R v B, CP - [2022] SADC 125

District Court of South Australia
(Criminal)
R v B, CP
[2022] SADC 125
Reasons for the Verdicts of his Honour Judge Stretton
14 October 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The complainant alleged that her husband the accused variously assaulted and raped her in their matrimonial home on 1 December 2019, and alleged a history of discreditable conduct over the course of their 24-year marriage. At trial it became apparent that the complainant had a collateral motive to make the allegations, and her evidence as to the history of discreditable conduct was disproven by witnesses called as part of both the prosecution and defence cases. Her initial complainant was fundamentally inconsistent with her evidence at trial. A number of other matters arising at trial cast doubt over the credibility of the complainant. The accused gave evidence on oath denying the offending and called character evidence.
Held: The accused is not guilty of the charged offending.
Criminal Law Consolidation Act 1935 (SA) s 47; Evidence Act 1929 (SA) s 21; Surveillance Devices Act 2016 (SA); Mental Health Act 2009 (SA), referred to.
R v S, GJ [2012] SADC 150, applied.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Mardou v R [2012] NSWCCA 64; R v R, R & R, R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v Maiolo (No 2) [2013] SASCFC 36; R v Melbourne (1999) 198 CLR 1; R v C,CA [2013] SASCFC 137, considered.

R v B, CP
[2022] SADC 125
Introduction

The accused and the complainant were married with three children. The accused is alleged to have committed a number of sexual offences against the complainant on the evening of 1 December 2019 at their family home. He pled not guilty and elected for a trial by judge alone.
The Charges
1.That on the first day of December 2019 at Aberfoyle Park the accused indecently assaulted the complainant by biting and sucking her chest and breast area, knowing that she was a person with whom he was in a relationship, constituting the offence of aggravated indecent assault.
2.That on the first day of December 2019 at Aberfoyle Park the accused assaulted the complainant by applying force to her throat and choking her, knowing she was a person with whom he was in a relationship, constituting the offence of aggravated assault.
3.That on the first day of December 2019 at Aberfoyle Park the accused attempted to have sexual intercourse with the complainant by attempting to cause her to perform an act of fellatio upon him without her consent, knowing or being recklessly indifferent to the fact that she was not so consenting, constituting the offence of attempted rape.
4.That on the first day of December 2019 at Aberfoyle Park the accused engaged in sexual intercourse with the complainant by inserting a finger into her vagina without her consent, knowing or being recklessly indifferent to the fact that she was not so consenting, constituting the offence of rape.[1]
[1] Information dated 4 June 2022, DPP opening T26 et seq, DPP written closing address at p 4.
Elements of the charged offences
The elements of the charged offences are uncontroversial and as follows.
An assault comprises the intentional, unlawful, non-trivial application of force to another without their consent, with the accused knowing or being reckless as to the absence of consent.
An indecent assault comprises an assault committed in circumstances of indecency with a sexual connotation.
It is a circumstance of aggravation of both an assault and an indecent assault if the accused was in a relationship with the complainant at the time of the act in question.
Rape comprises an act of sexual intercourse between the accused and the complainant without the complainant’s consent, with the accused knowing or being recklessly indifferent as to the absence of consent. Sexual intercourse is defined to include fellatio and digital penetration of the vagina.
Attempted rape occurs where the accused attempts an act of sexual intercourse with the complainant without the complainant’s consent, with the accused knowing or being recklessly indifferent as to the absence of consent.
A person is recklessly indifferent to the fact that another person does not consent if the person 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, 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, or 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.[2]
[2] Criminal Law Consolidation Act 1935, Section 47.
The cases at trial
It was common ground that the accused and the complainant met in 1992 at the age of 16 and married in 1995. The marriage produced three children, and the relationship continued until 1 December 2019, the night of the alleged offence and the accused’s consequent arrest in the early hours of the following day.
It was common ground that each of the complainant and the accused had a history of mental health issues. There was some evidence that the complainant had a complex post-traumatic stress disorder (PTSD) stemming from an unrelated incident as a child and their violent autistic son, together with a borderline personality disorder. There was considerable evidence that the accused had depression and related mental health issues, and was at most relevant times heavily medicated with prescription medication.
The prosecution case was that over time the accused’s conduct towards the complainant deteriorated such that there was a history of physical, psychological and sexual mistreatment, culminating in his offending on the evening in question.
The defence case was that the accused was not guilty of the charged offences, and that he had not mistreated the complainant at any stage of the marriage. Further, that while there was some sexual contact on the evening in question it was consensual until a point where the complainant indicated she did not wish to continue, and at that point he immediately desisted.
Pre-trial rulings
The prosecution proposed to call the accused’s two daughters to give evidence. The proposed evidence concerned family dynamics over the years, the living arrangements and a number of interactions said to provide context to the allegations. Each daughter was informed by the investigating officer of their right to make application pursuant to s 21 of the Evidence Act to be exempted from giving evidence for the prosecution against their father. Each took their own legal advice from the Legal Services Commission, and consequently made similar applications. For reasons published on 31 May 2022, their applications were unsuccessful. They were consequently called to give evidence as part of the prosecution case.
The prosecution proposed to call evidence from the complainant of the accused’s alleged prior discreditable conduct towards the accused. That evidence was on the topics of domestic violence and controlling behaviour, and adverse prior sexual conduct and uncharged prior sexual offending. For reasons published on 1 June 2022 the majority of the evidence sought to be led was admitted, however two non-sexual events alleged to have occurred in 1992 and 1993 were excluded as too remote and unrelated to be relevant.
The prosecution proposed to call evidence of a covert recording said to have been made by the complainant of a conversation between her and the accused approximately 12 months prior to the alleged offences.
The prosecution submitted the recording relevantly contained admissions of prior discreditable conduct, and a declaration by the complainant that she did not consent to any sexual contact with the accused in the future; relevant to the accused’s beliefs as to consent on the evening of the charged offences. For reasons published on 1 June 2022 the recording was admitted on the basis that it was both relevant, and that in the totality of the circumstances presented (at that stage on the voir dire) the complainant lawfully made the recording, in that pursuant to the Surveillance Devices Act 2016 she made it in circumstances where it was reasonably necessary for the protection of her lawful interests.
The complainant requested and was granted permission to have several stuffed toys, a yellow ball, painted rocks and various pictures including a hand-drawn picture of a television remote-controller as ‘sensory aids’ for support while she gave evidence.
The course of trial
The prosecution called the complainant, the only witness to the alleged offending. She provided the covert audio recording mentioned earlier in these reasons. The prosecution called some evidence of complaint by way of the police body-worn camera footage when the police initially attended the premises. No evidence of the complainant’s initial phone call to police was called, nor of any elaboration of the complaint.
Attending police were called and photos taken the next day of the house and of bruising/marks to the complainant were tendered. There was no interview of the accused as police were concerned as to his mental state and transferred him to hospital for assessment. Evidence was called that the accused spoke to one daughter while in the hospital denying any offending.
