R v DS - [2017] NSWDC 207

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v DS [2017] NSWDC 207
Hearing dates: Hearing: 17 February 2017 – 8 May 2017 and Further submissions: 16 June 2017 and 17 July 2017
Date of orders: 04 August 2017
Decision date: 04 August 2017
Jurisdiction: Criminal
Before: Hatzistergos DCJ
Decision:
In respect of the indictment dated 20 March 2017, the accused is found:
1. Guilty of Count 1;
2. Guilty of Count 2;
3. Guilty of Count 3;
4. Guilty of Count 4;
5. Not Guilty on Count 5;
6. Guilty of Count 6;
7. Guilty of Count 7;
8. Guilty of Count 8;
9. Guilty of Count 9;
10. Guilty of Count 10;
11. Guilty of Count 11;
12. Guilty of Count 12;
13. Guilty of Count 13;
14. Guilty of Count 14;
15. Guilty of Count 15;
16. Guilty of Count 16;
17. Guilty of Count 17;
18. Guilty of Count 18;
19. Guilty of Count 19;
20. Guilty of Count 20;
21. Guilty of Count 21;
22. Guilty of Count 22;
23. Guilty of Count 23; and
24. Guilty of Count 24.
Catchwords:
CRIMINAL LAW – TRIAL BY JUDGE ALONE - directions – unrepresented accused – prescribed sexual offences – witness intermediary – support person

EVIDENCE – context and relationship evidence – ongoing conduct during their marriage – knowledge that complainant was not consenting – escalation of violence – disavow charged acts were isolated – failure to complain – vulnerable during relationship – cannot use evidence adduced as tendency evidence

SEXUAL INTERCOURSE WITHOUT CONSENT – ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT – use of object manipulated by the accused – sexual connection occasioned by penetration – consent not freely and voluntarily given – knowledge about consent – consent negated as there were threats of force or terror
CAUSE GRIEVIOUS BODILY HARM – complainant chased off balcony – suffered multiple injuries
Legislation Cited: Crimes Act 1900 (NSW) ss 35(2), 61H, 61HA, 61I and 61P
Criminal Procedure Act 1986 (NSW) ss 132A(1), 132, 133 and 166
Evidence Act 1995 (NSW) ss 89(1) and 177
Cases Cited: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Fleming v R (1998) 197 CLR 250
KJS v R [2014] NSWCCA 27
MJW v The Queen (2005) 80 ALJR 329; [2005] HCA 74
Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
R v AH (1997) 42 NSWLR 702
R v AN (2000) 117 A Crim R 176
R v Anastasiou (1991) 21 NSWLR 394
R v Jovanovic (1997) 98 A Crim 1
R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998)
R v Markuleski (2001) 52 NSWLR 82
R v Matthews (1990) 58 SASR 19
R v Zorad (1990) 19 NSWLR 91
Wilson v The Queen (1970) 123 CLR 334
Category: Principal judgment
Parties: DS (Accused)
Regina (Crown)
Representation:
Counsel:
Self-represented (Accused)
Ms S Morkaya (Crown)
Solicitors:
Solicitor for the Director of Public Prosecutions (Crown)

File Number(s): 2015/110707 and 2015/30628
Publication restriction: Non-publication orders in place for the accused, the complainant and their children. I prohibit the publication or disclosure of information tending to reveal their identities (or otherwise)

JUDGMENT

INTRODUCTION - [1]
ELEMENTS OF THE OFFENCES
Sexual intercourse without consent - [12]
Attempted sexual assault without consent - [29]
Recklessly cause grievous bodily harm - [32]

DIRECTIONS
The presumption of innocence - [38]
Onus and standard of proof - [41]
Dispassionate approach - [46]
Inferences - [49]
Multiple counts on the indictment - [53]
Election not to give evidence - [56]
The accused’s record of interview - [62]

WITNESSES
The complainant’s evidence
Use of audiovisual link - [69]
Use of support person - [70]
Use of an intermediary - [71]

The complainant’s credit - [73]
Motive to lie - [89]
Delay in complaint - [100]
JS’s evidence - [103]
Other witnesses - [107]
Context and relationship evidence - [109]

EVIDENCE - [121]
Background - [122]
INCIDENT 1 - [128]
INCIDENT 2 - [130]
INCIDENT 3 - [159]
INCIDENT 4 - [173]
INCIDENT (UNNUMBERED) - [178]
INCIDENT 5 - [189]
INCIDENT 6 - [193]
INCIDENT 7 - [203]
INCIDENT 8 - [207]
INCIDENT 9 - [219]
INCIDENT 10 - [225]
INCIDENT 12 - [232]
INCIDENT 11 - [236]
INCIDENT 13 - [243]
INCIDENT 15 - [249]
INCIDENT 16 - [253]
INCIDENT 17 - [256]
INCIDENT 18 - [261]
INCIDENT 20 - [310]
INCIDENT 21 - [360]
INCIDENT 22 - [365]

CONFESSION AND PUNISHMENTS - [375]
INCIDENT 23 - [393]
INCIDENT 24 - [400]

CONTEXT AND RELATIONSHIP - [405]
COUNT 1 on the INDICTMENT - [482]
INCIDENT 25 - [496]
COUNT 2 on the INDICTMENT - [503]
INCIDENT 26 - [514]
COUNT 3 on the INDICTMENT - [523]
INCIDENT 27 - [535]
COUNT 7 on the INDICTMENT and INCIDENT 32 - [548]
COUNT 8 on the INDICTMENT - [561]
COUNT 4 on the INDICTMENT [1134] - [573]
COUNT 5 on the INDICTMENT - [586]
COUNT 6 on the INDICTMENT and INCIDENT 30 - [597]
COUNT 9 on the INDICTMENT and INCIDENT 33 - [605]
Events following Count 9 - [623]

COUNT 10 on the INDICTMENT - [629]
COUNT 11 on the INDICTMENT - [639]
COUNT 12 on the INDICTMENT and INCIDENT 34 - [648]
COUNT 13 on the INDICTMENT - [658]
COUNT 14 on the INDICTMENT and INCIDENT 37 - [671]
COUNT 15 on the INDICTMENT and INCIDENT 39 - [683]
COUNT 16 on the INDICTMENT - [696]
COUNT 17 on the INDICTMENT and INCIDENT 40 - [706]
COUNT 18 on the INDICTMENT and INCIDENT 41 - [716]
COUNT 19 on the INDICTMENT - [726]
COUNT 20 on the INDICTMENT - [734]
COUNT 21 on the INDICTMENT - [744]
COUNT 23 on the INDICTMENT - [751]
COUNT 22 on the INDICTMENT - [760]
Accused’s ERISP interview on 1 February 2015 in respect of Counts 18 – 23
Direction on ERISP interviews - [775]
Accused’s ERISP on 1 February 2015 - [776]

COUNT 24 on the INDICTMENT - [780]
Clinical notes from the Campbelltown Hospital admission - [789]
Sergeant Linda Smith - [793]
Plain Clothes Senior Constable Dean Stanley - [797]
Detective Senior Constable Cole - [800]

The complainant’s other accounts - [810]
Karen Sheehan - [811]
Paula Nahas - [822]
Detective Senior Constable Fiona Duncan - [827]
Fiti Fepulea’i - [833]
Tipi Fepulea’i - [838]
JS - [841]

Findings about the complainant’s other accounts - [850]
The accused’s statement to Ajay Singh - [864]
Accused’s arrest - [890]
Constable Scott Green - [891]
Constable Carlie Evans - [893]
Senior Constable Jack Mitchell - [896]
Leading Senior Constable Paul Watson - [899]

Accused’s ERISP interview on 1 February 2015 in respect of Count 24 - [903]
Consciousness of guilt
Direction on consciousness of guilt - [917]
There was no consciousness of guilt in respect of Count 24 - [923]

FINDINGS on COUNT 24 on the INDICTMENT - [930]

ORDERS - 936

INTRODUCTION

The accused was arraigned before me on 20 March 2017 on 24 counts in an indictment. To all counts he pleaded that he was ‘not guilty.’ The specific counts or charges brought against him allege:-

CHARGE 1: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 2: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 3: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 4: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 5: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 6: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 7: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 8: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did attempt to have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 9: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 10: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 11: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 12: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 13: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 14: For that he on 27 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 15: For that he on 29 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 16: For that he on 29 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 17: For that he on 29 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 18: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 19: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 20: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 21: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 22: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 23: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting
CHARGE 24: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales caused grievous bodily harm to [AS] and at the time was reckless as to the causing of actual bodily harm to [AS]

