R v TM - [2023] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TM
Criminal Trial by Judge Alone
[2023] SADC 55
Reasons for the Verdict of his Honour Judge Barklay
12 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCE AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused, TM, is charged with six counts of rape. The accused and the complainant were in a relationship and later married in 2009. They share two children. It is alleged that he raped the complainant, EN, for the first time in early 2005 and thereafter, continued to rape her for the next 13 years, with the last incident of rape occurring in December 2018.
Verdict. Guilty.
Criminal Law Consolidation Act 1935 (SA) s 48(1); Evidence Act 1929 (SA) s 34P; Juries Act 1927 (SA) s 7(1), referred to.
R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN (2013) 117 SASR 81; R v Nieterink (1999) 76 SASR 56; R v T, S (2017) 128 SASR 66; R v W, PK [2016] SASCFC 5, considered.

R v TM
[2023] SADC 55
Introduction

The accused, TM, was in a relationship with the complainant, EN, for about 14 years from around August 2004 to March 2019. The couple married in 2009 and share two children, who were born in March 2006 and October 2009.
On the prosecution case, it is alleged that TM raped EN for the first time in early 2005 and thereafter, continued to rape her for the next 13 years. TM is charged with six counts of rape which are said to have been committed between early 2005 and December 2018. The charged acts were set against a background of an ongoing violence and rape.
TM elected to be tried by judge alone.[1] He pleaded not guilty to all counts.
[1] Juries Act 1927 (SA) s 7(1).
For reasons that follow, I find the accused guilty of Counts 1 to 6 (inclusive) on an Information dated 13 September 2022.
Information
I set out the charges.
First Count
Statement of Offence
Rape.[2]
[2] Criminal Law Consolidation Act 1935 (SA) s 48(1).
Particulars of Offence
TM between the 31^st day of December 2004 and the 1^st day of June 2005 at Walkerville, had sexual intercourse with EN by inserting his penis into her anus, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Second Count
Statement of Offence
Rape.[3]
[3] Ibid.
Particulars of Offence
TM between the 31^st day of May 2005 and the 1^st day of July 2005 at Walkerville, had sexual intercourse with EN by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Third Count
Statement of Offence
Rape.[4]
[4] Ibid.
Particulars of Offence
TM on the 20^th day of March 2006 at Walkerville, had sexual intercourse with EN by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Fourth Count
Statement of Offence
Rape.[5]
[5] Ibid.
Particulars of Offence
TM on the 13^th day of April 2006 at Walkerville, had sexual intercourse with EN by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Fifth Count
Statement of Offence
Rape.[6]
Particulars of Offence
TM between the 1^st day of October 2009 and the 12^th day of December 2009 at Walkerville, had sexual intercourse with EN by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
Sixth Count
Statement of Offence
Rape.[7]
Particulars of Offence
TM on the 9^th day of December 2018 at Walkerville, had sexual intercourse with EN by inserting his penis into her vagina, without her consent, knowing that she was not consenting to that act of sexual intercourse or being recklessly indifferent as to whether she consented.
[6] Ibid.
[7] Ibid.
General directions
It is not necessary for me to direct myself in the same way a jury would be directed.
Each count must be given separate consideration. The prosecution bears the onus to prove each element of each charge beyond a reasonable doubt. TM, at all times is presumed to be innocent unless I, as the trier of fact, were to be satisfied of guilt beyond reasonable doubt. A reasonable doubt would be one that, after my consideration of all the relevant evidence in the context of the charges I am considering, I am prepared to entertain. TM did not give evidence in his defence. He was not obliged to have done so. He bears no onus of proof whatsoever. I must not use the accused’s silence against him and have not done so.
Forensic disadvantage
I have considered the forensic disadvantage towards the accused given the age of some of the offending. Some of the charged offences occurred about 18 years ago. In my view, the delay has caused a significant forensic disadvantage to TM in that it has likely impacted his recollection of events, where he was at a particular time and what happened. It may have affected his ability to gather evidence in his defence had the allegation been made more contemporaneous with the event.
In relation to some counts, including (but not limited to) Counts 1 and 2, it was alleged that the offending involved EN yelling and screaming at TM (as a result of the offending). With such offending alleged to have occurred within a rental apartment block that had a shared and adjoining wall with another apartment. Had the allegations been made around the relevant time, TM may have been able to identify witnesses, for example their neighbour at the time, that may have assisted his case that there was no such incident and there was no yelling involved.
