R v Am

Case •

[2024] NSWDC 280

•

11 July 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v AM [2024] NSWDC 280
Hearing dates: 1 July 2024 – 5 July 2024
Date of orders: 11 July 2024
Decision date: 11 July 2024
Jurisdiction:Criminal
Before: Grant DCJ
Decision:

The accused is found not guilty.

Catchwords:

CRIMINAL LAW – Judge alone trial – re-trial on one count – jury in initial trial acquitted accused of three counts – effect of acquittals on remaining count – motive to lie – visa to remain in Australia – context evidence – verdict of not guilty

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

Gilham v R [2012] NSWCCA 131.

Rv Markuleski (2001) 52 NSWLR 82.

Washer v Western Australia (2007) 234 CLR 492

Category:Principal judgment
Parties: Rex (Crown)
AM (Accused)
Representation:

Counsel:

Mr W Martin (Solicitor Advocate) (Crown)
Ms T O’Rourke (Accused)

Solicitors:

Ms A Gunawardhana (Crown)
Ms L Dao (Accused)
File Number(s): 2022/00035948
Publication restriction: Section 578A of the Crimes Act 1900 (NSW) prohibits the publication of any matter that may identify the victim in sexual offence proceedings.

JUDGMENT

Background

  1. The accused, AM, stands before me for trial by judge alone. It is a retrial. The original trial took place between 20 November 2023 and 30 November 2023 and was before a jury. The accused was arraigned and pleaded not guilty to four counts namely, that he,

  1. between 31 July 2021 and 1 November 2021 at Auburn in the State of New South Wales, did intimidate RM with the intention of causing her to fear physical or mental harm, contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW),

  2. on 13 December 2021 in Auburn in the State of New South Wales, did assault RM thereby occasioning actual bodily harm to her, contrary to s 59(1) Crimes Act 1900 (NSW),

  3. on 3 February 2022 in Auburn in the State of New South Wales, did intimidate RM with the intention of causing her to fear physical or mental harm contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), and

  4. on 6 February 2022 at Auburn in the State of New South Wales, did have sexual intercourse with RM without her consent and knowing that RM was not consenting to the sexual intercourse, contrary to s 61I Crimes Act 1900 (NSW).

  1. On 30 November 2023 the jury returned verdicts of not guilty to Counts 1, 2 and 3. The jury were unable to reach a verdict on Count 4 and accordingly were discharged without verdict.

  2. The accused was arraigned before me on 1 July 2024 and pleaded not guilty to one count, namely, that he,

  1. on 6 February 2022, at Auburn, in the State of New South Wales, did have sexual intercourse with RM without the consent of RM, knowing she was not consenting to the sexual intercourse, contrary to s 61I Crimes Act 1900 (NSW).

  1. By agreement between the parties, the Crown adduced evidence of the allegations contained in Counts 1, 2 and 3 in this trial, even though the accused had been found not guilty of those counts.

  2. The Crown accepted they could not use the allegations in proof of the count alleging sexual intercourse without consent. (“Count 4”).

  3. Ms O’Rourke, who appears for the accused, submitted it was necessary for the Court to hear the evidence relating to Counts 1,2 and 3 from the previous trial to properly understand the cross-examination.

  4. The parties agreed that the accused is entitled to the full benefit of the acquittals. Ms O’Rourke submitted that the acquittals went to the question of the accuracy and the reliability of the complainant, and I as the trial Judge could use that in consideration of whether the Crown could prove beyond reasonable doubt Count 4.

  5. The issue in the trial was consent. The accused conceded that sexual intercourse took place. It is for me to determine if the Crown could prove beyond reasonable doubt that the complainant was not consenting and that the accused new that she was not consenting or was reckless that she was not consenting.

  6. I now set out briefly the allegations contained in Counts 1, 2 and 3 from the previous trial.

Count 1 (intimidation)

  1. The complainant and the accused were sitting on a sofa watching television. He was ranting that she had cheated on him with someone else, that she was going to leave him, that he would make it easy for her to leave him and that he would kill her if she tried to leave him. Then he asked her if she knew if there was a knife in the kitchen. He said, “can you see the knife in the kitchen?”, and she said “yes”, and he said, “that is a knife I’m going to use to cut your throat if you ever try to attempt to do something like that”. She then demonstrated by making a gesture with her right hand, holding it up underneath her chin and drawing it down. Her hand was positioned so that her fingers pointed to her throat, and her hand was moving with an open palm towards her chest. She felt really scared.

Count 2 (assault occasioning actual bodily harm)

  1. On 13 December 2021, the complainant and the accused were in their bedroom. She and her sisters (cousins) had gone out for dinner prior. He implied that she had gone out to dinner with a man instead and that she was cheating on him. She denied this. She was lying on the bed. He was upset and he punched her on the face.

