R v S, P - [2014] SADC 77

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v S, P
Criminal Trial by Judge Alone
[2014] SADC 77
Reasons for the Verdicts of His Honour Judge Costello
12 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge Alone – accused charged with one count of aggravated assault and two counts of rape of the complainant, his wife – prosecution case based upon the acceptance of the truth and reliability of the evidence of the complainant – other uncharged acts of assault of the complainant also alleged – significant inconsistencies between evidence of complainant at trial and her previous statements to other witnesses for both the prosecution and the defence – prosecution failed to prove the guilt of the accused beyond reasonable doubt.

CRIMINAL LAW - EVIDENCE - CREDIBILITY - REPUTATION FOR UNTRUTH
Defence permitted to adduce evidence as to complainant’s credibility pursuant to the oath-belief rule.
Verdicts: Not guilty on each count.
Criminal Law Consolidation Act 1935 s 20(3), s 48(1); Juries Act 1927 s 7(1); Evidence Act s 34M, referred to.
R v R, R & R, LJ [2008] SASC 35; R v JJA (2009) 105 SASR 563; R v HT (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; R v J, SM [2013] SASCFC 96, considered.

R v S, P
[2014] SADC 77
Criminal

This is a trial by Judge alone. The accused, S, P, is charged with the offence of Aggravated Assault pursuant to s 20(3) of the Criminal Law Consolidation Act 1935 (‘the Act’).
Particulars of the offence are that S, P:
On the 4^th day of September 2012 at Elizabeth East, assaulted [G].
It is further alleged that S, P committed the offence knowing that [G] was his spouse.
S, P is also charged with two counts of Rape pursuant to s 48(1) of the Criminal Law Consolidation Act 1935 (‘the Act’).
Particulars of each of these offences are that S, P:
On the 25^th day of September 2012 at Elizabeth East, engaged in sexual intercourse with [G] by inserting his penis into her vagina without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
S, P pleaded not guilty to the charges. He elected to be tried by a Judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927. He was represented by Mr Mead. Ms Dunlop appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a Judge sitting without a jury, that the court detail every obvious and basic direction of law which might be given to a jury.[1]
[1] R v R, R & R, LJ [2008] SASC 35 at [42].
I do nevertheless record that I have reminded myself of the following:
(i)An accused person is presumed to be innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
(iv)Each of the three charges concerns a separate offence and I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
(v)The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
(vi)Notwithstanding the matter raised in (v) above, if I were not to be satisfied beyond reasonable doubt that the complainant was truthful and reliable with respect to one or more of the charges on the Information, I must then consider whether I can be satisfied as to the guilt of the accused on any remaining charge or charges. That is, I must remember that if I am not satisfied as to the credibility and reliability of the complainant, then that lack of satisfaction will be a factor relevant to my consideration of the other charges to the extent to which that complainant’s evidence is critical to those other charges.
(vii)I have reminded myself of the normal directions given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I do specifically note that in this case the accused elected not to give evidence; he remained silent. I remind myself of the following matters. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. The accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
(viii)Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed.
I now turn to the charges and set out the basic elements of each of the charges which the prosecution must prove beyond reasonable doubt.
Aggravated Assault
An assault for the purposes of this charge consists of any intentional and unlawful application of force by one person against another without that other person’s consent and in circumstances of aggravation.
The prosecution must prove four elements.
First, there must have been an application of force by the accused directly or indirectly to G.
Secondly, the application of force must have been deliberate as opposed to unintentional or accidental.
Thirdly, the accused must have acted without G’s consent.
Fourthly, the accused’s application of force must have been unlawful.
Finally, the offence of assault becomes aggravated if committed in one of the circumstances of aggravation which, for present purposes, includes an assault committed against a person’s spouse.
Rape
The offence of rape is committed when a person has sexual intercourse with another person, without the consent of that other person knowing that the other person does not consent or being recklessly indifferent as to whether the other person consents, whether or not that other person offers physical resistance. For this offence the prosecution must prove three elements.
First, there must be an intentional act of sexual intercourse. Relevantly for the purposes of the present case, sexual intercourse includes the penetration of a woman’s vagina by a man’s penis.
Secondly, the sexual intercourse must have been performed without the woman’s consent. Consent may be indicated by words or conduct or both. There is a distinction between submitting to intercourse and consenting to it.