Another example was the inability to identify medical records that went to the allegation by EN that TM was diagnosed with a borderline personality disorder. Although it is not possible to say precisely what evidence he may have been able to identify (and I have not speculated about that) I have taken into account the disadvantage he suffers when scrutinising the evidence of the prosecution.[8] I have considered the ‘impact of the forensic disadvantage arising from the absence of memory of contextual detail’[9] in assessing the factual detail in this case. In considering whether I accept EM’s evidence, I have considered whether I can be satisfied beyond reasonable doubt that the offences have been committed in the absence of any evidence that may have been able to shed light on what occurred.[10]
[8] R v T, S (2017) 128 SASR 66, 89 [105] (Hinton J).
[9] Ibid [101].
[10] R v W, PK [2016] SASCFC 5, 11 [47] (Kourakis CJ, Kelly & Nicholson JJ).
I have not considered any forensic disadvantage to EN when scrutinising her evidence. The forensic disadvantage only applies to, and is in favour of, TM.
Elements of offence
All elements of an offence must be established beyond a reasonable doubt before there can be a verdict of guilty.
The offence of rape (Counts 1 to 6 (inclusive)) has three elements:
1.The accused engaged in sexual intercourse with the complainant;
2.The complainant did not consent; and
3.The accused knew or was recklessly indifferent to the fact that the complainant did not consent.
EN – the complainant
EN was 47 years of age when she gave evidence at trial. Special arrangements were put in place when she gave her evidence (evidence by closed-circuit television and a Court companion). I must not allow (and have not) the fact of these arrangements to influence the weight that I give to her evidence. I must also not (and have not) drawn an adverse inference against TM as a result of the fact that these arrangements were in place.
EN commenced a relationship with TM in August 2004. Their relationship progressed quickly. They began living together within a month of meeting each other in a rented apartment in Walkerville. EN said that in the beginning, their relationship was ‘good’. They went to the ‘movies together… went for dinners [and] enjoyed walks’. She said ‘it was nice’.
Within a few months their relationship started to change. She started to see aggressive outbursts by TM. In about October 2004, she observed TM screaming at the television for about a minute. She did not know what it was about. She said that she was ‘in a bit of shock’ as she had never seen him do that before. About a month later in November 2004, she described walking to get dinner with TM, when he started screaming at her, saying ‘Today would’ve been my wife's and mine wedding anniversary’. After that, they continued walking and everything appeared normal. There was no context to his outburst (at least that she could discern) ‘it was out of the blue’.
Following that outburst, EN said that he started to become angry ‘quite often’. No further detail was given by EN about that. However, she was asked about what her relationship was like at the beginning of 2005. She said:
AIt seemed to be alright. It started out okay, but sexual violence did start in about January - between January and May 2005.
QYou said sexual violence began.
AMm-hmm.
QCan you describe what you mean by that.
ASo I was raped starting about that time.
QWhen you say 'raped', what do you mean by that.
AHaving penile-vaginal intercourse against my will.
Count 1
EN described the first time TM raped her. That incident is the subject of Count 1. She said:
QCan you describe this first time for the court.
ASo [TM] had come home very drunk from playing in a band on the Thursday night and I was asleep and he slid in next to me -
QHe slid in next to you.
AHe slid in next to me and I was asleep. He slid his arms under my shoulders and I remember him pulling my underwear aside and instead of - I was expecting him to go into my vagina, he went into my anus. I was in shock.
AAnd then he proceeded to put his penis in my vagina straight afterwards without wearing a condom and he ejaculated on me, my stomach, afterwards.
While he slid his arm under her shoulders, she said to him ‘No I don’t want to’. In response, he said something along the lines of ‘“I love you sweetheart” or… “Come on sexy”, which he normally said’. She ‘kept saying no [and]…kept asking him to stop’. As he inserted his penis into her anus, she kept telling him to stop, but she could not struggle as he had his arms under her shoulders so she could not get away.
She described feeling ‘A lot of pain’. She had never had anal intercourse with TM prior to this happening. She was asked to estimate how long TM had his penis inside her anus, to which she responded with ‘A minute – not even a minute, it would have been about 10 thrusts’. From there, TM rolled her onto her back and inserted his penis inside her vagina. As she was laying on her back, she kept on telling him to stop. She told him ‘No, stop, don’t do it. Get off’. She said that the incident came to an end when:
AHe ejaculated on my stomach and then got a towel to wipe it off… and [he] just went to the toilet and went back to sleep, straight back to sleep…There wasn’t a conversation about it.