This is the third trial in this matter. In each of these the accused has chosen to be unrepresented. The two previous trials resulted in juries being discharged by consent of both the Crown and the accused. On 17 March 2017 the accused sought and was granted leave to make an application for a judge alone trial pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW). [1] Having received advice and provided a certificate in accordance with s 132(6) of the 1986 Act, the accused with the Crown’s consent applied for a judge alone trial. In these circumstances, the trial proceeded by judge alone in accordance with s 132(2) of the 1986 Act.
1. Hereinafter the “1986 Act”
The accused had in the course of the earlier trial proceedings been advised of his rights and information in accordance with the decisions in R v Zorad [2] and R v Anastasiou. [3] He did not require this to be repeated prior to the commencement of the trial by judge alone, bearing in mind that he had been so informed the same week. Nevertheless from time to time he was reminded of particular aspects of that advice when relevant. Arrangements were made for transcript to be supplied to him in accordance with his preferred method of delivery. The Crown provided him with copies of relevant legislation and case law. Arrangements were also made during the trial for him to receive independent legal advice. Time allowances were also made so that he could prepare for cross-examination and closing submissions. As he remained in custody during the duration of the trial, cooperation was also extended by Corrective Services for logistical arrangements to facilitate his preparation.
2. (1990) 19 NSWLR 91, 99
3. (1991) 21 NSWLR 394, 399
As will become apparent in the course of these reasons, the accused did not challenge parts of the evidence, and in respect of some witnesses, failed to challenge their evidence in its entirety. He acknowledged as much in closing address. [4] In this respect I bear in mind the principles discussed in MJW v the Queen. [5]
4. T 1064.11 – .24
5. (2005) 80 ALJR 329; [2005] HCA 74 at [18] (Gleeson CJ and Heydon J) and at [38] – [40] (Gummow, Kirby and Callinan JJ)
The Crown’s opening statement comprised the same remarks made in the earlier trial and was marked for identification 1. [6] The accused did not make an opening statement.
6. T 5.13 – .11
The Crown was allowed to present evidence in relation to a number of alleged incidents[7] for the purposes of establishing context and relationship. [8]
7. These were also the subject of a certificate under s 166(1) of the 1986 Act
8. See R v DS judgment delivered on 13 March 2017
In light of the fact that this was a judge alone trial and the accused was unrepresented, I allowed the Crown to make a closing address so that the accused was aware of the case the Crown was seeking to advance before his own closing address. For this purpose the Crown was asked and prepared two schedules [9] which summarised the relevant evidence pertaining to incidents the subject of the context material and counts on the indictment. Copies of these schedules were supplied to the accused in order to aid him in the preparation of his closing submissions. Following the Crown address I granted the accused additional time as he requested in order to facilitate the preparation of his own closing address. I have relied on the incident numbers referred to in in those schedules in these reasons.
9. MFI 19 and 20 (which were updated schedules of MFI 17 and 18 respectively)
Following a review of the evidence, I relisted the matter before me on 16 June 2017 in order to allow the parties to address matters which required further clarification. These matters were set out in a document marked for identification 23. At the request of both parties I stood the matter over to 17 July 2017 to enable a response. I have taken those further submissions into consideration.
As this is a judge alone trial s 133(2) of the 1986 Act requires me to state the principles of law to be applied, as well as findings of fact which are made. s 133(3) of the same Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter.
I approach these statutory obligations in accordance with the statements made in both Fleming v R [10] and Filippou v The Queen. [11]
10. (1998) 197 CLR 250
11. (2015) 256 CLR 47; [2015] HCA 29 at [6]; and [52]
In AK v The State of Western Australia – a trial by Judge alone involving numerous charges which were sexual in nature, where Heydon J stated:-

“[85] … Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.”[12]

ELEMENTS OF THE OFFENCES

12. (2008) 232 CLR 438; [2008] HCA 8 at [85]

Sexual intercourse without consent

In order to prove the 22 charges of sexual intercourse without consent, it is necessary for the Crown to prove beyond reasonable doubt that on each occasion in question that:

At the time and placed alleged, DS had sexual intercourse with the complainant AS;

That AS did not consent to having sexual intercourse with DS; and

DS had knowledge that AS was not consenting.

The definition of “sexual intercourse” is that contained in s 61H(1) of the Crimes Act 1900 (NSW). [13]
13. Hereinafter the “1900 Act”
The accused denied the events in Counts 1 to 6. Although in respect of the event in Count 5, this was not formally denied. However, I will deal with the circumstances of Count 5 separately.
In relation to Counts 7 to 23 the accused did not dispute the physical acts involving sexual intercourse with the complainant, but denies that the complainant did not consent to intercourse and/or that he had knowledge that she was not consenting.
The accused does not have to prove that the complainant consented – it is for the Crown to prove beyond reasonable doubt that she did not. A person consents to sexual intercourse if she freely and voluntarily agrees to have sexual intercourse with another person. That consent can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words – it also may be communicated in other ways, such as the offering of resistance. However, this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. [14] Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.
14. 1900 Act s 61HA(7)
The definition of “consent” in relation to sexual assault offences found in s 61HA(2) of the 1900 Act, and specifically the Crown relies on s 61HA(4)(c) of the 1900 Act. The law provides that a person does not consent to sexual intercourse if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person). In considering whether the Crown has proved beyond reasonable doubt that the complainant did not consent regard may be had to whether that the complainant had sexual intercourse because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force. It does not follow simply because I find that fact proved that I should be satisfied beyond reasonable doubt that the complainant did not consent, but it is a relevant fact that you should consider in deciding whether the Crown has proved this element of the offence as it must do so before I can convict the accused.
The Crown must prove beyond reasonable doubt that the accused knew that the complainant did not consent. If the Crown fails to prove that the complainant was not consenting, the accused is “not guilty” of the charge.
If I am satisfied beyond reasonable doubt that the accused did have sexual intercourse with the complainant and also that she did not consent, then I must go on to consider the third element, namely, whether the accused knew that the complainant was not consenting.

The definition of “knowledge about consent” is defined in s 61HA(3) of the 1900 Act, in that knowledge could mean actual knowledge, whether the accused was reckless as to whether the complainant consented; or that the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse.
It is the accused’s actual knowledge of the lack of consent with which must be considered. Absent any admission the Crown seeks that this be inferred or concluded from other facts that it has set out to prove, that the accused must have known and that he did indeed know that the complainant was not consenting
In a situation where the complainant does not in fact consent, the accused’s state of mind at the time of the act of intercourse might be that he actually knew that the complainant was not consenting. That is a guilty state of mind for the offence. If the Crown establishes beyond reasonable doubt that this was the state of mind of the accused at the time of the act of intercourse, then the third element of the charge has been made out.
On the other hand if on the basis of the evidence led in the trial or relied on by the accused that he might have believed the complainant was consenting to intercourse with him Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether the Crown has proved beyond reasonable doubt that there were no reasonable grounds for the accused to believe that the complainant consented. Therefore, the Crown must prove beyond reasonable doubt one of two facts before the accused can be found guilty, either:

that the accused did not honestly believe that the complainant was consenting, or

even if she did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented to the sexual intercourse.

It is for the Crown to prove that the accused had a guilty mind. It must eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting. Unless it is establishes beyond reasonable doubt that the Crown has eliminated any such reasonable possibility, then this third element of the offence is not made out, and a verdict of “not guilty” of this charge must be returned.
In determining whether the Crown has proved that the accused actually knew that the complainant was not consenting to intercourse with him I must take into account what steps were actually taken by the accused to ascertain whether the complainant was consenting to intercourse. [15]
15. 1900 Act s 61HA(3)(d)
I have already indicated that the Crown can prove the accused had a guilty state of mind in one of two ways:

either the accused actually knew that the complainant was not consenting, or

even if the accused believed at the time that the complainant consented, the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse.

The Crown can also prove the accused’s guilty state of mind if it proves that he was reckless as to whether the complainant consented to the sexual intercourse. If the accused was reckless, it is the law that the accused will be taken to know that the complainant did not consent to the sexual intercourse. [16]
16. 1900 Act s 61HA(3)(b)
To establish that the accused was acting recklessly, the Crown must prove, beyond reasonable doubt, either:

the accused’s state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused’s mental capacity if they had turned his mind to it, or

the accused’s state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not.

Attempted sexual assault without consent

Count 8 involves an allegation of attempted sexual intercourse without consent.
In order to prove that the accused is guilty of the offence of attempt to commit sexual intercourse without consent, first, the Crown must prove beyond reasonable doubt that the accused intended to commit the crime which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted in circumstances which make those acts criminal. This means that the accused must have intended to have intercourse actually knowing that the complainant was not consenting or being reckless to that fact or having no reasonable grounds for believing that that the complainant was consenting.
If satisfied beyond reasonable doubt that the accused intended to commit the crime alleged, he is not guilty of the crime of attempt unless the accused has with that intention committed an act that is more than mere preparation to commit the crime. He must have actually embarked upon the commission of the crime that he intends to commit. If satisfied beyond reasonable doubt that the accused had the required intention and committed acts with that intention in mind, I must then determine whether the acts that I find the accused committed were merely preparatory acts toward committing the crime. If I form the view that they are preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, the accused may be found guilty of the charge of attempt.

Recklessly cause grievous bodily harm

In order to prove the charge of recklessly cause grievous bodily harm, it is necessary for the Crown to prove beyond reasonable doubt that:

At the time and date alleged, DS caused grievous bodily harm to AS; and

That DS was reckless as to the causing of actual bodily harm to AS

Whether the accused’s act caused the harm suffered by the complainant is a question of fact for me to determine. The Crown has the onus of proving beyond reasonable doubt that the accused caused the harm the complainant.
In deciding whether the Crown has established this fact to the required degree, I apply common sense to all the facts surrounding the infliction of harm to the complainant. I must appreciate that I am deciding whether to attribute legal responsibility to an accused person for the harm suffered by another person in what is a criminal prosecution. This is not an issue of philosophical or scientific proof. I am deciding a more practical issue, that is, whether an accused person has committed a crime involving the causing of the harm alleged to another person.
Provided that I am satisfied beyond reasonable doubt that an act of the accused substantially or significantly contributed to the harm allegedly suffered by the complainant the Crown will have proved this fact. It is not sufficient if the act of the accused was merely coincidental with the suffering of the harm by the complainant or was insignificantly connected with it. Whether the act of the accused relied upon by the Crown substantially or significantly contributed to the harm suffered by the complainant is a matter of fact for me to decide on a common sense basis. I must bear in mind that I am concerned with whether an accused person should bear criminal responsibility for the harm allegedly suffered by another person.
“Grievous bodily harm” means “really serious harm” and that “actual bodily harm” need not be permanent, but must be more than merely transient or trifling. [17]
17. R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998) per Dunford J at [4]
The element of recklessness is made out if the Crown establishes beyond reasonable doubt that the injury was caused recklessly by the accused. An injury is caused recklessly if the accused realised that grievous bodily harm may possibly be caused upon the victim by his actions yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that he actually thought about the consequences of his act and at least realised the possibility of grievous bodily harm.

DIRECTIONS

The presumption of innocence

The key starting point in this trial is that DS, the accused, is entitled to the presumption of innocence. He has pleaded not guilty to all of the charges and has elected to proceed to a trial by Judge alone – it is my duty and responsibility to consider whether he is guilty or not guilty of each charge and to return my verdict according to the evidence.
He is not required to prove his innocence. The accused is presumed to be innocent of the crimes charged unless the evidence led in the trial satisfies me to the appropriate standard that he is guilty of the crimes.
During the trial the accused has been bail refused. There are also references in the evidence to him having been the subject of an apprehended violence orders and other charges. In relation to the matters subject of this trial no adverse inference is to be drawn against the accused by reason of these matters

Onus and standard of proof

The prosecution bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the accused. The accused bears no onus and is not required to prove anything in the trial.
The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the accused is probably guilty.
The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. In the circumstances of this trial, the critical questions are whether the Crown has proved beyond reasonable doubt that the accused had sexual intercourse without the consent of the complainant, that he attempted to have sexual intercourse with her without her consent, and that he recklessly caused her grievous bodily harm.
However, the Crown is not required to prove the truth and reliability of every disputed fact nor to answer every question that might be posed concerning the evidence in the case.
In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is “guilty”. If the answer is “no”, the verdict must be “Not Guilty”.