Mere submission is not of itself consent, although it may be some evidence of consent. However, if a woman submits to intercourse as a result of force or threats, or simply because resistance appears to be dangerous or futile, that is not consent. Submission through force is not consent, and submission through fear is not consent. Consent must be the free and willing participation by the woman in the act of sexual intercourse.
Thirdly, the prosecution must prove that the accused either knew that G was not consenting or was recklessly indifferent as to whether she was consenting. The accused would be recklessly indifferent if, realising that G might not be consenting, he proceeded to have sexual intercourse with her irrespective of whether she was consenting or not.
General Considerations
Evidence was adduced by the prosecution with respect to each of these three charges. However, there was also evidence of the accused engaging in other acts, of a criminal nature, against the complainant. This evidence was led by the prosecution to explain the nature of their relationship and why G did not complain to the police at the time of the alleged aggravated assault. It was not led by the prosecution as evidence of a particular propensity or disposition of the accused and cannot be used for that purpose.
On the application of the prosecution and without opposition from the accused, G gave her evidence behind a screen so that she could not see the accused. The accused was also not present during times when she walked to and from the witness box. She was also accompanied by a court companion at all times when giving her evidence.
I did not, from the fact of these arrangements, draw any inference adverse to the accused and nor did I allow any of these arrangements to influence the weight, if any, that I placed on the evidence of G.
The Complaint – Principles
By virtue of s 34M of the Evidence Act evidence of an initial complaint, or any elaboration of it, is admissible in order to inform the tribunal of fact as to when and how the allegations first came to light and to enable it to determine whether or not the complaint has the capacity to demonstrate consistency of conduct on the part of a complainant, thus tending to enhance her credibility.
For these purposes consistency includes inconsistency, and if the complaint is inconsistent with the occurrence of the conduct complained of, then it has the capacity to detract from the complainant’s overall credibility.[2]
[2] R v JJA (2009) 105 SASR 563 at [93] Duggan J; R v HT (2010) 108 SASR 86 at [46]-[49] Gray J.
Evidence of complaint must relate to the conduct on which a charge or charges is based before it can enjoy any potential to enhance the complainant’s credibility. This is a matter of fact and degree and must be approached with commonsense and without undue technicality.[3]
[3] R v El Rifai [2012] SASCFC 98 at [130]-[133] Kelly J.
Evidence of complaint is not evidence that what was complained of did in fact happen. It is not evidence of the truth of what was alleged: Section 34M(4)(b) of the Evidence Act.
The Prosecution Case in Overview
The complainant ‘G’ and the accused are married. Their relationship commenced as an arranged marriage in India in 1999. They moved to Australia in 2006 with their two children. Subsequently they had a third child. In 2010 G and the accused became Australian citizens.
Although the relationship was initially a happy one it became more difficult due to the accused’s increasingly aggressive behaviour towards G. His aggressive episodes were often triggered by what he perceived to be their financial problems.
Even though the accused became increasingly aggressive towards her, G kept their relationship problems to herself and chose not to tell anyone because of her cultural background which emphasised, in her view, the dominance in the family of the father and husband.
Finally in June of 2011 the accused was violent to G when he returned home after a night out drinking with friends. G complained that he dragged her out of bed and started hitting her because she had not gone to work.
Later on in August 2011 she had an argument with him where he kicked her in the leg. As a result she went to the police and complained. The accused left the matrimonial home and the parties lived apart until about December 2011 when there was a reconciliation. As a result, the criminal charges were withdrawn.
Whilst the relationship improved for a few months it again deteriorated with the accused’s emotional, physical and verbal abuse of G returning.
On 4 September 2012 they argued and during the argument the accused grabbed G by the hair, dragged her into a spare bedroom in the house and slapped her across the face on numerous occasions. This is the subject of Count 1.
A week or so later G went to her General Practitioner with a complaint of pain in her side.
A few weeks after that, on 25 September 2012, the accused and G were in bed together with one of their children sleeping between them. The accused began to touch G. She got out of bed and told him she didn’t want to have sex and that she had the pain in her side. G said that the accused then grabbed her and pushed her into the spare bedroom and onto the bed.