Both daughters were called to give evidence as to the family history and their parents’ relationship.
There were some agreed facts which included prior detentions of both the complainant and the accused under the Mental Health Act, and an occasion when the complainant was located by members of the public unconscious on the side of a road from excessive alcohol consumption. It was common ground that the complainant had complex longstanding mental health issues, however no evidence was called to explain them or what effect they may have on her evidence.
Evidence was called that on 18 December 2019 the complainant formally withdrew her complaint of the charged offending.[3] At some later stage she decided to re-pursue the charges. Hence the trial at bar.
[3] Exhibit P6.
The accused gave evidence on oath in his own defence, admitting some sexual conduct on the occasion in question but denying the offending. He called his GP, Dr Burns as to his medications, mental health issues and hospitalisations, erectile dysfunction, and related issues relevant to his physical and mental state at the time of the alleged events. His GP records, discharge summaries and schedules of prescribed medications were tendered.
He called the complainant’s sister as to the family history, absence of discreditable conduct and matters relevant to the complainant’s credibility and reliability. He called evidence of good character.
Legal principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[4] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[5] To be clear however, the court has applied all the principles applicable to a criminal trial of charges of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
[4] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[5] Mardou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at [6]-[25] of R v S, GJ [2012] SADC 150.
It is fundamental that the accused has, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence and must do so based only on the evidence relevant to that offence. The court must and will consider each alleged offence separately, only having regard to the relevant and admissible evidence concerning that charge.
The prosecution led evidence of the complainant’s initial complaint to the police, in the form of what she said to them when they attended on the night of the alleged offence. This evidence is not relevant to the truth of what was reported, but for the limited purpose of informing the court how the allegations came to light and to assess the degree of consistency of conduct on the part of the complainant in two ways; whether the complaint is consistent or otherwise with the events having occurred as the complainant said they did, and whether the content of the complaint is consistent or otherwise with the complainant’s evidence at trial.
The prosecution led what is known as ‘discreditable conduct’ evidence against the accused; earlier alleged discreditable behaviour by the accused towards the complainant. It did so for two purposes. First, to suggest a continuing course of such conduct by the accused, and a related emboldenment of the accused to commit the charged offences. Second, to suggest that the accused had demonstrated a propensity to act in a sexually violent way towards the complainant.[6] That evidence may only be used in that way, and in no other way. In particular, it must not be used to reason that merely because he has done bad things in the past, he is a bad person, and therefore the sort of person who is more likely to have committed the charged offences, or that he has any general propensity to commit crime or this category of crime.[7]
[6] Prosecution written closing submissions at paras 20-31.
[7] R v Maiolo (No 2) [2013] SASCFC 36.
The discreditable conduct evidence came entirely from the complainant, and was disputed by the accused and not supported by any of the independent family members. It is trite to say that it will only be relevant to the court’s consideration if the conduct is proven.
The accused gave evidence at trial. He was not obliged to do so. Having given evidence, that evidence is to be assessed in the same way as any other evidence.
The accused called evidence of his good character, and the fact that he has no prior convictions. Such evidence is relevant to the probability that an accused committed the charged offences and relevant in assessing the truthfulness of evidence he gave and what he told the police if interviewed.[8]
[8] R v Trimboli (1979) 21 SASR 577, 578; R v Melbourne (1999) 198 CLR 1; R v C, CA [2013] SASCFC 137, [107].
The evidence
The court has heard and carefully reviewed all the evidence given at trial. In particular, the court has scrutinised the very extensive accounts given of the charged events and the history of the longstanding relationship and family life of the complainant and the accused. The complainant and the accused each gave evidence on oath and were cross-examined extensively. Each spent several days in the witness box. The court will not repeat all the evidence but has closely considered it all.
It was common ground that the complainant and the accused met in 1992 when they were 16 years of age and married in 1995. In 1992 the complainant reported that she was raped on a single occasion by an unrelated person who was consequently arrested and charged, but the complainant withdrew the charges several weeks later. The complainant and the accused produced three children: E in 1997, S in 1998 and J in 2000.
It was common ground that in 2002, after the accused received a Workcover settlement, the family built and moved into a home at a given address in Aberfoyle Park. In May of that year the accused had a vasectomy. Between 2001 and 2007 the accused worked for his parents’ family business, and then moved to Darwin to get better work, securing a job with Paspaley Pearls. Once the accused secured that job, the family joined him in Darwin, initially residing in a caravan park, before securing rental accommodation. In 2010 the family returned to Adelaide and resumed residing at their Aberfoyle Park address.
It was common ground that the complainant decided to study, and with the accused’s support undertook and completed studies at Flinders University from 2012 to 2018, and undertook a one-term school placement in Whyalla between July and October 2018 during which time the complainant was hospitalised for self-harming.
It is common ground that in December 2018 the complainant was hospitalised in the psychiatric ward of the Noarlunga Hospital for mental health issues. In March 2019 the complainant called the police to the Aberfoyle Park address but was then detained under the Mental Health Act. In July 2019 the complainant was located intoxicated and unconscious on the side of a road and again detained under the Mental Health Act. In October 2019 after a suicide threat the accused was detained under the Mental Health Act.
The complainant gave evidence that early in the marriage she would have intercourse essentially because she wanted to produce children, but as soon as she had produced her third child in 2000, she would have sex as little and as infrequently as possible because she just did not enjoy it. She said sex would ‘trigger flashbacks and nightmares’ of ‘other rapes and sexual assaults that have happened to me in the past’.[9] When asked to explain this she recounted a single event in 1992 where she alleged she had been raped by a person at a party, pressed charges, then dropped them a short time later. It was unclear what the complainant was referring to when she referred to a series of other unrelated ‘rapes and sexual assaults that have happened to me in the past’.
[9] T149.
She said that sex with the accused would often therefore trigger ‘flashbacks’ to and memories of these other unspecified sexual assault and rape events that had happened to her, and that these flashbacks and memories had occurred when having sex with the accused over the full 24 years of their relationship.[10]
[10] T151.
The complainant gave evidence, and indeed it was common ground, that their son S had developed severe issues and would become aggressive, violent and would attack and hurt members of the family, but particularly her. The accused would usually intervene to protect her. Indeed, S became so violent, unpredictable and dangerous that it was recommended that they install a lock on their master bedroom door to protect themselves against him, which they did.
The complainant gave evidence that prior to moving to Darwin, she and the accused would only have sex infrequently, perhaps a few times a year and on those occasions, she was consenting.
The complainant said that after they moved to Darwin the accused started to be regularly violent, and recounted events where that had happened, saying that he would yell, scream and swear at both her and the children on a daily basis. When asked, she said she couldn’t remember anything that caused him to become aggressive towards them as he did. The complainant gave evidence that the accused also began to regularly sexually abuse and sexually assault her from around that time, and the continual abuse proceeded unabated when the family returned to Adelaide. She said it included anal rape, fists placed in her vagina, and other types of offending conduct. She said it included him having sex with her when she was passed out or unconscious.