  2. The accused then got on top of her and started to grab her hands which started to hurt her. She told him that it was hurting. She told him to get off. He would not. She tried to push him and then she tried to punch him in order to get him off. He then released her hands and then she rolled over and got on top of him. When she got on top of him, she told him that he needed to stop, and she could not take it anymore. He did not say anything. He punched her. She blacked out and then he grabbed her by the hair. She told him to leave her alone and let go of her hair. She was on top of him at the time that he punched her. The left part of the face was swollen. She had a cut to her tongue and her tongue was bleeding a bit. She took some photographs of her injuries. She showed those photographs to the police on 7 February 2022.

Count 3 (intimidation)

  1. There was an argument between them as to whether she had another man. The argument could have been in the bedroom or the loungeroom. He told her that one day he is going to find the man that she had had an affair with and then kill them both even if it meant he will most likely go to prison for the rest of his life. He was really close to her, face-to-face. He was really angry. She was very scared. She asked him whether he had any proof that she had been seeing someone else. She told him it was all nonsense.

General Directions

  1. In accordance with s 133 of the Criminal Procedure Act 1986 (NSW), and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law.

  1. A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

  2. A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relies.

  3. If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.

  1. I remind myself of the requirement to state findings on the main grounds critical to the contest between the parties and on which the verdict rests. In this trial, the critical issue is whether the complainant was an accurate and reliable witness.

  2. In my role as the judge of facts, I am able to draw inferences from the direct evidence from experiences had in my own life. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. Noting the requirement to be satisfied beyond reasonable doubt of the guilt of the accused, there is an additional requirement, among other things, to be extremely careful about drawing any inference. Any possible inference will be examined to ensure that it is a justifiable and rational inference in the circumstances.

  3. I now direct myself to the burden of proof of the guilt of the accused. To prove the accused guilty, the Crown must prove beyond reasonable doubt each element of the offence. That burden is placed squarely on the Crown and is in respect of every element or essential fact that makes up the offence. There is no stage where that burden is shifted to the accused to prove any fact or issue that is in dispute. 

  4. Beyond reasonable doubt are ordinary words that carry their everyday meaning, and that is how I understand them. If, at the end of my deliberations after considering the evidence and submissions made by the parties, I am not satisfied beyond reasonable doubt as to any one or more of the elements, a verdict of not guilty must be returned.

  5. I direct myself to the presumption of innocence. The accused is presumed innocent unless the Crown satisfies me that the accused is guilty beyond reasonable doubt.

  6. The prosecution must prove each element of the offence beyond reasonable doubt. The accused has no onus of proving anything. I do not act on suspicion. I do not act on what I believe might probably be the case. I can only return a guilty verdict if I am satisfied the prosecution has proved each critical element of the offence charged beyond reasonable doubt. If the prosecution fails to meet that high onus, if I have doubts about their case, the accused must have the benefit of any reasonable doubt and I must return a verdict of not guilty on that count.

  7. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, it is important that I exercise caution. I must exercise caution before I convict the accused because the Crown case largely depends on me accepting the reliability of the evidence of a single witness. This being so, unless I am satisfied beyond reasonable doubt that the complainant, is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. Before I can convict the accused, I am to examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial.

  8. It would be wrong of me to conclude that the complainant is telling the truth because there is no apparent reason, in my view, for her to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. I cannot be satisfied that the complainant is telling the truth merely because there is no reason for her to have made up these allegations. There might be a reason for her to be untruthful that nobody knows about.

  9. The accused has not given evidence in response to the Crown case. There are a number of important directions of law which I must follow in relation to that fact.

  10. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.

  11. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged.

  12. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required. I direct myself as a matter of law that the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. I cannot use that fact to fill in any gaps that I think might exist in the evidence tendered by the Crown. It cannot be used in any way for strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I remind myself that I must not speculate about what might have been said in evidence if the accused had given evidence.

  13. I direct myself in accordance with s 293A and s 294 of the Criminal Procedure Act 1986 (NSW).

Elements

  1. Before I could return a verdict of guilty to the offence, the Crown must prove beyond reasonable doubt that at the time and place alleged, the accused, AM:

  1. had sexual intercourse with the complainant, RM,

  2. without her consent, and

  3. knowing that she did not consent.

Sexual intercourse

  1. “Sexual intercourse” includes:

  1. penetration to any extent of the complainant’s genitalia by any part of the accused’s body or object manipulated by the accused.

Consent

  1. “Consent” is free and voluntary agreement. The Crown must prove that the complainant did not freely and voluntarily agree to the sexual intercourse.

  2. I must focus on the whether the complainant did not consent to the sexual intercourse at the time it is alleged to have occurred. While I can use her state of mind before and after the alleged sexual intercourse as a guide, the question is whether the Crown has proved beyond reasonable doubt that the complainant did not consent to the sexual intercourse at the time it is alleged to have occurred.

  3. In determining whether the complainant was consenting to the sexual intercourse, I may have regard to the following:

  1. Consent obtained after persuasion is still consent, provided that ultimately it is given freely and voluntarily.

  2. Consent, or lack of consent, can be indicated by the complainant’s words, actions, or a combination of both.

  3. A person does not consent to sexual intercourse just because they are not physically resisting. There is no legal requirement for a complainant to offer physical resistance for you to be satisfied that they were not consenting.