Later in her evidence, she said that the first time TM had sexual intercourse with her without her consent, she did try to speak to him about it but ‘he got so aggressive and so angry that he left the house and made it feel as if [she] was to blame, so [she]never brought it up again. She was scared’.
In cross-examination, EN confirmed that TM ejaculated on her stomach after he had finished raping her. To that end, defence counsel took her to a prior inconsistent statement on that topic:
QJust before we broke I took you to a passage in an affidavit of 30 January 2020. In fairness, the correct passage is at p.4 para.6. I suggest, when describing the anal allegation, you stated as follows 'The anal sex did not last long, maybe about 30 seconds. TM was not wearing a condom when he did this. He pulled his penis out and immediately put it inside of my vagina, then had vaginal intercourse with me. This only lasted another couple of minutes before he pulled his penis out and ejaculated on my back, then rolled over and fell asleep', is that what you attested to in your affidavit of 30 January 2020.
AI did.
QThat's different to your evidence that he ejaculated on your stomach, isn't it.
AYes, I was already on my back. So, I remembered that he ejaculated on my stomach.
QWhy the difference.
APerhaps a clearer memory, I'm not sure.
QIndeed, your evidence yesterday and today is that each and every specific incident that you can recall ended the same, isn't it, namely that -
AEither my back or my stomach he ejaculated, correct.
…
QYou've given no evidence that you've been ejaculated on your back, have you.
AI'm not clear on what you're asking, sorry.
QAt no point yesterday or today have you described the defendant ejaculating on your back.
ANo, because I remember it differently now. I've been blocking it out for a long time so I could lead a normal life, and now I've had to really think about it that's what I remember.
QSo you're not sure how it happened then, are you.
AWell, no, I'm sure it was - I was on my back and he ejaculated on my front, on my stomach.
Q. This is that first incident that we're talking about.
AFirst?
QYes.
AYes.
QYou're now sure of that, notwithstanding that you've said something different previously.
AThat's correct.
Up until that point, EN had not given any evidence that TM would ejaculate on her back, and only her stomach. The following exchange took place:
QYou agree that, in reference to the sexual assaults that happened in January and February 2005 on Thursday nights, you stated 'These incidents would usually last for a few minutes before he would ejaculate on my back and roll over and fall asleep', is that what you put in your affidavit of 30 January 2020.
AYes, I did.
QThat's different to the evidence you've given in court yesterday and today, isn't it.
AYes.
QWhy the difference.
ABecause I remember differently now.
A further inconsistent statement was put to EN in relation to her evidence about the circumstances in which the anal intercourse occurred:
QAt para.16 of your affidavit of 6 October 2020 I suggest you stated 'I was asleep in my bed and was woken by TM forcing his penis into my anus. I was taken by surprise by him and I started to struggle against him', is that what you said in your affidavit of 6 October 2020.
AYes.
QDo you accept that you're describing there being awoken by his penetrating your anus, aren't you.
AIt wasn't in my anus, though. He was about to start doing it.
QYou've said you were awoken by his penetrating your anus, though, haven't you.
AYes, not by penetrating, by being - by about - being - by about to penetrate my anus.
QYou didn't put 'about' in your affidavit, though, did you.
ANot sure, I could have said it, it was written differently.
QYou were given an opportunity to read each affidavit and make any corrections that you saw fit, weren't you.
AYes.
QYou didn't choose to correct that affidavit, did you.
ANo, I didn't.
QIs that because you're making this up.
ANo, I'm not.
Around this time in 2005, EN described TM becoming increasingly violent towards her within their relationship. She specifically recalled him shouting at her if she wasn’t catering for his needs, and he expected her to take things to him if he had forgotten to bring them from home. She said that he also started ‘pushing [her], poking at [her], [and] pushing her into walls when he didn’t like something’. Often in the lead up to that occurring, TM ‘wouldn’t be getting any sex, so it would put him in a bad mood’. He would tell her that he wasn’t happy about them not having sexual intercourse. Such domineering behaviour would occur about three to four times a week for about six months after the first incident of rape. Prior to that first incident, she said that her relationship with TM was ‘fine, it was good. We did have good times’.
