there at that time. He sat in the park and slept and later on went back to the complainant’s house. He said he was unaware of the police having attended. He said the complainant simply opened the door to his knock and they made up. He said they were in bed when the police arrived.
The accused denied having hit the complainant either on this occasion or on any other. He said there had been a couple of times when the complainant was drunk when she would get pretty violent, but he had never hit or strangled her.
The accused called one witness, namely Spiros Psevdos. He described himself as “effectively a money lender”. He said he had known the accused’s then employer, Mr Stuart of NAP Finance, for about 20 years. He said he had first met the accused perhaps 15 years ago but knew him from his work rather than socially. More recently he knew him as an employee in Mr Stuart’s business. He learned of the allegations made against the accused after querying the accused’s absence from the NAP premises. He understood the allegations involved a sexual assault.
Mr Psevdos described an occasion in late winter or early spring 2010 when he was invited to meet Mr Stuart for coffee at Cibo in Gouger Street. When he arrived there he saw that Mr Stuart was with a young woman who was introduced to him. He realised it was the woman making allegations against the accused. He felt rather uncomfortable. Mr Stuart and the complainant were talking about relationships. Mr Psevdos described the following passage of conversation between Mr Stuart and the complainant.
[Mr Stuart] had put to her that the matters that she was levelling against [the accused] were quite serious, if she could find it in her ‘soul’, I think was the word he used, to let this thing go. As the conversation went on [the complainant] replied with ‘I know he didn’t do it’. I without thinking asked – I requested of her ‘Did what?’. And she replied ‘You know’ and then she went on to say that – she mentioned [the accused’s name], ‘He hurt my daughter and needs to be punished’.
Mr Psevdos said that at hearing this, he was shocked because he knew of the seriousness of the allegations. He was also “very mindful of where I was … very mindful what I was participating in”. He said it went through his head that he might become a witness. The conversation between Mr Stuart and the complainant continued and Mr Psevdos said he waited for a break in it and then said to the complainant that she ought to consider speaking to the police, or at least to a solicitor about the matter. He said to Mr Stuart in parting “Please count me out of any of these sorts of meetings. There is probably some kind of restraint and we probably participated in a breach of a restraint.” When asked, by me, why he himself did not go to the police and tell them what he had heard, he said he was not obliged to and that in fact it had not crossed his mind. Mr Psevdos said he believed that Mr Stuart was now working in Victoria. Mr Stuart was not called to give evidence.
Assessment of witnesses
Notwithstanding that the onus of proof remains on the prosecution, I propose to work backwards, dealing with the witnesses I have just outlined. Where I use the words “find” or “satisfied”, I refer to a finding beyond reasonable doubt.
In my view, the fact that Mr Stuart and Mr Psevdos would take part in a meeting with the complainant such as the one described, reflects poorly on both of them. Mr Psevdos claimed that he was unaware that the complainant would be present when he met with Mr Stuart, but the fact is he remained there, well knowing that she was the alleged victim in the charges against the accused. I consider it significant that Mr Stuart has not been called to explain why he arranged to meet with the complainant and why he chose to include Mr Psevdos in that meeting. I do not draw any inference that the accused was instrumental in that meeting being arranged – to do so would involve speculation – but it was apparent, even to Mr Psevdos, that the meeting might involve some sort of breach of orders in relation to the complainant and that would have been even more obvious to Mr Stuart. The fact that the complainant was naïve enough to attend the meeting is not to the point either. I consider that the whole of the circumstances raise the inference that the meeting was designed to compromise the complainant in relation to the charges.
The account of the conversation which Mr Psevdos gave makes little sense. Why would the complainant say: “I know he didn’t do it.” If the complainant did say anything to the effect that the charges were fabrications, then there is no excuse for Mr Psevdos, and indeed Mr Stuart, failing to immediately advise the police. Had the admission imputed to the complainant actually been made, then I am confident that Mr Psevdos and Mr Stuart would have discussed the matter as soon as possible upon the complainant leaving them and would have disclosed the conversation to the authorities.
When the suggested conversation was put to the complainant I took her to express genuine surprise at the words attributed to her.