  1. It may be established that the complainant did not consent to the sexual intercourse if:

  1. The complainant consented because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force.

  1. If I am satisfied the complainant consented in these circumstances (intimidatory or coercive conduct) it does not necessarily follow that I should be satisfied beyond reasonable doubt the complainant did not consent. The ultimate question is whether I am satisfied beyond reasonable doubt that the complainant did not consent (freely and voluntarily agree) to the sexual intercourse.

Knowledge

  1. The law says the accused “knew” the complaint did not consent to the sexual intercourse if I am satisfied beyond reasonable doubt of any of the following:

  1. The accused knew the complainant did not consent, or

  2. The accused was reckless as to whether the complainant consented because he realised there was a possibility that she did not consent, or

  3. The accused was reckless as to whether the complainant consented because he did not even think about whether she consented and went ahead not caring whether she consented or not or thinking it was irrelevant.

  1. When considering whether the accused had knowledge the complainant did not consent to the sexual intercourse, I must consider all of the circumstances, including any steps the accused took to ensure the complainant consented to the sexual intercourse.

  2. When considering whether the accused had knowledge the complainant did not consent to the sexual intercourse, I must focus only on the accused’s state of mind at the time of the sexual intercourse. This is not a question of what a reasonable person would have known, thought or believed.

  3. There is no obligation on the accused to prove his state of mind, or anything else.

  4. The Crown must prove each element beyond reasonable doubt.

The Crown Case

  1. The Crown called the following witnesses in the original trial:

  1. The complainant, RM,

  2. The complainant’s cousin, RD, and

  3. Dr Pisani.

  1. In this trial, the Crown played the evidence of the complainant and provided transcripts of the evidence of RD and Dr Pisani.

  2. The following exhibits were tendered on behalf of the Crown:

  1. Transcript and recording of the complainant’s evidence from the previous trial, dated 21 November 2023,

  2. Pictures of the complainant depicting redness of the left eye,

  3. Application for a partner visa,

  4. Photographs of the apartment which the complainant, her cousin and the accused resided,

  5. Photographs of the complainant’s clothing (worn when the events of Count 4 are alleged to have occurred),

  6. Messages from the accused’s phone (from 30 September 2021 to 6 February 2022),

  7. Cellebrite extract from the accused’s phone, depicting messages from 26 September 2021 to 20 January 2022,

  8. A screenshot from the complainant’s phone depicting messages with the accused (from 6 and 7 February 2022),

  9. The complainant’s first DVEC,

  10. Transcript of RD’s evidence from 24 November 2023,

  11. Expert report of Dr Pisani dated 15 February 2022,

  12. Transcript of Dr Pisani’s evidence from 24 November 2023, and

  13. Agreed facts.

Evidence of Dr Pisani

  1. Dr Pisani’s evidence was that he observed a couple of bruises to the complainant’s body, but that the complainant could not recall how she got them. She had reported some tenderness to the perianal region. It is a subjective finding and is consistent with consensual anal intercourse having taken place. It, of itself, does not prove nonconsensual intercourse. The Crown in his final address submitted the evidence was neutral. I accept that submission. He submitted that it shows that the complainant was prepared to go to some lengths in making this report.

  2. There is an alternative hypothesis available. That is, her actions (making a complaint to police and seeing a doctor) were in furtherance of her motive, namely, to remain in Australia, even after her relationship with the accused had broken down, and a partner visa (requiring his sponsorship) was no longer feasible, and to make a false allegation of domestic violence or sexual assault to support a new visa application.

Context evidence

  1. The Crown relies upon several pieces of evidence as context. That evidence comes before the Court by way of section 166 certificate offences associated with these proceedings. I direct myself in the usual way as to how I can use context evidence. The evidence was admitted solely for the purpose of placing the complainant’s evidence towards proof of Count 4 into what the Crown says is a realistic and intelligible context (coercion and domestic violence).

  2. I must not use this evidence as establishing a tendency on the part of the accused to commit the offence charged and I must not substitute the evidence of other acts for the evidence of Count 4.

  3. The evidence is as follows.

Sequence 1 – “the Apple Watch incident”

  1. The complainant owned an Apple Watch. The incident took place in the bedroom, at night. The complainant had been recording things the accused said during the course of the relationship on the recording function of her Apple Watch. She told him she would send the recordings to his parents.

  2. The accused grabbed her wrist and tried to throw the watch off the balcony. He got the watch off of her hands, twisted her wrist and opened the door to the balcony. She stopped him. She grabbed him by the stomach. He told her to open her phone and delete what was on her phone (the recordings) which she did. He gave the watch back to her. This incident occurred sometime in November 2021.

Sequence 2 – “the first spitting incident”

  1. The complainant was laying on her back on a mattress in the loungeroom, watching television. The accused came on top of her out of nowhere. He looked at her angrily. His mouth was full of saliva. He was trying to tease her by spitting saliva into her mouth. She thought he was kidding. He then spat on her face. She told him she could not believe he just spat on her, that it was disgusting, and that she would tell his parents about what happened. She went upstairs, cleaned herself up and spoke to his parents.

