R v N - [2025] SADC 84

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v N
Criminal Trial by Judge Alone
[2025] SADC 84
Reasons for the Verdict of her Honour Judge Telfer
10 July 2025
CRIMINAL LAW-PARTICULAR OFFENCES-OFFENCES AGAINST THE PERSON-SEXUAL OFFENCES
The accused was charged with six counts of rape, all alleged to have been committed against his wife in their family home between 2016 and 2021. The acts were alleged to have been committed against the background of a relationship marred by arguments which sometimes led to physical violence. Despite calling police on several occasions to report physical violence from the accused, the complainant did not complaint about the charged acts until she left the marriage in November 2021. The accused denied the offences when he was questioned by police.
HELD: The accused is guilty of Counts 1 and 2, and not guilty of counts 3, 4, 5 and 6.
Evidence Act 1929 (SA) 34M, 34N, 67F, 34P; Criminal Law Consolidation Act 1935 (SA) 47, referred to.
R v Winner (1995) 79 A Crim R 528 at 530-531; R v Keyte (2000) 78 SASR 68 at [54], applied.

R v N
[2025] SADC 84

CN (the accused) is charged with 6 counts of rape. It is alleged that between 2 January 2016 and 17 November 2021 he had vaginal sexual intercourse with his wife, Mrs N, without her consent, on 6 separate occasions.
The accused and Mrs N were both born in Burundi, a nation in East Africa. They both fled civil war in Burundi and lived for a period of years in a refugee camp in Tanzania. The couple met when they were both living in the same refugee camp. Once they had been granted refugee status, each re-settled and married one another in Australia. Mrs N was already promised to the accused in marriage before they each arrived in Australia.
There were 5 children born of their marriage: Colette (born October 2008), Antoine (born August 2013), Louis (born February 2016), Henri (born December 2019) and Josephine (born March 2022).[1] All 5 children were born in Australia, and Josephine was born after Mrs N left the marriage.
[1] The children are referred to by pseudonyms to preserve their anonymity.
The prosecution case was that the marriage was difficult, and punctuated by frequent arguing, which became violent on occasion. Mrs N would sometimes avoid the accused by sleeping in her daughter Colette’s bedroom, in her double bed with her, or on mattress or blanket on the floor. On the occasions charged as count one to four inclusive, it is alleged that the accused came into Colette’s bedroom late at night, dragged Mrs N back to the main bedroom, and had vaginal sexual intercourse with her. It was alleged that Mrs N made the fact she did consent apparent by physical resistance, and by telling the accused no.
On the occasion charged as count 5 it is alleged that Mrs N was home alone with the accused and their youngest child Henri and the older children were at school. She was pregnant with the youngest child Josephine. It is alleged that the accused dragged Mrs N into the main bedroom from the kitchen where she was cooking and had vaginal sexual intercourse with her without her consent.
On the occasion charged as count 6, it is alleged that the accused accosted Mrs N when she got up during the night to use the toilet. He dragged her into the bedroom and had vaginal sexual intercourse with her without her consent.
The prosecution called evidence from the couple’s eldest daughter Colette which supported Mrs N’s account that there were occasions on which the accused dragged her out of her bedroom during the night.
Mrs N left the family home, taking the children with her, in November 2021, and reported the offending to police shortly thereafter.
The verdict in this matter depends on the acceptance of evidence given by the Mrs N as credible and reliable, noting that the evidence of her daughter Colette provides some circumstantial support to her allegations. There are no eyewitnesses to the rape and no forensic evidence in support of her account. All six offences were alleged to have occurred in the family home at Paralowie.
Preliminary Directions
In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:[2]
[2] R v Winner (1995) 79 A Crim R 528 at 530-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone.
... The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. (References omitted)
With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.
Presumption of Innocence and Right to Silence
The accused has the presumption of innocence in his favour. The elements of the offences must be proved beyond a reasonable doubt and the accused need not prove anything. The elements on any charge cannot be proved unless the relevant evidence proves the elements to the requisite standard.
The accused did not give evidence in this matter, and I draw no inference against him for that.
As the accused is charged with six different offences, I remind myself that I must approach each charge separately, having regard only to the evidence which is relevant and admissible on that count. If I conclude that Mrs N had been deliberately dishonest in her evidence one count, that would be relevant as a matter of common sense, to my assessment of her credibility and reliability on other counts. My verdict on each count will not necessarily be the same. Each count here is separate in time and the quality of the evidence relevant to each count is different.
Elements of the Offence of Rape
Rape has three elements:
1.The accused engaged in an act of sexual intercourse with Mrs N. The act alleged on each count is an act of vaginal sexual intercourse.
2.Mrs N did not consent to the act of sexual intercourse or had withdrawn her consent to the act of sexual intercourse.
3.The accused knew that Mrs N did not consent or had withdrawn her consent or was recklessly indifferent to the fact that she did not consent or had withdrawn consent.
Reckless indifference includes any the following states of mind:
·The accused is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility.
·The accused is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed.
·The accused does not give any thought as to whether or not the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed.[3]
[3] Criminal Law Consolidation Act 1935 (SA), section 47.
On the evidence given by Mrs N she made it abundantly clear prior to penetration that she did not consent. It is no defence to an act of rape that the parties to the act of sexual intercourse are married to one another.
Section 34N of the Evidence Act1929 (SA) requires certain directions to be given to a jury about consent. In accordance with those requirements, in this case, I remind myself that there is no typical or normal response to non-consensual sexual activity. Mrs N is not to be taken to have consented merely because she was not physically injured during the offending. She is not to be taken to have consented because on other occasions within her marriage she did freely and voluntarily agree to sexual intercourse with the accused. Non-consensual sexual activity can be committed in a variety of contexts, including between people who are married to one another.
I remind myself that trauma affects different people differently, and some people may show obvious signs of trauma or emotional distress when they recount their experience. Others may not. The presence of absence of emotion or distress does not necessarily mean that a person is telling the truth about an allegation. I have taken all these principles into account in the analysis which follows.
Special Arrangements - Witnesses
Mrs N and her daughter Colette each gave evidence from a remote location and their evidence was transmitted to the court through CCTV. The Court was closed and the evidence of each of them was recorded. I direct myself in respect to those arrangements that I must treat the evidence the same as any other kind of evidence. I must not allow it to influence the weight I give the evidence. I remind myself that the procedures say absolutely nothing about the accused, and I have drawn no inference against him from the fact the evidence was given in those ways.
Mrs N gave evidence with the assistance of an interpreter in the Kirundi language. Mrs N also spoke French, Kimbundu, Swahili and English. Kirundi is her first language and she described English as being her third best now. The use of the interpreter presented some challenges throughout the trial. There were times when the sound quality delivered through the Court’s CCTV system made it difficult to understand the interpreter, and there were times that Mrs N corrected the court interpreter’s interpretation. Ultimately through the commitment and skill of counsel, the witness and the interpreter, I am satisfied that the interpreting was accurate enough. I observe however that it is inevitable that some of the nuances of language-based evidence was lost in the interpreting process.
Background Relationships and Circumstances
Mrs N arrived in Australia in 2007 with her mother, siblings, grandfather and nieces. The accused settled in Australia separately and they were married in December 2007.
The couple’s first two children were born when they were living in rented accommodation in Salisbury North. The accused’s younger brother Gabriel was also living with the family at that time.[4] In 2016, when their third child was born, the family purchased a house at Paralowie. The home needed renovations and over time substantial improvements were made.[5] Gabriel also lived in the house at Paralowie, but he moved out in 2021 as a result of a request made by Mrs N.[6] His presence at the house had been the subject of tension between the accused and Mrs N prior to the end of 2021. Mrs N moved out of the Paralowie house in November 2021. She took the four children with her and moved into a Motel. She subsequently obtained emergency housing.[7] The fifth child, Josephine, was born in March 2022, a few months after the couple separated.
[4]     A Pseudonym.
[5]     TS 103-105.
[6]     TS 280-282.
[7]     TS 85.