I am not prepared to place any reliance on the evidence of Mr Psevdos. I reject it entirely.
The evidence of the accused went a long way to support that of the complainant in establishing that the relationship between the two of them was marked by his bullying, controlling and emotionally abusive conduct. I reject as even a reasonable possibility that he had never hit or been otherwise violent towards the complainant. However, even if he were violent towards her on other occasions it does not follow that he was violent on 3 February.
I found the accused’s explanation of the way in which the photographs P5 came to be taken wholly unconvincing. In my mind the photographs represent what I find to have been his ongoing attitude and behaviour towards the complainant: that he demeaned her both by his words and his actions and that he treated her as an object to be manipulated and spurned. No doubt there were times when the relationship was rewarding to each of them. However, it seems that there was a pattern of heated arguing and physical intimidation which was followed by reconciliation and expressions of love for each other.
The accused’s account of the events of 3 and 4 February was at times extraordinarily detailed. He claimed a recollection of exactly where he was at any given moment, which way he was facing, and of precise conversations between himself and the complainant. He even recalled having seen a police car while he and the complainant were at the bus stop on the way to CC’s school; an event which, on his version, could have had absolutely no significance. On the whole I found his evidence unconvincing.
The evidence given by the child CC was quite limited in terms of a description of events. However, I am wholly satisfied by the truthfulness of CC. She gave her evidence without any hint of malice towards the accused or exaggeration in favour of her mother. It was entirely matter of fact and she frankly admitted that events after being hit were beyond her memory. I was impressed both by her demeanour and by the content of her evidence. There was no suggestion that she was inconsistent in her account of events with her statement given at the time. I would have been prepared to act on her evidence even if she had not appeared to be capable of taking the affirmation.
In terms of proof of count 6, the assault upon CC, it is true that CC’s evidence does not, of itself, establish that the blow to her delivered by the accused was intentional. On the defence case, the contact with CC resulted only from the lateral movement of his arms while struggling with the complainant and not with any intention to hurt her. However, I am entitled to consider the evidence both of the complainant and of CC in relation to the way in which CC came to be hit.
I found the complainant to be, generally, an honest witness. Her account of events was appropriately detailed. She appeared to have a clear recollection of events she was describing. I thought she was genuinely and understandably upset at various times in her lengthy evidence. It is plain from the combination of her evidence and the accused’s that the relationship they shared was dysfunctional, but that there was a good deal of feeling on both sides for the other.
There are several aspects of the complainant’s evidence which cause me to doubt her reliability.
First, on her evidence, she was subjected to a number of beatings, at least one of which was severe, and was involved in repeated struggles with the accused over a long period of time. In particular, her description of count 5 involved her head being hit against a tile on the bathroom wall repeatedly. On her account it is extraordinary that she did not suffer a head injury, either closed or open. While she said that she suffered swelling to the head as a result, she did not apparently mention that to anyone. She claimed that marks on her hand – seen in photographs – were caused during this episode while she attempted to ward off blows, but this was the only visible injury to her. One might also have expected, after the degree of struggling at various times and the repeated strangling she described, to have seen marks on the complainant’s arms and neck resulting from being held or from pressure being applied. No such marks were demonstrated. As I said, I consider the complainant to be an essentially honest witness, but the lack of injuries suggests to me that the violence to which she was subjected was not of the degree that she now describes.
Second, I am not inclined to accept her evidence that, after the departure of police she inadvertently re-admitted the accused to her home. It was proved that her front door had, not only a peep hole, but also a security chain. If she was truly unsure of who had knocked on her door soon after the departure of the police, I consider that she would have, at the very least, used the chain so that she could identify the person knocking. Indeed, it is extraordinary that she even opened the door at all, unless she knew that the accused was there and intended to admit him. Her account of seeing a T-shirt of a different colour to that which the accused had been wearing is unconvincing. It seems to me that, at best for her, she has convinced herself that she did not re-admit the accused voluntarily, as a way of justifying her own position. This feature of the account is telling, inasmuch as it demonstrates that even after what I find was significant violence between the accused and the complainant, she could forgive him and allow the contact to resume. That that is so is also demonstrated by her apparent readiness to go to him for a hug when he asked for it during the time period covered by the charges. The fact that her attitude to him could change so quickly makes it extremely difficult to be sure that episodes of sexual intercourse between them were non-consensual.