Sequence 3 – “the kicking incident”

  1. The complainant had COVID. She was at home. The accused was angry with her and not speaking to her. He told her she had made him sick. He wished she were dead. She was very hurt and angry. She yelled at him, “you treat me like shit, and nobody deserves to be treated like this.” She told him even her mum never treated her like this. She told him, “Don’t you dare say that to me ever again.” She grabbed him by the shoulders. He kicked her really hard in the stomach.

Sequence 4 – “the second spitting incident”

  1. This incident continues from the events of Sequence 3. After he kicked her in the stomach, she swore at him. She said, “Fuck you”. The tone of her voice was angry. He spat on her face. After the incident she called his dad.

Not guilty verdicts

  1. The accused was found not guilty of Count 1 (intimidation), Count 2 (assault occasioning actual bodily harm) and Count 3 (intimidation). The accused is entitled to the full benefit of the acquittals: Washer v Western Australia (2007) 234 CLR 492, Gilham v R [2012] NSWCCA 131.

  2. The acquittals demonstrate the jury did not believe the complainant was an honest and reliable witness. I am entitled to use this fact in my assessment of Count 4: R v Markuleski (2001) 52 NSWLR 82.

Count 2 (assault occasioning actual bodily harm)

  1. On 13 December 2021, the complainant and the accused were in their bedroom. She and her sisters (cousins) had gone out for dinner prior. He implied that she had gone out to dinner with a man instead and that she was cheating on him. She denied this. She was lying on the bed. He was upset and he punched her on the face. She said the punch was really hard and she blacked out. The left part of the face was swollen, and she had a cut to her tongue. She took photographs of her face and tongue (Exhibit A in the original trial, Exhibit 2 in this trial).

  2. The photographs showed some redness of the left eye. She took the day off work following the incident.

Cross examination regarding Count 2

  1. In cross-examination, she conceded that she told her boss that she was not coming to work because she had an eye infection. She denied lying to her employer but said she could not give the real reason. She denied having an eye infection at the time.

  2. On 7 December 2021, the complainant consulted Dr Han concerning itchiness and problems with her left eye (Exhibit C). When she was confronted with this fact in cross examination she became vague and evasive. She did not remember the date, the doctor, the health centre or when she experienced itchiness in her eye. On a number of occasions, she responded “I don’t remember”. She did not remember eyedrops being prescribed.

  3. She was cross-examined about attending a doctor on 8 December 2021 for review of redness to her eye and being prescribed Chlorosig. She said she did not remember the day and time or the doctor but remembered seeing a doctor for an eye infection. She was obfuscating the date and circumstances of the medical treatment because it predated the alleged assault.

  4. It was put to her that on 14 December 2021 (the day after the alleged assault) she attended a doctor for stomach problems. She said several times that she did not remember.

  5. It was put to her that she made no complaint about an assault to the doctor. She said she could not remember what she told the doctor. She conceded she had conversations, but that she did not have the best recollection (of the conversations or in general).

  6. Later in cross-examination she conceded seeing a doctor for an eye infection but did not remember the date or time (records show she attended Dr Bastakoti for an eye infection on 10 December 2021). She saw an optometrist for the eye infection on 18 December 2021.

  7. She complained to police on 7 February 2022. It was recorded. At Transcript 23 November 2023, p 142 – 143, the following exchange took place:

“Q.… You showed the police on 7 February 2022 photographs that you had taken of your face: correct?

A. Yes I did.

Q. When you gave the police those photos, or showed them photos, at least, you were specifically referring them to your eye area?

A. No, I wasn’t.

Q. I suggest to you that when you spoke to the police you were attributing some sort of injury to your eye is having resulted from being punched. Do you accept that?

A. I told them that-no. I told them that my face was swollen, and I had a tongue-my tongue was bleeding.

Q. But you also specifically pointed to your eye, did you?

A. Because that is affecting my eyes, as well, yes, when he punched me.

Q. What I’m suggesting to you is that you, when you spoke with the police on 7 February 2022, were attributing redness and possibly other things that were in your eye to being punched?

A. No.

Q. I just want to play a part of your interview that you had with the police on seven February 2022 with Constable Heszberger, transcript of which is MFI 4 and we will play at the 5 minutes into that video for, I think, 45 seconds, okay?

A. Sure.

Q. You can take it from the that that’s the interview that you were speaking about this matter, that is the punch in the face and, in particular, the part where you were showing the police the photographs and, indeed a video? Do you understand?

A. Sure.

VIDEO PLAYED TO THE COURT

Q. Did you see that?

A. I did, yes.

Q. I want to again suggest to that when you spoke to the police and showed them the photo-yourself indicated and put in the video your hand against the upper part of the left eye. Did you see yourself do that?