In response to further questioning about these events the complainant said that sometimes she would tell the accused to get off her but that at other times she would freeze or be in shock. She elaborated that she had had experiences of ‘freezing’ since the age of two and a half. She said that when she freezes, she can remember what is happening but sometimes the memory is jumbled, or she can just recall flashes of what has happened.
The complainant gave evidence about a specific event occurring in Darwin. She said that the accused got angry at something she could not recall, and smashed their bed, then in front of the children he violently physically assaulted her including choking her and throwing her to the ground and pushing a chair over with her in it. She said he then went to leave the house, intending to use the car she would ordinarily use (the family had several cars), so she enlisted the children to block the car, and at her behest they all made a concerted effort to try to prevent him leaving the property.
This evidence was immediately unconvincing. It was particularly unclear why, if the accused had persistently and violently attacked the complainant as she claimed, she would take such extreme efforts to prevent him leaving, rather than the more logical choice of allowing her alleged violent attacker to leave. Such actions were inconsistent with her evidence that the argument and the destruction of the bed (which were corroborated by the children), were part of a persistent physical violent attack, or any attack at all on her by the accused (which aspect of the event was not corroborated by the children).
The complainant said that when she returned from Darwin, she was not happy that the accused returned to work for his parents’ family business as it did not pay enough. She was also not happy that she had to take primary responsibility for caring for the three children. All the while, S’s behaviour was worsening. She gave evidence that she was formally diagnosed with complex PTSD in 2015, and prescribed medication. She denied taking her PTSD medication on occasions when she drank.
The complainant gave evidence that after an event in November 2018, when the accused had painfully raped her over her voiced objections, including having ‘shoved’ his fist up her vagina, she decided to have and record a conversation with the accused. She said she recorded it on her phone at the time and sent a copy of the audio file to police at their request sometime after the accused’s arrest about a year later on 2 December 2019. She said she activated the phone to record then placed the phone, recording, on the bedside table. An audio recording was played and tendered.[11] An aide memoire transcript was provided.[12]
[11] Exhibit P1.
[12] The audio is the evidence, the transcript just an aide.
There are several immediately apparent issues of concern on listening to the recording. Firstly, there is no reference to the violent anal rape, fists being shoved into her vagina, or anything whatsoever of that tenor occurring the night before. The complainant asks the accused what happened the previous night, and he responds that they made love, and that he acknowledged that she had on previous occasions mentioned that sometimes she did not want to have sex or decided during sex that she did not want to continue, and that as a consequence he had been really cautious about it since that time. The accused responds to further questioning that he does consequently always ask the complainant if she wants ‘it’, and that it’s not that they are doing it that often.
Then the complainant asks the accused what she said to him the night before, and the accused commences by saying ‘You said, I said to you do you want to…’ at which the recording goes completely silent as if it has either been suddenly muffled by the phone holder or subsequently deleted or recorded over, and at the end of the silent period a couple of snippets become partly audible, concluding with ‘…wanted a bit more sexually’. This is of concern, as it is clear from the subsequent recorded questions and answers that the accused was explaining how he did ask for consent at the outset of the previous evening’s sexual encounter and that his recollection was that the complainant initially demurred, but then indicated by saying ‘mmmm’ several times that she had changed her mind and was interested in some sexual contact. At that, the complainant changed the subject to tell the accused that if she was saying ‘mmm’ then ‘that can’t be me’, and that it can’t be right if they only have sex when she has been drinking, to which the accused replies it is not only because she had been drinking and that the complainant’s drinking all the time did not sit well with him.
The complainant asks the accused if he knows why she drinks, and he replies ‘… yeah it’s because you can’t cope with the family, or me, or S or J or the house’ and the complainant’s PTSD. She then questions the accused about what caused her PTSD and he replies, ‘from trauma and stuff’. She then asks whether she has been raped before, and whether the accused is re-traumatising her, and all the answers are inaudible, which is again a matter of concern, as the possible inference is that the answers have been muted or suppressed in some way between that time and when the complainant subsequently supplied the audio to police over a year later. The complainant then puts to the accused that the previous night she asked him to stop, and he didn’t which he acknowledges before she continues with a further statement. That may reference his earlier explanation that she initially said no, but then indicated she did change her mind, so they did proceed to ‘make love’.
Of further concern, the complainant then says, ‘I don’t have control over my body a lot of the time, day or night, it does what it wants to, I don’t have control over my own mind, it does what it wants to, that is what I am struggling with’. It is quite unclear what the complainant means when she tells the accused that that at any time of the day or night she doesn’t have control over either her body or her mind, and that they do what they want to.
The complainant then goes on to tell the accused that taking advantage of her every single time she drinks is not ok and therefore, in her currently sober mind ‘… I’m telling you, don’t touch me again’. The accused responds ‘Ok’, to which the complainant says ‘Ever’, to which the accused again says ‘Ok. Well now I know’ and offers to move out of the house.
Overall, both the content and the tenor of that conversation are quite incompatible with the evidence the complainant gave on oath in this trial about the previous evening. Further, the audio sounds like it has been tampered with or physically manipulated to not record or subsequently delete the accused’s answers that may have been inconsistent with the narrative the complainant gave the police concerning the case at bar. On the prosecution case, the only person who could have done that was the complainant. For reasons best known to themselves the police did not analyse the phone itself or any of the metadata, instead getting the complainant to send them a copy of the audio itself. The audio also sounds like the phone recording the audio is being held in different positions, not simply left on the bedside table as claimed by the complainant in evidence.
The complainant gave evidence that (notwithstanding the accused’s recorded acceptance and agreement with the complainant that she never wanted sex with him again, and that he was prepared to move out) the sexual abuse continued unabated.
The complainant agreed that on one occasion when she was hospitalised for her mental health issues, she told police about her PTSD and ascribed it to the accused making loud noises, throwing cutlery into the sink and flicking her pony tail, rather than mention the sexual abuse she now says had been occurring for years and was ongoing.
In the months prior to the alleged offending the complainant conceded that she was planning to move out, and to that end wanted to sell the house. She said she suggested it to the accused on several occasions, but he had not agreed. She said that on 25 October 2019, when the accused was hospitalised, she showed police the messages about his threats to commit suicide. She told police that she did not want the police to let him return to the house, and that on that occasion she also tried to get his family to have him live elsewhere, but ‘it didn’t work’, and the accused returned to live at the matrimonial home.[13]
[13] T214.