The Paralowie house had four bedrooms, two sitting rooms and two bathrooms, one of which was an ensuite to the master bedroom. The eldest daughter Colette had a room to herself, although her siblings would sometimes also sleep in her bedroom. Colette’s room was immediately alongside the master bedroom at the front of the home. The two younger boys Antoine and Louis shared a bedroom located further towards the back of the house. Alongside the boy’s room was the fourth bedroom, occupied by Gabriel, the accused’s brother. The youngest boy Henri was still sleeping in the master bedroom with the accused and Mrs N at the time the couple separated.[8] The second bathroom was positioned at the back of the house between the bedroom occupied by Gabriel and the laundry near the back door.[9]
[8] TS 28-29.
[9] Exhibit P2.
During their marriage, the accused worked as a disability worker for Baptist Care and Community Living Options. His hours were not fixed and depended on the care needs of each of his clients.[10] He also worked on a casual basis as an interpreter, for agencies including hospitals, the Courts and the police.[11]
[10] TS 30.
[11] TS 31.
Mrs N spoke limited English and her capacity to work outside the home was restricted by her child-care responsibilities. At one time she ran a family day care business at her home, and at other times she worked outside the home as a carer.
The family’s social interactions were focussed within the Burundi community in South Australia. They were committed members of the Catholic Church and regularly attended mass. Mrs N sang in the church choir. Their school aged children all attended catholic schools.
The State of the Marriage
Mrs N’s evidence was that the couple frequently argued about finances. She said that they had a joint account that wages were paid into, but her spending from that account was controlled by the accused. If she spent money without permission it would lead to criticism and fights. On the other hand, the accused spent money without permission to the extent that she would accuse him of spending money on other women.[12] Mrs N opened her own account that her Centrelink payment was paid to. She saved this money in case the family needed it for something, and to protect herself financially.[13]
[12] TS 34.
[13] TS 35.
One of the topics that often led to arguments was assets that the couple held in Burundi, and which included land and working farms. Mrs N knew that there was an account in Burundi which related to the finances of those assets, but she had no access to that account.[14]
[14] TS 41-42
The couple also argued about housework, with Mrs N concerned that the accused and his brother Gabriel did not help around the house enough. Mrs N thought Gabriel was always in his room and did not contribute to the work required to keep the household running.
Count One
Late in her pregnancy with Louis (the second youngest child born February 2016) Mrs N attended the Queen Elizabeth Hospital for treatment of a pregnancy related iron deficiency. The accused attended a wedding event while she was being treated at the hospital. Her absence from that event led to an argument which ended in the accused hitting Mrs N to her head repeatedly as she lay in bed. Gabriel, the accused’s brother, was at home, but he did not leave his room even though the couple’s fight was loud.[15]
[15] TS 50.
Mrs N said her two older children were in the house when this fight occurred. She woke the children up by her shouting and she ran out of the room. She called the police and they attended and took her and her two children to the Elizabeth Police Station.[16] It was an agreed fact that Mrs N attended the Police Station on the evening of 1 January 2016 and spoke with someone from the Family Violence Investigation branch. She did not give a statement, but she reported the assault.[17] She returned home from the police station to find that the accused had been taken to the Salisbury Police Station. The accused was arrested at 11.45pm at the Paralowie address. He was released on bail at 2:08am on 4 January 2016 and was collected by a family member.[18]
[16] TS 48.
[17] Exhibit D12, Agreed Facts 2.
[18] Exhibit D12, Agreed Facts2.
When Mrs N arrived home, she put herself to bed in her daughter Colette’s room because she was worried that the accused would find her when he came home.[19] When she woke up the accused was in her daughter’s bedroom touching her on the shoulder. He was wearing only his underwear, and he grabbed her shoulder and dragged her by both arms out of the room.[20] She tried to resist but she was not strong enough, and she was dragged to the master bedroom. The accused closed the bedroom door using his leg and pushed her onto the bed.
[19] TS 51.
[20] TS 52-54.
Mrs N was wearing a dress and underwear, and the accused pulled down her underpants using his leg to push them down past her knees. He lifted her dress and had vaginal intercourse with her from behind as he held her down using his hand.[21] Mrs N said she was laying on her side with her legs hanging off the bed. Mrs N described herself as feeling very angry and crying. She tried to escape, and she tried to defend herself.[22] The accused was breathing heavily but said nothing during this interaction. After he had ejaculated, he told Ms N “I’m sorry, I’m sorry”.[23] Mrs N grabbed a towel from the ensuite bathroom to wipe the semen off, then returned to Colette’s room where she remained for the night.
[21] TS 54.
[22] TS 55.
[23] TS 55.
In cross examination, aspects of what she told the police in a statement about the assault which preceded the accused’s arrest were put to her. When she spoke to police, she told them that the accused pinned her against a wall next to Gabriel’s bedroom, and then opened the door and tried to shove her into that bedroom.[24] She told police that Gabriel tried to get between her and the accused.[25] Mrs N accepted that her account of that incident to police was different to her sworn evidence in Court. She said that “there were many many instances happened maybe different what I have told to the police is different from this because there were many many fighting’s at home”.[26]
[24]   TS 147.
[25]   TS 147.
[26]   TS 148.
An inconsistency about the location of the rape charged as count one was put to Mrs N in cross examination. In 2022, the accused commenced proceedings in the Family Court for contact with his children. Mrs N signed an affidavit for the purpose of those proceedings. Aspects of the affidavit were put to Mrs N, but she did not admit that she had made the inconsistent statements. The inconsistencies were not otherwise proved.
It was agreed that on 17 January 2016, just after 2 weeks after this incident, police left a calling card for Mrs N at the Paralowie premises. Two days later Mrs N attended in person at the Police Station. She told Police that “everything had been going well and [the accused] had been on his best behaviour”. Mrs N was given a phone number for the Migrant Women’s Support Service and the Northern Domestic Violence Service.[27]
[27] Exhibit D12, Agreed Facts 2.
Mrs N agreed that on 15 February 2016 she attended the Police Station and signed a document asking that police take no action on the report that she had been assaulted. That document records her position as “I would like our relationship to continue. I am not in fear of [the accused]. I do not want to go to court to give evidence against him”.[28] The document records that she is “seeing migrant women’s health service” but Mrs N denied that was the case.
[28] Exhibit D6.
Count Two
By 2019 Mrs N had three children, the youngest being Louis. In October 2019 she was about seven months pregnant with her fourth child, Henri. The accused was part of an African drumming group, and regularly attended practice with others in the group. Around 2 October 2019 the accused told Mrs N that he had arranged for the drumming group to have a party at their house. Mrs N had thought that the party was going to be at premises the group had hired. The accused told her he was not asking whether the party could be held at their home but was telling her that that is the decision that had been made.[29] The accused was angry and considered that he had been disrespected. Mrs N said she found the accused scary after he had been drinking alcohol. On this occasion he was angry because he had been drinking. She did not want to sleep in the master bedroom with him in those circumstances and so decided to sleep in her daughter Colette’s room.
[29] TS 59-60.

She found that the two younger boys had also decided to sleep in Collette’s room, so she placed a mattress on the floor and lay down. Mrs N thought the children were all asleep when she went to bed.[30] The accused then came into the room wearing no clothing. He grabbed Mrs N’s arm and dragged her out of the room. She was heavily pregnant, had a sore back and abdomen, and she was unable to resist him.[31] When he got her to the bedroom she tried to run away into the hallway through the ensuite bathroom but he grabbed her and pushed her onto the bed. Mrs N was on her back on the bed and the accused moved her legs apart using his legs. He had vaginal intercourse with her. Mrs N said she was crying, and she asked the accused to stop. She did not want intercourse, so it was causing her pain.[32] She was scared that the children would wake up and she described that what was happening as “shameful”.[33] After the intercourse Mrs N returned to sleep the night in Colette’s bedroom.
[30]   TS 61.
[31]   TS 61.
[32]   TS 63.
[33]   TS 64.
Mrs N agreed that when she described this incident in her statement to police, she told them that she had placed a blanket rather than a mattress on Collette’s floor to sleep on. She said that there were times she slept on a mattress and times she slept on a blanket.[34] In cross examination Mrs N agreed that she did not call out for help when she was raped, even though the accused’s brother Gabriel was still living at their home. She said that there were times that Gabriel would be working away and there was a time he returned to Burundi for a three month holiday. She said she did not call out because she did not want her children to know what was going on.[35]
[34] TS 165.