G said that he then pulled her clothing partially off, put on a condom and proceeded to have vaginal sex with her. During intercourse she tried to push him away, was crying and telling him that she did not want to have sex with him and that she was ‘sick’. After intercourse the accused left the bedroom for a short time but then returned and, despite her protests, again had vaginal sex with her. After a few minutes she pushed him away, got out of that bed and went into another room where two other daughters were sleeping.
The following morning, after the accused left for work, she packed up the children and took them to her brother’s house. From there she went to the police station. At the police station she was first spoken to by Officer Stewart who took some initial details. She was then seen by Officer Brown who took over the interview and it was to Officer Brown that G made the detailed allegations concerning the assault and the rapes.
G was subsequently examined at Yarrow Place. Her examination confirmed that an act of intercourse had taken place but there were no injuries or other signs to suggest whether the intercourse was consensual or not.
Items of personal and bed clothing were subsequently removed from the house. Some of these were subjected to forensic analysis, the results of which were neutral.
It was made apparent to me from the outset by both parties that G’s allegations were denied insofar as there had been any assault and that while one act (but not two) of intercourse had taken place on 25 September 2012, that act of intercourse was consensual.
The Prosecution Witnesses
Apart from G the prosecution adduced evidence from the following witnesses:
Dr Robin-Karas General Medical Practitioner
Dr Dayman General Medical Practitioner at Yarrow Place
Police Officer Brown
Police Officer Allen
Police Officer Stewart
I propose to deal with their evidence first because in certain areas their evidence did not corroborate the evidence of G and in some cases differed in important respects from the evidence of G.
Dr Robin-Karas
G consulted him on 10 September 2012. He recorded that she presented to him with a complaint of pain in the left loin. On examination he found her to be mildly tender in the left loin.
He prescribed Panadeine Forte and Voltaren. He saw her the following day when she described the pain as being ‘a bit better’. He was unable to ascribe any definite cause for her complaint.
Dr Dayman
Dr Dayman examined G at about 8:00 pm on 26 September 2012. He found no evidence of bruising or other injury to G. He examined her abdomen and found nothing of note. He said that she was tearful at times. He said he had no difficulty in understanding her or communicating with her.
He agreed that he had recorded her as telling him that her husband had forced her to have sex with him on 4 September 2012.[4]
[4] This is the date of the alleged assault. The rapes are alleged to have occurred on 25 September 2012.
He also made a report, in a letter to G’s general medical practitioner, of G having previously experienced pain in her lower left quadrant and that this pain was better and that at the time of seeing him she had no current abdominal pain.
He documented that she had taken ‘two tablets of Panadol’ with her period. He noted that she had had a ‘bad abdominal pain on 8 September 2012’ which flared up when she did housework but had gone by the time he saw her.
Police Officer Stewart
He was on duty when G came into the station to make her complaint. She told him that her husband had forced her to have sex with him. He said that she appeared to him to be distressed. He said that his memory was that she told him that the reason she didn’t want to have sex with her husband was because of stomach pain due to her period.
In re-examination he said that although he could not recall her using the word ‘period’ she did relate her complaint of pain to menstruation.
Police Officer Brown
He took over from Officer Stewart and typed out G’s complaint and the circumstances surrounding it in detail. The details of her complaint to him were generally consistent with the evidence given by G. He said that she was crying while the complaint was being taken.
Police Officer Allen
He is a crime scene investigator. He attended the scene, took photographs and collected a number of items for forensic examination. Included among the items collected were a box containing two unused condoms, a used condom and some bed sheets and quilts.
Apart from these witnesses the prosecution case included a series of agreed facts. The following facts are of particular relevance:
i)An act of penile-vaginal sexual intercourse occurred between the accused and the complainant on 25 September 2012;
ii)High levels of sperm were observed on a microscopic slide from the inner surface of the condom;
iii)DNA profiles consistent with both the complainant and the accused were present on the condom;
iv)No sperm was located on the swabs taken from the complainant’s vagina, labia or cervix;
v)The bed sheets and quilts seized by crime scene investigator Allen were not submitted for forensic testing to the Forensic Science Centre.
G
As may be apparent from what I have said to date, there was little, if any, independent support for G’s evidence as it related either to the charges or to some of the events leading up to the charges, including evidence of some uncharged acts. Although a court is not obliged in a trial without a jury to give a warning that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim, I propose in the circumstances of this case, to approach G’s evidence with a measure of caution and to scrutinize it with great care.
