R v Sondhi
[2023] SADC 41
•21 April 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SONDHI
Criminal Trial by Judge Alone
[2023] SADC 41
Reasons for the Verdicts of his Honour Judge Muscat
21 April 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCE AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The defendant is charged with five counts of raping his wife.
Verdicts: Guilty of all five counts of rape.
Criminal Law Consolidation Act 1935 (SA) ss 46, 47, 48; Evidence Act 1929 (SA) ss 29B, 34M, 34P(2)(a), 34R(1); Legislation Interpretation Act 2021 (SA) s 16(1), referred to.
R v Dhir [2019] SASCFC 55, applied.
R v Markuleski (2001) 52 NSWLR 82; Re Bolton Ex Parte Beane (1987) 162 CLR 514; R v Ribbon (2019)134 SASR 328, discussed.
R v SONDHI
[2023] SADC 41R v SONDHI
Charges
Vipul Sondhi (‘the defendant’) is charged with five counts of raping his wife (‘C’):
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Vipul Sondhi on the 11th day of January 2021 at Joslin, engaged or continued to engage in sexual intercourse with C, by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Second Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Vipul Sondhi between the 14th day of February 2021 and the 22nd day of February 2021 at Joslin, engaged or continued to engage in sexual intercourse with C, by inserting his penis into her anus, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Third Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Vipul Sondhi on the 11th day of March 2021 at Joslin, engaged or continued to engage in sexual intercourse with C, by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Fourth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Vipul Sondhi on the 19th day of March 2021 at Joslin, engaged or continued to engage in sexual intercourse with C, by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Fifth Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Vipul Sondhi on the 21st day of March 2021 at Joslin, engaged or continued to engage in sexual intercourse with C, by inserting his penis into her anus, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Trial by judge alone
The defendant has elected to be tried by judge alone.[1]
[1] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 dated 17 January 2023.
Legal principles
The defendant is presumed to be innocent of the charges. He is not required to prove anything. The prosecution is required to prove the charges and to do so beyond a reasonable doubt. The prosecution must also exclude any matter raised by the defendant that might affect proof of the charges, as a reasonable possibility.
Separate consideration of each count
Each count must be considered separately and only upon the evidence that relates to the particular count under consideration.
Section 29B of the Evidence Act 1929 provides:[2]
29B—Prohibited direction in relation to doubts regarding truthfulness or reliability of victim's evidence
(1)In a trial in which more than one offence is charged, the trial judge must not direct the jury that if the jury doubts the truthfulness or reliability of the victim's evidence in relation to a charge, that doubt must be taken into account in assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.
(2)Any rule of common law under which a trial judge is required or permitted to give the jury a direction referred to in subsection (1) is abolished.
[2] Section 29B of the Evidence Act 1929 came into force on 1 June 2022.
Initially, I considered that s 29B reflected an intention by the Parliament to abolish the ‘Markuleski direction’.[3]
[3] R v Markuleski (2001) 52 NSWLR 82. A Markuleski direction qualifies the standard direction given to a jury to consider the counts separately and only upon the evidence that applies to the count under consideration. It permits, in an appropriate case, the jury to be told that where the jury has doubts about the complainant’s credibility in relation to one count, it may have regard to that doubt when evaluating the complainant’s credibility with respect to the other counts.
Indeed, this is how the Statutes Amendment (Child Sexual Abuse) Bill, to insert s 29B into the Evidence Act, was explained when being introduced to the Parliament.[4]
[4] In the Legislative Council on 24 August 2021 at 3957 the Treasurer said “The Government is pleased to introduce the Statutes Amendment (Child Sexual Abuse) Bill 2021. The Bill introduces a number of important reforms proposed by the Royal Commission to institutional responses to child sexual abuse. The Royal Commission was established in 2013 and undertook five years of enquiry into institutional responses to instances and allegations of child sexual abuse. The Royal Commission delivered four sets of recommendations, one of which was contained in the Criminal Justice Report tabled in Federal Parliament on 14 August 2017 … Clause 16 of the Bill inserts a new s 29B into the Evidence Act to abolish Markuleski directions, as recommended in the report. New s 29B provides that in a trial where more than one offence is charged, a trial judge must not direct the jury that its doubt regarding the truthfulness or reliability of the victim’s evidence in relation to one charge can be considered when assessing the truthfulness or reliability of the victim’s evidence generally or in relation to other charges”. (Emphasis added).
In the House of Assembly on 23 September 2021 at 7742, the Attorney-General said “Clause 16 of the Bill inserts section 29B into the Evidence Act to abolish Markuleski directions as recommended in the Criminal Justice Report. New s 29B provides that in a trial where more than one offence is charged, a trial judge must not direct the jury that it’s doubt regarding the truthfulness or reliability of the victim’s evidence in relation to one charge, should be considered when assessing the truthfulness or reliability of the victim’s evidence generally or in relation to other charges”. (Emphasis added)
However, the section, as it ultimately appeared in the Evidence Act, only prohibits a direction that a jury (or other trier of fact) must, as opposed to may, take into account a doubt it has about the truthfulness or reliability of a victim’s evidence on one charge when assessing the truthfulness or reliability of the victim's evidence generally or in relation to other charges.
Section 16(1) of the Legislation Interpretation Act2021 allows use of parliamentary material to assist in interpreting a provision, if it is capable of assisting in ascertaining the meaning of that provision. It may be referred to as an aid to confirm that the meaning of the provision is the ordinary meaning conveyed by the text (taking into account its context in the Act and the purpose or object underlying the Act) or to determine the meaning if the provision is ambiguous or if the ordinary meaning conveyed by the text (taking into account its context in the Act and the purpose or object underlying the Act) leads to a result that is manifestly absurd or is unreasonable.
However, the limits of the use that can be made of a second reading speech were discussed by Mason CJ, Wilson and Dawson JJ in ReBoltonEx ParteBeane.[5]
The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
[5] (1987) 162 CLR 514 at 518. See also R v Ribbon (2019) 134 SASR 328 at [116] – [132].
Despite what the parliamentary speeches reveal, I consider the section, as worded, does not prevent me from taking into account any doubts I may hold about the truthfulness or reliability of C’s evidence in relation to one count when assessing C’s truthfulness or reliability either generally or in relation to the other counts. This is how I have approached my assessment of C’s evidence. As will appear later in these reasons, I did not have any doubts about the credibility or reliability of C’s evidence relating to any of the counts, or generally for that matter.[6]
[6] Notwithstanding Parliament’s apparent intention to abolish the Markuleski direction, all that is prohibited by s 29B is a direction in mandatory terms. Perhaps this needs to be reviewed by Parliament if this was not what it intended.
Elements of the offence of rape
A person (the offender) commits the crime of rape when the offender engages in an act of sexual intercourse with another person (the complainant), who does not consent to that act of sexual intercourse, and the offender knows that the complainant is not consenting to the act of sexual intercourse or is recklessly indifferent to the fact that the complainant is not consenting to the act of sexual intercourse.[7]
[7] Section 48 of the Criminal Law Consolidation Act 1935.
The crime of rape consists of three elements or parts, each of which must be proved by the prosecution beyond a reasonable doubt before a defendant can be found guilty.
The elements of the offence of rape are:
1.The defendant engaged in an act of sexual intercourse with the complainant.
2.The complainant was not consenting to the act of sexual intercourse.
Consent means the free and voluntary engagement in sexual activity.[8]
3.The defendant either knew that the complainant was not consenting or was recklessly indifferent to the fact that the complainant was not consenting to the act of sexual intercourse.
A defendant is recklessly indifferent to the fact that the complainant does not consent to an act of sexual intercourse, or has withdrawn consent to an act of sexual intercourse, if the defendant:
(a) is aware of the possibility that the complainant might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b) is aware of the possibility that the complainant might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the complainant does in fact consent, or has in fact withdrawn consent to the act before deciding to proceed; or
(c) does not give any thought as to whether or not the complainant is consenting to the act or has withdrawn consent to the act before deciding to proceed.[9]
[8] Section 46 of the Criminal Law Consolidation Act 1935.
[9] Section 47 of the Criminal Law Consolidation Act 1935.
Background
The defendant and C were both born in India.
The defendant arrived in Australia in 2013 and lived with his older brother Ankit (who was married) in Adelaide. The defendant lived with his brother and sister-in-law in an apartment on South Terrace, Adelaide that was owned by the defendant’s sister-in-law.
C holds a Bachelor’s degree in Education, a Bachelor’s degree in Commerce, and a Master’s degree in Commerce, all obtained in India.
C arrived in Melbourne, Australia in February 2016, to study for her Master’s degree in Business Accounting at Victoria University. After arriving in Melbourne, C lived with her brother, A. When C completed her Master’s degree, she obtained employment with a firm of chartered accountants in Shepparton, Victoria.
C said that her parents (who were living in India) wanted her to settle down in life and to get married. C said that she created a profile of herself and placed it on an arranged marriage website called ‘Shadi.com’.
The defendant, through the assistance of his brother, had also created a profile of himself, which was placed on the same arranged marriage website.
At the time, the defendant’s parents were in Adelaide. They had arrived from India in October 2019 and had a visa for 12 months. Upon the arrival of his parents, the defendant moved into an apartment owned by his sister-in-law in the same apartment block on South Terrace. The defendant’s parents lived in that apartment with him.
As it happened, C and the defendant had each placed their profiles on the arranged marriage website at around the same time in October 2019.
C said that towards the end of October 2019 she received an ‘invitation’ through the website, attaching the defendant’s profile.
Following some communications with the defendant’s brother, arrangements were made to meet the defendant and his brother. The defendant and his brother travelled to Melbourne to meet with C and her brother. Following this initial meeting, C and her brother then travelled to Adelaide to meet with the defendant’s parents. During this meeting, which included a telephone link with C’s parents in India and the checking of horoscopes,[10] it was agreed between the families that the marriage between C and the defendant would go ahead. C and the defendant then participated in a 'roka', which is a traditional Indian ceremony in which each person gives their commitment to the marriage.
[10] In Hinduism, horoscopes of the prospective bride and groom are matched for compatibility, as it is considered important for a happy, long and successful marriage.
C and the defendant were married in a traditional Indian ceremony in the Punjab region of India on 9 February 2020. C said the marriage was supposed to be registered in India on 12 February 2020 but that did not occur.
C gave up her employment in Melbourne, as after the wedding in India she was going to live with the defendant in Adelaide.
C and the defendant had their honeymoon in the Maldives before returning to Adelaide later in February.