Dispassionate approach

It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment.
Certain evidence was admitted in this trial which emphasises the need for the Court to proceed without emotion in its assessment of the evidence. This was evidence of certain activities of the accused which was admitted as evidence of context and relationship. I have discussed this separately and the limited purpose for which this evidence is to be used.
In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice. I will keep this direction in mind particularly when considering the evidence of prior conduct of the accused relied upon by the Crown context and relationship purposes, in accordance with my earlier pre-trial ruling.

Inferences

I may in my role as the Judge of the facts, draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can be properly drawn from those facts. The present case is fundamentally a direct evidence case, relying as it does upon the evidence of the complainant, AS. There are, however, surrounding circumstances from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence it is necessary to state and apply some fundamental principles.
Just how convincing and reliable a circumstantial case is will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole and whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important circumstantial aspect of the case be approached by considering and weighing as a whole all of the facts established by the evidence. If such a conclusion does not reasonably arise, then the Crown circumstantial case fails.
If, however, a conclusion of guilt is a reasonable one to draw based upon a combination of the established facts then, before the Court can convict the accused, it must be determined whether there is any other reasonable conclusion arising from the facts that is consistent with the conclusion that the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because the Court would not be satisfied beyond reasonable doubt of the accused’s guilt.
The Court must not base its conclusion upon mere speculation, conjecture, or supposition.

Multiple counts on the indictment

It is alleged by the Crown that the accused committed the various offences identified in the counts in the indictment. Those counts are being tried together as a matter of convenience. I am, however, required to return a separate verdict in relation to each of the counts. Each charge needs to be considered separately. There is no legal requirement that each of the verdicts must be the same.
Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. [18]
18. R v Markuleski (2001) 52 NSWLR 82
If I were to find the accused not guilty on any count, particularly if that was because there were doubts about the honesty or reliability of the complainant’s evidence, I would have to consider how that conclusion affected my consideration of the remaining counts.

Election not to give evidence

The accused has not given evidence and with the exception of exhibits 1 to 8, did not call any evidence in response to the Crown’s case. There are a number of important directions of law which must be followed.
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 the Court beyond reasonable doubt that the accused is guilty of the offence charged.
The accused bears no onus of proof in respect of any fact that is in dispute He is presumed to be innocent until the Court has been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required.
As matter of law, the accused’s decision not to give evidence cannot be used against him in any way at all during the course of deliberations. That decision cannot be used as amounting to an admission of guilt. The Court must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. Nor can that fact be used to fill any gaps that might be thought to exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt.
It is not open to speculate about what might have been said in evidence if the accused had given evidence in the trial.

The accused’s record of interview

The accused did agree to be interviewed at the time of his arrest in relation to Count 24. His interview also canvased the question of sexual intercourse now the subject of Counts 18 to 23. I will discuss this later in these reasons. However at the time of charging of Counts 1 to 23 the accused declined to be interviewed
All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here.
Under our law, an accused person has a right to silence. [19] It would be quite wrong if the accused having decided to exercise his right to silence, later found that that was being used that fact against him. It is important, therefore, to bear in mind that the accused’s silence cannot be used against him in any way at all.
19. Evidence Act 1995 (NSW) s 89(1) and see generally: Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34
In respect of the accused’s interview answers in respect of Count 24 [20] as well as interview answers given by him in respect of incidents 19 [21] and 20 [22] the Crown submitted that I should accept that the accused is lying in his responses based on an acceptance of the evidence of the complainant, Glen Kelly and Bhavna Ahluwalia and Namrata Ahluwalia. [23] The Crown submitted that were I to so find, this should go to the accused’s credit only.
20. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015
21. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014
22. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014
23. MFI 24 “Crown submissions on further questions for the parties” (in response to MFI 23 “Further questions for the parties”)
Whether the accused in fact lied to the police in the interview is a matter for me to determine. To decide that a lie was told (or lies were told), I must be satisfied that the accused said something that was untrue and that at the time of making the statement he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness is not a lie.
If I decide that a lie was (or lies) were told, I cannot use that fact in support of a conclusion that the accused is guilty. A lie cannot prove the accused’s guilt and nor can a lie be used in conjunction with the other evidence that the Crown relies upon to prove the accused’s guilt.
The only use I can make of the fact that the accused told a lie is in an assessment of his credibility. If I am satisfied that he did lie then that may be considered as having a bearing upon whether I believe the other things that he said in the interviews.

WITNESSES

The complainant’s evidence

Use of audiovisual link

The complainant in this case has given evidence by audiovisual link. This is standard procedure in cases of this type. I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it was given in this manner. I will assess the evidence in the same way as I assess the evidence of any other witness in the case.

Use of support person

Further, I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because of the presence of the support person when the complainant gave her evidence.

Use of an intermediary

An intermediary, Ms Virginia Horstman, was appointed by the Court to cross-examine the complainant for the accused. She was not a lawyer representing the accused. During cross-examination, the intermediary asked the complainant questions — which have been formulated by the accused — on the accused’s behalf.
This is a standard procedure and that I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it is given in this manner. Again, I will assess the evidence in the same way as I assess the evidence of any other witness in the case.

The complainant’s credit

The Crown properly concedes that in relation to its case, I have to be able to accept that the complainant was an honest, reliable and accurate witness. I have carefully examined the evidence of the complainant in this matter.
This was a relationship of some 16 and half years involving a larger number of asserted incidents. As these reason will demonstrate, I have found that the complainant’s recollection of some events was not accurate, particularly as of some of the details. This is understandable in light of the time that has elapsed and the number of the events said to have occurred. Furthermore it is clear she has a strong sense off grievance towards the accused; a matter which I have borne in mind to the extent it might have impacted on the quality of her evidence. Nevertheless I did not find the complainant to be either dishonest or generally unreliable in her account. In recounting her experience during the trial she was at times genuinely distressed and to that end the Court provided regular breaks. I bear in mind that she exhibited similar distress to others to whom she has communicated on these matters.
The accused challenged the complainant’s credit on a number of fronts. Many of these I will deal with in the body of these reasons. However some of those attacks related to previous events and allegations that the complainant deliberately manufactured her account. It is appropriate that I should address three of them at this point.
Firstly, the accused cross-examined the complainant in relation to allegations made against her former husband, Mr Vincent Barco in relation to an apprehended violence order which was subsequently withdrawn. He asserted that this instance demonstrated a pattern similar to what occurred in this case such that the complainant should not be believed. The circumstance was also said to demonstrate that that the complainant knew how to report allegations to the police.
Detective Senior Constable Fiona Duncan undertook some inquires in relation to this matter. Her evidence was that in relation to complainant’s former husband, the police served an apprehended violence order application on him that was listed for 11 April 1996 at Penrith Local Court. Detective Duncan gave evidence that police records did not disclose that police attended an incident but rather that the order was taken out directly at the courthouse (as opposed to one issued by the police). [24] Detective Senior Constable Duncan stated that the complainant informed her that she had gone to reside with her brother at Erskine Park at the time [25] and Penrith Local Court was the nearest Court to that location. [26] The matter was listed for mention at Penrith Local Court on 9 May 1996 at which time it expired. [27]
24. T 944.40 – .49
25. T 943.5 – .14
26. T 945.11 – .16
27. T 945.1 – .9
A statutory declaration signed by the complainant and relevant to this matter was tendered in part. It disclosed that the complainant had taken out an apprehended violence order against her former husband on 28 March 1996. The complainant stated:-

“[5] … The fear I felt was such so as to make me afraid to attend Court. I am informed and verily believe that by reason of my failure to attend the Local Court the application was dismissed.” [28]
28. Exhibit AN, Statutory declaration of the complainant sworn 7 October 1997 produced to the Department of Immigration & Ethnic Affairs at [5]

Whatever occurred in the incident with the complainant’s former husband, I do not consider that it undermines the complainant’s credibility. There is no evidence that the complainant made allegations that were false notwithstanding that the order was not ultimately pursued. Further, the evidence discloses that the complainant reported the incident to the Court, not to the police, when she was residing with her brother.
Secondly, the accused sought to attack the complainant’s credibility by reference to her making false allegations that he had threatened to rape her sister-in-law Indira and her daughters. The complainant maintained that this threat had been made and stated that it was sometime between the 13 January and 1 February 2015. [29] The complainant conceded that on some days she would talk and others she did not talk to her sister-in-law stating that they got along but added that “it’s a family matter.” [30] The complainant stated that she did not say anything before she commenced talking to police following Count 24 because she was being tortured and raped and did not have the time. [31]
29. T 605.36 – .43
30. T 607.25 – .36
31. T 607.20 – .23 and T 607.38 – .41
In relation to the allegation of threats to the complainant’s family members, it was submitted that these allegations were analogous to those made in relation to her first husband, as referred to in Exhibit AN at [24]. In Exhibit AN, the complainant recounted the following conversation:-

“[24] He said: If I don’t get the money I will rape your sister in law and kill the kids in front of your brother and then kill him.” [32]

The complainant rejected the suggestion of analogy. [33]

32. Exhibit AN, Statutory declaration of the complainant sworn 7 October 1997 produced to the Department of Immigration & Ethnic Affairs at [24]