A. Yes, I did.

Q. You showed some photographs and then the video-there was a video you’d also take; that’s right?

A. Yes, I did.

Q. In the video, I suggest you with focusing on the eye?

A. I don’t think so.

Q. Again, I’m suggesting to you, and you can agree or disagree, that when you spoke with the police on 7 February 2022 and showed them photographs your indicating yourself on the photographs and video that you were attributing what I might call injuries to the eye is having resulted from being punched? Do you agree or disagree?

A. No, I don’t agree.”

  1. The video played in the original trial is Exhibit 9 in this trial. The complainant pointed to her left eye when complaining to the police. Despite being confronted with video evidence the complainant refused to make a concession. She was evasive, not candid and attempted to mislead. It is understandable why the jury was not satisfied beyond reasonable doubt as to the honesty and reliability of the complainant. The jury were entitled to use that doubt in considering the guilt of the accused in respect of other counts which it appears they did.

Count 1 (intimidation between 31 July 2021 and 1 November 2021)

  1. The complainant and the accused were sitting on a sofa watching television. He was ranting that she had cheated on him with someone else, that she was going to leave him, that he would make it easy for her to leave him and that he would kill her if she tried to leave him. Then he asked her if she knew if there was a knife in the kitchen. He said, “can you see the knife in the kitchen?”, and she said “yes”, and he said, “that is a knife I’m going to use to cut your throat if you ever try to attempt to do something like that”. She then demonstrated by making a gesture with her right hand, holding it up underneath her chin and drawing it down. Her hand was positioned so that her fingers pointed to her throat, and her hand was moving with an open palm towards her chest. She felt really scared.

Cross examination regarding Count 1

  1. The following exchange occurred regarding the complainant’s interview with police on 7 February 2022.

“Q. When you gave evidence this week about that incident, you said that [the accused] said: “he told me, can you see the knife in the kitchen?, And you said, yes” and he suggested that was a knife that he could use to cut your throat; that’s right?

A. He did, yes.

Q. That’s not something you told the police when you gave your interview to them about this incident, did you?

A. Maybe I forgot about the knife, but I have told the knife, but probably I forgot about the kitchen, yes.

Q. I’m not suggesting you didn’t indicate that there was a threat made about a knife, but you didn’t tell the police with him saying something about-referring to the specific knife in the kitchen, did you?

A. No.

…

Q. You’d agree that was an important detail-when describing what happened, you say, in the threat to the knife, it was an important detail that you say [the accused] had referred specifically to a knife in the kitchen?

A. I’m sorry, could you repeat that again?

Q. Yes. Your evidence on Tuesday was that his told you and asked you: “can you see the knife in the kitchen?”, And you said, “yes”, and he told you that was the knife he was going to use?

A. Yes.

Q. You’ve agreed that that’s not a detail when you gave your account of this incident, you didn’t give that detailed to the police, did you?

A. No, I did not.

Q. You agree with me that that was an important detail about what had happened-you say had happened on that particular occasion?

A. I don’t agree.”

(Transcript 23 November 2023, p 125 (1-37))

  1. It was open to the jury to reject her evidence that the knife was not an important detail in those circumstances. It was a significant matter that clearly played on the mind of the jury and their decision to not accept her evidence beyond reasonable doubt in relation to Count 1.

  2. The complainant’s account of this incident must be viewed in light of other (contradictory) evidence. Count 1 is alleged to have occurred between 31 July 2021 and 1 November 2021. On 25 October 2021, the complainant sent a message to the accused reading, “I love you so much. Thank you for everything.” On her account, she sent this message after she had been spat on by the accused (s166 – common assault) and he had threatened to cut her throat with a knife from the kitchen (Count 1 – intimidation). The complainant’s message does not accord with her allegations. She is an unreliable witness.

Count 3 (Intimidation – 3 February 2022)

  1. The complainant could not remember whether the alleged incident was in the bedroom or the loungeroom. She alleged that he said that one day he would find the man that she had an affair with and would kill them both, even if it meant he went to prison for the rest of his life. She felt very scared. She told him it was all nonsense.

  2. It was put to the complainant that this incident never happened. She said, “he always made those threats”. The response was general and did not directly respond to the question. The accused was found not guilty of this charge. Full effect must be given to the acquittal.

s166 Matters – consideration and determination

  1. The Crown adduced evidence of four incidents that came before the court on 166 certificates and relied on them as context evidence of the relationship. I have previously directed myself in relation to context evidence. In assessing the context evidence, I must give full effect to the acquittals. I have previously given a short summary of the allegations. They are:

  1. Sequence 1 – “the Apple watch incident,”

  2. Sequence 2 – “the spitting in the lounge room incident”

  3. Sequences 3 and 4 – “COVID-19 incident involving a kick to the stomach and spitting in her face.”

Sequence 1

  1. Sequence 1 is said to have occurred in or around November 2021. The complainant told the accused that she had recorded some things that he had said to her and that she intended to send those recordings to his parents. The recordings were on an Apple watch that she was wearing at the time. The accused grabbed the complainant’s wrist and twisted it. He removed the complainant’s watch and threatened to throw it over the balcony. The accused asked the complainant to open her phone and told her to delete everything which she then did.