While on their honeymoon, C said that she and the defendant discussed starting a family. While C said that there was disapproval of this from the defendant’s brother, she and the defendant agreed that they would live their own lives. C fell pregnant during the honeymoon.
When they returned to Adelaide from their honeymoon, C and the defendant lived in the South Terrace apartment where the defendant had been living with his parents before his parents had travelled to India for the wedding. After the defendant’s wedding in India, his parents remained in India intending to return to Adelaide in April 2020. However, by then, Australia’s borders were closed because of the Covid-19 pandemic and the defendant’s parents were unable to return to Australia.
C had not been able to find employment in Adelaide, South Australia. The defendant worked long hours across three jobs.
C said because the marriage was not registered in India, she wanted to have the Indian marriage legally recognised in Australia. C said that she raised this with the defendant. C said her brother-in-law told her that there would be a ‘court marriage’ (as it was described in evidence) in Adelaide.
C said that each time she raised the court marriage with her brother-in-law he would tell her he was attending to it, and that it would be straightforward to arrange.
C said she then made her own enquiries and discovered that 28 days notice was required before a marriage could occur in Australia.
C said she was becoming anxious, as her visa was to expire on 4 May 2020.
C said there were several discussions relating to the court marriage that involved her brother-in-law.
C said her brother-in-law told her that she was using his brother and making his brother ‘work like a dog’. C said her brother-in-law then told her that the court marriage was ‘not going to happen’. C said her brother-in-law told her that she would need to either apply for a student visa or call for money from her family in India so she could remain in Australia.
C said these discussions occurred in the presence of the defendant. C said that she asked the defendant to stand up for her against what his brother was saying, as it was hurtful.
C said that her brother-in-law told her that he did not want her and the defendant to have the court marriage, as the family wanted to wait six months to see whether C should be accepted into their family and then they would decide if there would be a court marriage. C said that her brother-in-law told her that the defendant would not go against his family’s wishes.
C said that despite her brother-in-law’s clear position that she and the defendant should wait six months before the family would decide on a court marriage, the defendant went against his brother’s advice, resulting in the defendant and his brother falling out. The brothers stopped communicating with each other thereafter.
C and the defendant were married in a civil ceremony (the ‘court marriage’) at the Adelaide Registry Office on 28 April 2020.
Despite having a lease over the South Terrace apartment until the end of October 2020, C and the defendant moved out at the end of July 2020. C said the defendant told her that his brother had sent a text to their father in India, who said that he wanted C and the defendant to move out of the apartment as soon as possible. C and the defendant moved into a smaller, rented unit, in a suburb. C said that she did not want to move out of the South Terrace apartment but had no choice.
C gave birth to their son on 29 November 2020. The child was delivered by caesarean section.
The Prosecution case
C said that following the birth, she was very weak. She said her doctor advised her that she and her husband should not have sex for six weeks.
C said that during the six weeks following the birth of their child she was extremely tired. C said during that six-week period the defendant asked to have sex with her on two occasions.
C said the first request was made by the defendant around the middle of December 2020. C said that she said no to him and explained that the doctor had advised against having sex for six weeks. C also said that she was still in pain following the caesarean birth. C said the defendant did not pursue this request and instead he watched pornography on his mobile telephone in the shower where he masturbated.
C said the defendant asked her for sex again in early January 2021, when she also declined for the same reasons. C said that she was very tired and still in pain. C said she had not fully recovered from the caesarean section and felt physically weak and mentally drained.
C said that on this occasion the defendant wanted her to perform fellatio, but she declined. C said she only agreed to masturbate the defendant to ‘get him away’.[11] C said she did so until ‘he took over [from her] after about a minute’.[12]
[11] T 54.7 - 14.
[12] Ibid.
C said that when she would tell the defendant that she did not want to engage in sex, the defendant would try to persuade her. C said the defendant would say ‘We will see to it when the six weeks are over’.[13]
[13] T 55.33.
Although not discreditable conduct, these two incidents, as described by C, and C’s evidence of what the defendant would say to her, was elicited by the prosecution to demonstrate (if accepted) that at that time C was not interested in, or physically up to, engaging in sexual activity with the defendant and C made that clear to him. This evidence also reveals (if accepted) that after a period of abstinence from sexual activity in the marriage the defendant was interested in resuming sexual activity with C and further, that he was expecting C to engage in sexual activity with him after the passage of six weeks from the birth of their child. This evidence has not been used by me to reason that the defendant committed the charged counts of rape.
Indeed, on the defence case, this evidence contradicted the prosecution case that the defendant was treating C as he wanted; that C was there to do that which he said she must do, and that he disregarded her wishes in relation to the acts of sexual intercourse that formed the basis of the charges.[14]
[14] Defence closing address.
C said that her parents-in-law applied for a visa to reside permanently in Australia. In October 2020, the application for the parents-in-law visa opened. This required the payment of about $60,000. C said that payment was made by her brother-in-law and the defendant contributed $20,000 towards this amount. C said that she was made aware of the payment only after the money had already been transferred from their joint account to her brother-in-law’s account. C said that she was upset that their savings, which were intended to be used towards purchasing their own house, were being used to pay for her parents-in-law visa application, especially so close to the birth of their child. C said that she was concerned this would impact upon their ability to cover the cost of the birth. However, C said that despite these concerns she would not have stopped her husband from transferring the money, just as she had no issues over her husband sending $500 to his parents in India each month.
In early January 2021, C’s brother visited her from Melbourne. He was in Adelaide for about two weeks and stayed with C and the defendant in their unit, sleeping in the living area.
C said that her parents-in-law arrived from India on 11 February 2021 on the visa paid for by the defendant and his brother. They were required to quarantine in Melbourne for two weeks, as was the position at the time as a result of the Government’s response to the Covid pandemic.
C’s parents-in-law arrived in Adelaide on 26 February 2021 and lived with the defendant and C (and their baby) in their unit. Her parents-in-law slept on a mattress in the living area. C said that her parents-in-law were not able to live with the defendant’s brother because his partner was from a different cultural background,[15] and her sister-in-law did not want any interference from her parents-in-law.
[15] C’s sister-in-law was Chinese Taiwanese: T 243.33.
C described feeling very isolated at this time. The defendant was working three jobs while she stayed at home to look after their son on her own and attend to the cooking and housework.
C described her married life with the defendant as ‘waking up, cooking his meals, he coming home, sleeping, going to another job, eating, sleeping’.[16]
[16] T 43.
C said that after the defendant’s parents arrived his behaviour changed. She said that after speaking with his parents, he would become aggressive and abusive toward her, and he would yell at her. C also said that the defendant started drinking with his father and that he stopped helping her around the house and with their child as he had been doing before his parents arrived.
C said that she did not receive any help from her parents-in-law. C said she did not enjoy a good relationship with her parents-in-law, particularly her mother-in-law, and this created stress in the marriage.
C said that the defendant appeared to be heavily influenced by his parents, and this affected how he treated her in the marriage, adding further stress to their marital relationship.
As the stress in the marriage intensified, C said the defendant told her he would give her a divorce and that it would better for her to return to India. C said she did not want a divorce and did not want to return to India. C said that she was not looking to separate from her husband.
C described the situation after her parents-in-law moving in as ‘torture’.[17]
[17] T 83.3; 147.12 – 15.
C said she was feeling totally isolated and did not know what was happening in her marriage or who she could turn to for help.
Discreditable Conduct
The prosecution led evidence from C from which it asked the court to infer the defendant was controlling, both emotionally and financially, and that this explained how and why C behaved and reacted as she did during the period encompassed by the counts.
Having heard the evidence, I consider it does not assist in explaining C’s behaviour in relation to the offences.
The defendant had three jobs and worked long hours, often returning home late at night. In my assessment of this evidence, it represents nothing more than what might have been expected in an arranged marriage, with C feeling that she was not being supported as much as she would have liked from the defendant in the marriage and this is particularly so, given the long hours the defendant was working, meaning that he was unable to contribute as much as he would have wanted.
I have not used this evidence against the defendant in my consideration of proof of any of the counts.
I have also not used the evidence C gave about her treatment by her parents-in-law in my consideration of the counts. Their treatment of, or attitude towards C, cannot be attributed in any sense to the defendant.
The defence position in relation to this evidence was that C was painting a picture of the defendant and her parents-in-law that was simply untrue and that this impacted upon C’s credibility generally.[18]
[18] See Defence closing address.
I have taken this approach and have only used this evidence in assessing C’s credibility.
Charged offences
C alleged that on five separate occasions between 11 January and 21 March 2021 she was raped by the defendant. C left the marital home on 24 March 2021, a few days after allegedly being raped by him on the 21 March 2021.
Count 1
C said that her brother arrived from Melbourne on 5 January 2021 for a visit and was staying with them in the unit.
On 11 January 2021, C and the defendant had an appointment with their doctor, for their child’s six-week medical check-up following his birth (including a vaccination), as well as a check-up for herself.
C said that when they arrived at the doctor’s surgery, they realised they had left their child’s ‘blue book’ at home. C said the defendant drove back to collect it. C said that while the defendant was away, she was called into the doctor’s room and so the defendant was not present during the consultation.
C said that when they were driving home from the doctor’s surgery, she told the defendant that the doctor had wanted to speak with them together about contraception, but as the defendant was not present that could not happen. C said she told the defendant the doctor advised her that in the meantime, they should use condoms during sexual intercourse. However, C said that she told the doctor that she was not ready to resume sex with her husband. C said when she told the defendant what she said to the doctor, he became upset and replied ‘No, no, we will have it’. C said she told the defendant ‘No, I’m in pain’.[19]
[19] T 58.19 – 21.
C said that on the way home they detoured through the city and picked up her brother before arriving home between 1.30 pm and 2.00 pm.
C then detailed what happened:[20]
[20] T 58.29 – T 60.32.
XN
QSo, you picked your brother up, you got home, what happened when you got home.
ASo, when we get home my brother was in the living area, and I was on the bed. I was laying down and then Vipul entered the room and he said before he gets to work, he wants to have sex with me and I said, 'I told you I'm not ready, I'm in pain, don't do it'. Vipul then started forcing himself on me.
Q How.
AHe put his hand over my mouth, I told him 'My brother is here, I don't feel comfortable and I'm in pain'. Because that was such a small unit, voice can easily be heard (INDICATES), so but still Vipul kept on forcing. I kept on telling him 'Don't do it, please, I don't want to do it'. He put mouth - hand on mouth and said, 'It will only take two, three minutes' and then he removed my pants, and he inserted his - I'm sorry.