33. T 658.20 – .47

The complainant further rejected the suggestion that she told the accused that she had made a false statement about her first husband maintaining that it was the truth as to what was said but added that no one was raped. [34]
34. T 657.1 – 658.42
The complainant accepted nonetheless that she had stated that the accused had threatened to rape her sister-in-law, Indira. [35] She rejected the suggestion that she had told the accused that she had made a false accusation against another man for raping her sister-in-law [36] or that she had ever made a false accusation against any man about raping her sister-in-law. [37] She rejected the suggestion that she told the accused that she knew how to use the legal system to her advantage. [38]
35. T 656.13 – .15
36. T 656.22 – .25
37. T 656.31 – .33
38. T 656.35 – .45
Detective Duncan confirmed that between 3 March and 9 April 2015 when the complainant made her statement she had informed her that the accused had threatened female members of her family, but it did not concern her because the accused was in custody, and the complainant had previously informed her why she did not report the matters to police earlier. [39]
39. T 957.19 – .46
The context in which the alleged threats were made is not established. I am unable on the evidence to form any view as to whether the threats were made and if so, whether they were such that the complainant should have reported them. They do not relate to the counts on the indictment except to suggest that the complainant made up her account. For the reasons otherwise stated I do not accept this is so.
Thirdly, when Detective Duncan commenced taking a statement from the complainant on 3 March 2015 she stated that the complainant was “distracted by the fact that she felt that there was a firearm in the house.” Detective Duncan stated that the complainant had told her that she had extensively searched the house but was unable to locate the firearm. [40] However, she did not ask the complainant why she had not informed the police earlier. [41] She stated that after a search, they found no firearm in the house, but knives and a hammer were found in a ceiling cavity of the manhole. [42] She stated that to her knowledge, the accused did not have access to the premises since 1 February 2015. [43]
40. Exhibit 9, Statement of Detective Senior Constable Fiona Duncan dated 13 Mary 2015 at [14]
41. T 955.6 – 956.11
42. T 930.37 – .50 and T 931.2 – .4
43. T 931.6 – .11
Detective Duncan added that she had been told by the complainant that the accused had told her that he had obtained a gun to kill Mr Glen Kelly. Mr Kelly is a person who the accused believed the complainant had a relationship. Detective Duncan stated that she did not believe that there was a gun but that the complainant had believed that the accused had concealed one in the house based on what the accused told her. [44]
44. T 956.18 – .49
The allegation concerning a gun was introduced by the accused in cross-examination. In submissions, the accused argued that the gun was something that the complainant created herself. [45] This was not put to the complainant in in cross-examination. In the circumstances, I decline to accept it so as to take an adverse view of the complainant’s credit.
45. T 1062.8 – .12

Motive to lie

In the course of the trial the accused also asserted that the complainant made up the “rape story” to assist her financially in getting the proceeds from the family home which, at the relevant time, was up for sale.
A motive to lie or to be untruthful if it is established may “substantially affect” the assessment of the credibility of the witness. Where there is evidence that a Crown witness has a motive to lie, the task for the Court is to consider that evidence and determine whether they are nevertheless satisfied that the evidence given is true. The task does not include speculating whether there is some other reason why the Crown witness would lie and nor does it include the acceptance of the Crown witness’ evidence unless some positive answer to that question is given by the accused. The accused bears no onus to prove that the complainant had a motive to lie and a rejection of the motive does not necessarily justify the conclusion that the witness is truthful. [46]
46. R v Jovanovic (1997) 98 A Crim 1
During the course of the cross-examination and in submissions it was put that the complainant made false accusations against him in order to obtain the proceeds of the sale of the family house at Leumeah.
The accused submitted:

“That is the motive your Honour - that is the motive, greed is the motive for her then to go down and report on 24th that she was sexually assaulted. February has 28 days your Honour the 27th fell on a Friday in that year and that was the day the contract was to be completed.” [47]
47. T 1061.15 – .19

When I asked the accused about evidence as to the date of completion he stated that he had evidence but conceded that it was not before the Court. [48]
48. T 1061.25 – .30
The complainant acknowledged that at one point she spoke to a lawyer regarding the sale of the house, but she did not have “any idea about that.” [49]
49. T 638.22 – .34
The complainant was taken to a unsworn affidavit prepared in related family law proceedings for the complainant at Exhibit T where it is recorded:

“[151] After [the accused] was taken into custody I received notice that his Aunty and sister:
(a) Josephine Mohini Lata Singh
(b) Sudha Somai
Had registered a caveat on the property alleging they had advanced [the accused] and I funds towards the purchase of the land.
[152] I say that this is not true and they have never contributed any funds towards the purchase of the property or to [the accused] and I for any other reason.
[153] As a result the settlement of the sale did not proceed and we had to refund the deposit to the purchases [sic].” [50]
50. Exhibit AP, Affidavit drafted by AS for Federal Circuit Court of Australia proceedings, undated at [151] – [153]

The complainant acknowledged that there was a caveat put on the property at Leumeah for sale by the accused’s aunt and sister, but maintained that the money had been put into the house by the accused, and that no one else gave her a “single cent.” [51] It was put to her that this was the motive for her to make the allegations of sexual assault up – the complainant rejected this accusation. [52]
51. T 646.22 – .39
52. T 646.41 – .49
So far as the solicitor, Mr Balram was concerned, the complainant stated that she could not recall the precise date, but he had approached her to sign a document so that the house could be sold. The complainant stated that the solicitor told her that the funds would go into a trust fund. [53]
53. T 639.4 – 640.14
It was also put to the complainant that her that getting the money from the sale of the house was more important to her than complaining about the sexual assaults. The complainant stated that a lawyer came to the house and that she did not call him. [54] She stated that the money was not important for her and that she complained when she was “ready.” [55]
54. T 642.27 – .35
55. T 642.37 – .42
I do not accept the accused’s attack on the complainant’s credibility on this basis. The evidence establishes that the complainant acquiesced to all the accused’s demands as to the sale of the house. There is no evidence that she made any demands her own in relation to the proceeds or that she had any expectations to receive funds. As will be later evidenced, on 22 December 2014 the complainant had arranged for $65,000 to be redrawn from Pepper Australia to her own bank account and she subsequently transferred $60,000 into the accused’s account on 29 December 2014. This was at the accused’s request. There was also a disclosure to Ms Karen Sheehan, the social worker at Campbelltown Hospital, that the house was to be sold to pay off the accused’s gambling debts. [56]
56. Exhibit L, NSW Health South Western Sydney, Local Health District, Clinical Progress Notes for the complainant, entry dated 2 February 2015

Delay in complaint

A matter raised by the accused in terms of my assessment of the complainant’s credibility is that absence or delay in making the allegations of sexual assault. [57]
57. 1986 Act ss 294(2)(a) – (b)
The accused’s cross-examination sought to cast doubt on the complainant’s reliability as a witness. The accused argued that the fact that the complainant did not report a number of the allegations she alleges to police or third parties discredits her account of what she alleges took place. The Crown however relies on the context material to explain the complainant’s unwillingness to report.
In this respect it is important to state that absence or delay in complaining does not necessarily indicate that that the allegation that the offence was committed is false. There may be good reasons why a victim of a sexual assault may hesitate or refrain from making a complaint about the assault.

JS’s evidence

JS was a vulnerable witness. A transcript of her pre-recorded interviews recorded on 25 February 2015 and 29 May 2015 were tendered without objection as Exhibits E and F.
JS adopted the contents of the interviews in the court room. A support person was in attendance at the time. This again is normal procedure and I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it was given in this manner. I will assess the evidence in the same way as I assess the evidence of any other witness in the case.
The accused did not cross-examine JS as to the contents of the interviews. The accused submitted:

“That’s a 13 year old girl, I didn’t ask her any questions. When I asked her what’s her middle name and at 13 years old she still doesn’t know her middle name, that’s the correct middle name and I have always declared from the beginning your Honour not to ask any questions from the children and that’s what has been.
Whatever they’re said in their wisdom or whatever manipulation that they are, they’re not with me at the moment, they’ve been manipulated to say a few things. Because I get to Court, in the first statement that she made on 25 February, she didn’t mention anything about the hair cutting.
She was even asked about the hair cutting, she didn’t say anything about the hair cutting. Yet in the next statement a few weeks later or more than a month later, she talks about it then.” [58]
58. T 1065.1 – .14

Notwithstanding the election of the accused not to cross-examine JS, it remains necessary to carefully examine her evidence. In her second interview, when told that it was important to “only talk about the truth”, JS responded that she “… can kind of lie most of my time. That’s the problem ‘cause, ‘cause of my dad’s DNA, he lies.” [59] She also referred to the accused as “blood” [60] because she did not want to refer to him as her father as it “haunt[ed]” her. [61] As these reasons will elaborate in parts I have not been able to accept her evidence or given it limited weight. This is in particular as to her interview answers in Exhibit E being as the events leading to Count 24. Nevertheless I accept that there are parts of the accounts she provided that do correspond with other evidence presented in the trial.
59. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q 59 – 60
60. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q124
61. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q115 - 116

Other witnesses

During the course of the trial evidence was heard from Ms Kamini Ranjit (complainant’s cousin), Ms Paula Nahas (child protection case worker with Department of Family and Community Services), Ms Bhavna Ahluwalia and her sister Ms Namrata Ahluwalia (the complainant’s neighbours in Leumeah), Mr John Overall (a witness to events on 16 January 2015), Ms Chandra Suarez (complainant’s cousin), Mrs Sabnam Chandra (complainant’s sister-in-law), Mr Ajay Singh (a family friend), Ms Karen Sheehan (social worker at Campbelltown Hospital), Mr Fiti Fepulea'i and Mrs Tipi Fepulea'i (neighbours), Mr Glen Kelly (former boyfriend of Chandra Suarez), Leading Senior Constable Paul Watson, Leading Senior Constable Eleanor Jenkins, Sergeant Jodi Carol (formerly Webb), and Detective Senior Constable Fiona Duncan.
Also tendered, by consent, were a number of other witness statements, the contents of which together with all other evidence will be discussed in these reasons.