[35] TS 170.
Mrs N gave evidence during her examination in chief of more than one occasion when the accused was drinking alcohol and he threatened to hit her with the bottle he had been drinking from. She described one occasion when the accused threatened to hit her with a bottle, and she called the police. Gabriel heard that she was calling the police and came out from his bedroom. Mrs N tricked Gabriel by denying that she had called the police, but police subsequently arrived.[36] Mrs N thought that on this occasion police attended in the early hours of the morning.[37]
[36] TS 76.
[37] TS 161.
Mrs N said when police arrived, she spoke with them outside. She told them that Gabriel had got in between she and the accused and told her to end her call to the police. She did not recall the police offering her to take her and the children from the house.[38]
[38] TS 162.
A fact was agreed that police attended the Paralowie address at about 6.30am on 2 October 2019. Mrs N told the police that she wished to remain at the address. She declined an offer by police to take her and the children somewhere else. Police provided Mrs N with contacts regarding domestic violence support.
It was put to Mrs N that the argument about the drumming party occurred during the evening of the same day that police had attended at 6.30am. Mrs N denied that the drumming party argument occurred on the same evening as the police attended.[39]
[39] TS 162.
Count Three
Mrs N told the court that on the night following the rape described as count two, she was again sleeping in Collette’s bedroom. She recalled that Colette was in her bedroom when she went to sleep, but she could not recall if the younger boys were also there. She woke up to the accused opening the door to the bedroom, and he was naked. He dragged her by her arms into the master bedroom. Mrs N was unable to describe very much of the detail of this occasion, saying “I do not remember very well what happened, but always they are the same act. So, I can assure you he had sex with me and then I went back to the room, as I used to do before”.[40]
[40] TS 70.
In cross examination Mrs N confirmed that Collette’s bedroom had a lock, and she locked the room when she went to sleep. She said she thought the accused had some kind of tool to open the lock, although she did not see anything in his hands.[41] Mrs N said she did not have anything to barricade the door and if she used a chair it may fall on her and hurt her.
[41] TS 173.
Count Four
Mrs N described the next rape that she could recall as being the third time that she was raped in October 2021. She was sleeping in Collette’s bedroom, but she distinguished this occasion as being different because when the accused came into the room during the night she tried to sit up and placed her back against the wall to prevent him from moving her. This did not work, and he dragged her to the bedroom. Mrs N’s recollection of the detail of this occasion was limited. She said what happened “was identical, but I do not remember very well at that time, step by step, what happened”.[42]
[42] TS 72.
Count Five
By November 2021 the relationship between Mrs N and the accused remained strained. Mrs N was pregnant with her youngest child Josephine and the older children were school aged.
Mrs N described a morning when she and the accused were both at home around 9.30am, with the youngest child Henri. Henri was watching television and Mrs N was cooking porridge in the kitchen. She saw the accused’s hand come around her body and he dragged her to the master bedroom. She told him she did not wish to go to the bedroom, but he ignored her protests. Once in the bedroom, the accused took off his clothes, pushed Mrs N onto the bed, lifted her dress, and removed her underwear. He had vaginal sexual intercourse with her as she resisted and cried.[43] When the accused finished, she returned to the kitchen to finish cooking the porridge. She tried to hide her crying from her children. She said “I was trying to hide what was happening in the house, I had to my kids. So, the time I was saying to stop, and he – so my anger is collected and then I was wondering how these kids will be when they grow up”.[44]
[43] TS 79-80.
[44] TS 80.
In cross examination, Mrs N confirmed that the date of this incident was 11 November 2021, a few days before she separated from the accused.[45] She disagreed that on that morning it was the accused who had taken the children to school, and that he had not returned home thereafter.
[45] TS 185-186.
Mrs N was asked about whether the accused ever worked from home. She said “at home he used to be on his laptop, reading e-mail or doing something but I don’t think he was on the work. Sometimes he would be on his phone, but he didn’t tell me if he was at work”.[46] She said on 11 November 2021 it was a surprise that the accused was even home. There was a family schedule so everyone knew each other’s work shifts, and the accused had not told her that he had changed his schedule.
[46] TS 188.
The prosecution called evidence from a representative of Baptist Care, who employed the accused as a support worker. The shifts that the accused was paid for during the relevant periods were set out in agreed facts.[47] The accused was paid by Baptist Care for working between 9am and 12 noon on 11 November 2021. Ms Hamman, from Baptist Care, gave evidence that the accused was paid for attending training or a team meeting on that date. That training or team meeting may have occurred on-line, which would have involved logging in via a device remotely. Her records did not identify whether the training was on-line, whether it required the camera to be activated, or whether there was an interactive component. She said a team meeting would be likely to include an interactive component. Ms Hamman confirmed that the covid pandemic in November 2021 meant there were functions that employees were permitted to perform from home. This included attending online courses.[48] Three hours was the minimum shift length, so payment for three hours may reflect work of less than three hours, but payment for the minimum shift length.[49]
[47]   Exhibit P11.
[48]   TS 246
[49]   TS 249.
Evidence was given by a former Police Officer Ms Marks about a record in SA Police holdings suggesting that an officer made a telephone call to Mrs N on 11 November 2021. The evidence was that an Officer Carlaw recorded that she spoke with Mrs N on that date, and Mrs N told her that it “was not a good time to talk”, indicating that she would be able to speak freely between 10am and 1pm the following day. The entry in SA Police records was made at 11.43am on 11 November 2021, but there was no evidence as to whether the time of the entry reflected the time that the call was made.[50] The evidence was that the ‘event time’ in the record is, in the absence of any other information, automatically set as the date and time that the entry is made.[51] Mrs N could not recall the police calling her on 11 November 2021 at any time.[52]
[50]   TS 263
[51]   TS 271.
[52]   TS 189.
Count Six
The final charged event was described by Mrs N as occurring a few days after count five and a few days before she left the family home. Mrs N told the court that she got out of bed in Collette’s room during the night to use the bathroom. The house was dark and as she went from the bathroom back to Collette’s room, the accused grabbed her around her body, and pinned her arms to her side. He dragged her to the bedroom and she protested that she did not want to have sex.[53] In the bedroom, the accused pushed her to the bed and had sex “as usual”. Mrs N said the accused ignored her protests.[54]
[53] TS 81-82.
[54] TS 83.
The Separation
Shortly after the events described as count six, Mrs N left the family home and moved into a motel with her four children. She stayed between a few motels before she secured emergency housing.[55] It was after she secured emergency housing that the sexual allegations were first reported to the police.
[55] TS 85.
Initial Complaint
The prosecution led limited evidence about the circumstances in which Mrs N first complained about the charged acts. In examination in chief Mrs N was asked when she first told police about the rape allegations, and she gave evidence of the reasons for the circumstances and timing of that disclosure.
In cross examination it emerged that Mrs N had first disclosed the rape allegations during a counselling session associated with supporting her in relation to domestic violence. She first disclosed the allegations after 15 December 2021, the date on which she secured emergency housing.[56] That was days prior to her making a report to police.
[56] TS 199.
In the circumstances, it is the complaint in the context of counselling that falls within the definition of initial complaint pursuant to section 34M of the Evidence Act 1929 (SA). Further detail of the terms of the complaint was not elicited because of the restrictions in section 67F of the same Act.
Mrs N gave evidence in examination in chief about why she waited until after she obtained emergency housing to make a complaint. I have used her evidence on that topic as relevant to the initial complaint in the course of counselling. Mrs N said she did not complain before then because she was afraid for herself and for her children. She said that the accused had previously told her that if she told anyone, no-one would believe her. She said the accused pointed out to her that he had worked for the police (as an interpreter) and so he knew how people defended themselves. He told her “I’m just telling you if you have any issue, any conflict with your wife you’ll kill the kids so that the issue will be over”.[57]
[57] TS 85.
Relationships with friends
Mrs N said that as of November 2021 she had a limited social circle, and most of her friends were part of the Burundian community in Adelaide. She said she did not think of telling anyone in that community what was going on because she did not trust that what she said would remain confidential.[58] Further, discussion of sexual matters was considered something of a taboo in her community.[59]
[58] TS 86.
[59] TS 86.