QThat's all right, you take your time.
A And he inserted his penis very forcefully in my vagina.
Q What happened then.
AIt was hurtful because it was with a lot of force and before Vipul was about to ejaculate, come, he went to the toilet, and he then cleaned himself there.
QDid he do that before he ejaculated; that is, take his penis out of your vagina before he ejaculated.
A Yes.
HIS HONOUR
Q How long did the act of sexual intercourse take.
A Sorry?
Q How long did the act of sexual intercourse take.
A It was two to three minutes.
XN
QBefore he put his penis in your vagina did he say anything about whether he was allowed to do that, what did he say.
AI was telling him not to do, I told him 'My brother is outside'. He said, 'You are my wife, I can do anything, don't make noise' (INDICATES).
HIS HONOUR
QYou just indicated then by placing your hand to your mouth, what did you mean by that.
A Sorry, come again?
Q What did you mean by placing your hand over your mouth.
A So, his hand was over my mouth, don't make noise.
QAre you telling me that when he said to you 'Don't make noise', is that when he put his hand over your mouth or did he have his hand over your mouth already.
A Already.
XN
QDid you ever talk to him about that incident, about what had happened, that is talk to your husband.
A Sorry?
Q Did you ever discuss with Vipul what had happened in the bedroom.
AAfter that, after some time he left for work and I was totally in shock that I am telling not to do and he is still forcing himself on me without knowing how I am feeling, I am in pain and thinking that my brother is outside. It will be so embarrassing.
Q Is there a reason you didn't talk to him about it.
AMy brother was there. When he used to come home, we had dinner and then straightaway go to bed because I was so tired, and I was like not happy with what's happening and there was so much stress already.
Complaint evidence in relation to Count 1
C said that after being raped by the defendant he left for work. C said that while the defendant was at work she spoke to her brother.[21]
[21] T 60.12 – T 61.27.
QHow did you feel when you saw your brother.
AI was totally blank, and I was not in myself which my brother noticed and he asked me couple of times 'What happened, why are you not happy, you look upset'.
QCan I stop you there. When did that conversation with your brother happen, was it that day or a later time.
QA. That day, that day, it was somewhere in the evening.
QCan I go back to your conversation with your brother. Can you tell us what you said to your brother.
AI did not discuss much details but when he asked me multiple times that why I not happy in myself, then I told him that Vipul forces me to do these things so it was in my native language, do you want me to speak those words?
QYes, unfortunately they won't mean anything to us. If you can translate them as best you can in your own head, what words did you use translated.
AThat he's been forceful on me and do things I don't like.
HIS HONOUR
QDid you mention to your brother what he did to you.
ANo.
QWhen you said he was being forceful to you, did you explain to your brother what you meant by that.
ANo, because of cultural reasons, we are not open to the main members of our family.
XN
QThe words you used in your native language, the words for forceful or their equivalent, does that have a meaning, did they have meaning in your native language.
ASo, z-a-b-a-r-d-a-s-t-i was the word.
QSo, what does that word mean.
ASo, it's like pushing, being forceful.
QDoes it have any sexual meaning.
AYes, so if I'm telling this to someone in like from our background, I'd say he is doing the zabardasti with me, they will understand what that means.
QThey will understand what.
AThat it's regarding sexual act.
Under cross-examination, C initially said that the defendant was dressed in his Elder Care work uniform when he left for work, however, added that she was not 100 % certain of this because it was so long ago.
During cross-examination, C also said that on this day the defendant and her brother went to watch a cricket match at Adelaide Oval in the evening. This was the first time C had mentioned that she was raped on the day of a cricket match. C explained that because she was being closely questioned by defence counsel, and as she was recalling the incident, her memory was revived about it occurring on the day of the cricket match. C denied the suggestion made by counsel for the defendant that she only said this because she had said in examination-in-chief that the conversation with her brother occurred in the evening, and then realised that was wrong because he was at the cricket. C denied this demonstrated that she was making up this conversation.[22]
[22] T 117.28 – 33; T 118.35 – T 120.20.
C said she was supposed to go to the cricket with the defendant and her brother that evening, but because her child was in pain following the inoculation earlier that morning, she did not attend and in her place one of the defendant’s friends attended the cricket match instead.[23]
[23] T 117 - 120.
It is an agreed fact that there was a cricket match at the Adelaide Oval on 11 January 2021 between the Adelaide Strikers and the Melbourne Stars starting at 6.45 pm and that the defendant had three tickets to the match.[24]
[24] Agreed Fact 4 of Exhibit D7.
Under cross-examination, C accepted that in her police statement dated 11 April 2021 she had stated that this first rape occurred on either 12 or 13 January 2021. It was suggested to C that she was making up this incident. C explained that she had told the police that it had occurred on the day that she had taken her son to his doctor’s appointment for his six-weekly check-up. C said she mentioned this to the police at the time, but it was not recorded in the statement.
Detective Ryan said that he had taken C’s statement on 11 April 2021. He said in evidence he recalled that C did tell him the first alleged rape occurred on the day she had taken her son for his check-up, but that he did not include this in the statement he prepared for C to sign.[25]
[25] T 235.14 – T 236.4.
I accept C’s evidence that when she was describing to Detective Ryan the first alleged rape, she was referring to it as having occurred on 11 January 2021. I accept C’s evidence that when she was giving her statement to Detective Ryan, she did not know the precise date of the first rape she alleged, until she checked her records. I will return to this later in these reasons.
C agreed that her account of the conversation with her brother, in which she disclosed that she was forced by the defendant to have sex, first appeared in a statement she provided to the police on 29 March 2022. C said that she had told Detective Ryan about this conversation much earlier than that. Detective Ryan said that while he did not recall specifically asking C on 11 April 2021 if she had disclosed any of the alleged rapes and to whom, he believed that he would have asked this of C, and if she had mentioned it, as C has said, then that would have been included in the statement.[26]
[26] T 237.24 – T 238.3.
C’s brother gave evidence of the conversation in which his sister disclosed the sexual assault to him. He said:[27]
[27] T 217.1 – 218.14.
XN
QNow if we go back to the time that you have spent in Adelaide at the apartment in Joslin, were there any occasions where you spoke to C about her relationship with Vipul.
ASo there was a few occasions when I feel she was not connecting well with me or she was, you know, just break down, crying, and then I used to, you know, repeatedly ask 'What happened, what happened?'. Then she used to, you know, tell me about that there was one instance that she said that he is forcing and she used a Punjabi word, yeah, so I was also very shocked to listen to what she said, and then as a younger brother, I didn't - I don't know how to react about that and then I just said 'You should talk to mum or someone'. I was just feeling helpless.
When you say that she used a Punjabi word, what was that word.
ASo, it was Zabardasdi.
HIS HONOUR.
Q Can you spell that for the reporter.
A Yeah, it's Z-A-B-A-R-D-A-S-D-I.
XN
QWhat does that word mean.
A.So, it's if you get into it like particularly it's a moral for, you know, for forcing for sex or - yep.
QThat means forcing during sex.
AThat's what it means in - yeah, because we don't talk about that in our culture, so it's very widely used word in India that usually tells, you know, when the girl is talking to someone and using this word, why is that context, so yes.
QDid she tell you anything else about this incident.
AWhen she told there was like complete silence because I don't know how to address that because of that culture barrier, I was the younger brother and brothers and sisters don't talk about it, about sex and everything so I just was completely silent there and she was crying you know, I was just calming her down and telling her, you know 'You should talk to mum about that', or I just felt helpless, I couldn't do much about it.
QDid you ask her any details about what had happened.
ANo, I didn't have that courage.
QWas Vipul home at the time of that conversation.
A No.
QDo you know where he was.
AHe was at work.
HIS HONOUR
QI know this is hard to recall because it's quite a while now, but by reference to when you arrived in Adelaide, are you able to say when she said this to you.
AIt was three or four days into my visit.
C’s brother said that he did not speak to the defendant about what his sister had disclosed, out of cultural respect. He said that in Indian culture sons-in-law are treated with great respect and because he was younger than the defendant it was not his position to confront him. He repeated that given the cultural aspect to their relationship he could not speak with the defendant about it.[28]
[28] T 218 - 219.
Under cross-examination he stated:
QThe conversation that you had with your sister when she told you about Vipul forcing himself on her, I just want to ask you about that. Did she tell you about an occasion when he forced himself on her, that it involved him putting his hand over her mouth.
ASo that was the instance when she was, next morning, I think that happened the day, last night, then she was really, her appearance changed and I, upon asking her repeatedly, she broke down crying and she used that Punjabi word and then I said that 'Why didn't you call me or make any noise?', then she said that she, the things you said, she told me that.
QShe told you that he had put his hand over her mouth.
AYes, and the body weight.
Q Sorry, I missed that last bit.
AAnd the body weight on her.
QWhen your sister told you this, about Vipul forcing himself onto her, you were aware that it was a criminal offence, were you not.
AI was not having any idea how bad that was, or what was, I didn't know that.
C’s brother said that he only dropped the defendant at work on one occasion and believed that was not on a day that they went to the cricket.[29]
[29] T 229.6 – T 229.14.
C’s disclosure to her brother (if accepted) amounts to evidence of complaint, pursuant to s 34M (3) of the Evidence Act.
This evidence is relevant as informing how C’s allegations that the defendant sexually assaulted her in relation to this count first came to light and as evidence of the degree of consistency of C’s conduct.[30]
[30] Section 34M (4)(a) Evidence Act1929.
It does not amount to evidence of complaint in relation to any of the other counts.
C’s complaint is not evidence of the truth of what she disclosed to her brother about being sexually assaulted on this occasion.[31]
[31] Section 34M (4)(b) Evidence Act1929.
It was submitted by the defence that C and her brother did not have any conversation where C disclosed that she was forced by the defendant to have sex. It was suggested they fabricated the conversation. Both C and her brother denied these assertions. I will return to address this submission later in these reasons.
Count 2
C said that sometime in mid-February 2021, she was raped by the defendant for the second time. She described the incident as follows:[32]
[32] T 62.13 – T 63.19.
XN
AIt took place in the bathroom, in the shower area.
QOf your place at Joslin.
AYes.
QTell us what happened.