Context and relationship evidence

In addition to evidence going to the specific counts in the indictment, the Crown has led evidence from the complainant which goes to illustrate the context in which the specific allegations occurred. That is, the complainant’s evidence includes allegations of ongoing conduct over a period of time which implicitly embraces other acts. Before the accused can be convicted in respect of any particular count in the indictment I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is the Crown must prove the particular act to which each count in the indictment relates as alleged by the complainant.
The relevance of other acts not subject of the indictment is to place the particular allegations into a realistic and intelligible context[62] and also to demonstrate the relationship between the accused and complainant. By context I mean the history of the conduct by the accused toward the complainant as she alleges it took place.
62. See R v AH (1997) 42 NSWLR 702 and Wilson v The Queen (1970) 123 CLR 334, 344 (Menzies J).
The Crown has adduced relationship evidence to demonstrate the nature of the relationship between the complainant and the accused. [63] The Crown is seeking to rely on the relationship evidence in the following manner:

To demonstrate on the part of the accused, his knowledge that the complainant was not consenting, or was reckless as to that consent, or had no reasonable belief in that regard, in relation to counts 1 to 23 on the indictment because he knew the complainant was vulnerable and was in fear of him; and

That the complainant did not consent to the sexual acts the subject of the indictment in relation to counts 1 to 23 due to her being in fear and forming a belief that further violence would be inflicted upon her.
63. See: R v AN (2000) 117 A Crim R 176 and R v Matthews (1990) 58 SASR 19

The Crown is seeking to rely on the context evidence in the following manner:

To demonstrate an escalation of violence by the accused and the fear experienced by the complainant towards the accused;

To disavow the suggestion that the charged acts were isolated;

To explain the actions and reactions of the complainant, in particular, to provide an explanation of the reluctance of the complainant to make a complaint; and

To provide evidence to support that the complainant was vulnerable during her marriage, in particular, but not limited to her concerns about her children’s welfare and her financial dependence on the accused.

The Crown’s submission is that there was a history of violence inflicted on the complainant and the complainant did not resist those acts. Including when it escalated to sexual violence. The accused’s knowledge of her behaviour is in the same context and as the domestic violence alleged to have been committed on her, in that she submitted or showed little resistance because she was under constant fear.
The Crown further submitted that it demonstrates that the complainant attempted to appease the accused, with one motivation being that she was focused in protecting her children, concerned about any adverse impact upon his employment, and that if she did appease him, her next punishment might not be as bad.
Without the evidence of these other acts the Crown submits that I may wonder for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in anyway. If I had not heard about the evidence of the other acts, I may have thought that the complainant’s evidence was less credible because it was less understandable. Accordingly the evidence is admitted before me only to answer questions that might otherwise arise in my mind about the particular allegations in the charges in the indictment.
If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant alleges was an ongoing history of the accused’s conduct toward her, then what might appear to be a curious feature of the complainant’s evidence – that she did not complain about what was done to her on a particular occasion – would disappear. It is for that reason, the Crown submitted, that the law permits a complainant to give an account of the alleged history between herself and an accused person in addition to the evidence given in support of the charges in the indictment
The account of ongoing alleged domestic and sexual history between the complainant and the accused, as well as her actions and reactions, avoids artificiality or unreality in the presentation of the complainant’s evidence. For example, as noted by the Crown, it is capable of more naturally and intelligibly explaining the relationship between them and is a factor which I am entitled to take into account in giving consideration to the significance of the failure to make a contemporaneous complaint. [64]
64. DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 at [28] and see also: KJS v R [2014] NSWCCA 27 at [34] and [38] (Hoeben CJ at CL with Adams and R A Hulme JJ agreeing)
Before I can use this evidence in the limited way that I have earlier directed, I must accept that what is alleged by the complainant happened beyond reasonable doubt. However, I must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainant made other allegations against him. This is not the reason that the Crown placed the evidence before me. The evidence has a very limited purpose as I have outlined and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt.
Secondly, I must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charges in the indictment. I am not concerned with the particular and precise occasion alleged. I must not reason that, just because the accused may have done something wrong to the complainant on some other occasion, he must have done so on the occasions alleged in the indictment. I cannot punish the accused for other acts attributed to him by finding him guilty of the charges in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.
However the context evidence is not to be relied upon as establishing a tendency on the part of the accused to commit the offences. One could not reason that the accused was likely to have committed the offences charged because of the existence of the other allegations. The evidence of context is limited in its purpose as I have outlined above. I must not substitute the evidence of other acts for the evidence of the specific allegations contained in the charges in the indictment.

EVIDENCE

I turn first to the evidence.

Background

The complainant is a 53 year old woman of Fijian-Indian background. She arrived in Australia in 1996, and became a citizen in 1998/1999. [65] In 1998, she met the accused at a church they both attended. He was also of Fijian-Indian descent having arrived in Australia in 1996 on a bridging visa. [66]
65. T 10.36 – .44
66. T 11.1 – .20
In 1998/99, the accused returned to Fiji and the complainant went with him. The accused had a daughter from an earlier relationship, named ES. It was the evidence of the complainant that the reason for their return to Fiji was because the accused did not have a proper visa for the purposes of her adopting ES. After approximately one year, both the complainant and the accused returned to Australia with ES. At that stage, the accused was still on a bridging visa, but did subsequently become a permanent resident of Australia. [67]
67. T 12.3 – 13.26
After returning to Australia, the parties resided in a unit on Evaline Street, Campsie for two to three months, before moving to another unit on the same street, and resided there for four to five months. Their child, WS, was born on 11 April 2001, whilst they were residents in Campsie. Whilst living at Campsie the accused’s daughter ES came to join the complainant and the accused in the household. Subsequently, the parties moved from Evaline Street, to Eighth Avenue, Campsie. The accused and the complainant then had a daughter, JS, who was born on 31 August 2003. [68]
68. 13.41 – 14.34
WS was diagnosed with autism at age two and a half. [69] Around 5 November 2011, the family moved to a residence at Carrington Circuit, Leumeah. At that point, WS had been diagnosed with cancer and was having chemotherapy at Sydney Children’s Hospital. [70] ES was studying nursing at the University of Notre Dame. [71]
69. T 29.15 – .19
70. T 15.39 – .50
71. T 16.9 – .21
The complainant’s evidence was that when she first met the accused, he was a calm person who gambled and “was a bit controlling.” She gave evidence that she worked in a factory, but stopped working in 1999, before they went to Fiji and did not work following her return. In particular, she did not work after WS was born. Throughout their relationship, the accused was working. Initially he worked in a printing company called SOS and subsequently changed jobs and worked at State Rail.
The complainant stated that she had two brothers – Mr Kamlesh Chandra and Ishwar Nayanan. The complainant’s evidence was that at the initial stages of their relationship, she had to inform the accused where she was going. This included when he was working. She said that she was not able to see her family and friends without telling him and there were occasions where the accused would refuse or not allow her to see her family and friends. At times, she was allowed to go to the shops. In the event that she did not ask for permission and the accused found out about it afterwards, he became “very angry.” [72]
72. T 19.1 – .33

INCIDENT 1

The first incident that the complainant recalled involving violence was when she resided at Illawarra Road, Marrickville. The complainant’s evidence was that the accused was sitting on a balcony and asked for a glass of water. She stated that when she got the glass of water, he threw the glass of water towards her and the glass smashed close to her head on the wall. She stated that neither the glass or any broken glass hit her in any way. However, she was scared and ran into the home. Next the accused asked for some food and she took a plate of stir fry and gave it to him, and the accused threw it on the floor. This occurred inside the home in the kitchen. [73] She stated that she thought that she had done something wrong. She said that she discussed the matter with her, and the accused told her that the stir fry was overcooked. She stated that she loved the accused, but thought that there was something wrong but did not know what it was. [74] After that, she said that they both made up and “apologised.” She stated that she loved him and felt that he was not going to do it again. [75]
73. T 19.48 – 20.49
74. T 22.45 – 23.29
75. T 28.1 – .27
The accused cross-examined the complainant about the matter. The complainant denied that she was lying and maintained that the two events did occur. She conceded that she never made a complaint to the police about the matter which concerned allegations about violence. She conceded that she knew when to complain the police, when there was a need to complain to the police, but rejected the suggestion that she did not complain to the police about the water and the food because it did not occur. [76]
76. T 317.31 – .33

INCIDENT 2

The second incident recounted by the complainant, concerned an occasion when her cousin, Ms Kamini Ranjit, was said to be staying with the accused and the complainant. The complainant stated that Ms Ranjit had stayed there during the night. WS was said at the time, to be 3 – 4 months old, making the timing of this event in mid-July 2001.
The complainant stated that the accused was supposed to make breakfast, and her cousin had informed her that she did not eat pork. The complainant told the accused that her cousin did not eat pork and he got mad and slapped her across the face in their kitchen. The complainant stated that she yelled and screamed: “Stop hitting me” to which the accused responded that the complainant had a bad habit of saying things in front of other people. At that point, Ms Ranjit was said to be in the lounge room with WS. [77]
77. T 23.38 – 24.10
The complainant stated that the accused was “very, very angry” and agitated and that he hit her on the back with his fist closed, and she then ran into the bedroom. [78] She maintained that at the time that she was being slapped and hit in the back, she was in the kitchen. She stated that the lounge room where her cousin was with WS and was further away and “you can’t see clearly” and “it’s not really close.” [79] She stated that when she went to the bedroom she was closer to the lounge room. It was at that point that the accused came after her, and she was scared, trying to protect herself. She stated that the accused kicked her in the thigh and hit her with his fist closed on her shoulder and her back as well as on her tummy. He stated that the accused hit her on the breast and she yelled: “Please stop hitting me.” At this point, her cousin came in and tried to push the accused away and Ms Ranjit said: “Stop”, to which the accused responded: “Stay out of it.” [80]
78. T 24.44 – .47
79. T 25.7 – .22
80. T 25.40 – .45
The complainant stated that she tried to climb on the bed to protect herself and get away from the accused. She stated that may be she turned around and pushed or “maybe punched him or something” but was not sure. She stated that whilst on the bed, she sought to be out of the accused’s reach but could not remember much. She stated that he kept coming to hit her. She further stated that the accused tried to hold her legs and twist her hands. The complainant asserted that she pleaded with the accused not to do that because she had a small baby, but he did not stop. WS at the time remained in the lounge room. She stated that she was very scared and did not know what to do and her cousin interfered. She eventually pushed the accused away and he went into the lounge room. At that point, the complainant asserts that she and Ms Ranjit had a talk and she told her to call the police. [81]
81. T 26.9 – .33
She stated that she did not call the police because she was confused with a small baby and a girl with her (the accused’s daughter “ES”) [82] and she did not know what to do. At the time, the complainant stated that she was not working, the accused paid the bills and she was dependent on the accused’s earnings and Centrelink payments. She stated:

“I was confused that he’s the only person who’s bringing money and I have got two children what’s going to happen if I call the police and if I lock him up or something then who’s going to look after us because he was the only person working.” [83]
82. T 26.35 – .45
83. T 27.11 – .14