G gave evidence that she entered into an arranged marriage with the accused in India in 1999. She described the marriage in its early years as a happy one. She said that she was happy to come to Australia and that this situation continued for some years after arriving in Adelaide in July 2006. About a year after moving to Australia a third child was born in 2007.

Thereafter she said strains, brought on by financial pressures, began to affect the marriage forcing her ultimately to take a job in 2008. The nature of her work was such that she often worked at night while her husband worked during the day. Although she said the marriage was happy when first she came to Australia, she later conceded that she was experiencing a measure of unhappiness at that time and agreed that she had been contemplating suicide in their early years here.
In about 2010 they both took out Australian citizenship. She described an incident on the way back from the city after her husband had become an Australian citizen where they were arguing in the car and he turned and slapped her very hard in the face. At that time she said that he said he could ‘do what he wants’. She also said that he had slapped her in the face many times before this occasion.
However, in cross-examination she agreed that she had sworn an affidavit in Family Court proceedings where she described the incident by saying that her husband had slapped her in the face in 2006 when coming from Virginia.
She then said that the affidavit she swore was incorrect but that she nevertheless signed it, perhaps because ‘she was reading quickly’.
An arguably more minor issue also involved this piece of evidence. Whilst in her evidence she described the incident as occurring when driving from the city, she agreed that she had made a statement, as recently as 1 April 2014, where she spoke of the slap incident occurring while driving into the city.
She then spoke of an incident in 2011 when the accused came home in an intoxicated state after his birthday, dragged her out of bed and demanded to know why she was not at work. She said she left the house and sat in her car but did not go anywhere. In cross-examination she said that she went out into her car and then drove into her work.
In relation to her husband’s birthday she said that she was wanting him to come home and celebrate his birthday with her and the children. She denied that a friend of her husband had suggested, in her presence a few days earlier, that he take her husband out for his birthday.
She also described an incident in early August 2011 where the accused kicked her hard in her thigh causing her to fall over. It was this incident which led to her going to the police and reporting him for assault. It was this allegation which was subsequently withdrawn.
In cross-examination she agreed that in reporting this incident to the police she gave a statement in which she said ‘the kick was not hard but it made me lose balance’.
When confronted with this previous statement she then said that there was another kicking incident (and this was the one where she was kicked hard) which she did not report to the police.
It is accepted that G made the kicking allegation to the police on 11 August 2011. Prior to 11 August 2011 the accused must have consulted a lawyer about custody and property matters because a letter dated 9 August 2011, from the accused’s solicitor, asserting that the marriage had broken down and seeking a resolution of custody and property issues, was posted to G.
In cross-examination G initially denied that she had ever received any such letter. Later she conceded that she might have received such a letter and finally accepted that she had and that in fact it had been annexed to an affidavit she swore on 19 September 2011 in Family Court proceedings.
After finally admitting knowledge of the letter she initially said that she had received it before making the complaint to police on 11 August 2011. Later in her evidence she said that although she received the letter she did not open it until after the accused had been arrested.
G said that they then lived apart for some months until they attempted a reconciliation in December 2011 after an intercession by her uncle and her aunt, K, A, a witness who gave evidence in the defence case.
After reconciling, G said that their relationship improved for some months before regressing to a similar pattern with the accused being angry and aggressive towards her. She said that on 4 September 2012 the accused had wanted her to sign some bank documents which may have related to them changing mortgages. The accused was angry with her. When she confronted him as to why this was so, he simply grabbed her by her ponytail, dragged her into the spare room, threw her onto the bed and then with both hands slapped her across the face, perhaps seven or eight times. She said they were very hard slaps.
She said that the slaps did not leave any marks or bruises. She did not mention what he had done to anyone else, nor did she later speak to the accused about it.
She also described a pain she had in her right side at ‘the bottom of her tummy’ in early September 2012. She described the pain as very bad and something she couldn’t tolerate. She went to the doctor for her pain and was prescribed analgesics. She told the accused about the pain on the day she first experienced it.
Later that month, on 25 September 2012, she said that she and the accused were in bed with one of their daughters sleeping between them. The accused was watching a blue movie which she knew was often a precursor to him wanting sex. She said that she had had the pain, for which she had seen the doctor, throughout that day. She said she had also told the accused earlier that day that she was ‘having very bad pain’ on her right side.