  2. In cross-examination the complainant was taken to her statement dated 7 February 2022. In the statement she described this incident as having occurred on 5 February 2022, not in or around November 2021. She also told police that the accused “saw on my watchband that I was recording on my mobile phone”. In evidence in chief, she said that she had told him she was recording something. Her evidence in chief is inconsistent with what she told the police in her statement of 7 February 2022.

  3. The proximity of her statement (7 February) to the time she alleges in her statement that the Apple watch incident occurred (5 February) excludes the possibility, in my view, that the inconsistency is on account of an honest mistake or confusion on the part of the complainant. An event which took place two days prior would be fresh on her mind. It suggests an attempt to present or create a favourable timeline.

  4. She was then taken to a statement made in June 2023 where she said she had made a mistake in her first statement. In the revised statement she told police that the incident happened sometime between March 2021 and early February 2022. In her revised statement she did not indicate that the that the incident took place on 5 February 2022 as alleged in her first statement.

  5. In evidence in chief, she said that the accused told her to open her phone and to delete everything, which she did. She confirmed in cross-examination that she deleted everything (Transcript, 23 November 2023, p 119 (48)). In cross-examination she was taken to her statement of 1 June 2023 where she said, “[the accused] then asked me to give him my phone. He went through my phone and deleted everything.” This version is inconsistent with her evidence in chief.

  6. I am not satisfied that the complainant is an honest and reliable witness.

  7. If I am required to render a verdict in relation to Sequence 1, I find the accused not guilty.

Sequence 2

  1. The complainant gave evidence that she was lying on her back on a mattress in the lounge watching television. She said the incident took place approximately 5 or 6 months after her marriage (March 2021). He came on top of her out of nowhere and looked at her angrily. He was juggling saliva on his mouth and then he spat on her face. She said she could not believe that he spat at her, she was disgusted and told him that she was going to speak to his parents about it. She went upstairs and spoke to his parents.

  2. Ms O’Rourke submitted that the evidence was not particularly compelling or logical for the reason that, unlike large portions of the Crown case, it was completely without context. She submitted it is an allegation that appears to come out of the blue and echoes the acquitted Count 3 (intimidation) where the complainant made allegations against the accused apparently without context, but simply for the purpose of painting a negative picture of the accused and his behaviour in the relationship. There is some force to this submission.

  3. If I am required to render a verdict in relation to Sequence 2, I find the accused not guilty.

Sequences 3 and 4

  1. Around December 2021, the complainant had come down with COVID-19 and she, the accused and her cousin were staying at home. Her cousin had made lunch and the complainant went upstairs to get the accused. The accused was angry with the complainant, and he was not speaking to her. The accused told her that he was feeling sick and blamed the complainant for that. It was alleged that he said to her that he wished she was dead, and he hoped that COVID killed her, and that he hoped she was dead.

  2. The complainant said, “don’t you dare say that to me ever again” and grabbed him by the shoulders. It was alleged the accused then kicked the complainant hard in the stomach. The complainant then swore at the accused in Nepalese saying, “fuck you”.

  3. In cross-examination (Transcript 23 November 2023, p 148-149) she said that she was kicked by the accused then she grabbed him by the shoulders. This was inconsistent with her evidence in chief. Ms O’Rourke had pointed out the complainant is adamant in cross-examination as to very different sequences. In my view they demonstrate unreliability on the part of the complainant.

  4. On the complainant’s evidence, her sister (cousin) was at home at this time. I find it difficult to accept that if it did happen as alleged, RD did not hear this argument or come to the aid of the complainant, who had just been kicked in the stomach.

  5. If I am required to render a verdict in relation to Sequences 3 and 4 I find the accused not guilty.

The Defence Case

  1. The following exhibits were tendered on behalf of the accused in this trial:

  1. A screenshot from the accused’s phone depicting text messages, (from 3 to 8 February 2022)

  2. Bundle of home affairs documents relating to complainant,

  3. Document titled “Patient Subpoena Export” dated 1 November 2023, containing medical records relating to the complainant,

  4. Consultation notes relating to the complainant,

  5. Letter to District Court Registry under the hand of Ms Tran, Optometrist from iCare.

The allegation in this trial (Count 4)

  1. An aspect of ongoing disagreement between the complainant and the accused seems to have been him accusing her of being with him only for his visa.

  2. The complainant alleges that the accused threatened to withdraw her visa. Exhibit 3 is the withdrawal of visa application. The reason for the withdrawal is “breakdown of relationship”. She said that he filled everything in, and she signed the form. She said that he completely flipped after her signing the form and said he was joking, and he never intended to do these things and he wanted to have sex. He wanted to “do it just once”. She told him, we have been fighting for days, and you want to have sex?

  3. His hand was around his penis, which was erect. She said she did not want to do it right now. She told him she was on her periods and in a lot of pain. He then asked her to use her hands on him. He grabbed her hand and said, “I will move it up and down for you.” He placed her hand on his penis. He said “it” was not happening. She told him to go watch porn. He said he did not want to. He told her to use her mouth. She said no, because she finds it disgusting. He wiped his penis and told her to open her mouth. She said no. He put his penis in her mouth. She said that it stinks, and she could not do it. He took his penis out.