She conceded that she was scared of the accused physically. [84] Notwithstanding what had occurred, she also felt that she had let him down, that maybe he would get better, or that they would sort things out. She stated that she felt as though it was her fault, but did not know what she had done wrong. [85]
84. T 27.19 – .24
85. T 27.26 – .31
The complainant stated that the accused did not want her to say that her cousin did not eat pork in front of her, and that she felt that the accused was hitting her because he did not like her saying things in front of other people. [86] However, the complainant’s earlier evidence was that she made the remarks about her cousin not eating pork at a time when Ms Ranjit was in the lounge room with WS, which was “not really close.”
86. T 27.33 – .49
The complainant stated that she loved the accused and believed that because he was the father of the children, that he would not do it again. She stated that they each apologised to one another, and she was not going to say anything to anyone in front of him. The complainant stated that the accused said: “I’m sorry, I’m not going to do it again” and she believed him. [87]
87. T 28.9 – .27
The complainant stated that after the incident, she changed her behaviour, in that she did not: “… talk much to people, only something is there I try not to say.” [88] She stated that she had bruises from the incident on her thigh, on her tummy, near her breasts, her head and her face. [89]
88. T 28.50
89. T 29.6 – .7
In cross-examination, it was put to the complainant that Ms Ranjit did not say anything about pork sausages in her statement. The complainant maintained that she did. [90]
90. T 317.45 – .47
The complainant was challenged about Ms Ranjit’s staying the night as opposed to visiting. The complainant stated that at that point, she could not remember. [91] It was then put that Ms Ranjit stated that she did not go near the accused, but that she was asserting that Ms Ranjit pushed the accused away from her. On that basis, the accused challenged that the incident did not take place – the complainant maintained that it did. [92] She maintained that Ms Ranjit saw her climb onto the bed and that she was in the room. [93] It was drawn to her attention that Ms Ranjit said she was pregnant at the time although the complainant had stated that WS was in a pram. [94]
91. T 318.3 – .5
92. T 318.7 – .10
93. T 326.35 – .41
94. T 326.43 – .45
Ms Kamini Ranjit gave evidence that she has known the complainant since birth, and knew each other as “cousins.” She arrived in Australia before the complainant, and when the complainant lived in Marrickville, Ms Ranjit also resided in the suburb herself. Her evidence was that during that period she would visit the complainant’s home, mostly when the accused was not around. She stated that the complainant never discussed what was going on in the relationship, however, when the accused was about to arrive, she would ask if she could leave, but stated the complainant did not say much. She stated that as best that she could recall, this would be because she would be trying to organise things like cooking and so on. [95]
95. T 702.34 – .37
Ms Ranjit stated that at one stage, she did visit the complainant and saw the accused in when they were living in Campsie. She stated that at that point, the accused and the complainant were in the bedroom, and she was in the living room. She stated that she could hear them arguing, and could hear the complainant. She stated that she did not approach the room, however, she did not hear what the argument was about, but could hear the complainant saying: “Stop” or “Stop hitting me.” [96] She stated that the tone was angry, but the complainant’s voice was “more like sad, crying sort of voice, fearful voice.” [97] She stated that she could not hear the accused but could hear noise, “like some kind of banging noise,” [98] but would not say it was a “slap, but more harder.” [99] Eventually both the accused and the complainant came out of the room, and when the complainant came out she fell, and the accused kept kicking her on the stomach. [100] At that point, she stated the accused and the complainant did not have children, but the complainant was pregnant. [101] She could not recall the year, but stated that she could recall the complainant telling her before the incident that she was about three months pregnant. [102] At the time of the assaults, she asserted that she was in the living room and she “… literally saw her falling down with her legs like that and he actually kicked her on the leg, the tummy.” [103]
96. T 704.7 – .16
97. T 704.21
98. T 704.41
99. T 704.41
100. T 704.42 – .43
101. T 705.5 – .7
102. T 705.11 – .12
103. T 705.23 – .25
Ms Ranjit drew a diagram of the layout of the house. [104] Ms Ranjit could not recall which bedroom the complainant and the accused came out from. [105] She stated that when the accused and complainant came out, they were “more in the hallway.” [106] At that point, she was more in the middle of the TV room, or closer to the kitchen. She stated that she had a clear view, but was “not really looking at them” and could not recall. [107] She stated that the complainant had her knees up “sort of trying to protect herself,” [108] and they were “coming close to the tummy side.” [109] She stated that the complainant was not completely on her back, but more or less on the side. [110] She maintained that she saw the accused’s kick connect with the complainant’s stomach. [111] She stated that she tried to stop the accused, but did not go and push him away, but verbally said to him: “You stop – you have to stop kicking her.” She stated that the accused kicked the complainant twice more before he stopped. [112] Ms Ranjit stated that the accused was swearing in Hindi, using words like: “You motherfucker.” [113] She recalled that the accused was angry and was hitting the complainant, and she responded by saying; “You have to stop kicking her.” [114] She stated that she did not call the police, but stayed there and did not leave the house. She stated that she had no idea as to what they were arguing about, but recalled the accused saying:

“Your brothers are here, he can come, I’ll make them wee – they can drink me wee, I’ll put the wee in the glass your family can drink the wee.” [115]
104. Exhibit D
105. T 706.42 – .45
106. T 707.3
107. T 707.9
108. T 707.28 – .30
109. T 707.32 – .33
110. T 707.38 – .40
111. T 707.42 – .43
112. T 707.46 – .48
113. T 708.7 – .9
114. T 708.20 – .21
115. T 707.27 – .29

Thereafter, Ms Ranjit stated that things went quiet for a while and they sat down around the table in the kitchen. She stated that they had cooked pork. The accused got “pissed off about that” and apparently stated to the complainant: “Oh why – you knew if she was not eating pork so why you had to cook pork.” [116]
116. T 708.40 – .41

Senior Constable Jack Mitchell

1633. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [6]

1634. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [7]

1635. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [8]

1636. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [9]

1637. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [10]

1638. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [11]

1639. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [12]

1640. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [12] – [13]

Senior Constable Jack Mitchell had been in attendance at the Campbelltown Hospital with Sergeant Smith and Leading Senior Constable Watson. His evidence was that he and Leading Senior Constable Watson were briefed by Sergeant Smith upon arrival. [1641] His evidence corresponded with that of Sergeant Smith as to the events at the hospital. However, he does not record searching for the accused at the hospital, but does state that he left the hospital to attend the accused’s residence and meeting with Senior Constable Evans and Constable Green. [1642]
1641. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [3] – [4]
1642. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [11]
When he arrived at the accused’s residence with Leading Senior Constable Watson, Senior Constable Evans and Constable Green informed them that the accused was in the rear of the police caged vehicle. Leading Senior Constable Watson then advised the accused that he was under arrest for assaulting the complainant. Senior Constable Jack Mitchell stated that the accused moved towards Leading Senior Constable Watson, and that the accused had to be pushed back from the door so that he remained seated.
Both Senior Constable Mitchell and Leading Senior Constable Watson returned to the Campbelltown Police Station and escorted the accused into an interview room. The accused refused to sign and date a document entitled “Pre-Interview ERISP Questions”, so Constable Jack Mitchell co-signed it as a witness. [1643] At 5:12 am, Leading Senior Constable Watson commenced the record of interview with the accused, and this was suspended at 5:59 am and resumed at 6:06 am, and was finally concluded at 6:07 am. [1644]

Leading Senior Constable Paul Watson

1643. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [13] – [15]

1644. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [16]

Leading Senior Constable Paul Watson attended the Campbelltown Hospital on 1 February 2015 with Constable Jack Mitchell, at “around the 2 o’clock mark” and spoke to Sergeant Smith. Following this, he spoke to two people who he had identified as Mrs Tiperia Fepulea’i and Mr Fiti Fepulea’i. [1645] He gave evidence of obtaining statements from both of them and thereafter arranged for a car to attend the address at Leumeah to arrest the accused. [1646]
1645. T 914.6 – 915.8
1646. T 915.22 – .50
Leading Senior Constable Watson stated that checks he conducted at the time showed that there was an AVO in place between the accused and the complainant. [1647] He stated that this order included “standard order” conditions to not assault, molest and harass the complainant. [1648] After his attendance at the hospital, he went to the accused’s residence with Constable Jack Mitchell. Senior Constable Evans and Constable Green were in attendance when he arrived. [1649] He stated that he told the accused he was under arrest for assaulting his wife. [1650] Thereafter, he returned to Campbelltown Police Station with Constable Mitchell [1651] where the accused participated in an interview. [1652]
1647. T 916.5 – .10
1648. T 916.15 – .17
1649. T 917.10 – .17
1650. T 917.42 – .45
1651. T 918.13 – .15
1652. T 918.21 – .22
Leading Senior Constable Watson gave evidence that the photographs that the accused was referred to during his interview, being Exhibit AJ, could not be located. [1653] He stated that subsequent to 25 February 2015, he spoke to “DoCS or FACS in relation to some matters to do with the children” [1654] and the case file was handed over to Detective Fiona Duncan, who had taken carriage of the matter. [1655]
1653. T 918.28 – 919.12
1654. T 919.33 – .36
1655. T 919.44 – .46
Leading Senior Constable Watson gave evidence that on 10 February 2015, it was recorded in the NSW Police COPS Event E57513168 that there was an application to vary the apprehended violence order. The application was to not allow the accused to contact and approach the complainant by any means whatsoever except through the Defendant’s legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 (Cth) for the purpose of counselling, conciliation or medication [sic]. [1656] Leading Senior Constable Watson stated that the variation was not ultimately sought as the accused was in custody from there on. [1657] He conceded that those variations were not made, and were not enforceable on 31 January 2015. [1658]
1656. T 922.10 – .24
1657. T 922.29 – .35
1658. T 922.39 – .44