When the accused asked her to move their daughter to the side of the bed and began touching her, she tried to stop him by saying that their daughter was in the bed. She then got out of the bed. The accused also got out of bed and pushed her out of the bedroom into the spare room. She said he then pushed her backwards onto the bed. She repeatedly tried to push him away telling him she was sick and didn’t want to have sex. He then pulled her pyjama pants down and put a condom on.
G said the accused then proceeded to have penile vaginal sex with her. Although she tried to push him away he lay on top of her and she was unable to move because she was on her back with his body between her legs.
She said that, repeatedly during intercourse, she told him ‘I am sick, you need to understand. You need to care about that if I am your wife’.
After he had finished having intercourse G said that the accused left the room and may have gone into the bathroom. She remained in the bed in the spare room. A little while later the accused returned. She said he climbed into bed and lay on his side behind her with her facing away from him.
He began touching her again and pulled her pants down to her knees. He again had penile vaginal intercourse with her lying in this position. She could not say whether he wore a condom or not on this occasion.
She tried to make him stop and after a couple of minutes pushed her body back and then got out of bed. She was angry and in pain from her right side.
She said that she then went into the other bedroom where their two other daughters were sleeping.
On the following day she behaved normally towards to the accused. She made him breakfast and tidied the house until he left. Thereafter she packed the children up and took them to her brother’s house. From there she travelled to the police station to make her complaint.
It was put to her in cross-examination that in September or October 2012, after the accused had been arrested, she had a telephone conversation with K, A, her aunt. It was put to her that in that conversation she said words to the effect that ‘she was going to teach [the accused] a lesson’ or ‘fix him’ because he was continuing to talk to her ex-sister-in-law. G denied that she said any such thing or that any such conversation had taken place.
She agreed that she had instituted further Family Court proceedings and that in these proceedings she was seeking to stop the accused from having contact with the children, even the existing weekly arrangement of telephone calls to them.
The Defence Case
The accused, as is his entitlement, elected not to give evidence. However, he adduced evidence from the following witnesses:
D, R
K, T
S, S
K, A
S, J
J, S
D, R
He is a friend of the accused over the last six years who gave character evidence. He said that the accused had a reputation as an ‘honest person and a good father and a good friend’.
K, T
She is the accused’s niece. She gave evidence pursuant to the ‘oath-belief rule’[5] that G has a general reputation for dishonestly, which reputation she agrees with and that she would not regard her as a person who should be believed on her oath.
[5] R v J, SM [2013] SASCFC 96.
S, S
She was formerly married to G’s brother. She has since remarried. In July 2012 she and her current husband went to India where they took part in a traditional Indian marriage ceremony.
She said that prior to her separation from G’s brother, her relationship with G was good. Thereafter it ‘ceased’, whereas her relationship with the accused continued. However, she said that she curtailed that friendship after learning that her friendship with the accused was causing trouble in his marriage.
She gave evidence that she regarded the accused as an honest and caring person. She also said that G had a dishonest reputation and was not a person who should be believed on her oath.
K, A
She is G’s aunt being married to her uncle. She gave evidence of having a telephone conversation with G shortly after learning that the accused had been arrested.
She said she asked G why the accused was in prison to which G replied ‘I want to teach him a lesson’. When she asked ‘What lesson?’ G replied ‘he is talking to my brother’s ex-wife. He is talking to P’. She said there was no mention of any rape or assault. She said that G said ‘I am angry because he’s gone to send some things to her, to P, to bring it to India for him’. She said that the conversation took place on a speaker phone with her husband, G’s uncle, present.
She also said that the words she used (because the conversation was in Punjabi) could be interpreted to mean ‘he’s talking to his ex, that’s why I want to fix him up’.
On the topic of G’s honesty she said that ‘G is dishonest all the time’ among people who knew her and that she is not the sort of person that she would believe on her oath.
S, J
He gave evidence that he worked with the accused in August 2011. Specifically he employed the accused on 3 August 2011. The employment related to a truck delivery contract that the accused fulfilled for his company that day. His notes and general recollection enabled him to say that the accused transported goods back to his company’s premises at Dulwich completing the job around 3:00 pm.