Consensual sexual intercourse
EN stayed with TM after the first incident of rape. She gave evidence that after that first incident, and prior to the next time he raped her, that she did have consensual sexual intercourse with him. She said frankly that when there was consensual sexual intercourse between the couple, it was ‘Different because [TM] wasn’t drunk. It would be consensual, you know, [she] didn’t say “no”’. The consensual sexual intercourse would either be initiated by TM or EN ‘but if [TM] initiated [she] would allow him to continue, [she] wouldn't protest and say “No” … [She] would say “Yes” … He’d ask [her] to go to bed with him or he’d say “Let’s make love in bed” and [she] was clear with a “Yes” answer’.
Count 2
Accordingly to EN, the second time TN raped her was about two weeks before she found out she was pregnant with her first child. It occurred in about June 2005. That incident is the subject of Count 2.
Finding out she was pregnant was a memorable time for EN, and because of that, she was able to recall a specific incident where TM had raped her two weeks prior to finding out she was pregnant. She gave the following evidence:
AWell, it was a Thursday night, it was the same situation. I was asleep on my left side and [TM] had come home from playing in the band and again he was drunk and he came in behind me and as he was putting his penis in my - well, when he had his penis between my thighs I said to him I didn't want to have sex and then he continued to have sex with me. Do you want me to go on, sorry?
She said ‘I woke up with him behind me and his penis – he put his penis between my legs’. She told him to stop. She didn’t want to have sexual intercourse with him. In response, TM said something to her like ‘“I love you, sexy,” “sweetheart”’. She said that he always said the same thing.
She described consistently telling him to stop both before and during the sexual intercourse. She also said that she would struggle against him from penetrating her, by ‘trying to get out of his grip’. At one stage during the incident, she gave up struggling as he ‘was a lot stronger than [her]’ so he ‘rolled [her] onto [her] back and then continued to have sex with [her] on [her] back’. She said:
ASo, he ejaculated inside of me and then withdrew his penis and ejaculated on my stomach, then got a towel to wipe it up. I went to the toilet and I had semen running down my leg.
In cross-examination, defence counsel suggested that her evidence about observing semen running down her leg was something she had said for the first time at trial:
QYour evidence is that when that incident concluded you went to the bathroom and you'd seen semen dripping down your leg; is that right.
AYes, as I was going to the bathroom, yes.
QI suggest that you never mentioned that semen on your leg in any affidavits to police previously.
APerhaps I haven't, I thought I had, and that's how I remember it.
QIndeed, at para.21 of 6 October 2020 you stated 'I went to the toilet afterwards and I noticed semen on the toilet paper', have you got that in front of you.
AI did that too, I noticed that as well.
QPerhaps read to yourself paras.20-22, do you accept that at no point did you mention semen on your leg.
AThat's correct.
QYou gave another affidavit previously to that on 30 January, at para.7 you describe the same incident.
…
QPerhaps read para.7 to yourself.
AYes, I'm doing so. Yes, I've read it.
QAt the conclusion of that paragraph you stated 'I did not move or react to this at first, as I was in shock. But after a short time I grabbed the towel -' it reads 'town' so '- I grabbed the town off of him and ran to the bathroom to use the toilet. After I had used the toilet, I could see that there was semen in it. I returned to the bedroom shortly after where TM was asleep in the bed and went to sleep'. Is that what you put in your affidavit of 30 January 2020.
AYes, I did.
QIndeed, no mention of semen on your leg in that affidavit, is there.
ANo, but I remember it.
QI suggest that the first you've mentioned to anyone semen on your leg is in court yesterday, do you agree with that.
AYes.

After she found out that she was pregnant with their eldest child, LM, EN said that her and TM’s relationship was ‘fairly good’. She said it was about the same as it had been before she fell pregnant. As to physical violence, she said that after she fell pregnant with LM, the physical violence was ‘not as many but [she] can't remember’. She recalled there being a couple instances of sexual abuse, but she would not be able to say. She said there were also incidents of non-consensual intercourse during the course of her pregnancy with LM. She was asked why she did not end the relationship, she said:
AIt was easier to stay, I was hoping [TM] would change. He'd been given a diagnosis of BPD and was seeking help, so I was hopeful that he would get the help he needed, support from family and friends and change.
She said that she never asked him to leave because ‘[She] was frightened of him, frightened of what he would do, the backlash, repercussions of [her] saying – asking him to leave’.