Accused’s ERISP interview on 1 February 2015 in respect of Count 24

In the ERISP interview of 1 February 2015, it was put to the accused that he was, earlier that evening, placed under arrest and located hiding behind a tree, somewhere in the backyard of his residence at Leumeah. The accused conceded that he was arrested at his residence but could not remember where as there was no light. [1659] The accused was asked whether there was an AVO in place between himself and the complainant. The accused stated that he could not recall. [1660] Although the accused conceded having engaged a lawyer who was “dealing all this” [1661] and to “go to court.” [1662] The terms of the AVO were read out to him, and the accused stated that he understood it. [1663] The accused stated that he was aware that there was an AVO but that he did not “know all the sections, all the words, but something to that effect.” [1664] The accused was then asked whether he was aware of his bail conditions and he replied that he did not. [1665] However, he subsequently acknowledged that the bail conditions were “probably” explained to him by the Magistrate, but repeated that he “had a lawyer who was dealing with it.” [1666] The accused was then specifically referred to a bail condition as to his residence and he replied that that condition had been “lifted up” and that it was an “old condition … that has been cleared off.” [1667]
1659. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q43 – 45
1660. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q61 – 66
1661. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q62
1662. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q63
1663. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q70 – 71
1664. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q72 – 76
1665. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q77
1666. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q78 – 79
1667. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q81
The accused was then asked what happened on the evening in question. The accused stated that he was having sex with the complainant downstairs in the lounge room and had “tried some new toys with her”. [1668] When the “sex finished” the complainant went upstairs, and the accused “call again from downstairs.” [1669] The accused stated that he did not hear a response and went upstairs, and told the complainant: “I’m coming to get you.” [1670] The accused stated that he went to the bedroom and saw the complainant at the end of the balcony going onto the carport. [1671] The accused stated that he told the complainant: “Don’t jump.” The accused also stated that the complainant had a “habit of jumping from there.” [1672] The accused stated that the complainant had jumped “yesterday without the shoes.” [1673] The accused stated that he left the bedroom to go into the lounge room upstairs where there was another door, and he swung the door outside towards her. [1674] The accused saw the complainant and told her not to jump: “Don’t jump.” The accused repeated that the complainant had “done it a few times, she did it yesterday.” [1675]
1668. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q93 – 96
1669. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q97 – 100
1670. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q101 – 102
1671. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q103 – 105
1672. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q107
1673. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q108
1674. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q109 – 111
1675. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q114
The accused stated about the complainant:-

“Yeah, jumps over. I don’t know she did it on purpose or she slipped off the thing there but she went over. Every other time she falls, she lands properly, it’s not that high. It’s high but not that high.” [1676]

The accused then added that he went downstairs to go and see the complainant. He went through the garage door because the keys to the front door did not work. [1677]

1676. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q117

1677. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q124 – 125

The accused reiterated that the complainant had done this “all the time”, but did it without her shoes. [1678] The accused stated that he overheard someone speaking about the complainant being in hospital. [1679] He stated that he knew that the complainant was “hobbling.” [1680] He stated that he did not see the complainant get up as he was coming from “upstairs downstairs.” [1681] When asked how he knew the complainant was hobbling, the accused stated:-

“I saw her hobbling, I think I saw her hobbling, I can’t, I can’t remember that I saw her. I can’t remem-, I, I did not see her, but I think she must’ve hobbled.” [1682]

The accused reiterated that he did not see her. [1683]

1678. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q135 – 136

1679. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q143

1680. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q145

1681. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q146

1682. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q147

1683. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q149

The accused was then asked about him overhearing someone speaking about the complainant being in the hospital. The accused was asked to identify the people speaking, and he replied: “It was the kids.” [1684] The accused was later asked how the complainant arrived at the hospital and he stated that he did not know. [1685] The accused then stated that when he went downstairs, he did not see the complainant [1686] and did not know where she had gone. [1687] The accused stated that whilst he had concerns for her safety, he did not know at the time what was happening. [1688] The accused saw that his kids were awake [1689] and stated that he then went to the hospital to check on the complainant. [1690] He stated that he noticed that kids were at hospital, but that he did not bring the children because he had left them at home. [1691] He stated that his children were 11 and 13, and denied that WS was autistic, describing him as needing “a bit of help, but I don’t think he’s autistic.” [1692] The accused stated that he did not remember how he arrived at the hospital, [1693] but the children were already at the hospital and he did not ask them how they got there. [1694] The accused stated that this did not bother him even though it was 2:00 am in the morning, because his children were “quite old.” [1695]
1684. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q150 – 152
1685. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q153
1686. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q164 – 165
1687. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q166
1688. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q168 – 169
1689. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q172
1690. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q173
1691. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q174 – 179
1692. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q180 – 184
1693. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q186
1694. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q187
1695. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q188 – 191
The accused stated that between him having sex and the complainant being on the balcony, around 10 minutes had passed. [1696] The accused further stated that he did not know why the complainant went upstairs. [1697] I repeat, when asked why the complainant would jump off the balcony after sex, the accused stated:-

“Mate, I’ve got no idea about this. I cannot give an opinion on this. She had all the chances to do other things if she didn’t want to have sex. She had all the chances.” [1698]

The accused then stated that if there was something that the complainant did not like, she could have told him, and that he did not know why she jumped off the balcony. [1699] The accused stated that she did not say anything to him when she was out on the balcony, [1700] but she did have her phone with her. [1701] The accused stated that she “probably” was not talking on the phone. [1702]

1696. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q198 and Q200 – 202

1697. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q205 and 211

1698. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q230

1699. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q232 – 234

1700. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q235

1701. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q237 – 238

1702. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q243

The accused was asked, when he went upstairs, whether when he told the complainant: “I’m coming to get you” and he had done so in an aggressive manner. The accused replied: “No, I’m not even seeing her.” [1703] The accused stated that at the time of the incident, he was on “the floor, the stairs,” [1704] and later stated:-

“All I know that the leg when it left, it really hit the gutters. Normally when she jumps there’s no sound but this time the leg caught the gutters.” [1705]

He stated that he heard the sound of the “tin, corrugated iron, the sound of the gutter.” [1706] He then stated that the complainant was wearing shoes. [1707] The accused was asked to clarify how he had noticed this, to which he replied:-

Every now and then we wear shoes in the house, it’s not something that I pick out, you didn’t wear shoes or you didn’t wear, wear, we wear shoes all the time. [1708]

The accused then repeated that he was “pretty sure” and “sure” that the complainant was wearing shoes. [1709]

1703. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q273

1704. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q275

1705. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q277

1706. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q284

1707. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q287

1708. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q289

1709. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q295 – 296

The accused stated that he spent about a “minute” telling the complainant to: “Just hold on there, hold on, just hold on, just hold on, I’m coming.” [1710] However, when he came down the complainant had left, but did not know how she left. [1711] When asked how long it took him to get down, the accused stated that it took him a “couple of minutes”. [1712] The accused was then asked about how he came to overhear the children talking about the complainant going to hospital. In particular, the accused was asked, if the children were upstairs, and he had been upstairs but subsequently gone downstairs, and the complainant was no longer there, how could the children have known that she went to the hospital. The accused stated: “I met them at the hospital.” [1713] The accused was again asked how he thought the children knew, when they were upstairs. The accused replied: “I don’t know, mate, I overheard them.” [1714]
1710. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q298
1711. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q302
1712. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q303 – 311
1713. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q315
1714. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q318
The accused was then informed of the injuries that the complainant had sustained. The accused stated: “That’s very sad.” [1715] When the accused was questioned as to him being unaware of the injuries, he replied that a lady had told him to not “go out the back.” [1716] He stated that he saw his children but could not remember who they were with. [1717]
1715. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q325
1716. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q329 – 330
1717. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q335 – 340

It was then put to the accused that the complainant jumped off the balcony because he was chasing her. After some delay, the accused responded: “No, that is false. I did not chase her.” [1718] He repeated that did not occur. [1719] The accused stated that he did hear the complainant “yelling” but did not see any injuries. [1720] The accused could not say whether she was injured or not. [1721] It was then put to the accused that the complainant had said to a witness: “He tried to kill me.” When asked what he could tell the police about the statement, the accused stated, after a long break: “That is completely false. That is completely false.” [1722] The accused stated that he did not hear the complainant call for the next door neighbour [1723] but he did hear a “painful scream.” [1724] The accused told the complainant to: “wait there, wait there, I’m coming, wait there” and then the screaming stopped [1725] and that the complainant was no longer there. [1726]
1718. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q343
1719. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q344 and 348
1720. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q350 – 351
1721. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q354
1722. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q356
1723. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q359
1724. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q361
1725. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q362
1726. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q363
Photographs of the house were shown to the accused on 1 February 2015, however the evidence from Detective Duncan at trial was that she was unable to find them. [1727]
1727. T 946.42 – .49
The accused in the ERISP repeated that he saw his children at the hospital however they went “past” him towards the “back of the place.” [1728] He stated that the children had been “in and out of hospital all their life” so they knew “about it” so they went “past it” whereas he was “stopped from going.” [1729] The accused stated that he had a conversation with his children but could not recall it. [1730] The accused simply stated that there were “lot of things involved”, that he could not recall what he was doing and that he must have caught the train. [1731]
1728. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q372
1729. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q373
1730. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q377 – 382
1731. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q388 – 392
The accused’s version of what he asserted took place was put to the complainant.
The complainant was questioned about whether WS had jumped from the carport previously. The complainant stated that JS did. [1732] She stated that she did not tell police about the alleged rape when she was at the hospital because she was “tired” and “was in the hospital and the medication”, and that because she was a “woman.” [1733] She stated that the accused was chasing her in order to kill her. [1734] It was put to the complainant that she was frustrated when she was downstairs because the accused had not agreed to continue their relationship. She responded that she was not frustrated and that if the accused did not want her, she would have just left and gone. [1735] She rejected that suggestion that she had been telling lies the whole trial. [1736]
1732. T 675.9 – .11
1733. T 675.26 – .37
1734. T 675.39 – .46
1735. T 676.18 – .21
1736. T 676.31 – .33

Consciousness of guilt

Direction on consciousness of guilt

The Crown relies on the evidence of police finding the accused in the backyard of his house hiding in the bushes late at night following the events in Count 24 as evidence of consciousness of the accused’s guilt in relation to that count. [1737]
1737. T 1015.34 – 1018.5
If I determine that the accused so acted conscious of his guilt in relation to Count 24 with a view to hiding to avoid the police then care must be taken in approaching the task of determining the significance if any this has. I may take this into account in determining the accused’s guilt, but I can only do that if I find two further things which I shall refer to shortly. When I say I can take this into account as evidence of the accused’s guilt, I am not suggesting that it could prove his guilt on its own. What it means is that it can be considered along with the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt.
If, I am satisfied that the accused acted in deliberate contemplation of hiding then I must also be satisfied that the circumstance, firstly, was carried out by the accused because of his knowledge of the offence he had committed in Count 24 and secondly, occurred because the accused realised that to reveal himself would lead to his arrest and prosecution. And thirdly, it occurred because the accused knew and realised his own guilt, in relation to Count 24 on the indictment.
It needs to be remembered, however that people do not always act rationally and that conduct of this sort, may sometimes be explained in other ways. A person may have a reason for so acting quite apart from realisation of his guilt, For example it might be done out of panic; to escape an unjust accusation; to avoid a consequence unrelated to an offence or concern for his safety.
If I consider that the accused acted as alleged by the Crown for some other reason other than to avoid being implicated in the commission of the offence for which the accused is on trial then it cannot be used as evidence of the accused’s guilt. If that is the case then I should put it to one side and focus my deliberations on the other evidence in the case.
To this end I must be satisfied that what was in his mind when he undertook this act in question, was his guilt for the offence in question and not of some other unrelated matter. In particular I must be satisfied that the circumstance I have identified point unequivocally to consciousness of guilt for the offence in question.