ASo I was taking shower at that time and [our son A] was sleeping and Vipul entered the bathroom without any clothes and he started saying 'Let's make love, let's bring the love back again' and I said 'No, no, I want to get out of the shower as soon as possible because Aarav can wake up any time' and then he said 'No, it will take us just few minutes, let's take a bath together' and then he came in the shower area where I was already taking bath and the shower area was very tiny, like if two people are standing there, there is no room for movement, much movement. When he came there I repeatedly said 'No, I need to get out of the bathroom as soon as possible' and he just said 'It will take me just two to three minutes' and he bent, bent me towards one of the corner of the shower and he started putting his penis on the - on the anal [sic] which I said 'Don't do it because I don't like it and it's, I bleed afterwards'. He said 'Don't worry, it will take only two, three minutes' and then he just bent me down and he hold my breast very tightly and milk started to came out because I was feeding at that time to my son and he continued pushing his penis up in the anus and after that, after couple of minutes he just ejaculated in the shower area.
QSo did he pull his penis out.
AYes and ejaculated there and it was - I told him already that it bleeds. He did have anal sex before with me and every time it bleeded.
QYou did you tell him before, before this day, did you tell him previously that you didn't want to have anal sex.
AYes, many times because it always used to bleed and it's painful.
HIS HONOUR
QI just want to clear one thing up. I think I know what you meant but it has to be clear in my mind. Did he put his penis inside of your anus.
AYes, so it did not went completely in but it was bit inside.
QCan you remember now what time of the day this incident happened.
AIt was somewhere in the afternoon.
Count 3
C detailed a third alleged rape that occurred on 11 March 2021. Her evidence relating to this incident is as follows:[33]
[33] T 64.34 – T 70.1.
XN
QSo, we then move forward in time. So had the incident in the shower, did something happen after that on a day when you were fasting.
AYes.
QWhen was that as best you can estimate.
AThat was 11 March.
QTell us about the fasting, what's that about.
AThat was a Thursday and I normally used to fast on Thursdays, but I used to skip few Thursdays depending if I am not feeling well or if I am having periods because during periods we can't fast. So, on that day I was fasting, and I was dressed in traditional suit.
QI might stop you there because it may or may not be particularly relevant but tell us about that, what's the traditional suit got to do with fasting, what's that about.
AThat's our Indian dress and normally when it's something regarding the religion we prefer to get dressed accordingly and I was wearing like traditional clothes which was red in colour and I applied some makeup and Bindi, so Bindi is normally put up by women who are married in our tradition.
HIS HONOUR
QCan I ask you why you were fasting.
AI'm fasting for many years.
QIs there a reason why you fast.
AIt is just the believe in God. I believe in God so it's like on that day we fully like - not getting the word - like, we are like chanting God's name inside and praying to God.
QSo, it forms part of your religion.
AYes.
XN
QWas Vipul home that day when you put on your traditional dress and some makeup.
ANo.
QAt some point did he come home.
AYes.
QTell us what happened when he came home.
ASo, he came, when he came home at that time I was in my bedroom. I was laying on the bed and he came home, and he said in our native language 'Oh wow, why are you so dressed up today, are you seducing me?'. I said, 'No I'm fasting today so that's why I am dressed up'. He said 'No, no, you now have made my mood and I want to do sex with you'.
QWhat did you understand by 'you have made my mood'.
AThat I have attracted him towards myself where he wants to do that sexual thing with me.
HIS HONOUR
QHad you dressed up like that before during your marriage.
AYes.
QHad you fasted during your marriage.
ASo, when I used to dress up I was fasting.
XN
QWere these things that Vipul was well and truly familiar with you.
AYes.
QIt wasn't the first time you dressed up and put some makeup on the day you were fasting.
AThat's right.
QWhat was your reaction to his suggestion that you might have sex.
AI said 'No, no, I am fasting and as you know, when we are fasting we cannot do this'. He said, 'That's okay, don't worry about it, we will have sex' and then he went outside to his mum and asked her again 'Why is she so dressed up'.
QI am going to have interrupt you there sorry, we have to try and work out how - your mother-in-law and father-in-law were there too.
AYes.
QYou told us you think this was 11 March, when was it that they arrived in Adelaide.
ASo, they arrived on 26 Feb 2021.
QWhere were they staying.
AThey were staying with us.
QWhat about the older brother though, did he still have his places at South Terrace.
AYes.
QWhat was going on there.
AI don't know.
QSorry, I did cut you off before. You are in the bedroom, there is talk about having sex, you have mentioned parents being there, what happened then.
AThen Vipul came inside the room and in the room I used to keep the curtain this much up (INDICATES), so that some light can come inside.
QYou are there just indicating with your fingers about eight or so centimetres.
AYes, as much of, approximately this much off from the window panel we call it.
QYes.
AThis much high (INDICATES), so that some light can come in the room. And Vipul then came in the room, shut the door, went there and put the curtains down, and then he came near me, I still told him 'Please do not do it', and he just grabbed my hands like this (INDICATES).
QJust stop there. We have to just read onto the transcript what you've just shown us. Did you then raise both of your hands up to about, sort of ear height, is that a fair description.
ASo, he put my arms like this (INDICATES).
QJust stop there.
MR PEARCE: Is your Honour satisfied with that description for the transcript?
HIS HONOUR
QHow high were your hands held up.
AIt was, so I was lying on the bed, and it was like this, he had a grip of my wrist (INDICATES).
HIS HONOUR: So, at head height Mr Pearce?
MR PEARCE: Above the shoulders.
HIS HONOUR: Above the shoulders.
MR PEARCE: Thank you your Honour.
XN
QDid he grab you.
AHe hold my wrists (INDICATES), and his body weight was on me.
QAre you still wearing that traditional dress.
AYes.
QWhat happened then.
AThen he was holding me in this position (INDICATES), and very tight grip, I was unable to move. But I was pushing my legs, and somehow I released my legs, and I told him continuously 'Please do not do it, please do not do it' but then he removed my, the pants.
QYes.
AAnd he pushed his penis in my vagina.
QSo was he wearing clothes when he came into the room.
AYes, he was in his work uniform.
QWhat happened to his clothes, by the time he was holding you on the bed.
AHe opened his belt and removed his pants and hold the penis.
QWhat did he do then.
AHe then put his penis in my vagina.
QYes.
AAnd he said - I said, 'Please do not do it, I told you it's my fast, please don't do it', and his parents were outside, I intentionally said 'help, help me', he laughed and said, 'no-one is going to help you, don't scream'. And he continued to do that. And that day he released inside my vagina.
QWhat happened then.
AAfter that he get up and then for his, another job, he changed the clothes, and he left for work.
QCan you give us a sense of how long that incident took, how long did he have his penis in your vagina.
ATwo, three minutes, four minutes.
QAt that stage, at that point in time, how were you getting on with his mother and father.
ASo, it was like an off and on relationship. When they came to Adelaide they were not talking to me, and I don't know why.
QWhile they were staying in your place at Joslin, were they talking to you then.
ANo. I did, made efforts to talk to them, to make them feel comfortable, but they were like no.
HIS HONOUR
QSorry, what time of the day did this incident happen in the bedroom.
AIt was somewhere in between 1.30 to 2.
Under cross-examination, C agreed that when providing her statement to Detective Ryan on 11 April 2021 she did not mention that she was fasting; was wearing makeup on her face or was dressed in a traditional Indian suit.[34] C said that when she was asked by the police in March 2022 to provide extra information about this incident, she provided these details.[35]
[34] T 160. 23 – T 161.13.
[35] T 160.36. - T 161.3.
Count 4
C recounted a fourth alleged rape that occurred after returning home from a house-warming party. C said that she, the defendant, their child and their parents-in-law all attended the party together. C said the defendant and her father-in-law were both very intoxicated by the time they left the party later that night. C said that when they arrived home the defendant wanted her to assist him to the bathroom. C said she initially refused, telling him that she needed to attend to their child first and then tidy the bedroom before they could go to bed.
C described what happened on this occasion as follows:[36]
[36] T 72.26 – T 76.30.
XN
AAfter that again Vipul told me 'Can you help me to the bathroom'. So before we left for the party there were so many clothes in the room, which we left on the bed. I put those aside in the corner, near the cot and the side table, and because I was so tired, I wanted to just sleep, so that I can get them, like fold them and put them in the right place tomorrow morning. And Vipul said 'Can you help me to go to the toilet'. I, this time I took him, I left him there and then I came, and I was in the bed, he was in the toilet. While he came back from the toilet he opened the wardrobe, which was in the room, and in the wardrobe was my bag, handbag, and he took one protection condom from there.
QWhy did you have a condom in your bag.
ASo, he got that from the market and then he put that there.
QWhat happened after he got the condom out of your bag.
AHe came on the bed, and then he placed it under his pillow, condom, and he then covered himself and me with the blanket.
QSo has he got his clothes on at this stage.
AYes, so singlet and the underwear.
QWhat are you wearing.
AI was wearing my T-shirt and pyjama, night, pyjama.
QWhat happened then.
AAfter that he started to kiss me and removed my clothes.
QDid you say or do anything when he started to do that.
AI told him 'I am so tired, please don't do it, I'm so tired', I even pushed him, said 'Don't do it, I'm tired, I need to go to bed' and moreover I was a bit upset with him drinking so much, and he did not pay attention at the party to me. I and Aarav were sitting in a separate room alone.
QWhat did he do then.
ASorry?
QWhat did he do then.
AWhat did he do then?
QYes.
ASo, he after that, removed his clothes. He removed my clothes and then he came over me (INDICATES), in the position where he was trying to push his penis in vagina, and after like few seconds he then inserted his fingers in vagina, where I stopped him. I told him 'Please could don't do it, it's hurting me, please go away'. I continually stopped him, I pushed him, but he had his, he had my legs over him.
QOver him where.
AOn shoulders, on his shoulders.
HIS HONOUR
QWhat position were you in when he had your legs over his shoulders.
AI was, my back was on the bed (INDICATES), and he was in between the legs.
QWhat position was he in, was he lying, or was he kneeling.
AKneeling.
QKneeling.
XN
QWas he kneeling when he put his fingers into your vagina.
ASorry?
Was he kneeling when he put his fingers into your vagina.
AYeah.
QHad he been saying anything to you while he was doing this.
AWhen I was saying no to him, he was telling me 'Let's bring the love back, it's pleasure. I have lot of energy today', because he was so much drunk. And he was saying 'I can do this all night with you today, don't stop me'.
QWhat happened after he put his fingers into your vagina.
AIt was painful, by continually telling him 'Not to do this, not to do this', he was still doing it, so somehow I managed to push him and then he - so he went back, he rolled over and went back to his side of the bed (INDICATES).
QAnd what did you do.