The significance of this evidence is that G alleged that the accused had kicked her on that day and that the kicking incident occurred at home at about 2:30 pm – 3:00 pm. It is difficult to reconcile G’s evidence and that of S, J.
J, S
He gave evidence of celebrating a birthday with the accused on 9 June 2011. He spoke of a discussion he had, with the accused, in G’s presence a week or so before 9 June 2011, where the proposed birthday celebration was discussed.
He said that they went to a pub and stayed until closing time which was between 11:00 pm and midnight. From there they went to his house in Enfield where they ate dinner prepared by his wife. He said that the accused would have left his house around 1:00 am – 1:30 am and was driven home by a friend.
Once again it is difficult to reconcile this evidence with that of G where she says that, after the accused came home and dragged her out of bed she then went outside, sat in her car and finally drove to work.
Defence Witnesses Collectively
All the defence witnesses gave their evidence in an open and forthright manner. Although, in some cases their relationship with the accused may have given them cause to be partisan, I did not detect any suggestion of bias, unconscious or otherwise, in the manner of their giving evidence. Indeed in some cases, such as K, A, one might have expected her to be favourable to G.
In any event, I found all of them to be credible witnesses. I also found them to be reliable particularly in the situation of people like S, J, who was relying on diary entries made at the time and J, S who was giving evidence about the events of a birthday he had arranged.
Analysis
The prosecution case relies almost entirely on the evidence of G. I listened closely to her evidence and have scrutinised it with great care. There are a number of aspects of her evidence that cause me concern. Viewed in isolation they are not necessarily of great moment and may be explicable in terms of faulty memory or the simple stress of giving evidence. However, when considered in combination they take on a different perspective.
I do not propose to canvass them all but the following topics of evidence are significant:
i)      Her complaint in evidence of pain on her right side compared with recorded complaints to doctors of left-sided pain;
ii)     The complaint in evidence that she didn’t want to have sex because of pain in her right side compared with the reason which Police Officer Stewart said was proffered to him, namely menstruation;
iii)    Her evidence that the two instances of rape occurred on 25 September 2012 compared with a recorded reference by Dr Dayman of a rape having occurred on 4 September 2012;
iv)    Her complaint of a kick described to police in 2011 as not hard compared to her evidence of a kick which was very hard which evidence then turned into two kicks, one hard and one not hard;
v)      Her evidence of going and sitting in the car after being dragged from the bed, later changed to driving to work;
vi)    Her evidence of being kicked prior to going to work at around 2:30 pm – 3:00 pm at time when S, J said the accused was at work;
vii)   Her evidence that she had never received a letter seeking a resolution of custody and property matters in 2011 which later changed to an acknowledgment of a letter having been received but not read till after her report to the police;
viii)    Her evidence that she signed an affidavit she knew to be untrue in the Family Court proceedings.
In some instances these pieces of evidence reveal the existence of a prior inconsistent statement. In other instances they are suggestive of a witness engaged in reconstruction. There is also the evidence of her aunt, K, A. I have already indicated that I have accepted her evidence. I find that the conversation, that she spoke of, did take place and that G did say she was going to teach the accused a lesson. Whilst a conversation in these terms and the allegations of rape and assault are not necessarily inherently inconsistent, they do give me grave concern as to whether the offences alleged by G took place in the manner described by her or at all.
Finally, there is the forensic evidence. It was put to G that no acts of intercourse occurred, as she alleged, in the spare room but that one act of intercourse did take place in the bedroom at the end of the hall.
If no act of intercourse took place in that room the absence of any semen on the layers of bed clothing seized from that spare room and examined by Officer Allen is more easily understood.
Equally, the finding by Mr Allen of only one condom suggests that only one act of intercourse with a condom took place or that if two acts of intercourse (as asserted by G) took place one of those was without a condom. If the latter scenario is correct, the absence of any sperm or semen on G’s vagina, labia or cervix does not support such a version.
Conclusion
Even without taking into account the evidence of the defence witnesses as to G’s reputation for dishonesty, I am left with an uneasy feeling, based on G’s evidence as to where the truth lies. I cannot be satisfied beyond reasonable doubt as to either the credibility or reliability of G in relation to the matters forming the elements of any of the charges or indeed the uncharged acts.
My verdicts are:
Count 1     Not guilty
Count 2     Not guilty
Count 3     Not guilty