There was no consciousness of guilt in respect of Count 24

The Crown alleges that the accused knew at the time that police were coming to his house, as they had knocked loudly on his door, called out police and the police cars were conspicuous. It asserts that inferences can be drawn from the fact that he had been at the hospital following the complainant’s injury and he had been denied access to her. It further relies on the fact that at the time of the complainant’s fall the accused was told by the neighbour to stay away after the complainant had told him that the accused had tried to kill her.
The accused’s submission in this regard was that he was not hiding but that the front door could not be open or closed except from the front not inside and needed to access it through the garage. [1738] He points to the fact that he participated in the interview on 1 February 2015, he did not run away and he was accustomed to the doorbell ringing not banging at the front. He also submits that the evidence does not disclose that he was aware at the hospital that the police were after him or that anyone had told him. [1739]
1738. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q124 – 126 and Q305 – 306 and T 1050.29 – .34
1739. T 1050.16 – .34
Although the accused was not in breach of the apprehended domestic violence order for being at Leumeah with the complainant on the occasion in question it cannot be said that the relevant act on his part was because of Count 24 and not any other matter. In the ERISP interview, the accused was told that police were investigating an alleged breach of AVO, intimidation, assault and a breach of bail. [1740] The evidence discloses that the accused had an AVO at the time the terms of which included not to assault, molest and harass. On the evidence of Detective Duncan proceedings in relation to domestic violence and the AVO were due to be heard at Campbelltown on 6 March 2015. The accused stated that he was unclear as to the terms of the AVO and bail although in relation to the condition that he reside at Erskineville, the accused stated had been lifted on an earlier occasion. [1741] On the evidence of Senior Constable Watson, I am satisfied that it was not in place at the time of Count 24.
1740. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q13
1741. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q61 – 83
The accused was told in the interview by Senior Constable Watson that he was placed under arrest and located, hiding behind a tree somewhere in the backyard at the home in Carrington Circuit, Leumeah. He acknowledged that he was arrested at the address in the backyard but stated that he could not remember as there was no light. [1742] Constable Watson was not in attendance at the time of the accused’s arrest. Certainly it was not put to him that he was crawling as asserted by Constable Evans or kneeling down as asserted by Constable Green. Nor was it put to him that he was attempting to conceal himself behind bushes and the matter was not further pursued.
1742. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q43 – 45
I accept that the accused was aware that he could not see the complainant at hospital. There was evidence that the front door could not be unlocked from the front in his statement, as well as evidence from Constable Evans who had arrived earlier that they could not properly close the front door which she attempted to close but could not secure. The accused had no knowledge at the time what, if anything, the complainant may have said to the police. However, he was aware of what his neighbour had told him.
Whether or not the accused was aware of the police knocking on his door prior to him being found was not put to him in his interview and nor was it established. The matter is addressed by inference from the police presence and knocking loudly according to Constable Evans. Such evidence is not given by Constable Green but in any event neither gave evidence of disclosing that it was the police at that point. According to their evidence they did not announce their presence as police until they heard some rustling sound and then Constable Green used his flashlight towards the bushes. In the circumstances, for the reasons given earlier, no inference is to be drawn from the accused’s declining to speak to police at the time of his arrest.
In all of the circumstances, I am not satisfied beyond reasonable doubt that any action the accused took late at night, in circumstances of darkness in his backyard with at that point unidentified persons was done in consciousness of guilt in relation to Count 24.

FINDINGS on COUNT 24 on the INDICTMENT

The Crown case is that the action of the accused in chasing the complainant leading her to carport and trying to put his leg onto from the balcony to the carport stating: “Do it or if you don’t do it I’ll do it, just do it” [1743] caused the complainant to jump off and occasioned her injury. The nature of the injuries she sustained were earlier referred to in Exhibit L and it is not in issue that they constitute grievous bodily harm.
1743. T 293.48 – 294.5
This event occurred in the accused’s own home and a place which he no doubt is familiar with. It cannot be said that of the accused saw his wife on the top of a carport with a dirt surface underneath and told her to “do it” or he would, would not realise that grievous bodily harm may possibly be caused upon the complainant by his actions, yet he went ahead and acted as he did.
The accused’s case is that he saw the complainant at the end of the balcony going onto the carport and told her: “Don’t jump.” The accused also stated that the complainant had a “habit of jumping from there,” [1744] and jumped “without the shoes.” [1745] The accused stated that he left the bedroom to go into the lounge room upstairs where there was another door, and he swung the door outside towards her. [1746] The accused saw the complainant and told her not to jump: “Don’t jump.” The accused repeated that the complainant had “done it a few times, she did it yesterday.” [1747]
1744. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q107
1745. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q108
1746. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q109 – 111
1747. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q113
The accused’s account would indicate that he had no role in the complainant jumping off other than to tell her not to.
In my view the accused’s version is implausible and I do not accept his account to police as truthful. The complainant’s account is consistent with the evidence of other witnesses and follows on from her experience on the evening in question. I am satisfied that it truly reflects what occurred.
I am satisfied that the elements of Count 24 have been proved beyond reasonable doubt and I find the accused guilty of Count 24.

ORDERS

In respect of the indictment dated 20 March 2017, the accused is found:-

Guilty of Count 1;

Guilty of Count 2;

Guilty of Count 3;

Guilty of Count 4;

Not Guilty on Count 5;

Guilty of Count 6;

Guilty of Count 7;

Guilty of Count 8;

Guilty of Count 9;

Guilty of Count 10;

Guilty of Count 11;

Guilty of Count 12;

Guilty of Count 13;

Guilty of Count 14;

Guilty of Count 15;

Guilty of Count 16;

Guilty of Count 17;

Guilty of Count 18;

Guilty of Count 19;

Guilty of Count 20;

Guilty of Count 21;

Guilty of Count 22;

Guilty of Count 23; and

Guilty of Count 24.

Endnotes

Amendments

15 August 2017 - Corrected dates on cover sheet

04 September 2017 - [605] "28 March 2018" amended to "28 March 2017"

Decision last updated: 04 September 2017

Medium Neutral Citation:	R v DS [2017] NSWDC 207
Hearing dates:	Hearing: 17 February 2017 – 8 May 2017 and Further submissions: 16 June 2017 and 17 July 2017
Date of orders:	04 August 2017
Decision date:	04 August 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	In respect of the indictment dated 20 March 2017, the accused is found: 1. Guilty of Count 1; 2. Guilty of Count 2; 3. Guilty of Count 3; 4. Guilty of Count 4; 5. Not Guilty on Count 5; 6. Guilty of Count 6; 7. Guilty of Count 7; 8. Guilty of Count 8; 9. Guilty of Count 9; 10. Guilty of Count 10; 11. Guilty of Count 11; 12. Guilty of Count 12; 13. Guilty of Count 13; 14. Guilty of Count 14; 15. Guilty of Count 15; 16. Guilty of Count 16; 17. Guilty of Count 17; 18. Guilty of Count 18; 19. Guilty of Count 19; 20. Guilty of Count 20; 21. Guilty of Count 21; 22. Guilty of Count 22; 23. Guilty of Count 23; and 24. Guilty of Count 24.
Catchwords:	CRIMINAL LAW – TRIAL BY JUDGE ALONE - directions – unrepresented accused – prescribed sexual offences – witness intermediary – support person EVIDENCE – context and relationship evidence – ongoing conduct during their marriage – knowledge that complainant was not consenting – escalation of violence – disavow charged acts were isolated – failure to complain – vulnerable during relationship – cannot use evidence adduced as tendency evidence SEXUAL INTERCOURSE WITHOUT CONSENT – ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT – use of object manipulated by the accused – sexual connection occasioned by penetration – consent not freely and voluntarily given – knowledge about consent – consent negated as there were threats of force or terror CAUSE GRIEVIOUS BODILY HARM – complainant chased off balcony – suffered multiple injuries
Legislation Cited:	Crimes Act 1900 (NSW) ss 35(2), 61H, 61HA, 61I and 61P Criminal Procedure Act 1986 (NSW) ss 132A(1), 132, 133 and 166 Evidence Act 1995 (NSW) ss 89(1) and 177
Cases Cited:	AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250 KJS v R [2014] NSWCCA 27 MJW v The Queen (2005) 80 ALJR 329; [2005] HCA 74 Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 R v AH (1997) 42 NSWLR 702 R v AN (2000) 117 A Crim R 176 R v Anastasiou (1991) 21 NSWLR 394 R v Jovanovic (1997) 98 A Crim 1 R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998) R v Markuleski (2001) 52 NSWLR 82 R v Matthews (1990) 58 SASR 19 R v Zorad (1990) 19 NSWLR 91 Wilson v The Queen (1970) 123 CLR 334
Category:	Principal judgment
Parties:	DS (Accused) Regina (Crown)
Representation:	Counsel: Self-represented (Accused) Ms S Morkaya (Crown) Solicitors: Solicitor for the Director of Public Prosecutions (Crown)
File Number(s):	2015/110707 and 2015/30628
Publication restriction:	Non-publication orders in place for the accused, the complainant and their children. I prohibit the publication or disclosure of information tending to reveal their identities (or otherwise)