AI went, I tried to sleep by turning my face to the baby cot.
QSo did that mean you had your back to him.
AYes.
QWhat happened then.
AAfter few seconds I again felt him at my back, where he started licking my body and putting his penis at the back, and anus.
QDid you say anything to him when he was licking your body.
AI told him, 'You making me feel like I am a prostitute'.
QDid he react to that.
AHe said, 'Don't worry, you are my wife, I can do it, and I want to make love today'. When I was telling him 'It's paining, don't do it', he was saying 'This pain is good, this pain is good, don't worry' and -
QIs that when he had his fingers in your vagina.
AWhen he had put his penis at the back.
QI see.
AIn the anus.
HIS HONOUR
QDid he actually insert his penis into your anus.
AIt was just slightly.
XN
QHow long did he try and do that for.
AIt was for a minute or two.
QHow are you positioned when he's trying to do that.
AI was like this, so for earlier I was facing baby cot.
QYes.
AAnd then he pushed me (INDICATES) towards the bed, so my - this front was on the bed.
QWhat did you say to him when he was trying to do that to you.
AI stopped him, I told him 'You are making me feel like a prostitute'.
QHow did he react, what did he do.
AHe did, said 'You are my wife, don't worry, I need to make love all night'.
QWhat did he do then.
AAfter that he rolled me over, and then he put condom, he took from the cupboard, put it, and then he put the penis in vagina.
QAre you on your back at that stage.
AYeah.
HIS HONOUR.
QSorry, I think I misheard you. Where did he get the condom from.
AFrom the cupboard, in the bag. So, we had a wardrobe in the bedroom, and inside that wardrobe is my handbag, and in that he put that box of condom.
QBecause I thought you said earlier when he came to bed that he had a condom which he put under the pillow.
ASo, he got it from there, then he put it under the pillow and then he started this, and then I was on my back, and he then put the condom on his penis and then inserted.
QThe condom that he'd placed under the pillow.
AYes.
XN
QAnd then did he put his penis in your vagina.
AYes.
QWhat happened then.
ASo he was repeatedly doing, like moving his penis in and out of the vagina, and it was very painful and continuously I was telling him not to do, not to do, and he was - normally he used to ejaculate within two, three minutes, but that day it took longer, and he was using his own, like in our native language saying that why it's not happening today, and when he was continually doing that, doing that, I was stopping him, 'That it's causing me pain, I'm tired, please do not do it'. And after around 15 minutes he just released in the condom, and he went, like straight away went to sleep, with the condom on. I couldn't do anything because I did not have any clothes, I couldn't go out.
QSo, what did you do.
AAfter that?
QYes.
AAfter that when he slept, I cleaned myself. I put on clothes, I had to clean him as well, because in the condom there were the sperms, and I have to remove it. I threw it, and then I went to the bathroom to urinate. For some time I couldn't sleep with that, all that trauma and the pain.
C’s evidence of the various sexual acts preceding the final act of vaginal sexual intercourse on this occasion is evidence of discreditable conduct.[37] The evidence was admitted for the specific purposes of first, placing the charged act into context and secondly, as evidence of the defendant’s state of mind in relation to whether C was consenting to the act of penile/vaginal sexual intercourse the subject of this count.
[37] See s 34P (2)(a) of the Evidence Act 1921.
The evidence relating to the uncharged sexual acts on this occasion (if accepted) cannot be used to reason that because the defendant acted in this way, he is a bad person and is therefore guilty of the act of sexual intercourse the subject of Count 4.[38]
[38] Section 34R(1) of the Evidence Act 1921.
Indeed, in relation to each of the acts the subject of counts 1-5, the evidence in relation to each count (if proved) cannot be used to reason that the defendant is a bad person and therefore guilty of the other counts. Each count must be assessed separately and only in relation to the evidence relating to the particular count under consideration by me.
During cross-examination it was specifically suggested to C that the defendant did not engage in any sexual activity with her on this occasion, which C denied.[39] It was further suggested to C that as the defendant had to work early the following day and because he was tired, he went to bed. Once again, this was denied by C.[40]
[39] T 167.28 – 31.
[40] T 167.32 – 36.
Counsel cross-examined C about what C had said in her examination-in-chief about having difficulty parking the car when they returned to the unit following the housewarming party. C said that she had driven the car to the family home because her husband was intoxicated. C said in examination-in-chief that the defendant offered to park the car for her as she was having trouble manoeuvring it into the parking space. C said as the defendant went to park the car he accelerated heavily, causing C to scream. C said her neighbour (who C said must have heard her scream) sent her a text message asking if she was alright. None of this detail was contained in C’s statement dated 11 April 2021, despite C saying that she mentioned it to the police at the time.
As Detective Ryan stated, not everything that a witness says when a statement is being taken from them by the police, finds its way into the statement, unless it is potentially relevant. Despite this omission of detail from C’s written police statement, Detective Ryan said in evidence that he remembered C had told him she had driven home from the housewarming party and had some difficulty parking the car. Detective Ryan said that he did not include these details in the statement he prepared for C to sign because he did not consider the information to be important to the case, just as he said he did not consider it important to know what C was wearing when she was at the housewarming party and so did not ask C anything about that.[41] I will address the omission of these details from C’s police statement later in these reasons.
[41] T 239.16 – T 239.26; T 240.18 – T 240.32.
Count 5
C said that the last time she was raped by the defendant was after midnight on 21 March 2021, when the defendant returned home from work. C described what happened as follows:[42]
[42] T 80.12 - T 81.22.
XN
QAt some point did you leave the marriage, did you leave the house, was that on 24 March.
AYes.
QDid you get some help through some agencies to find somewhere else to live in the short-term.
AYeah, so police came and took me.
QSo, if we use that date as a reference point, 24 March, the day you left the house, was there any more acts of sexual intercourse against your will between the house-warming party and you leaving on the 24th.
AYes.
QWhen did that happen.
AIt was - so on 21st, like it was actually 20th March, but after 12 it's the next day, that's why it's 21st March. It was Vipul came around 12.30 from work, from the Woolworths petrol station, and we had dinner, and as I was tired, I straightaway went into the bed.
QSo you were at home, you were home at the flat at Joslin.
AYes. So, Vipul was watching cricket on my mobile, on Kayo sports. He was watching the cricket, and suddenly after some time I felt him on my back, I was like on one of my side, and his hand was near my mouth. I could smell it was bad. I told him to keep his hands away and get off the body, get off me. He said 'No, no, I want to do it and it will take two, three minutes' and then he removed my pants and started pushing his penis in my anus.
QDid it go in your anus.
AIt very slightly inside there.
Yes.
A.And he kept on hitting hard and then he after few minutes he released in tissue paper.
QWhat did he do then.
AI straightaway go to sleep because I was so tired and by that time I was, I have nowhere to go, so much other stress, family pressure from his side, I was like helpless, don't know what to do.
QDid you want him to put his penis into your anus.
ANo.
QDid you say anything to him or do anything to convey that to him.
AI told him 'Do not do it, do not do it'.
QDid he say anything when you protested like that.
AHe said, 'It will only take two minutes, let me do it' and then he put his hand, it smelt very bad, it was like he's already doing it with his hand, like with his penis in his hands so it was smelling bad.
C said that following this incident there were increased arguments between her and the defendant. The tensions between C and her parents-in-law were also intensifying. C said the defendant was telling her that he would leave her and that his parents did not want her to be at the unit anymore.
C said that she still loved the defendant, and she did not want him to leave her.
C said that on the evening of 23 March 2021 the defendant entered the bedroom and told her that she should return to India and take their child with her. C said that she begged the defendant not to send her back to India. C explained that in Indian culture a single woman with a child would not be welcomed. She said the defendant then told her to go and touch the feet of his mother and say sorry.[43] When C questioned why she should say sorry because she had not done anything wrong, C said he repeated that she should go and touch his mother’s feet. C said that she did not want to but was asked again by the defendant and she did so. C said that her parents-in-law were both asleep. C said that she held her mother-in-law’s feet and asked: ‘Please don’t do this, please look at my son, please don’t spoil my house, please, please’. C said her father-in-law woke up and said to her ‘Nothing can be done now. Now we have decided that you are not going to live here’.[44]
[43] T 169.26.
[44] T 169.32 – 38.
C said that the next morning, being 24 March 2021, she called 000. She said she did not feel safe in the unit because she overheard a conversation between her parents-in-law that they would either kill her or she would be forced to return to India.
When the police arrived on 24 March 2021, C was taken to a police station before being placed in emergency accommodation in a hotel for three weeks. C was then provided housing through a women’s shelter.
The Defence case
The defendant elected not to give evidence. No adverse inference can be drawn against the defendant for this decision.
The defendant called evidence from his brother and father, his work manager, and a work colleague. He did not call his mother, or his sister-in-law and no adverse inference is drawn against him for not doing so. He was not obliged to call any evidence and he does not have to prove anything.
Ankit Sondhi
The defendant’s brother, Ankit Sondhi gave evidence disputing what C said in her evidence about the defendant’s family wanting to postpone the marriage in Adelaide (‘the court marriage’) for six months to see if the defendant’s family would accept her.
Vijay Sondhi
The defendant’s father, Vijay Sondhi, said he and his wife were supportive of their son marrying C and that they both approved of C.
Mr Sondhi said that he and his wife arrived in Adelaide in late February 2021 and were living with their son and C.
He said that both he and his wife would play with their grandson and would assist in his care when needed.
He denied entering C’s bedroom and watching her breastfeed her son.
He denied ever hearing C yell for help from the bedroom.
He denied that he ever said to C ‘Nothing can be done now. We have decided that you are not going to live here’.
He said that for the first 15 days after arriving in Adelaide everything was fine between him and his wife and C. He said that after that C would not come out of the bedroom. He said that he raised this with his son, who told him that he would speak with C and make her understand that it is not good for her to stay in the bedroom.
Mr Sondhi did say, however, that he and his wife were hardly speaking with C, claiming that in Indian culture parents-in-law do not speak much to their daughter-in-law.
He said that C was never unfriendly towards him.
Mr Sondi recalled the housewarming party. He said that before the night of the housewarming party his wife and C were getting along fine, and that they were getting along at the housewarming party, contrary to C’s evidence that she was being ignored at the housewarming party.
He said he had two or three shots of whiskey at the party but later conceded that he was drunk. He said that when he arrived home, he changed and went to sleep.
He said in the days before C had called the police and had left the home that the relationship between C and his wife was not good. He claimed that he and his wife were shocked when the police arrived on 24 March 2021 and C went with the police.