The complainant gave evidence about the charged events. The date was 1 November 2019. The complainant gave evidence that she purchased a new laptop for her upcoming one year contract at Tatachilla School, then had lunch with her mother. She told her mother that she was making plans to move out and had organised a new house. She said she got home at 8pm, got changed and although she did not want a drink, agreed to have a drink with the accused in the hope that he would pass out. She said after a time the accused got up and got on top of her and tried to force his penis into her mouth, to which she clenched her teeth and objected, whereupon he pulled her hair, and pulled her hand above her head, then choked her. She said the accused then pulled her top down and sucked and bit her breasts. She said he tried to pull her pants down, but she held them up, so he slapped her across the face really hard, and she objected and told him to stop. She said he tried to put his penis in her mouth again but couldn’t. She said when he couldn’t get her pants off, he shoved his fingers into her vagina through her track suit pants, describing them as going in and out really hard such that it hurt and chafed. She said that eventually he just stopped and went to the master bedroom toilet, whereupon she ran to her bedroom and called police.
A video of the police attendance was tendered.[14] It shows some marks on the complainant’s chest. It records the complainant’s initial complaint to police.
[14] Exhibit P7.
The complainant’s initial complaint to the police was ‘He tried to hurt me’.
On further questioning she said ‘It’s just… I don’t know… he’s just hurting me … just trying to do whatever he wants’. The complainant then said, ‘I just want you to take him away so can’t hurt me anymore’.
Then the police ask the complainant what the accused had actually done to her, and she replied: ‘Just choke me and slap me and pull my hair and bite me’.
The police then ask about any marks and injuries and assure the complainant that she is safe. The police asked the complainant ‘OK and what’s happened to your arms’ with reference to marks on her arms and the complainant replies ‘Just from the other day’.
The police then ask again ‘So what’s actually happened?’. The complainant replies ‘He just wanted to do whatever he wanted to do’. When asked the cause, the complainant does not audibly reply, and she responds similarly to a question whether it had ever happened before.
The police then ask the complainant what she wants them to do, and the complainant replies ‘For you to take him away’.
The police then explain to the complainant that they can’t just take the accused away unless she provides a formal statement, letting them know if the accused has committed any offences, and that they will need all the details. Then the complainant again responds, ‘Will you take him out of the house?’.
The police then tell the complainant that they need more information than just that the accused has hurt her, and they need to know exactly what happened before they can take any action. It is of some concern that it is only after the police tell the complainant that they need more than just her telling them that the accused hurt her before they can take any action, that the complainant first alleged sexual misconduct, replying as follows:
QIt’s… wanted to have sex with me but I didn’t want to, I tried to fight him off and so he just did whatever he wanted to do while I was trying to fight him off.
AWhat do you mean fight him off? As in
QLike just tell him to stop, get off me.
AWhat happened from there?
QBut he just turned me, he eventually just gave up to have a smoke so I could call you, so he would stop.
Then the Police turn their attention to the complainant’s wellbeing, asking her if there is somewhere else that she could go that evening that she would be safe, and the complainant immediately responds:
AI’m not going anywhere, no. I want… I need to stay here because I have two real estate agents that are coming here tomorrow so they can give me an appraisal on the house so that I can put it on the market. Because I’m seeing a lawyer on Tuesday.
QOk, well that sounds like a good long-term plan, if that’s something you want to do but I’m… my concern is right here tonight.
AI’m not… I can’t go anyway. You have to take him somewhere.
There is a real incongruity in the complainant’s sudden focus on her real estate plans and an insistence that the accused be removed so that she can pursue them, if she had just been subjected to the conduct she is now alleging at trial. The police repeat to the complainant that they can’t just take the accused away without clear allegations and a statement, and keep asking her exactly what she said had happened. On many occasions, the police question is followed by a long pause on the part of the complainant, as she seems to be thinking about what to say. As they continue to try and clarify what she is saying, and insist that she tell them details she responds that he wanted to have sex with her, she said no and he was choking her, biting her and holding her down. Eventually the complainant adds that he slapped her, choked her and bit and sucked her chest.
She added ‘I have dissociation, so I don’t always remember everything, but I try.’
The police continue to tell the complainant that for them to take any action against the accused she will need to give a formal statement, and she responds that it depends on whether they will take him away and not let him come back to the house, and the police indicate that there can be an intervention order. The complainant continues to receive an assurance that the accused will not be allowed to return to the house that night or the next day, and so she agrees to give a statement.
There are aspects of concern arising from this evidence. There is no mention of either the rape or attempted rape allegations the complainant subsequently gave in evidence at court, in particular no reference to the accused trying to get her pants off and then shoving his fingers in and out of her vagina through her track suit pants with this continuing in a protracted and forceful way such that it hurt and chafed her vagina. There was no reference to the accused trying to force his penis into her mouth over her physical resistance. The content of the complaint evidence is accordingly substantially inconsistent with the complainant’s evidence in court.
A further aspect of concern is that the complainant’s evidence discloses that the complainant had an independent motive to have the accused removed from the house by police, and for the accused not to be allowed to return to the house the following day: she was having the house appraised that day by two real estate agents and she knew the accused was opposed to selling the house. She was already ‘seeing a lawyer on Tuesday’.
The police body-worn camera footage was tendered. It is hard to make out any marks to the complainant’s chest. In relation to marks on the inside of her arms near her wrists, she told the officer that they happened on another occasion. Some 5 hours later police reattended at the complainant’s house and at 5.20am took some photos of the property.
The complainant agreed that she approached police and formally withdrew the charges against the accused on 18 December 2019 because she was concerned that her family wouldn’t want to see or talk to her over the Christmas period, and she might have to spend Christmas by herself.[15] After the Christmas period she went back and told the police she wanted to proceed again. This evidence is of concern as it shows an incongruously cavalier attitude, an attitude inconsistent with the seriousness of the events the complainant said occurred, and an inappropriate preparedness to manipulate the criminal prosecution process to serve her immediate convenience.
[15] Exhibit P6 is the formal police form the complainant signed to withdraw the charges.
In cross-examination the complainant said that even before the family moved to Darwin the accused would regularly yell and scream at her and the children. It was in the period leading up to their move to Darwin that their son S was diagnosed with Asperger’s syndrome. S became extremely violent and aggressive towards her and the rest of the family, and regularly attacked her and other members of the family with items such as screwdrivers, and tried to kill them. The complainant agreed that from the time in Darwin onwards she would regularly call the police if there was any issue with S’s behaviour or if other issues arose in the house, for example on the occasion in Darwin where the bed was broken and the accused was trying to leave the house when she did not want him to. She agreed that when the family returned to Adelaide she took control of the family finances, and all the accused’s salary would go into the joint account, but she was not happy that the accused was not earning enough and she regularly asked him to leave his family’s business and get a job that earnt more. S’s behaviour worsened as he got bigger and stronger. The complainant said that by 2015 she had started to drink alcohol due to her nightmares and flashbacks to the degree that she would pass out. She agreed that as time passed, she would self-harm and her drinking increased.