Mrs N was cross examined about the extent of her social connections and the closeness of her relationships with other women who were also from Burundi. Mrs N agreed she had a friendship with a woman identified as DB, although she described the friendship as through DB’s husband, who was the accused’s best friend. Mrs N identified photographs of her and DB together on some occasions.[60] She agreed she and DB would have conversations away from their husbands, but she disagreed that they enjoyed an especially close friendship. Mrs N pointed out that there had been no contact between DB and her since she left her husband, evidencing a friendship that was not particularly close.
[60] Exhibit.D5.
Mrs N agreed there was no law restricting her from discussing sexual matters with her friends, but to do so was difficult. She disagreed with the proposition that she had discussed sexual matters with DB.[61]
[61] TS 140.
DB’s Evidence
DB was called on the defence case. She is married to the accused’s best friend, and she first met Mrs N in a refugee camp in Tanzania. She described contact she had with Mrs N over time, including attending her wedding to the accused and visiting one another’s houses on a regular basis.
DB said she and Mrs N spoke on occasion about marriage, their husbands, contraception and their sex lives.[62] The conversations never included any mention of the allegations.
[62] TS 316-317.
DB said that she had tried to contact Mrs N after she left the accused by sending text messages that she received no response to. The messages asked Mrs N where she was and asked if they could talk.[63] After the birth of Josephine in March 2022 she sent a text congratulating her to which Mrs N responded with a brief message.
[63] TS 335.
In cross examination it emerged that the text message congratulating Mrs N was sent on 4 March 2022, about four days after the accused was arrested on these charges. She knew of his arrest very soon after it occurred through her husband.[64] In cross examination DB maintained that Mrs N never said anything negative about her marriage. She did not disclose to DB arguments about infidelity, threats of violence or the fact that police may have been called to the house.
[64] TS 337.
It was apparent that whatever DB’s subjective assessment was of the closeness of the friendship, Mrs N was unable to freely confide in her about the state of her marriage. On any view, Mrs N’s relationship with the accused was difficult, and involved police being called to the house on more than one occasion. Jealousy and accusations of infidelity were part of their relationship.
If DB’s evidence that Mrs N did not mention anything negative about her marriage is to be accepted, that supports the conclusion that the friendship did not include honest and candid disclosures. It is not necessary for me to assess the nature and closeness beyond that observation. It is neither surprising nor difficult to understand that Mrs N did not disclose the rape allegations in the context of the nature of that friendship, and having regards to the fact that DB was married to the accused’s best friend.
Family Mediations
Mrs N and other witnesses gave evidence a Burundian cultural practice of holding family mediations to address issues within a marriage. Mrs N said a mediation could be arranged for a variety of issues. It involved coming to the community and asking for help, and trusted members of the community would attend a mediation to try and assist with the issue. Mrs N said that a couple cannot be forced to attend a mediation, and it is up to the couple to decide to change.[65]
[65] TS 120.
Mediations were held to assist the accused and Mrs N with issues in their marriage. Several mediations were held, including one a few days after the date on which it is alleged count four occurred (the third rape in October 2021), and one shortly after Mrs N left the family home. Although complaints about the behaviour of the accused in the relationship were aired, Mrs N did not complain that the accused had been violent or had raped her. Mrs N explained she did not raise those issues because she “did not know where to start and to end. Because in a cultural perspective it’s a very ashamed…so in the whole community if this happens to you, you’ve lost the value, you have no value anymore”.[66]
[66] TS 74.
Contact with Police
Over the course of the relationship Mrs N had contact with the police about the accused’s violence. As described earlier, it was alleged that count one occurred after the accused returned home on 4 January 2016, having been arrested the previous evening. In the early hours of 4 January 2016 Mrs N gave a statement to the police which detailed aspects of an incident said to have occurred the previous evening. Aspects of that statement were put to Mrs N throughout her evidence. Mrs N’s evidence suggested a level of confusion about specific aspects of that assault allegations.[67] Mrs N said there were many times there were fights at home and she could not recall the specific detail of the assault in January 2016.
[67] TS 148.
In the aftermath of the events of January 2016, police had contact with Mrs N. It was agreed that on 17 January 2016 police left a calling card for Mrs N. On 19 January 2016 Mrs N attended the Police Station. She told police that “everything had been going well and [the accused] was on his best behaviour”. Mrs N was given contact details for the Migrant Women’s Support Service.[68] Mrs N did not make any complaint about the accused having raped her when he returned to the family home after he was bailed on 4 January 2016.
[68] Exhibit D12, Agreed Fact 7 and 8.
On 15 February 2016 Mrs N signed a “Domestic Abuse – No Police Action” form relating to the assault complaint. She recorded on that form “I would like our relationship to continue. I am not in fear of [the accused]. I do not want to go to court and give evidence against him”.[69] Mrs N said in evidence that the sentiment expressed on that form, represented the truth of how she felt at that time.[70]
[69] Exhibit D6.
[70] TS 160.
Mrs N gave evidence of an occasion when she called police after the accused hit her with a bottle. She said that police attended, but they could not understand her because her English language skills were not good. The police did not enter the house, and they told Mrs N that they could not stop the accused drinking in his own house, and they then left. Mrs N did not make any complaint to those officers that she had been raped by her husband.[71] Mrs N was unable to recall when that incident had occurred.
[71] TS 76-77.
It was agreed that on 2 October 2019 (early in the day that count 2 is alleged to have occurred) police officers attended the Paralowie address at about 6 am. The officers offered to take Mrs N away from the property with her children, but she did not wish to leave. Mrs N was given information about contacts for help with domestic violence.[72] She did not complain at that time about having been raped by her husband.
[72] Exhibit D12, Agreed Fact 9 and 10.
In the afternoon of 24 August 2021 two police officers attended the Paralowie address. Mrs N said that on that date the accused had struck her and in response she had begun to throw clothes belonging to the accused’s brother Gabriel out onto the street. Arguments had been ongoing about Mrs N not wanting Gabriel to live at the Paralowie home. Mrs N told the police that Gabriel had placed his hands on Collette’s shoulders. She told police that the accused had hit her and had also hit her three times over the past five years.[73] Mrs N said she described the history of violence in that way because there were three times the accused had hit and hurt her. There were other occasions where he had touched her or “just did something back to me”.[74] Mrs N made no mention of the rape allegations at that time.
[73] TS 180.
[74] TS 181.
On 27 September 2021, just a month later, police again attended the Paralowie address. The interactions between police, the accused, Mrs N and her eldest daughter Collette were captured on body worn footage which was tendered.[75] The nature of the interactions recorded in that footage were said to be relevant to the opportunity that Mrs N had to complain about the allegations of rape, and to her motive to escalate her complaints about the accused to get police to take her seriously after she left the marriage.
[75] Exhibit D13.

It was agreed that Mrs N told the police when they arrived that she was about to attend the police station to give a statement about events the previous evening. She said she had filmed the accused late at night dancing naked with her son, and an argument had followed which resulted in the accused assaulting her.
I have watched the recording of the behaviour and approach of the two officers who attended on 27 September 2021 to consider what weight I give to the failure of Mrs N to complain to those officers.
Two officers attended. Mrs N spoke to one of them without an interpreter and attempted to give her account of the events which led to her being assaulted the previous evening. She began to describe the incident, but the officer quickly steered the conversation to how many children Mrs N has, how long she has lived at the address and whether she wants to separate from the accused. Mrs N said she did want to separate, but the officer then shut down any conversation on that topic, saying police cannot get involved in issues of where the children will go.
Mrs N attempted to continue her account of the assault the previous evening, telling police the accused got out of bed, tried to take his clothes off, woke up their youngest child and began to dance with him naked. Mrs N tells police she filmed what the accused was doing to show him that his behaviour when he was drunk was no good, and not to do it again. Rather than allow Mrs N to tell the whole story, the officer shut her down, saying all she can do is make a report to the Department for Child Protection. The officer goes on to berate Mrs N for filming the accused naked, offering her opinion that it is Mrs N who had behaved inappropriately, by filming the accused naked.
On three separate occasions Mrs N demonstrated to the officer that the accused placed his hands around her throat. She said his hand was around her neck for about a minute. Mrs N said when she was choked, she screamed out and her daughter Collette then came into the room. Mrs N does not suggest that Collette saw the act of choking. The officer then spoke to Collette, who confirmed she heard her mother screaming prior to going out and seeing her parents pushing one another.