He said he had never witnessed his wife involved in any physical altercation with C nor did he ever hear his wife argue with C. He said that he had never argued with C. He denied ever yelling at C or abusing her. He said he was not concerned over C spending money, nor did he ever taunt C about her weight.
He denied telling C that she should return to Melbourne to live with her brother or that he ever suggested that she should go back to India. He said that he wanted C to remain living in Adelaide with his son.
He denied that he did not approve of C and further denied that he wanted the marriage between his son and C to come to an end.
Matias Hrmo
Matias Hrmo is employed as the Assistant Manager at the Woolworths Petrol Station at Mitcham, where the defendant worked in 2021.
Mr Hrmo said that generally the defendant worked evening shifts on Sundays and Mondays and occasionally worked Saturday shifts.
Mr Hrmo said on 11 January 2021, the defendant was rostered to work the evening shift between 6.00 pm and 12.00 am. He said he received a telephone call from the defendant that day advising him that the defendant was unable to work the evening shift. Mr Hrmo said he sent the defendant a text message telling him that he would cover the defendant’s shift that evening and asking the defendant to provide a doctor's or carer's certificate whenever he could. Mr Hrmo said that later that same day, the defendant sent him a certificate from a doctor dated 11 January 2021, stating the defendant was unable to work that evening as he had to care for his baby.[45]
Robert Ash
[45] See Exhibit D6.
The defendant called evidence from Robert Ash as to the defendant’s good reputation.
Mr Ash said he has known the defendant since 2013, first, socially, through the defendant’s brother, and later as co-workers. He said that he and the defendant worked as console operators for the Woolworths chain of service stations. Mr Ash said that he had never visited the defendant at his unit, nor did he see the defendant interacting with his wife and child.
Mr Ash said that based on his observations of the defendant, primarily within the workplace setting, he found the defendant ‘always to be respectful, courteous, a very polite fellow and very caring generally about people’.[46]
[46] T 303.28.
Use of good character evidence
Mr Ash’s evidence of the defendant’s good reputation or character is relevant when determining the likelihood that the defendant committed the offences. This is because it is generally considered that a person of good character is less likely to commit a criminal offence and, in this way, is a consideration when deciding whether to accept the prosecution’s case against the defendant.
I have considered the evidence given by Mr Ash of the defendant’s good character when deciding whether any of the counts have been proved by the prosecution.
The prosecution submitted that the evidence of the defendant’s good character should be diminished because the defendant obtained a carer’s certificate from his doctor that was used by the defendant to get out of a shift so that he could attend a Big Bash cricket match on 11 January 2021 instead. Even accepting that was the reason the defendant obtained the carer’s certificate that day, I have not held this against the defendant in my consideration of the use to be made of the evidence of his good reputation or character. I do not consider this alone affects his character, and further, I consider it would be unfair to do so in the circumstances.
Consideration
Proof of all counts is totally dependent upon C’s evidence of the charged acts being accepted as truthful and reliable. As such it is important that C’s evidence is scrutinised with care when determining if any of the counts have been proved beyond a reasonable doubt by the prosecution.
Furthermore, I am to consider all of the evidence presented in the case, (including the defence evidence) and decide whether on the whole of the evidence (and notwithstanding the defence evidence and arguments) any of the charges have been proved.[47]
[47] R v Schulz [2016] SASCFC 150.
I will first deal with C’s credibility and reliability generally, before discussing the counts.
C asserted that she was isolated and under the domination or control of the defendant. The defence submitted that a proper assessment of C’s evidence plainly contradicted this claim by C.
C agreed that she was gifted an iPhone by the defendant and that she also received a piece of gold from him for her birthday. C also agreed that she had access to their joint bank account. Some instances of C having used the account were elicited from C during cross-examination.
It was submitted that these matters demonstrated C was not under the financial control of her husband.
The defence also submitted that the defendant worked long hours across three jobs and C was therefore home alone for extended periods of time during which she could have contacted anyone she wanted, again contradicting her claim that she was isolated and under the defendant’s control and had no one she could turn to.
It was submitted by the defence that in the days leading to C leaving the marital home and calling the police, she and the defendant were arguing, and the defendant told her that he would leave her. C said that she did not want to leave the defendant and that she loved him. C said that the defendant did not speak to her for two days and then the night before she left, he told her that she should go back to India and take their child with her. It was submitted that these were not the actions of a husband who was controlling, but rather a husband who had decided to end the marriage. It was submitted that a controlling husband would not act in this way. It was contended that this contradicted C’s evidence that she was raped by her husband.
I have considered these submissions. While the defendant did tell C that he wanted her to leave and that he would give her a divorce, this does not detract from C’s evidence that the defendant forced her to have sex against her express wishes.
Moreover, the defence submitted that even after C left the home on 24 March 2021, she remained in contact with the defendant and was considering going back to him, which was inconsistent with C’s evidence that she was repeatedly raped by the defendant.
In relation to this last point, C explained why she had contacted the defendant after she left the marital home:[48]
[48] T 148.1 – 33.
XXN
ASo after I left the home when I and Vipul was in communication, then Vipul wanted me to come back and I said because of my and my son's safety either they go back and we settle down things and by the time I'm starting earning and then they can come back and I will support them in bringing back by getting them the air tickets, because they already have the visa in which they have multiple entries of going back and coming in the country.
QSo, there was a conversation with you and Vipul about you coming back to the house after you had left.
ACan you tell me again?
QYou say there was a conversation between you and Vipul after you'd left the house about you coming back to the house.
AHe wanted me to come back to the house.
QYes. And during this conversation with you and Vipul one of the things you said to him was that the parents-in-law can go back to India and 'I'll get a job and once I earn enough money, I'll pay for their ticket to come back to Australia'.
AYes.
QThat conversation that you had with Vipul, you also said that if that were to occur you would come back to live with him.
ANo. At that time, I didn't said will come back. So once - when after leaving the home Aarav was not well, he - I took him to the hospital and even sitting there with Aarav in the waiting area of Women's and Children's Hospital Vipul was roaming around and saying bad words to me and the moment when it was my turn to go in and get Aarav checked up he started saying 'Please come back home, please come back home'.
Later, under further cross-examination on this topic, C stated:[49]
[49] T 170.24 – T 173.31.
XXN
QCan I then move from the 24th of March after you left the house in Joslin. You spoke about this earlier today where you had a conversation with Vipul on the telephone where the topic about sending your parents-in law back to India was raised and you had said that you'll find a job and once you save some money, you'll pay for their ticket to come back to Australia, that's the conversation I want to ask you about now.
AYep.
QIn this conversation you had with Vipul did you also say to him to let's try and work together in Adelaide, go for a holiday with the three of you, that is your son, Vipul and yourself because we are a new family.
AIs it after 24th March.
QYes.
ANo.
HIS HONOUR
QSo, you left on 24th of March -.
AYes.
Q- 2021.
AYes.
QWhy did you ring Vipul after that.
AIt was sometimes he used to call, sometimes I, and I was scared because everything that was happening was like a shock to me. Having a young child and no-one I knew in Adelaide. So, it was like where do I go, where do I rely on? I did not have a single dollar because the moment I left home the money in the joint account was taken off by him and when my son fell ill in between, I did not have money to pay for the doctors. I called him and asked for him to transfer.
QWhy did you say that you will find a job, save some money, and pay for his parents’ ticket to come from India.
AHe said that come home, come back home. I said because of all this I don't think I'm safe. If you want me to come back firstly, they need to go back in there so that we can firstly settle down and in the meantime when I will find the job and I will be concentrated on my work and I know, you know, that my parents-in-law are there for some time to look after Aarav and things will settle down. We got married and during my pregnancy everyone just tortured me, harassed me so it was just did not got time to peacefully, live and settle down in that relationship and then parents-in-law came, they started torturing harassing. There was too much going on in my life.
QWere you thinking about getting back with him at some stage in the future.
ANo.
QNot at all.
ANot now.
QBack then, when you were having these conversations with him.
ABack then I wanted because it's like a sin for me to get divorced, it's two years we are separated we haven't got divorced.
QNot now but back then when you were speaking to him, were you thinking that you might go back to him.
AYes, because I loved him so much.
XXN
QWas it also part of the conversation you had with Vipul that you would come home and stay with him or live with him, I should say, if he took full responsibility for you and Aarav in the future.
ANo.
QWas it part of this conversation that Vipul said to you he couldn't send his parents back to India, that's not something he wanted to do.
ACan you repeat that please?
QIn this conversation Vipul told you that he did not want to send his parents back to India.
AHe did not mention anything about that.
QYou knew, did you, that after you left the house that Vipul was not prepared to send his parents back to India.
ACan you repeat that please?
QAfter you left the house on 24 March did you know that Vipul did not want to send his parents back to India.
AYes.
QDid you see that if the parents continued to live at the house that you couldn't live in the same house as them.
AI would have lived but they should treat me like their daughter-in-law not like a slave and just not like putting my life in threat.
C said that the Family Court affidavit was prepared by her solicitor based on the police statement she had provided to the police on 11 April 2021. I accept C’s evidence about this. I consider what was intended to be conveyed in C’s affidavit was that after the incident in January 2021, where the defendant had asked C to perform fellatio, the rapes commenced. That is, it was after this incident in early January that C was raped by the defendant, first on 11 January 2021 and then in the following weeks. I do not consider that what was written was intended to be read literally, namely that immediately following the request for fellatio, C was raped, as defence counsel was contending the affidavit should be construed as conveying.
In re-examination, C’s Family Court affidavit was produced to her to refresh her memory from. C agreed that what was detailed in the affidavit about the various incidents she gave evidence about, was extremely brief. In any event, C’s police statement was attached as an exhibit to the affidavit and that contained the detail of her allegations, thus making it clear that the rapes she was alleging occurred on and after 11 January 2021, and not immediately following the incident being described in the affidavit. Further, the affidavit must be read in context. During C’s re-examination it became clear that the detail of the alleged rapes, as contained in the affidavit, were kept to a bare minimum because C’s police statement, in which the alleged rapes were set out in some detail, was annexed to the affidavit as the primary source of information relating to the alleged rapes.
It was also submitted by defence counsel that what C described as having occurred in December 2020 and early January 2021, when the defendant requested that C engage in sexual activity with him, contradicted C’s evidence that she was raped by the defendant as she claimed; first, because it was inconsistent with him forcing himself upon C and secondly, because it demonstrated that C compromised, in relation to engaging in sexual activity with her husband in early January 2021, by agreeing to masturbate him instead.