In cross-examination the complainant said she had made the audio recording so that she had evidence she could use to remind the accused that she was no longer consenting to sex and remind him of his promise never to have sex with her again. She could not credibly explain why, if that was the case, and if it was also the case that his sexual offending had continued against her unabated, she never in fact raised the recording with him.
After a change of counsel and a consequent procedural delay,[16] the complainant was recalled for further cross-examination. The complainant agreed that in May 2002 the accused had had a vasectomy at her behest, and that prior to the vasectomy their sex had been normal and consensual, then conceded that at one stage earlier in her evidence she had said that the accused had performed non-consensual sexual acts on her for the entire 24 years of their marriage. She did not credibly explain the inconsistency. She denied he had ever suffered from erectile dysfunction after his 2002 vasectomy, responding that shortly afterwards during a camping trip with the whole family the accused poured ‘a whole heap’ of cold water over her and one of her daughters in front of the other two children, saying ‘I know that my children know about it’,[17] and that he did so because the complainant would not have sex with him.[18]
[16] The procedural issues and change of counsel were managed by consent of all parties, and all agreed the matter should proceed after a short adjournment to allow the new counsel to review the evidence to date.
[17] T468.
[18] T466-7.
In cross-examination the complainant agreed that she was very close to her sister such they could speak openly to each other about their issues, and over many years they would see each other every week. She agreed she had never alleged to her sister that there was any abuse by the accused, and conceded that she had told her sister how lucky she was to be married to the accused. The accused agreed that she had gone to the police and called the police on many occasions over the years and discussed many issues with them, but had never mentioned abuse or violence by the accused.

In cross-examination the complainant could not credibly explain why, when living quite separately from the family and away from the accused during her Whyalla teaching placement, she self-harmed and was detained under the Mental Health Act at the Whyalla Hospital. She conceded that she had self-harmed over the years including by cutting herself, striking her head against the wall and hitting herself. She could not credibly explain why, if the accused had been constantly mistreating her and sexually assaulting her as she stated in evidence, she cut short her stay in Whyalla and phoned the accused to come up to Whyalla and help her move back to Adelaide and back into the family home with him, which then happened.
In cross-examination the complainant agreed that as at 2019 she thought it would be harder for her to sell the house if the accused remained in the house.
In cross-examination the complainant gave evidence that when she found out that the accused had met a woman called Julie during his first mental health admission in 2019 she felt sad, disappointed, let down and ultimately disgusted at him, which helped her to make things go faster for her to get out of the house. She also said the accused performed a lewd act while he was telling her about it. Notwithstanding that, she then rejected defence counsel’s suggestion that she wanted him out of the house. This evidence was immediately illogical and unconvincing.
In re-examination the complainant said that she had been self-harming since the age of 12, on account of what her ‘mum’s boyfriend was doing’ to her at that time.[19] Her self-harm included cutting herself on the arms or breasts or stomach, and she said she does it when she can’t stop the flashbacks. In re-examination she expanded on S’s violence towards her and other members of the family, which included violent attacks with pens, pencils, screwdrivers, spanners and shoes, and included him striking her to the body and head.
[19] T554.
A series of benign texts between the complainant and the accused over the course of the day and the evening of the alleged offending were tendered. Neither their tone nor their content lend any support to the prosecution case. If anything, they are inconsistent with it.
Police officer Rudevics was the officer who spoke with the accused when police attended on the night in question. He said that the accused responded slowly, with his voice slurred, and that the accused was arrested. Former Detective Shepherd gave evidence that he took over the investigation in the early hours of the morning and had immediate concerns about the accused’s mental health and the accused was accordingly not interviewed but taken straight to hospital. He was then detained under the Mental Health Act for 16 days with a diagnosis of an adjustment disorder in the context of acute stressors.[20]
[20] Exhibit P9, SA Health Separation Summary, 2/12/2019-18/12/2019.
Police officer Lambert was the officer who spoke with the complainant when police attended on the night in question. She typed up the complainant’s initial statement in the police car. In cross-examination she said that at the time of her attendance, she could not see any marks on the complainant’s neck. An alcotest of the accused returned a reading of .079.
No alcotest or toxicology was performed in relation to the complainant.
Police nurse Sanderson gave evidence that she examined the complainant at about 8.30am the next day and directed that the photos of the complainant be taken. She took DNA swabs from the breast area.
The photos taken of the complainant the next day show substantially more marking and contusions to the complainant’s breast and chest than were present at the point when the accused was arrested and removed from the house. This is another aspect of concern. The complainant admitted in her evidence that she had a history of self-harming.
Police nurse Sanderson asked the complainant if any part of her was sore. There is no evidence that the complainant mentioned, even then, what she later said in court namely that the accused had violently and persistently digitally raped her through her track suit pants causing pain and chafing to her vagina, as no photos were taken, and no examination was conducted of that part of the complainant’s body either then or at any stage.
Both the daughters were called to give evidence.
J gave evidence that she lived with the family until she moved out at the end of 2018. E gave evidence that she lived with the family until she moved out in April 2019.
Both gave evidence that while their parents would occasionally argue about normal family things, their parents’ relationship seemed fine. This evidence was fundamentally inconsistent with the complainant’s evidence that the accused was regularly yelling and screaming at them all. There was no suggestion the accused had ever poured cold water on any of them, or over their mother in their presence, or that the accused had physically attacked or threatened anyone during the bed incident in Darwin.
The accused gave evidence on oath. He gave extended evidence about the family and the history of the relationship and marriage. He gave evidence as to his work history, the birth and upbringing of the three children, and a number of problems and issues he and the family had faced and dealt with over time.
The accused gave evidence that he struggled at school and left to perform largely physical work. He has subsequently been diagnosed with dysgraphia. He said he has also struggled with depression over time, and from 1999 had been variously on anti-depressants. He also now has heart disease.
The accused gave evidence that after their third child was born the complainant insisted that he have a vasectomy, and whilst he was reluctant, he agreed, and had it done in 2002. He said that he had since suffered a degree of resulting pain and it had affected his ability to have pain-free sex. He said the combination of the significant anti-depression medication he was taking and the residual ongoing pain he was suffering significantly decreased his interest in sex and led to erectile dysfunction.
Medical records from the accused’s GP indicated that the accused sought help for erectile dysfunction in 2017.
The accused gave evidence of the extreme problems that S’s violence were increasingly causing the family. He referenced one occasion where S actually stabbed him with a screwdriver. He also described how the complainant’s drinking increased as did the manifestation of her mental health issues, which she had told him were complex PTSD stemming from her being raped at the age of 16 and S’s escalating violence.
The accused gave evidence that the complainant was regularly dissatisfied with the amount of money he was able to bring into the family and did not like him working for his family’s business as sometimes he was paid late, and in her opinion, he should have been earning more. The accused gave evidence that they did periodically argue about that issue, with the complainant telling him that he should get a ‘real job’ rather than work for his family’s business.[21] As a result, he went to Darwin and secured the job with Paspaley Pearls, after which the family joined him there.