The officer then spoke to the accused, telling him that there is an allegation that he has choked Mrs N. He does not deny the allegation but shows the officer scratches to his neck and hands. He says those injuries occurred when he was trying to take the phone from Mrs N. He is not pressed about the allegation that he choked Mrs N.
The officers returned to Mrs N and accused her of telling them a different story to her daughter, with no consideration given to the fact that the allegation of choking was not said to have been witnessed by Collette. They ignored her complaint of choking telling Mrs N, “he gives a pretty valid version of events”, in circumstances where he had given no version of events at all relating to the choking allegation.[76] They ask Mrs N two questions about the choking before going to speak with other people in the house. They were visibly disinterested in obtaining a complete account from her or analysing the different versions in any way. The officers decline to take any action.
[76] Exhibit D13.
Insofar as it is suggested this attendance was an opportunity for Mrs N to complain about the rapes, I readily conclude that the disinterested and dismissive attitude of attending police made any honest and forthright disclosure impossible. Mrs N was making a complaint that her husband had choked her, with his hands around her neck for about a minute, and the officers appeared more concerned with telling Mrs N off for ‘inappropriately’ filming him dancing naked and drunk with his son. It is impossible to quantify what effect that dismissive interaction had on Mrs N’s confidence or trust in the police service thereafter.
It is apparent that Mrs N had contact with police on several occasions between 2016 and 2021. She was not too frightened to make complaints to police about various aspects of the accused’s behaviour. It is also apparent that problems within the marriage were discussed more than once at community mediations. Mrs N had family in Adelaide and some friendships.
I have used the mere fact of the complaint led as evidence of how the allegation first came to light. Because of the restrictions on disclosure of communications made in a therapeutic context there is limited material on which I can assess the degree of consistency of conduct.
I remind myself that there are varied reasons why a person will choose to make a complaint to a particular person at a particular time. Mrs N’s cultural background is relevant, as is her relative isolation within a small cultural community, and her concerns about her value and issues of confidentiality. I do not consider her failure to complain at an earlier stage, in all the circumstances, undermines her credibility in respect to the allegations. The fact that the allegations arise within a marriage, where there are close economic, historical, emotional and parenting ties between the parties would, to my mind, make complaining about the behaviour challenging. I accept those challenges would be magnified for Mrs N who was socially isolated as part of a small cultural community, living with the challenges of limited English language skills.
In reaching this conclusion I have had regard to the various opportunities she had to complain, including when she had contact with police about issues of violence within the marriage. I consider that a complaint of sexual abuse does not sit in the same category as physical abuse, and her willingness to engage the police on issues of physical abuse does not imply she would also be willing to engage them on issues of sexual abuse.
Arguments and Uncharged Acts
The prosecution led evidence of uncharged acts which were relevant to the assessment of evidence of the charged acts. Evidence was also led of arguments and incidents which did not meet the definition of discreditable conduct, but which are conveniently dealt with under this heading as bearing on the nature of the relationship between the accused and Mrs N.
Mrs N gave evidence that the couple sometimes argued about money, education, the division of duties within the home, the accused’s brother living in the home, the church and their beliefs. Arguments about money included arguments about property they had in Burundi. Mrs N was concerned that she was not given any information about the properties, who was being employed and what they were being paid.[77]
[77] TS 42.
Evidence was led in examination in chief and in cross examination about the detail of the couple’s financial affairs over time. The family structure and birth of children meant that Mrs N was out of the paid workforce for periods of time. There was tension about her overall contribution to the finances of the house, and her access to the details of the family finances. I am unable to conclude from the state of the evidence that the accused exercised financial control as part of dominance within the relationship. I have used the evidence about the couple’s finances and respective contributions as relevant to the source of discord within the marriage, and the source of at least some of the arguments between them.
Mrs N described the accused as suspicious of her contact with other men.[78] Mrs N described an incident which occurred in November 2021, postdating the charged acts. The accused became aware that Mrs N was in telephone contact with a person called ‘Marc’ in Burundi. He asked her to explain who ‘Marc’ was, telling her “even if you explain I cut his neck and hang it on the tree”.[79] Because the accused was very angry, Mrs N slept the night in Collette’s bedroom. The following morning the accused told Mrs N he had left messages for her in the master bedroom. Mrs N saw and photographed three notes on the bed. Those photos, which were tendered as P3 recorded the following:
1.   “Who is Marc ? Your husband deserves to know who is this person in our relationship dear [Mrs N]!”.
2.   “Who is Marc?? Our kids deserve to know who is this person dear [Mrs N]”.[80]
3.   “…..In this family things don’t go well. But for the goodness of this family and for the goodness of the children we have together. I would like to give an explanation. So, I need to clarify about this name Marc [surname]. So, you are talking to one another through this number [number identified]. So, myself personally I think this person he’s the one who is behind all these troubles of the suspicious relationship. Your husband [accused’s name]”.[81]
[78]   TS 42.
[79]   TS 43.
[80]   Exhibit P3, page 2 and 3.
[81]   Written in Kirundi and translated at TS 45.
Although this argument post-dates the charged acts, the nature of the accused’s communication does shed light on the relationship he had with Mrs N at the time of the charged acts. He refers to there being troubles within the relationship and makes accusations of infidelity which are consistent with Mrs N’s version of some of the topics of marital disputes.
Mrs N said that from early in their marriage the accused tried to control her behaviour. He prevented her from wearing a particular kind of hair extension she liked and disapproved of her wearing make-up. He accused her of pretending to be beautiful to attract other men. Mrs N said she usually complied with his wishes about her appearance.
Mrs N described incidents of physical violence, saying the accused hit her too many times for her to remember them all.[82] She described the following specific incidents:
·    In early 2016 immediately prior to count one Mrs N said the accused punched her to the head causing a severe headache. This matter was reported to the police.[83]
·    In August 2021 the accused struck Mrs N, and as revenge for that she began to throw Gabriel’s clothes out of the house into the front yard. Police were called.[84]
·    In early November 2021 Mrs N said the accused threated to kill her and himself and police were called.[85]
·    An occasion when the accused struck Mrs N to the head with a bottle.
[82]   TS 47.
[83] TS 48-50.
[84] TS 180.
[85] TS 76-77.
Mrs N said the accused would come into her room and push her using his legs as she lay in bed. On one occasion he pushed her out of bed, and she hurt her arm. She slept on the floor. After a while, to make things easier she slept in the bedroom with Collette.[86]
[86] TS 84.
Mrs N gave evidence that aside from the charged occasions of rape, the accused raped her “many times in the same way”,[87] especially when she was pregnant and did not have the strength to fight back.
[87] TS 57.
The evidence about violence, specific and general, and the evidence about uncharged acts of rape is discreditable conduct, and I consider it is admissible for a permissible purpose pursuant to section 34P of the Evidence Act 1929 (SA). The evidence is relevant to understanding the context within which the charged rapes were alleged to have occurred and that this was a marriage punctuated by arguments and violence. It is relevant to assessing the probability that Mrs N would consent to intercourse on the occasions charged, her response to the accused forcing her to have intercourse, the fact that she did not cry out for help or complain to anyone until after the relationship had ended. I have only used the evidence of violence for those permissible purposes.
I have not used the evidence to reason that the accused was a bad person, and therefore more likely to have committed the offences charged.
Mrs N gave evidence about the accused touching her genitals when he had chilli on his hand from his meals. It was unclear whether this occurred once or more than once. Mrs N said when she complained to the accused he told her he had washed his hand after eating.[88] I cannot be satisfied that this was a deliberate attempt to hurt Mrs N, and I do not place any weight on Mrs N’s evidence on this topic.
[88] TS 84.
Collette’s Evidence
The couple’s eldest daughter Collette was 16 years of age, and in Year 11 at school when she gave evidence. She was aged between seven and 13 during the charged period. Collette now lives with Mrs N and has done so since the end of her parents relationship. Her three younger brothers and her younger sister all now live with Mrs N.