It was submitted that this evidence tells against the defendant either knowing or being recklessly indifferent to C’s lack of consent in relation to any of the counts.
I do not accept either of these contentions. The evidence only reveals that on those two specific occasions the defendant did not force the issue. What was made clear to him, though, on each occasion was that C was not interested in resuming sexual activity with him at that time. Further, it was not suggested to C, during her cross-examination, that the specific acts, which she described as forming the basis of each count, took place and that the sexual activity described by her was consensual. There was no evidence that C consented to any of the sexual acts on the occasions the subject of each count.[64] As the prosecution submitted, the case was defended on the basis that what C described in her evidence, the subject of the counts, was false.
[64] Indeed, on C’s evidence there is no room for the defendant not to have known that she was not consenting.
It was not suggested that this was a case where the defendant had confused or misinterpreted any actions by C, such that he may have believed she was consenting to any of the acts of sexual intercourse that form the basis of each count. Moreover, on C’s evidence of the sexual acts that formed the basis of each count, there was simply no room for the defendant not to have known that C was not consenting.
During C’s cross-examination, several motives were advanced for why C lied about being raped by the defendant.
It was suggested to C that she lied about being raped because she was unhappy with the living arrangements, as her parents-in-law were living with them in a very small apartment; that C felt that her parents-in-law were treating her like a slave; that her parents-in-law had intruded in her personal space; that the defendant was talking with his parents for hours and not spending enough time with her; that the defendant had used their savings, intended for their house deposit, to pay for his parents visa application; that the defendant had essentially chosen his parents over her; that she wanted revenge against the defendant and his family; that she was jealous of the defendant’s relationship with Preeti Chhetri, who was the defendant’s work colleague, and that it was a way of improving her visa status and therefore, remaining in Australia.[65]
[65] T 177.
During cross-examination, C agreed that there were a number of options available to her to remain in Australia, including applying for a work sponsored visa, a spousal visa, a student visa or applying for permanent residency.[66] C said that in 2019 (before her marriage to the defendant), she had applied for permanent residency as she had collated sufficient points and was awaiting a response from the Immigration Department.
[66] T 87 - 91.
During defence counsel’s closing address, the attributed motive relating to C’s visa status was addressed but ultimately not pursued.[67] Nevertheless, I have reconsidered what was originally submitted about this and C’s evidence about her visa status. I accept C’s evidence that she did not fabricate rape allegations against the defendant in order to remain in Australia. There was no evidence before the court that by making the allegations against the defendant, C’s visa situation was enhanced.
[67] T 398.28. – T 400.14.
C rejected each of the propositions suggested to her as reasons for why she lied in her evidence.
Consistent with the onus of proof in a criminal trial, a defendant is never under any obligation to prove why a witness might be lying in their evidence.
The rejection of a motive or motives advanced by the defence for a prosecution witness to have lied in their evidence does not mean that the witness has been truthful in their evidence or that it enhances that witness’s credibility. The rejection of a motive to lie does not strengthen the prosecution case against a defendant. It simply falls away and becomes a neutral consideration. The onus always remains upon the prosecution to prove a charge beyond a reasonable doubt.
I accept that C was jealous of the defendant’s relationship with Preeti. This was conceded by C, who said she had looked through the defendant’s telephone and noticed that he was communicating with Preeti, despite him having previously told her that he was not. C said she suspected he was cheating on her and that this upset her. Indeed, this is what led to the heated argument on 8 March 2021, that resulted in the police attending the unit. C sent Preeti a text message on 13 March 2021, telling Preeti that she did not want anyone interfering in her personal life and asking Preeti to stop talking to the defendant.[68]
[68] See Exhibit D4.
I have considered each of the motives suggested to C by the defence, individually and in combination.
I find that C did not make allegations about being raped because she was jealous of the defendant’s relationship with Preeti, nor that she made up allegations of rape for any of the other reasons suggested to her. I do not find that she was motivated to make such serious false allegations against the defendant out of revenge against him and his family, or as a means of remaining in Australia in the event the defendant left her or divorced her.
Conclusion
I have had regard to the submissions advanced by the defence in considering C’s overall credibility as a witness. I have already addressed those submissions. What has been submitted or advanced has not caused me to doubt the truthfulness or reliability of C’s evidence, either generally, or particularly as it relates to the counts.
I have taken into consideration the evidence of the defendant’s good character as outlined earlier in these reasons when considering whether any of the counts have been proved.
I found C to be a very impressive witness. She gave thoughtful and carefully considered answers and provided significant detail of the sexual acts the subject of the counts, as I have already set out in these reasons.
I am satisfied that C gave truthful and reliable evidence in relation to the circumstances of each count.
I now set out my reasons for my assessment of C’s evidence and conclusions in relation to each count.
Count 1
It was submitted that C’s evidence in relation to this count should be rejected.
It was submitted that it is inherently implausible that the defendant would rape C in their bedroom while her brother was in the living area of their small unit. It was added that even though C said that she called out to the defendant to stop through his hand, which he had placed over her mouth, C’s brother did not give evidence of hearing C say anything from the bedroom, suggesting that C’s evidence was untrue.
I have carefully considered these submissions. Plainly, there were risks involved in the defendant forcing C into sex when her brother was nearby. C said that when she told the defendant that she did not want to engage in sex he placed his hand over her mouth. The clear inference to be drawn from this, is that the defendant did not want C to continue to protest or to call out to her brother. Despite the risk associated with the defendant engaging in the sexual conduct alleged by C on this occasion, I nevertheless, accept her evidence. I accept the prosecution submission that by this time in the marriage, the defendant, having been twice before told by C that she was not ready to have sex, considered the time had come where C, as his wife, must do as he said.
The fact C’s brother did not give evidence of hearing C’s protests, as C had detailed in evidence, does not change my view of C’s credibility. There was no evidence of what C’s brother was doing at the relevant time and whether he would have heard what C was saying from his position in the living area and through the hand of the defendant, which C said was placed over her mouth.
C’s evidence was clear that this alleged rape took place on the afternoon of 11 January 2021, after she and the defendant returned home from attending the doctor’s appointment. It was submitted that C had initially stated that this incident occurred on either 12 or 13 January and that the date changed when C provided a subsequent statement on 29 March 2022. I have discussed earlier in these reasons why C’s change in date does not affect either her credibility or reliability in relation to this occassion. Properly considered, C was always saying that this first charged act occurred on the day she had taken her child to his first doctor’s appointment. C said she had told Detective Ryan, when her first statement was being taken from her on 11 April 2021, that this incident occurred after attending the doctor’s appointment for her child. C said that she was just unable to recall the precise date in January of the doctor’s appointment. However, C was later able to provide evidence (in the form of the ‘blue book’ and private health insurance records)[69] that the date of the doctor’s appointment was 11 January 2021. As I have already stated, what is clear from the evidence is that C has always referenced this first count to her child’s first doctor’s visit. I find C has not been inconsistent in relation to the date relating to this first count.
[69] See T 123.25 -35; 126.23 -32; 190.15 – 21; 235.9 -12.
Further, during her cross-examination, C recalled that this incident occurred on the same date that the defendant and her brother went to watch a Big Bash League cricket match at Adelaide Oval. It is an agreed fact that this match was on 11 January, adding to C’s evidence that this incident occurred on that day.[70]
[70] See Exhibit D7 – agreed fact 4.
I have already referred to the evidence of Matias Hrmo, who was the manager at the Woolworths Petrol Station at Mitcham, where the defendant was rostered to work the evening shift on 11 January 2021. He said the defendant called him that day to advise that he was unable to attend work. At the request of Mr Hrmo, the defendant provided a medical certificate, dated 11 January 2021, stating the defendant was unable to work as he had to care for his baby.[71] In fact, the defendant went to the Big Bash League cricket match at Adelaide Oval that evening.
[71] See Exhibit D6.
Insofar as C believed the defendant worked an afternoon shift at the Woolworths Petrol Station before going to the cricket (when the defendant did not work at the Woolworths Petrol Station that evening), I am of the view that this does not affect C’s credibility or reliability in any material way. C said that her brother drove the defendant to work that afternoon after he had raped her. At first, C believed that he was going to work one of his nursing home jobs, likely at Elder Care, but then settled on the Woolworths job. I consider this is of no consequence. C said that the defendant went to work but, in my view, she was obviously mistaken that it was at Woolworths. There is no evidence that the defendant did not attend work at one of his two nursing home jobs that afternoon, as C initially suggested. As C stated in her evidence, it had been arranged that she, her brother, and the defendant were planning to go to the cricket that evening. However, as their child was in pain from the vaccination he received earlier that day, C did not attend the cricket match and her ticket was used by one of the defendant’s friends instead.
In my view, none of these matters detract from C’s evidence that the incident, the subject of this count, occurred on 11 January 2021 or that the defendant went to work that afternoon as C said he did.
C said, during her examination-in-chief, that she disclosed this incident to her brother during the evening of 11 January 2021. However, during cross-examination C said that she had made the disclosure to her brother in the afternoon, after he had returned home from dropping the defendant at work. It was submitted that C’s change from the evening to the afternoon was because C had realised during her cross-examination that she could not have made the disclosure to her brother in the evening because he had gone to the cricket with the defendant, and that this demonstrated she had fabricated this conversation. It was submitted that this was ‘devastating to C’s credibility’.[72]
[72] Defence closing address T 381.
It was also submitted that C did not mention this conversation to Detective Ryan when he was taking her statement on 11 April 2021, and this was because C had made up the conversation later, presumably in collaboration with her brother, as a means of strengthening the case against the defendant.
It was the defence case that C and her brother had fabricated this conversation.
C’s brother recalled this conversation as having occurred three to four days after he arrived in Adelaide from Melbourne, which would place it before the cricket match on 11 January 2021. It was submitted that this undermined both the credibility and reliability of his evidence and that of C in relation to the conversation.
I consider C’s brother was simply mistaken as to when he had the conversation with his sister. Unlike C, who had every reason to remember the specific day by reference to the doctor’s appointment (it being her son’s first six-weekly check-up after his birth), her brother had no reason to recall the specific day when giving his statement to the police about seven months later. My assessment of C and her brother’s evidence of the conversation is not affected by these matters.