[21] T371.
The accused said that he did occasionally however still want to and did have sexual contact with the complainant, albeit usually only ‘kissing and cuddling’, short of actual intercourse.[22] If the complainant did not want to, he would just let it go.
[22] T598.
The accused gave evidence that an incident in Darwin came about because the family needed a second car, but he purchased the second car without the complainant’s specific permission, so she argued about it nearly every day and eventually confronted him about it. The accused said that he tried to avoid arguments so went to leave, but she grabbed at him to stop him, then sat on a chair to stop him, so he pushed past the chair to get out and also damaged the bed as he struck it as he tried to get past her, but that the complainant then called the police and marshalled the children to get in the car and close the gate to stop him. Ultimately the police arrived and diffused that situation.
After the family returned to Adelaide from Darwin, he supported the complainant to attend university from 2012 to 2018, although that did mean there were increased pressures on the family and himself bringing up the children; with him working full time and the complainant being on campus studying into the evenings.
The accused became very concerned when the complainant’s drinking worsened to the extent that she would drink herself into unconsciousness, and she was detained under the Mental Health Act several times after she had called police to the house. He described the agreed event when the complainant was found by members of the public unconscious from intoxication on the side of the road, with half a bottle of vodka and mixed drink cans on the ground nearby. The police took her to hospital.
The accused described experiencing increasing physical pain from a 1995 Workcover wrist injury, and a further knee injury, which together further affected his mental health. He had always only been able to do physical work. Accordingly, he would periodically be on painkilling medication for this, as well as medication for his heart disease, and medication for his depression. Tendered medical records reflect that the accused was on multiple medications in the years leading up to the charged events.[23]
[23] Exhibits P9 - Hospital discharge summary, P10 - Hospital discharge summary, P11 - GP medical records, D3 - Discharge prescriptions, D4 - Medical Report by Dr Burns.
The accused gave evidence that the multiple medications began to seriously impact his life by way of sexual dysfunction, headaches and other issues. The accused gave evidence that he consulted his GP in 2017 about his erectile dysfunction and the doctor told him that his high blood pressure and heart disease could also be affecting his libido. He said that despite all this, as at 2017 ‘like a normal bloke’,[24] he was still interested in sexual contact with the complainant, despite the fact that with his mental state and all the medications he was on it was quite an effort to get into the mood, let alone get an erection.
[24] T587.
This evidence was consistent with what the accused said to the complainant during the conversation she covertly recorded, wherein after the complainant said she did not want to have sex with him, the accused responded, accepting her position, saying it was fine if she didn’t want to do it ever again, and that it was a lot of effort and hard for him anyway.[25]
[25] Exhibit P1 - Audio recording of the complainant and the accused.
The accused gave evidence that the night before the covert recording was made by the complainant, she did come into his bedroom, got into bed with him and they did have sexual contact, although it did not proceed to intercourse. The accused’s consequent recorded confusion at what the complainant was putting to him during the conversation is consistent with the accused’s evidence about what had occurred.
The accused gave evidence that by November 2018 the complainant was drinking heavily and would seem to change characters; at one moment loving him and at the next moment not loving him, and he became very confused.
The accused gave evidence of the complainant’s worrying conduct in a series of escalating incidents throughout 2019, and that he was getting even more confused by it all. He became very worried when he would see her hit her wrists together or hit herself on the thighs or he would notice bruises. Occasionally he would find blood in the bathroom, but never witnessed her cutting herself. He agreed that he decided that when she was having a drink, he would at least sit with her and have a drink as well, as he thought that might help.
The accused gave evidence that it all became too much for him to cope with, and he did contemplate suicide. He agreed that it was in this context that on 28 October 2019 he was hospitalised under the Mental Health Act for two weeks, as reflected in the tendered Hospital Discharge Summary (Exhibit P9). The accused said that while he was in hospital the complainant rang him and told him she was going to leave him, which compounded his depression. He was eventually discharged on 12 November 2019, on a large number of prescribed medications for his physical and mental conditions.
The accused gave evidence about the day of the alleged offending. He assisted the complainant to purchase a new computer for her new job, and the positive texts between them throughout the day were tendered. The accused said the complainant did not reply when he asked her if she would be home for dinner, and she arrived home at about 9pm, walking down the corridor straight past him to her room. As she walked by, he congratulated her on her getting the teaching job in question and asked if she needed any help setting up her computer. She replied with only one word, ‘No’.[26]
[26] T655.
The accused gave evidence that he was very confused by this, as from the texts, the new job and the new computer, he expected she would be happy. After a while the complainant came out and went to the fridge to get something, and so the accused said, ‘What’s wrong’.[27] The complainant said nothing was wrong and returned to her room. The accused was now very confused, as she had been happy when they had earlier talked about getting the laptop. So the accused sent a text ‘Why do you hate me?’, to which he got no reply.[28]
[27] T656.
[28] Exhibit D2.
The accused gave evidence that the complainant then came back out of her room. He congratulated her again, and asked if she would like a drink, to which the complainant now said ‘Yes’, but got her own drink.[29] Then they sat on the sofa together and started talking, and the complainant gave him a cuddle and kissed him on the lips, and asked him to give her a ‘hickey’.[30] The accused said he was confused by this, as he was a smoker, and she had previously said that she didn’t like hickeys, so he said ‘But you don’t like hickeys’.[31]
[29] T658.
[30] T660.
[31] Ibid.
The complainant replied that it would be ok if it was on her breasts as no-one would see them. At that, the complainant pulled her top down and the accused said, ‘Are you sure you want hickeys?’.[32] He gave her one, and the complainant said she wanted one on the other side as well, so he complied.
[32] Ibid.
The accused gave evidence that he recalled thinking this was ok, in fact this was great, as it took a lot for him to be aroused and he was. So he took out his penis and raised it towards the complainant’s mouth, but she closed her teeth together and shook her head. So he stopped, and lost interest. The complainant just pulled her top up, stood up and walked to her room.
The accused was shown the photos and agreed he gave the complainant two ‘hickeys’, and he identified the mild reddening adjacent each of the complainant’s nipples, but said he definitely did not cause any of the contusions or marks that were shown in the 8.30am photos of the complainant. He said he loved her and would never have hurt her, as indeed he had never hurt her at any time during their relationship. He said he could not explain how all the other marks came to be there, as shown in the police photos.
The accused said that shortly after the complainant went to her room she came out and walked to the front door, as the police arrived. Shortly after that, the police took him out of the house, and he was again taken to hospital and eventually again admitted pursuant to the Mental Health Act. Tendered hospital records show that the accused was hospitalised from 2 to 18 December 2019 for 16 days with an ultimate diagnosis of an adjustment disorder in the context of acute stressors.