Collette identified the bedroom that she occupied at the Paralowie address as immediately next-door to the master bedroom at the front of the house.[89] She said that from the time the family moved into the house at Paralowie there were occasions when Mrs N slept in her bedroom. She said it was occasionally at first but became more frequent between 2020 and 2021.[90]
[89] Exhibit P2.
[90] TS 223.
Collette said when the accused was intoxicated, he would play loud music in the middle of the night, would bang things and keep the lights switched on. In those circumstances, Mrs N would come and sleep in her bedroom.[91] If no other children were in Collette’s room, Mrs N shared her double bed, but often if the accused was drunk her little brothers also came into her bed to sleep. If Collette’s bed was full, Mrs N would sleep on the floor.[92]
[91] TS 222.
[92] TS 222.
Collette said the occasions “all blur together” but there was one specific time that stood out. Collette said she recalled an occasion when the younger brothers were sleeping in her bed and her mother came into her room, and because there was no room she decided to sleep on the floor. During the night the accused came into the room wearing no clothes and started pulling Mrs N. Collette asked the accused to stop and to leave Mrs N alone. The accused pulled Mrs N out of the room. Collette went on to say that in the later stages of living at Paralowie this kind of thing happened every time Mrs N slept the night in her bedroom.[93]
[93] TS 223.
Colette said that after Mrs N had been dragged out of the room, she would hear her and the accused speaking Kirundi, a language she did not understand well. There were also times she heard her mother speak in English, saying “stop, leave me alone”.[94] She heard those things through the wall between her bedroom and the master bedroom.
[94] TS 224.
Collette said on occasion, Mrs N would return to her bedroom crying.[95] Mrs N would not tell Collette what was wrong but would tell her not to worry and to go back to sleep.[96]
[95] TS 223.
[96] TS 223.
Collette gave evidence of having witnessed the accused assault Mrs N. She said she woke one night to Mrs N screaming, and she saw the accused choking her, then them slamming her into the side of some furniture. This happened in 2021 when Mrs N was pregnant with Josephine.[97]
[97] TS 225,230.
Collette said there was another occasion in 2021 when her parents argued over a mobile telephone and this occasion resulted in the attendance of the police on 27 August 2021.[98] The attendance of the police is discussed earlier under the heading ‘Contact with Police’.
[98] TS 236-237.
On another occasion the accused had a bottle of wine and threatened that he and Mrs N were both going to die “today”. He then tried to strike Mrs N’s head with the wine bottle.[99]
[99] TS 225.
Collette gave evidence about the locking mechanism on her bedroom door. She said in the early years of when she lived at Paralowie, she was not allowed to have a lock on her bedroom door. As part of later renovations various internal doors were replaced and a lock was installed on her bedroom door, which enabled it to be locked using a button on the inside of the door. From the outside it could be unlocked using a butter knife.[100] Collette could not be certain when the renovations occurred.
[100] TS 226.
In cross examination Collette confirmed that since November 2021 there had been very little contact between her and the accused, and what contact there had been was supervised.[101] She confirmed that she enjoyed a close relationship with her mother but denied that she had discussed with her what she would say in her evidence.[102]
[101] TS 228.
[102] TS 237.
Collette was an impressive witness. She is obviously an intelligent and thoughtful young person. She was measured and careful in her evidence. She did not volunteer information to paint the accused in a bad light, and there were no indicators of exaggeration or hyperbole. Although her evidence about the accused’s visits to her bedroom were not precise enough to tie then to any charged occasion, I consider it important circumstantial evidence that supports the account of Mrs N about the conduct of the accused on counts one to four inclusive. Her evidence circumstantially supports the conclusion that Mrs N was the victim of violence within the relationship as the background to the assessment of her evidence about the charged acts.
Gabriel’s Evidence
Gabriel is the accused’s younger brother. Until shortly before November 2021 he lived with the family at the Paralowie house. He identified his bedroom as situated at the rear of the house adjacent to the kitchen and laundry.[103] Gabriel was 34 years old when he gave evidence. He travelled with the accused to Australia in 2007 when he was still a teenager. After he arrived, he lived with the accused. He first attended an English language school and then moved out and lived as a boarder at a local catholic school. He subsequently completed a degree at the University of South Australia, living in a residential college. He moved back to live with the accused and his family between 2015 and 2021.[104]
[103] Exhibit, P2.
[104] TS 279-280.
Gabriel said during the time he lived with the family he was never aware of Mrs N sleeping in any bedroom but the master bedroom. He was aware of the accused sleeping in the bedroom occupied by the younger boys. He said that the accused moved out of the master bedroom after an argument between he and Mrs N about him staying in the family home.[105] He said for the last two years that he was living at the Paralowie house, there were many ‘random arguments’ between the accused and Mrs N.[106] He said he did not know why Mrs N asked him to move out of the house, and he emphasised that he was forced to leave and did not do so voluntarily. He did not ask the accused or Mrs N for any explanation for their decision. He said in evidence that it did not cross his mind to do so.[107]
[105] TS 282.
[106] TS 282.
[107] TS 298
Gabriel said over the last two years he lived at the house he observed between seven and ten arguments between the accused and Mrs N, only two of which became physical. He said on each of those occasions he saw Mrs N become upset and assault the accused, with the accused simply trying to get away from her.[108] He said that he tried to separate them when the argument became physical. Gabriel’s evidence was that he spent most of his time in his room because he liked his privacy. When he was inside his room he heard verbal arguments, but he never heard screaming or yelling from the master bedroom.
[108] TS 285.
In cross examination Gabriel was pressed about the circumstances in which he intervened in physical fights. He was asked why there was a need to intervene if the truth of the matter was that Mrs N was attacking the accused, and the accused was trying to get away. Gabriel denied that he had ever seen the accused pushing Mrs N back if he was pushed. He was unable to explain why, in those circumstances, the accused could not get away and required him to intervene.[109]
[109] TS 292-293.
Gabriel conceded that he had seen the accused intoxicated with alcohol at the Paralowie house, but he said he had never observed him playing music loudly, being loud, or staggering or slurring his words.[110]
[110] TS 300.
I did not find Gabriel’s evidence of particular assistance. His evidence that he did not know why he was asked to leave the family home and did not make any enquiries was difficult to accept. His evidence that he had not heard the accused making noise or playing loud music late at night when he was intoxicated was at odds with the evidence of Mrs N and Collette, both of whom I found credible and plausible on that point. His evidence that he had only ever seen Mrs N be physical towards the accused, with the accused trying to walk away, was inconsistent with his evidence that he had to separate the two of them. If the accused was simply trying to get away it is difficult to understand the need to ‘separate’ the two.

Gabriel’s bedroom was further towards the rear of the house and did not share a wall with the master bedroom. That is one explanation for his evidence that he heard nothing from the master bedroom and was not aware of Mrs N sleeping in Collette’s bedroom. He was also away from the house for periods of time working. I find Collette’s evidence plausible on the topic of the noises she heard coming from the master bedroom and her bedroom was closer to that location. In the circumstances, Gabriel’s evidence that he did not hear any such noise does not cause me to doubt the evidence given by Collette that I did find convincing.
Evidence of the Accused’s Employment
Ms Hamman, a Manager with Baptist Care, the accused’s employer, gave evidence about employment records held by that organisation. Selected shift records were contained within Agreed Facts. Ms Hamman said the records examined by her reflect shifts that the accused was paid for. Before payment was made, a Baptist Care staff member would satisfy themselves that the employee was entitled to payment.[111] Ms Haman confirmed that the records showed that the accused was paid for a shift from 9am to noon on 11 November 2021, the date on which count five is alleged to have occurred. The records showed it was training or a meeting, both of which could have been done remotely, from home through an electronic device.[112]
[111] TS 247-248.
[112] TS 245.
Interview with the Accused
On 28 February 2022 the accused attended the Elizabeth Police Station in response to police leaving messages that they wished to speak with him. He was arrested, cautioned and interviewed about the allegations that had been made by Mrs N.[113]
[113] TS 256
The accused was asked about four specific allegations. With respect to the allegations which are now charged as count one he said that he could not recall whether he had intercourse with his wife on that date, and that he may have been working a night shift.
He was asked a general question about raping Mrs N in October 2019, and said he could not recall whether he had intercourse with Mrs N at all during that period.