Third, I am unconvinced that when the accused accompanied the complainant to CC’s school that afternoon, this was not an example of a period when she was willingly with him. I do not accept that she made any attempt to seek help or that she was minded to.
Next, as I have outlined, there is a dispute between the accused and the complainant as to whether their relationship was still on foot on the morning of 3 February. I considered the complainant’s evidence as to this unconvincing. I note that when she spoke to police upon their attendance that night and complained of being raped, she described the accused as her “partner”. In my view it is quite possible that the complainant has unconsciously tried to justify the fact that she spent the previous evening in company with the man Bruce by an assertion that the relationship between herself and the accused had ended.
Finally, the complainant gave a graphic account of the accused smashing the mobile telephone left with her by police during their first visit. The impression I gained from her evidence was that the telephone would have been left in pieces. However, it appears that when it was returned to police its condition was not such as to evoke any attention; that is, it was still in good working order and not apparently marked.
The complainant’s account of events derives significant support from the photographs P5, from the evidence of CC and the evidence of the two neighbours who heard raised voices over an extended period during the evening. It is noteworthy that while the photographs show demeaning and intimidatory conduct on the part of the accused – which involved standing over her with his penis exposed – the photographs themselves do not corroborate the forced fellatio which the complainant says interrupted the series of photographs that were taken. Therefore the photographs certainly corroborate abusive behaviour by the accused, but they do not lead me to reach a level of satisfaction in relation to the first count that could lead to a finding of guilt. The neighbours’ evidence supports the fact that there was prolonged arguing between the accused and the complainant. However, on the accused’s own evidence that is not really a matter of dispute. As I have said, evidence in relation to injuries sustained by the complainant during the period is less than might have been expected.
I am left in a state of uncertainty over several important factual matters. For example, when was the accused told that the complainant had spent the previous night with Bruce, and why? Was there any consensual sexual activity between them during the relevant period?
The situation with respect to that part of the complainant’s account supported by CC is different. As I have said, I found CC’s evidence convincing. CC spoke of seeing the accused with his hands around her mother’s neck in the living room, on the couch. That supports the complainant’s evidence. The complainant said that both before and after the assault on CC the accused was leaning over her, putting his hands over her nose, throat and mouth and using his body weight to pin her down. The complainant said that CC screamed at the accused, saying “Stop hurting my mummy” and that he then “elbowed” her. The issue here is not whether CC suffered a blow from the accused but whether he intentionally hit her. If so, there can be no issue of self-defence. I am satisfied beyond reasonable doubt that the blow suffered by CC was a direct intentional application of force by the accused to CC, without lawful excuse, for the purpose of repelling CC’s attempt to go to her mother’s assistance. I reject the accused’s evidence that the contact was unintentional and caused only by his “lateral side to side type motion” with his arms. His arms were not moving laterally; they were on the complainant’s face and throat immediately before CC’s approach.
I am also satisfied that, immediately prior to striking CC, the appellant was holding the complainant in the way in which she described. However, that assault is not the subject of a charge.
In making these findings in the previous two paragraphs against the accused I do not place reliance on the evidence of earlier violence in the relationship or indeed of the allegation of other violence on 3 February.
Conclusion
While I have found that the complainant was essentially an honest witness there are features of her evidence which have led me to conclude that she was not always reliable. The dysfunctional nature of the relationship between the complainant and the accused has led me to a state of mind that the assaults described by the complainant probably occurred but, except where the complainant’s evidence is corroborated by CC, I cannot be certain. In respect of count 1, I consider that it was probably committed in the way described by the complainant at about the time the photographs were taken, but I cannot find so beyond reasonable doubt.
In relation to the aggravated assault charge on CC, I am satisfied beyond reasonable doubt that it occurred as described by both CC and the complainant. I am further satisfied that the accused knew that CC was under the age of 12 years.
Accordingly, I find the accused not guilty of counts 1, 2, 3, 4, 5, 7 and 8 but guilty of count 6, aggravated assault.