The accused gave evidence that at no time did he ever use violence or force in his relationship with the complainant, nor did he ever have any form of sexual contact with her without her consent, nor would he do so. He said that they had discussed anal intercourse at the very start of their relationship, with the complainant indicating she did not want to do it, which he accepted. He said that there was never any sexual activity involving a fist.
The accused gave evidence that he has no previous convictions.
In cross-examination the accused elaborated on how he and the complainant would try to deal with problems and issues as they arose. The accused gave evidence that the complainant’s going to university coincided with more of the complainant’s issues emerging, and in response to questions about that, wondered whether that was associated with the fact that the complainant’s mother used to lock the complainant in their house so that the complainant’s mother could attend university.
In cross-examination the accused, despite being the accused in his own criminal trial, regularly appeared to display genuine empathy for the complainant and sadness at her psychological plight, for example: ‘It’s very hard to see someone who you love so dear, and you grew up together, and to turn into problems with mental health and the whole system being messed up’.[33]
[33] T720-721.
The accused was minutely and extensively cross-examined, and consistently maintained his account of the relationship, the history of the family and their issues, and his version of the events on the night of the alleged offending. It is plain that the accused is not a very articulate person and has physical and psychological injuries requiring him to be on very considerable medication, yet his evidence was straightforward, consistent and credible, over days in the witness box.
The defence called Dr Burns, the accused’s GP. Dr Burns gave evidence with reference to the accused’s tendered medical records from the accused’s current and previous GP practice and his hospital discharge summaries.
Dr Burns gave evidence that the accused has suffered major depression and anxiety since 1999, and had regularly been on the maximum dose of medication for major depressive and anxiety disorders. Dr Burns said that it is uncommon but possible for a vasectomy to result in ongoing subsequent pain on ejaculation, and that the medications the accused had been prescribed over time can also result in a number of side effects including reduced libido, erectile dysfunction, and orgasm and ejaculation problems. In particular, the major anti-depressive drug that the accused had been taking for an extended period produced a high incidence of sexual dysfunction.
Dr Burns gave evidence that as well as the accused’s major depression and anxiety, the accused suffered ongoing chronic pain and loss of function to the right hand, progressive right knee pain and ischaemic heart disease, and by the time of a report he prepared in January 2012, the accused was on 10 separate medications for these conditions. Dr Burns gave evidence that the accused was compliant with his medication regime.
The medical records indicate that the accused raised erectile dysfunction with doctors in 2017 and 2020.
The defence called the complainant’s sister. The complainant’s sister manages a supported care facility for people with mental health issues.
The complainant’s sister gave evidence that she and the complainant had always been very close. This was as a consequence of growing up together in a broken home. She said that closeness continued until very recently, they having spent a lot of time together for most of their lives. The complainant’s sister said she had also known the accused since they all met when they were about 13 years of age. The complainant’s sister was a bridesmaid at their wedding and was present for the birth of their first child.
The complainant’s sister described how from childhood onwards she was and remained very close to the complainant. That continued over the years as she was also living in Darwin at the time the complainant and the accused moved their family there to work and live, and she moved back to Adelaide shortly after the complainant. She said she would interact with them and their family constantly.

The complainant’s sister gave evidence that she would also spend a lot of time alone with the complainant and they could, and did, talk to each other about anything, and particularly about any issues and problems they may have. The complainant’s sister said that she and the complainant shared a very difficult childhood, and that the complainant knew that her sister had been through a lot of trauma and sexual abuse herself. The complainant’s sister said they would regularly discuss issues that were concerning the complainant, for example work, study, the move to and from Darwin, and the increasing problems the family had with S’s behaviour, and also very personal issues. They would confide in each other.
The complainant’s sister said that if anything like what is being alleged in this matter had ever happened, she would have expected the complainant to mention it to her, but there had been nothing. The complainant’s sister said that at no time did the complainant ever give the slightest indication that the accused was being violent or even angry towards her.
The complainant’s sister said that she saw them regularly over the whole course of their marriage, sometimes for extended periods of days at a time and she never saw the accused even raise his voice towards the complainant. She never saw anything like the suggested constant anger, yelling and screaming towards the complainant and the children that the complainant now alleges had been regularly happening since the move to Darwin in 2007.
The complainant’s sister also gave evidence as to the escalating problems with S, including the escalating violence he was inflicting on the family, which included attacking the complainant with weapons, striking her and attempting to strangle her. The complainant’s sister was working for Anglicare at the time and organised professional help for the family and S, including getting S into the Step-Up program. But the complainant withdrew S from the program as she was not happy with how the counsellors spoke to him.
The complainant’s sister gave evidence that the complainant would discuss her increasing psychological problems with her, particularly over the years when she was studying at university and started seeing a psychologist, but none of those issues related to any suggested misbehaviour or adverse conduct by the accused. It is not necessary in these reasons to set out those issues beyond observing that they included extremely personal matters. From 2015 onwards the complainant’s sister observed the complainant’s increased drinking, which would be accompanied by bouts of mania.
The complainant’s sister’s evidence was that over all of this time, through all her close personal contact with the whole family, her intimate and personal discussions with the complainant, staying with the family, in effect being with the complainant’s family through thick and thin over 20 years, she had never seen the slightest indication of the conduct now alleged against the accused by the complainant. The effect of her evidence is that if it had occurred, she would have seen at least some indication of it. The complainant’s sister added that she had a lot of training in domestic violence, and there were never any signs of it between the accused and the complainant.
The complainant’s sister also gave evidence of the accused’s character. She described him as an honest person and a genuine, down to earth guy who would do anything for anybody.
In cross-examination, the complainant’s sister was asked to describe the circumstances whereby the complainant came to permanently move out from home in her teens. She gave the following evidence:
A… she didn’t want to come back home and so she found out that she could get youth allowance, living away from home youth allowance but she told me there was only a certain number of criteria that you had to tick to meet it, otherwise it is the parents that kind of have the responsibility of paying and Centrelink won’t give you anything. So sexual abuse was one of them and she said that she told me why she did that.
QBut you don’t actually know for a fact, do you, whether she was or wasn’t sexually abused.
ANo.
QShe had said she was sexually abused so she could automatically qualify for getting a youth allowance and living away from home allowance without having to satisfy any other criteria.
ACorrect, and she told me back then to try, and tell me to get out.
The complainant’s sister went on to explain how this occurred because the complainant had already left home and tried to get youth allowance before, but had been rejected because she wasn’t old enough and didn’t meet the criteria and had to be supported by her parents, but if she said she had been sexually abused she would and did get the allowance. This evidence is of great concern, as it is evidence suggesting that the complainant may have been previously prepared to fabricate an allegation of sexual abuse to achieve a collateral purpose.
Consideration
The court has been assisted by counsel’s comprehensive written and oral addresses. I will not repeat all of counsel’s arguments but have carefully considered them all.