It was also submitted that if C had disclosed this act to her brother, as both had stated, then her brother’s behaviour in attending the cricket with the defendant that same evening, and continuing to associate with him, including going to a nightclub and having dinner with the defendant,[73] is inconsistent with him having been informed by C that the defendant had forced sex upon her. C’s brother said in cross-examination that he did not know ‘how bad’ C’s disclosure of the defendant forcing himself upon her was.[74]
[73] There was no evidence when they went to the nightclub together or to dinner, relative to 11 January 2021.
[74] T 230.18.
C’s brother agreed that after he returned to Melbourne, in response to a WhatsApp message from the defendant’s mobile telephone on 18 January 2021 asking how he was feeling being by himself and whether he was enjoying Melbourne, he responded that he was ‘Missing you guys!! Especial [sic][A]’ (being his baby nephew).[75] C’s brother also agreed that on 9 February 2021, he had a cake delivered to his sister and the defendant for her birthday and their first wedding anniversary, which was signed off by him: ‘Love you guys’.[76]
[75] Exhibit D5.
[76] Exhibit D3.
It was submitted that this was also inconsistent with him having been told by his sister that the defendant had forced himself upon her, as he said C had disclosed to him when he was in Adelaide.
I have considered all of these matters and I am satisfied that C did make a disclosure to her brother on 11 January 2021 that the defendant had forced himself upon her, as C and her brother each described in their evidence.
At all times, C gave clear evidence that she told her brother what the defendant did and the only aspect of C’s evidence that altered related to the timing of this disclosure, from the evening (during examination-in-chief) to the afternoon (during cross-examination). I do not consider this difference to affect C’s credibility in any material way.
Further, I also do not consider that the behaviour of C’s brother is inconsistent with his evidence of C’s disclosure to him that the defendant had forced himself on her, as he recalled it. As C’s brother said, he did not know the precise details of what happened to C, and, as he further explained, there were cultural barriers to him raising the matter with the defendant, who was his brother-in-law and was older than him.
I also consider that C’s brother did not know how to deal with the disclosure that had been made to him by his sister. It was quite telling in his evidence he admitted that he did not have the courage to ask his sister for more detail over what she had told him. In my assessment, C’s brother came across as being very unsure over what he should do in the situation.
I find that C and her brother did not fabricate the conversation involving C’s disclosure of the first alleged incident.
I have used the evidence of C’s disclosure, as detailed by C and her brother, consistently with s 34M of the Evidence Act, as enhancing C’s credibility through the consistency of conduct demonstrated by this evidence.
In relation to this count and the remaining counts, I have taken into consideration that C did not complain about these events to the police, either on 8 March or 24 March 2021, when they spoke with her and her explanations for that. I have already explained why this has not caused me to doubt C’s credibility.
C gave a compelling and detailed account of what the defendant did to her on the occasion the subject of this count.
Based on C’s evidence, I am satisfied beyond a reasonable doubt that the defendant engaged in an act of penile/vaginal sexual intercourse in the circumstances as described by C; that C was not consenting to this act and the defendant knew that C was not consenting.
I find the defendant guilty of this count.
Count 2
As with Count 1, I have found C’s evidence of the incident to be compelling.
It was submitted that C should not be believed because in her evidence she said that the defendant, in demanding sexual intercourse, told her that it would only take two or three minutes, when, in her police statement, she said that he told her that it would only take a minute. I consider this inconsistency (if it be such given the time difference involved) to be insignificant and inconsequential.
In her evidence, C said that she told the defendant on this occasion ‘Don’t do it because I don’t like it and I bleed afterwards’. In her police statement, while C has clearly mentioned this, it is not attributable to her saying these words to the defendant at the time, rather, as the statement is worded, it reads as her position to engaging in anal intercourse generally. Whether C told the defendant this at the time, as she believed, or was something said to Detective Ryan as a general proposition to her view on anal intercourse, is, in my view, similarly insignificant and inconsequential.
Neither of the above inconsistencies, so described, has affected my assessment of C’s credibility or reliability.
It was submitted that the comments attributable to the defendant by C on this occasion of ‘Let’s make love’ is not something someone would say if they were aware that the other person was not consenting. I do not accept this submission. I consider what was said by the defendant was an attempt to persuade C to participate in sexual activity, after she had made it clear that she did not want to, and thereafter, knowing that she was not willing to engage in sexual activity, he proceeded to do just that against her clearly expressed wishes.
Based on C’s evidence in relation to this count, I am satisfied beyond a reasonable doubt that the defendant engaged in this act of anal sexual intercourse in the circumstances as described by C; that C was not consenting to this act and the defendant knew that C was not consenting.
I find the defendant guilty of this count.
Count 3
In relation to this count, it was submitted by the defence that C’s evidence should not be accepted because she did not mention, in her police statement, that she was wearing a traditional Indian suit; was fasting for religious reasons; was wearing makeup and placed a bindi on her forehead.
As Detective Ryan, who took C’s initial statement, said, not everything a witness says when a statement is being taken from them is necessarily important or relevant.
I do not consider that C’s failure to mention what she was wearing or doing on the occasion the subject of this count, when Detective Ryan was taking this statement from her, (assuming that he asked C what she was wearing or doing that day) diminishes C’s credibility or reliability. As C stated, when the police contacted her seeking more information or detail, she did describe what she was wearing and doing on this occasion, just like she did in producing evidence in support of the first count having occurred on 11 January 2021 (in the form of the ‘blue book’ and the private health insurance claim).
This demonstrates the shortcoming of relying on an omission as always being demonstrative of a witness’s unreliability or lack of credibility. Much depends on the statement taker’s ability to take down everything a witness said and determining whether it is relevant enough to be included in the statement or indeed, if the statement taker asked questions relevant to what is later claimed to have been an omission by a witness.
It was also submitted that it is inherently implausible that on this occasion C would have been raped in her bedroom while her parents-in-law were in the living room. C said that she yelled out for help, but her parents-in-law did not respond. Her father-in-law denied hearing C ever call out for help and said that if he had, that he would have gone to her assistance. I have already rejected his evidence for the reasons outlined earlier.
The prosecution, in anticipation of the defence argument, submitted that C’s evidence of this incident was true, as C was recounting what actually happened on this occasion in the knowledge that if she was lying, what she was advancing could easily be contradicted by her parents-in-law, who C knew were not supportive of her (as was the case in her father-in-law’s evidence).
While there was an obvious risk that the defendant’s parents would come to C’s assistance, if she called out for help as she claimed, this has not caused me to doubt the truthfulness of C’s evidence.
I found C’s evidence of this count to be detailed and convincing.
Based on C’s evidence in relation to this count, I am satisfied beyond a reasonable doubt that the defendant engaged in the act of penile/vaginal sexual intercourse in the circumstances as described by C; that C was not consenting to this act and the defendant knew that C was not consenting.
I find the defendant guilty of this count.
Count 4
In relation to this count, it was submitted that C’s evidence should be rejected because she had not mentioned in her police statement that after driving home from the housewarming party, she had trouble parking the car. C said the defendant told her that he would park the car. He has then accelerated harshly while the car’s gear was still in park, causing C to scream and the neighbours to enquire whether everything was alright.
As I expressed during counsel’s closing address on this point, I did not consider C’s failure to have mentioned this parking incident to Detective Ryan when her statement was being taken from her as having any bearing whatsoever on C’s credibility or reliability. In my view, what happened in the carpark of the unit block had nothing to do with what C said happened after they went upstairs to their unit.
As I observed earlier, Detective Ryan stated that not everything that a witness says makes its way into a statement, unless it is potentially relevant.
In any event, in relation to this defence criticism of C omitting to mention this, Detective Ryan said that he remembered C had actually told him that she had driven home from the housewarming party and had some difficulty parking the car. Detective Ryan said that he did not include this detail in the statement he prepared for C to sign because he did not consider this information to be important, just as he did not consider it important to know what C was wearing when she was at the housewarming party.[77] These matters speak for themselves in deciding whether C’s credibility and reliability over what she described happened to her in the bedroom of the unit is adversely affected or not.
[77] T 239. 16 – T 239.26; T 240.18 – T 240.32.
It was submitted that the use of a condom in relation to this count tells against sexual activity that was non-consensual. C agreed that the defendant had purchased condoms from a chemist store at a shopping centre on 12 March 2021. C accepted that when they arrived home, she removed the packet of condoms from the baby’s bag and placed it in her handbag, which was then stored in the wardrobe.[78] C denied that the condoms were purchased because of the doctor’s advice to use condoms as a form of contraception.[79]
[78] T166.28 – T 167.7.
[79] T 167.8 – 15.
I do not infer from the use of a condom on this occasion that C was consenting to sexual intercourse. C cannot say why the defendant decided to wear a condom during this sexual activity and not on the other occasions. C’s evidence was consistent that she was not consenting to any form of sexual activity on this occasion and that she made that very clear to the defendant.
In relation to C’s evidence, the prosecution submitted that what C did after the defendant ejaculated and had fallen asleep, in removing the condom from her husband’s penis, was so incredible that it must be true. I consider there is strength in this submission. It is a detail that is simply inexplicable unless it happened.
It is also to be noted that C was cross-examined that in relation to the night of the housewarming party, the defendant did not engage in any sexual activity with her.
C’s evidence in relation to this count was as compelling and detailed as the preceding counts.
A distinction between this count and the others is that C said the defendant engaged in sexual intercourse with her for significantly longer, reflective and consistent, in my view, of C’s description of the defendant’s intoxication.
On the topic of the defendant’s intoxication, it is not a relevant consideration in relation to whether the defendant was acting voluntarily or knew or was recklessness as to C’s lack of consent.[80]
[80] Section 268(2) of the Criminal Law Consolidation Act 1935; R v Moores (2017) 128 SASR 340.
Based on C’s evidence in relation to this count, I am satisfied beyond a reasonable doubt that the defendant engaged in the act of penile/vaginal sexual intercourse in the circumstances as described by C; that C was not consenting to this act and the defendant knew that C was not consenting.
I find the defendant guilty of this count.
Count 5
In relation to this count, the defence did not point to any inconsistencies or omissions made by C in relation to this count, instead relying on the criticisms of C’s credibility generally that I have already identified, together with the implausibility of the act occurring when the defendant’s parents were asleep in the living room.
I have already addressed the criticisms made of C’s credibility generally earlier in these reasons.
As with the other counts, I found C’s evidence to be truthful.
Based on C’s evidence in relation to this count, I am satisfied beyond a reasonable doubt that the defendant engaged in the act of anal sexual intercourse in the circumstances as described by C; that C was not consenting to this act and the defendant knew that C was not consenting.
I find the defendant guilty of this count.
Verdicts
The defendant is guilty of all five counts of rape.
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