  4. She told him, “Can you not see that I’m on my period and I’m bleeding?” She was crying. He said he would do it from the back. The complainant and the accused have previously engaged in consensual anal sex (Transcript, 21 November 2023, p 69 (25)). She was on her stomach. He got on top of her. She said no. He rolled her dress up and pulled her underwear down her thighs. He spat on her ass hole. He put his penis inside her ass hole. She told him that it hurt so much, that she did not want to do it, and to take it out. He said that he would use oil and that it would not hurt anymore. He took his penis out for a bit. She said she did not want to do it. She was crying. He grabbed some baby oil and put it on her ass and put his penis in her ass. She said no. He kept doing it over and over again. She was crying. He finished inside her and then stopped. The Crown relies on the re-insertion of the accused’s penis into the complainant’s anus as proof of Count 4.

  5. The Crown relies upon other evidence to support the complainant’s account, namely:

  1. DNA results,

  2. A bottle of Johnson & Johnson baby oil found in the room where the complainant alleges the incident occurred,

  3. Several used sanitary pads and bloodstained paper towels found in the bathroom.

  1. The Defence case is that anal intercourse occurred but that it was consensual. It was put to the complainant in cross-examination that the anal sex was consensual. She said it was nonconsensual. The presence of the accused’s DNA on or in the complainant’s body, the presence of the baby oil in the room and the used sanitary pads and bloodstained paper towels are not inconsistent with consensual anal sex having taken place, while the complainant was on her period.

Motive to lie

  1. Cross-examination of the complainant revealed the following chronology:

  2. In February 2017, the complainant arrived in Australia from Nepal on a student visa. She was able to remain in Australia on that visa. It was put to her that she married another man on 20 January 2017 (first marriage). She was unable to recall the date of her first marriage. I do not accept that she was unable to recall the date of her first marriage. She was being evasive. Her first husband joined her shortly after she had arrived in Australia.

  3. It was put to her that her marriage ended in August 2020. She said, “I don’t really remember”. She was evasive. I do not accept that she did not recall when her marriage ended. She did not recall when she obtained a divorce.

  4. She completed her studies at or around the time she met the accused, in December 2020. She had made inquiries regarding her visa as she intended to stay in Australia and undertake postgraduate studies. She knew that her original student visa did not allow her to remain in Australia indefinitely, neither would a postgraduate visa.

  5. At the time she met the accused, in December 2020, it was her plan to remain in Australia. In early 2021, she and the accused discussed getting married. Her student visa was due to expire in March 2021. The complainant and the accused agreed to marry. They had a legal Australian marriage with a customary ceremony to follow in Nepal at some stage in the future.

  6. She knew the accused was an Australian citizen. This enabled her to apply for a partner visa, and eventually, permanent residency. Her student visa was due to expire shortly after they got married. After the marriage she quickly applied for a partner visa.

  7. In cross-examination it was put to her that five days (12 March 2021) after she married she applied for a partner visa. She said she did not exactly remember the date. She agreed a partner visa allowed her to remain in Australia and work full-time. In her application for a partner visa, she was required to provide evidence of the genuineness of her relationship, which she did by providing wedding photos. She was aware her student visa had limitations. She agreed she was familiar with the need for a visa to stay in Australia and the limitations of different visas.

  8. It was put to her that she knew that if the relationship with the accused ended, she would be unable to remain in Australia. She said she did not know that. I do not accept her answer was truthful. She knew how to apply for a student visa and its limitations. She knew that the student visa would not provide a pathway to permanent residency, but a partner visa did.

  9. The complainant said she was told by the accused that she used him to get permanent residency. Inherent in that evidence is an awareness that the visa she was on with the accused (partner visa) would give her permanent residency.

  10. About a week before she went to police, things were bad between the accused and complainant. On 5 February 2022, they had a fight. The accused accused her of seeing someone else and called her a cheater.

Cross-examination regarding what occurred after Count 4

  1. The complainant was cross-examined about what occurred after Count 4. It was put to her that she went out to get something for lunch afterwards and asked the accused what he wanted. She denied that she had asked him what he wanted. She was then taken to her police statement where she said, “[the accused] came into the bedroom and started to talk to me like nothing had happened. I was going to go and get some lunch with my sister and asked if he would like anything”. She then agreed with what she told police, contradicting her original evidence.

  2. Her evidence, contradictory as it is, is also inconsistent with her allegations. She agreed that she left the house for some hours afterwards. He sent her a text message saying that the relationship was over. When she returned home he told her relationship was over and they were now separated.

  3. It was put to her that she knew that if her relationship had ended she may not be able to stay in Australia. She denied having that knowledge. I reject her evidence. It is clear from the evidence she knew that she was entitled to stay in Australia on a partner visa, and in turn, the end of the relationship was also an end to her right to remain in Australia, unless she applied for a different kind of visa.