Both counsel agree that the prosecution case is largely reliant on the complainant’s evidence. The prosecution argues that the complainant and the accused’s versions of events cannot sit together and that the complainant should be believed. The prosecution puts that the accused’s evidence and his claims as to erectile dysfunction were not well supported.
The defence argues that the complainant should not be believed, and that the defence case that neither the alleged discreditable conduct nor the charged conduct occurred is strongly supported by a plethora of independent evidence and the character evidence called on the accused’s behalf.
It is important to note that in a case such as this, where the only eyewitnesses are the complainant and the accused, it is not just a matter of preferring one version to another. It is always for the prosecution to establish each element of any alleged offence beyond reasonable doubt.[34]
[34] Liberato v The Queen (1985) 159 CLR 507.
The complainant gave evidence in an agitated and stressed manner throughout her time in the witness box. She remained fairly consistent in her narrative of the primary charged events, but her evidence as to much of the alleged discreditable conduct that she ascribed to the accused was inconsistent and vague.
The complainant gave evidence that she suffered from a number of psychological or psychiatric issues, including a complex post-traumatic stress disorder stemming from unrelated childhood events and the conduct of her violent Asperger-afflicted son. There was a suggestion she also suffered from a borderline personality disorder, and evidence was given as a part of the prosecution case that she was repeatedly detained pursuant to the Mental Health Act in the years leading up to her making the allegations comprising the case at bar. She also gave evidence that she increasingly drank to excess and lost consciousness. Whilst the complainant gave evidence that she would regularly have flashbacks and nightmares related to unconnected childhood abuse, triggered by many events including ‘touching’, no evidence was called by the prosecution to explain any of this, any of her mental health admissions, any of these conditions, but more relevantly, any consequences any or all of such conditions might have on a person’s recall, memory or reliability. At one point the complainant said that she would experience flashbacks and nightmares of her childhood sexual abuse whenever she had sex with the accused over the 24 years of their marriage.
The complainant gave evidence that at least since 2007 when the family went to Darwin the accused became, for no apparent reason that she could recall, aggressive and violent towards her, regularly screaming and yelling at her and the children. The independent evidence of both children and the complainant’s own sister was that simply did not, ever, happen.
All agree that there was an occasion in Darwin when the complainant and the accused had a loud argument in front of the children. The complainant’s version of the event that the accused got angry and violently attacked her for no reason that she could recall, throwing her to the ground and choking her, but then she organised the children to stop him leaving the house because he was going to use the wrong car, was patently unbelievable. The accused’s version that he did not physically assault her at all, but tried to leave the house to diffuse an argument started by the complainant because he had bought a car without her permission was both logical and supported in material respects by the child who recalled the event.
The complainant said that the 2007 move to Darwin was also the time when, again for no identified reason, as well as constantly arguing and yelling at her and the children, the accused had started to regularly violently sexually abuse her, which included anally raping her and inserting his fist into her vagina. This evidence was unconvincing, and materially inconsistent with the complainant’s sister’s close observations of the family at the time.
The complainant made a covert recording of a conversation she had with the accused in 2018. Her evidence in this trial of what happened the night before, is fundamentally incompatible with the content and the tenor of the recorded discussion. Further, certain parts of the conversation wherein the accused is inferentially explaining how careful he is in relation to consent, and what actually happened the night before, are inexplicably silent, erased or muted by the time the complainant provided the tape to police over a year later.
Further, the complainant’s evidence about why she recorded the tape, i.e., to play it back on future occasions to the accused in situations where he wanted sex to remind him of his promise not to have sex with her again, also lacked credibility as she admitted she never did that, despite her evidence that the sexual abuse by the accuse continued unabated. A number of other aspects of the recorded discussion support the defence case that the accused was not abusing the complainant, that he was being very cautious and careful around the issue of consent, and that he entirely respected her communications to him about not wanting any sex with him in the future.
The recording also contains statements by the complainant that are of considerable concern, and these support the accused’s evidence at trial that he was becoming increasingly confused. For example, the complainant tells the accused ‘I don’t have control over my body a lot of the time, day or night, it does what it wants to, I don’t have control over my own mind, it does what it wants to, that is what I am struggling with’.
It is clear from the complainant’s evidence that towards the end of 2019 she intended to leave the relationship and that she wanted to get the accused out of the house. At first, she suggested it to the accused on several occasions, but he would not agree. Then when the accused was hospitalised in October 2019, she told the police that she did not want him to move home, and she tried to get his family to help him live elsewhere, but that ‘did not work’ either.
There are several major aspects of concern surrounding the evidence the complainant gave of the charged events.
Firstly, the complaint evidence is fundamentally inconsistent with the accused’s evidence in court, as discussed in considerable detail earlier in these reasons. It is unnecessary to repeat that analysis.
Secondly, there is a worrying focus throughout the complainant’s initial complaint on the necessity for the accused to be removed from the house and not to return the next day, because she has two estate agents appraising the property for sale. That focus is entirely incongruous, if the complainant had actually been subjected to the serious and violent attack that the complainant eventually gave evidence about in court.
Thirdly, sexual allegations only started to emerge after the police conveyed to the complainant that they could not take the accused away unless offences had occurred, and unless the complainant gave a formal statement that they had occurred. By making the sexual allegations, the complainant did succeed in her stated wish to police, after her two prior unsuccessful attempts, to have the accused removed so that she could remain in the house for the real estate appraisals she had booked for the next day.
Accordingly, it is clear on the evidence that the complainant had a motive to fabricate the allegations currently before the court.
The complainant’s actions in securing her youth allowance by claiming she had been abused, and her actions in withdrawing then reinstating the current rape charges to suit her preferred Christmas arrangements also adversely affect the complainant’s credibility.
There are a number of further matters discussed in more detail earlier in these reasons which reflect adversely on the complainant’s credibility. Indeed, when closely scrutinised, nearly all of her evidence about the accused’s adverse behaviour over the years lacked credibility.
The very limited forensic evidence also does not support the prosecution case. Most of the markings apparent on the complainant’s chest when photographed the following day were not observed by the police at the point of the accused’s arrest. That may or may not be explicable in terms of the complainant’s long history of self-harming, but what is clear is that they could not have been caused by the accused.
The accused gave evidence in a simple and straightforward way. He was consistent over days in the witness box and a very lengthy cross-examination. He presented in a quiet and unassuming manner. Indeed, his delivery and tenor was similar to how he sounded in the covert recording the complainant made of him in 2018.
The accused’s account of the relationship, and of key disputed events over the course of the marriage was materially supported by all three independent family witnesses. His evidence of the history of the relationship, and ultimately of the events on the evening in question was logical and credible.
Further, the court must have regard to the fact that the accused is a person of good character.
In the final analysis, for all these reasons, the evidence of the complainant as to the charged offences cannot be regarded as either credible or reliable. There is no other evidence capable of establishing guilt.
In the court’s opinion, the accused is not guilty of any of the charged offences.
Verdict
The accused is not guilty of any of the charged offences.