When asked about a rape allegation on 11 November 2021 (now count five) the accused told the police officers that since August 2011 he and Mrs N had not shared a bedroom. He said he had not had sex with anyone, since possibly July.[114] In respect to the specific date he said he would need to double check, because usually he worked in the mornings. On the final allegation (count six) he denied he had intercourse with Mrs N on that occasion. He said he would have been asleep during the night because he would have had a work shift the following morning.[115]
[114] Exhibit P9, MFIP 10 at page 10.
[115] Exhibit P9, MFIP 10 at page 13.
The accused told the police that he sometimes sleeps in the master bedroom, and sometimes in the boy’s bedroom. He said that in November 2021 he and Mrs N were not intimate at all. He did not recall the last time that he had intercourse with Mrs N, but thought it was before August 2021. The accused recalled an occasion when they had intercourse when there had been a family mediation where a lack of intimacy between the couple had been discussed. He thought that was perhaps September 2021.[116]
[116] Exhibit P9, MFIP 10 at page 19.
The accused said normally when Mrs N is pregnant, she “can’t handle sex”,[117] and the couple tended to sleep in separate rooms. He said for each pregnancy one of them has tended to move out of their shared bedroom, and the couple were intimate only when she initiated it. The accused said Mrs N slept in his daughter Collette’s room when she did not sleep in the master bedroom.
[117] Exhibit P9, MFIP 10 at page 21.
The accused’s interview contains inculpatory and exculpatory material. His interview contains admissions that Mrs N sometimes slept in Collette’s room during her pregnancy, and that she did not usually feel like intimacy when she was pregnant. He also denies having ever had intercourse with her against her consent.
To convict the accused I would need to be able to exclude his denials as a reasonable possibility. That would require me to be satisfied, on the evidence given by Mrs N, and circumstantially supported by Collette, of the elements of the charged acts.
Analysis
Family Court Proceedings
In February of 2022 (shortly before the birth of the fifth child Josephine) the accused commenced proceedings in the Family Court to have contact with the children.
In February 2022, as part of the proceedings related to contact with the children, Mrs N swore an affidavit. Mrs N said that some of the contents of the affidavit which were put to her were not true. She said that aspects of the instructions she gave her lawyer had been summarised inaccurately.[118] It was unclear whether the affidavit was translated in full for Mrs N prior to her signing it.[119]
[118] TS 152-153.
[119] TS 119,152.
Mrs N was taken to some aspects of the affidavit and asked whether it reflected things she had told her lawyer which were inconsistent with her version in evidence. Mrs N denied having made some of the statements and it was unclear whether she distinctively admitted others. The contents of the affidavit were not otherwise proved.
It was put to Mrs N that she did not mention the October 2019 rape allegations in the affidavit prepared for the Family Court. It is not clear from Mrs N’s evidence that she in fact admitted that she had omitted reference to that allegation in her Family Court affidavit. Her evidence is difficult to follow on that topic.[120]
[120] TS 172-173.
In re-examination Mrs N said that the purpose of the Family Court affidavit was to determine where the children were going to live. She agreed that she considered the matters she had raised with the police a separate issue.[121]
[121] TS 214.
By October 2023, a property settlement was reached through negotiation between lawyers instructed by each party, which included how the proceeds from the sale of the family home were to be divided.
Dreams and Beliefs
Mrs N was cross examined about dreams that she experienced after she left the accused, and beliefs that she held about the meaning and origin of those dreams. Defence counsel argued that these topics were relevant to her credibility and reliability. Mrs N said she experienced dreams about the accused raping her, including being dragged from Collette’s bedroom. Her dreams also included seeing a snake which came from the roof and bit her wrist. She woke up with physical sensations of being itchy and there was a mark. Her children had been seeing things that she could not see, such as rocks coming from inside the car at them.
Mrs N confirmed her dreams were strong and scary and began after she disclosed the rapes to police. Mrs N sought advice from pastors and religious people on-line who advised her to pray to make the dreams go away, and she took that advice.
Mrs N came to believe that the dreams had been sent by a witchdoctor, at the request of the accused. She believed, from conversations with people she knew in Burundi that a prophet had said that the accused had paid for witchcraft to be used on her. She believed her children had also been affected by witchcraft.
In re-examination Mrs N confirmed her evidence about the various acts of sexual violence were not the product of dreams, and she was able to distinguish between reality and dreams. Mrs N said that the existence of witchdoctors was a belief commonly held by people in Burundi. She said people practiced witchcraft in secret, and not in public. Witchdoctors, it was believed, could cause something that does not heal.[122] Mrs N said she did not see any difference between her beliefs in Australia in the Catholic faith and beliefs she held from her Burundi heritage.[123]
[122] TS 209.
[123] TS 210.
I am satisfied that Mrs N’s evidence about dreams and witchcraft do not bear on her credibility or reliability. She holds beliefs about the existence of supernatural forces which have been used to punish her. Belief in supernatural forces are not restricted to Burundian culture. In different forms, beliefs in supernatural forces are commonly held by people of various religious faiths. The evidence was that her beliefs were common in her community, and there was no evidence that her beliefs were delusional or associated with a mental illness.
Inconsistencies
Counsel for the accused highlighted a series of inconsistencies in the evidence of Mrs N, many of which have been discussed earlier.
Counsel argued, in respect to count one, that there were inconsistencies in her account of the event, and in her behaviour after the event and in things that she said to police. Mrs N’s evidence about the assault which resulted in police being called was undermined by evidence of inconsistencies between her evidence and a statement she gave to police about the same incident. Mrs N said in her evidence that the accused found her in the children’s room and struck her to the head. She began to shout, and the accused ran out of the room because the children were beginning to wake up.[124]
[124] TS 48.
Mrs N was cross examined about that assault. She was taken to a statement that she gave to police immediately after the incident. In that statement told the police that after the assault rather than shouting and waking up the children, she ran into Gabriel’s room, and then she was pinned to the wall by the accused near the doorway. She agreed she said the accused tried to shove her into Gabriel’s room, but Gabriel woke up and got between she and the accused, telling her to go to the loungeroom.[125] Confronted with the inconsistency, Mrs N said “because there were many, many instances happened maybe different what I have told to police is different from this because there were many, many fightings at home”.[126] He agreed there were occasions that Gabriel intervened, but she could now not be precise about which incident on which day.
[125] TS 146.
[126] TS 148.
Mrs N was cross examined about a statement she had made in her family court affidavit that the incident charged as count one occurred after the accused pulled her into the living room, not the master bedroom. It is difficult to identify whether Mrs N in fact admitted that she had made that statement outside of court in the affidavit. Her response to the questions is confusing.[127] Mrs N maintained that that count one did not occur in the loungeroom. She said that if she did sign a statement saying that, it would not have been the truth. As noted above, the extent to which the statement was translated to Kirundi for her prior to her signing it is not clear. In the circumstances I place limited weight on the inconsistency.
[127] TS 153.
It was apparent in the course of Mrs N giving her evidence that she was operating at a disadvantage because English is her second language. Although an interpreter was supplied, her English language skills meant there were occasions when she corrected what she considered to be his inaccurate interpretation of her Kirundi answers. In watching the recording of the interaction between Mrs N and the police on D13 it was apparent that she experienced difficulties in making herself understood. I have taken this disadvantage into account in assessing what weight to place on various inconsistencies between her evidence and out of court statements which were exposed in cross examination.
On the prosecution case, the charged acts of sexual violence were not isolated, and within the marriage there were multiple uncharged acts of sexual and physical violence. This is also relevant to what weight I am prepared to place on inconsistencies in Mrs N’s descriptions of the specific charged acts. Inconsistencies have the potential undermine Mrs N’s credibility, if I consider she was not able to tell a consistent story because her account was not given from real experience. Inconsistencies are also relevant to my assessment of the reliability of Mrs N’s description of the details of each charged count. That is, I must be satisfied that the evidence establishes a specific occasion when the offence charged was committed, rather than the charged occasion being an amalgam of other similar uncharged behaviour.
I will refer to these considerations again later.
Motive to Lie
Counsel for Mr N submitted that the evidence disclosed that Mrs N had a motive to be untruthful. He argued that against the background of repeated complaints to the police about physical assaults by the accused against her, the circumstances in which the allegations of rape finally emerged must be carefully assessed.