  4. The next morning, she got up for work early which was her normal practice. She spoke to her mum. She did not go to work. She went to the police station instead. Seven days (14 February 2022) after her complaint to police she had appointed the Legal Aid Commission as her representative in relation to an application for a visa (family violence) to remain in Australia. The application (Exhibit B) in part reads, “the applicant and sponsor have separated. Family violence has taken place by the sponsor towards the applicant.”

  5. On 6 September 2022, the complainant was issued with a partner subclass visa which allowed her to remain in Australia. This demonstrates she knew as a victim of domestic violence; she could stay in Australia on that visa. She has filed for citizenship. At the time she went to the police station (7 February 2022) she knew that her relationship was over. She is now on a visa which is separate to the accused’s.

  6. The complainant had a powerful motive to lie. She knew her relationship with the accused had ended. I am of the view that due to her experience with visas she knew due to the breakdown of the relationship she would not be able to remain a partner visa sponsored by the accused. Making a complaint about family violence opened a door for the complainant to apply for a visa on her own, which has allowed her to remain in Australia.

Failure to complain to her cousin

  1. In considering the following evidence, I take into account there may be good reasons for a victim of sexual assault not to complain or for there to be a delay in the complaint. A failure to complain does not necessarily indicate the allegation is false.

  2. RD is the cousin of the complainant. She moved from Nepal to Australia in 2018 and resided with the complainant. She then resided with the complainant and the accused. The complainant said that she had a strong relationship with her cousin. She considered her to be a sister. The complainant’s evidence is that RD was in the apartment when Count 4 occurred. She did not say anything to RD about what she alleged happened.

  3. The absence of complaint is a matter I may take an account in assessing the credibility of the complainant’s evidence regarding Count 4.

  4. Ms O’Rourke submitted that the absence of complaint is inconsistent with the conduct of a complainant who has been sexually assaulted in the manner and circumstances alleged by the complainant. I accept this submission.

  5. RD was present on the day Count 4 is alleged to have occurred. She did not hear any arguments. She saw the complainant on the evening of 6 February 2022. The complainant came into RD’s bedroom and told her she was going back to Nepal, and she would help RD move out of the apartment (that they shared with the accused). This evidence must be viewed in light of the fact that they were packing to move to a new apartment as their lease had expired.

  6. In my view, the complainant telling RD that she was going back to Nepal was consistent with the breakdown of her relationship with the accused and the consequent loss of her partner visa (which required the accused’s sponsorship) and right to remain in Australia. This conversation occurred the night before the complainant spoke with police.

  7. It could be said that the complainant telling RD that she was going back to Nepal was inconsistent with a motive to lie (and plan to remain in Australia on a new visa supported by false allegations of domestic violence or sexual assault). This is not the only available inference to draw from this fact, and not a reasonable one in light of numerous and serious inconsistencies in the complainant’s account and other evidence. The complainant could have formed an intention to make the allegations (to support a new visa application) at any stage after speaking to RD. She could have been distressed and upset as a result of the breakup. Indeed, she woke up early to go to work, spoke to her mother, and after this conversation elected not to go to work and speak to police instead. There was no evidence as to what she spoke to her mother about.

  8. When the complainant spoke to RD, RD gave evidence there was no reason for her to comfort her.

DETERMINATION

  1. I must give full effect to the acquittals for Count 1, 2 and 3 in the previous trial in my consideration of the appropriate verdict to Count 4.

  2. I find that the complainant had a powerful motive to lie. The making of the allegations has allowed her to remain in Australia and seek permanent residency. Her failure to complain to her cousin that evening is inconsistent with her allegations and her evidence of the closeness of that relationship, her willingness to complain to the accused’s parents about his conduct, and presence of her cousin in the apartment that night.

  3. The jury in the original trial saw the complainant give evidence via AVL from a remote room. They did not have an advantage over me. Her evidence was recorded and played in this trial. They found the accused not guilty of Counts 1, 2 and 3.

  4. My general impression of the witness in cross-examination was that at times she answered questions in a way she perceived as favourable or was non-responsive and required judicial intervention.

  5. I do not accept the Crown’s submission that her evasiveness was on account of her limited fluency in English. Her English was very good. She did not resort to the assistance of the interpreter (which was provided). Indeed, she gave evidence regarding the incorrectness, in her view, of the translation of some messages from Nepalese to English.

  6. Several times, when confronted with evidence which was inconsistent with her testimony, she said she did not remember. I do not accept her lack of memory was honest. At times, she refused to make concessions. She was evasive. This is not a matter where there has been a significant lapse of time which may account for uncertainty on the complainant’s part.

  7. I am not satisfied beyond reasonable doubt (the highest standard of proof known to the law) that the complainant is an honest and reliable witness. Accordingly, I find the accused not guilty.

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Decision last updated: 12 July 2024

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Cases Cited

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Statutory Material Cited

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Fleming v The Queen [1998] HCA 68
Gilham v R [2012] NSWCCA 131
R v Markuleski [2001] NSWCCA 290