On 27 September 2021 when Police attended Mrs N’s home, she reported that she had been choked by the accused, and they took no action. As outlined earlier, the attending officers were disinterested in obtaining a comprehensive account from her and taking any action on her allegation. In November, just over a month later, the accused challenged Mrs N about the identity of ‘Marc’. She moved into emergency accommodation. In family mediations which followed she tried, without success, to have the accused move out of the Paralowie house so she and the children could return.
On 7 December 2021, after some limited telephone contact with the Investigating Officer Emily Marks, and before the charged allegations were disclosed to police, Mrs N attended the Elizabeth Police Station. Police records show she told officers that she wished to provide a statement about the assault alleged to have occurred in September 2021, which attending police had been uninterested in taking a statement about.[128]
[128] TS 266-267.
The charged occasions were first reported to police on 20 December 2021 when a detailed statement was taken by Officer Marks.[129] Defence counsel submitted that the proceeding chronology, and the fact that various people who Mrs N reached out to did not assist her, raises the possibility that she dishonestly augmented her allegations with a view to having police taking her complaints seriously.
[129] TS 266.
Defence counsel also pointed out that the charged incidents first arose in the context of Mrs N leaving the accused, and there is the prospect that she was motivated to make false allegations by the hope of an advantage in the Family Court proceedings. Mrs N denied that she knew of other people in the Burundi community who had made complaints of domestic violence, including sexual violence.[130]
[130] TS 121-122.
While it is not appropriate for a finder of fact to pose the question – why the witness would lie, when a motive to lie is suggested it is proper to assess the plausibility of that suggested motive.
I do not consider that the motives identified are plausible motives for the fabrication of Mrs N’s evidence. It was apparent that the airing of allegations of sexual violence was difficult for Mrs N, both for personal and cultural reasons.
I remind myself however that there are many reasons why a witness may lie, and I have not treated Mrs N’s evidence as more plausible simply because no plausible motive for her to lie exists. I do not conclude from the absence of any such evidence that Mrs N has no reason to lie and therefore is telling the truth. That line of reasoning would be wrong and unfair.
Count One
Defence counsel argued that Mrs N’s evidence on count one was unsupported and the circumstances alleged belied common sense. He made the point that on Mrs N’s account, the accused committed the rape against her having just been bailed after Mrs N made a report to the police that he had assaulted her. He described that conduct as brazen. Defence counsel pointed out that Mrs N told the police two weeks later, when they followed up in relation to the assault, that Mr N had been “on his best behaviour”. On her evidence, nothing could be further from the truth, because the accused had raped her when he was released from custody after his arrest. A month after making that statement, Mrs N signed a notice to discontinue the assault charges, documenting that she was not frightened of the accused, and wanted to continue a relationship with him.
The evidence on count one is unsupported by any direct witness account or forensic evidence, but there is the circumstantial evidence given by Collette that the accused pulled Mrs N out of her bedroom during the night on occasion and she then heard noises coming from the master bedroom thereafter.
Mrs N gave evidence of the facts underpinning count one which was detailed and plausible. The statements she made to police that the accused had been on his best behaviour are consistent with her deciding not to report the sexual behaviour. I accept that the accused raping Mrs N upon his return from being arrested and bailed is brazen behaviour. The behaviour however is to be assessed against the accused’s knowledge of his wife, their community and their cultural values. The accused’s appreciation that Mrs N was willing to report a physical assault is not to be equated to a fear that she would report a sexual assault, in the context of their marriage relationship, and the cultural considerations.
On the evidence called on the prosecution case, I am satisfied beyond reasonable doubt that the elements of rape are satisfied on count one. Insofar as the accused denied the allegation when he was interviewed, I exclude his denial as a reasonable possibility because of the evidence I find plausible and acceptable from Mrs N and from Collette.
I find count one proved.
Count Two
Count two was alleged to have occurred on or about 2 October 2019 when Mrs N was seven months pregnant with Henri. The accused told the police that Mrs N was less inclined to consent to sexual contact with him when during her pregnancies.
The occasion is tied to an argument between the couple about a proposed party for the accused’s drumming group at their home. It was agreed that at about 6.00am on the morning of 2 October 2019 police attended the couple’s Paralowie home. They spoke to Mrs N and she told them that she did not wish to be taken with her children somewhere else. Mrs N was given some information about domestic violence support. It would appear that police had been called in relation to an allegation that the accused had struck Mrs N to the head with an alcohol bottle. There were inconsistencies between Mrs N’s evidence about that assault and the account she gave the police at the time.
The rape is alleged to have occurred the evening of that day. It was argued that Mrs N’s confusion about the assaults from the same day undermined her credibility and reliability on the charged act.
Submissions were made about the brazenness of the accused’s alleged conduct when police had attended that very morning in response to Mrs N’s report of violence. Having found count one proved, I take into account that the accused would be emboldened to offend, having raped Mrs N in January 2016 without her making a complaint to anyone.
Counsel for the accused submitted that there were practical difficulties with the accused being able to achieve the act of intercourse alleged when Mrs N was heavily pregnant. I do not consider her evidence inherently implausible, and I have regard to the fact that positioned on her back, in the later months of pregnancy, she would have very little opportunity to manoeuvre away from the accused or fight back.
I find the elements of rape proved for count two.
Count Three and Four
Counts three and four were alleged to have occurred after count two. Count three was alleged to have occurred the night immediately following count two, and count four, sometime later, although still in October 2019.
Mrs N described count three in scant detail, saying no more than “I do not remember very well what happened, but always they are the same act, so I can assure you he had sex with me and then I went back to the room, as I used to do before”.[131]
[131] TS 70.
In respect to count four, Mrs N distinguished that occasion because she recalled that when the accused came to Collette’s room to collect her, she sat up to prevent him from moving her, and she had pain in her back and belly.[132] She said of this occasion “I do not remember very well at that time, step by step, what happened”.[133]
[132] TS 72.
[133] TS 72.

Mrs N’s evidence on counts three and four was scant. I cannot be satisfied that she is reliably describing an event which occurred on those specific occasions rather than a reconstructed version of what she believes would have occurred.
I cannot be satisfied that the elements of the offence of rape are established for counts three and four and I find the accused not guilty.
Count Five
Count five was alleged to have occurred on 11 November 2021. As outlined earlier, the evidence established that the accused was paid for a work shift between 9am and 12 noon on that date. The evidence also establishes that on 11 November 2021, at some time prior to 11.43am, Police Officer Carlaw telephoned Mrs N and spoke with her briefly. Mrs N told the officer that it was not a good time to talk, and that she would be in a position to speak freely the following day, between 10am and 1pm.[134] I do not consider Mrs N’s failure to complain to that officer undermines her credibility on this count. On her version the accused was still in the home, and, no doubt, it was not a good time to talk. Mrs N however could not recall receiving a telephone call from the police on the same date as she was raped.
[134] TS 263.
The evidence of the accused’s payment for a work shift raises the possibility that he was engaged on a work meeting between those times, and therefore was unable to have committed the offence charged. The evidence was that the shift on 11 November 2021 was a training shift, or potentially a team meeting shift. The work he was paid for may have been done remotely, an approach that was encouraged at that time because of the covid pandemic.[135]
[135] TS 246.
Mrs N was certain about the date of the offending and the parties directed their conduct of the case to that occasion. While I am satisfied that the accused may have been working from home on that date, I am unable to dismiss the possibility that he was on-line in a meeting or training which required him to be in visible and contributing. For this count I do not have any supportive circumstantial evidence as is the case for counts one and two. In the circumstances I am unable to find the occasion identified as count five proved, and I find the accused not guilty.
Count Six
Count six is alleged to have occurred shortly before Mrs N left the accused and took the children with her. She identified it as an occasion when the accused grabbed her during the night when she was on her way back from the toilet. She said he dragged her back to the bedroom. Her description of the act which occurred in the bedroom was that he “perform sex as usual”. The description lacked detail, which is explicable given the consistent and repeated nature of the abuse alleged. In circumstances where the prosecution rely on her evidence alone, and the detail she was able to give was so scant, I am unable to find the charge proved beyond a reasonable doubt, and I find the accused not guilty.
The accused is guilty of counts one and two and not guilty of counts four, five, six and seven.