Count 3
EN described a third incident of rape that occurred the night before she gave birth to her son, LM, on 20 March 2006. That incident is subject to Count 3.
EN was waiting in the spare room on the computer for TM to go to sleep that night, in case he wanted to have sexual intercourse with her. She was feeling unwell and was very close to giving birth. She said that she sensed that he wanted to have sexual intercourse with her as ‘Leading up to it he’d been very affectionate that day, massaging [her] shoulders, being overly nice, there was no aggression, and [she] just knew the signs from previous times. That’s what he did before he wanted to have sex’. She eventually went to bed at about 2.00am in the morning. She gave the following evidence:
AAt about 2 o'clock in the morning I went to bed and I remember - I can't remember whether I fell asleep but I wasn't able to struggle, he was - I'm pretty sure I was on my left side again or on my back, I can't remember, and he somehow held me down or I wasn't able to struggle and then I kept on telling him no, I didn't want to have sex, I felt so ill. And then I remember him either rolling - I think he rolled me on to my back and he put his penis inside my vagina, I was wearing underwear, but he pulled it to the side, and I remember him then ejaculating inside of me and then pulling out and ejaculating on my stomach. He went and got a towel, wiped it off. I went to the toilet but when I was going to the toilet, I could see the semen running down my leg and maybe an hour later my waters broke.
She was asked how the particular incident began, to which she responded ‘I think he was trying to kiss me and I was kissing him back but I did not want to have sex … Then he got on top of me … It was not hard because I was so pregnant … once he’d put his penis in my vagina he then put his hands on the tops of my shoulders. I couldn't struggle anyway… I said “I don’t want to have sex” I said “I’m not feeling well, I don’t want to do it.” And “Get off me”’.
During the course of cross-examination, defence counsel took EN to her previous statement about this incident:
QMoving to a different topic, the night, or the morning of [LM’s] birth, you've given evidence that you were raped shortly prior to LM’s birth; is that right.
AYes.
QWhat were the circumstances of [TM] coming home that evening.
ACould you rephrase that please?
QWas [TM] intoxicated -
ANo, he was not.
…
QHe was not intoxicated when that rape occurred; is that right.
AThat's correct, because it was a Sunday night and the next day he was going to teach.
QQuite sure about that now.
AYes.
QOn 28 March 2019 when you first gave your affidavit to Officer Walker, para.18, I suggest you stated and I'll read it in full out of fairness 'The night LM was born I was raped. At around 2 a.m. on 20 March 2006 I was in bed. I was trying to stay away from TM, as I was not feeling very well. I eventually went to bed and as soon as I got into bed I turned to go to sleep, and I felt TM come up behind me. I was lying on my left side and I immediately felt his penis around my vagina area. He had one arm around me holding me down and he was using the other hand on his penis and he was using it to arouse himself. TM was drunk and he was having trouble getting an erection. TM did manage to get an erection and he forced his penis inside of my vagina. I remember saying something like "No, I don't want to, I'm not feeling good", this was a repeat of the conversation I would have with him each time he would force me to have sex with him', that's what you've said about the night LM was born on 28 March 2019, isn't it.
AYes.
QThat's very different to what you're telling the court now, isn't it.
AI realised that mistake afterwards because he was working the next day and it wasn't a Thursday night. I hadn't picked it up earlier.
QYou've realised the mistake because it wasn't a Thursday night, is that your evidence.
AI'm saying that when I re-read the statements the other day I realised, I hadn't picked up on that mistake that he was drunk, he was not drunk.
QWell that's a very detailed description isn't it [EM], [TM] being drunk and having trouble getting an erection.
AWas having trouble getting an erection, but he was not drunk.
QSo you now maintain that he was still having trouble getting an erection, but it was nothing to do with his intoxication.
AHe wasn't intoxicated.
QIn an affidavit of 28 March 2019 at para.19, in fairness it begins at para.18, so if you read to yourself para.18 through to 19.
AYes.
QIn reference to that same alleged incident you've previously said at para.19 'He thrusted inside of me about 10 to 15 times, which was less than he would normally do. Because he was drunk, he was not able to ejaculate and I think he gave up. He went to sleep straight afterwards', that's what you said in your affidavit on 28 March 2019, isn't it.
AYes.
QThere you say that he couldn't ejaculate, that's different to your evidence now, isn't it.
AThat's correct.
QWhy the difference.
AI had been questioned for many hours and I didn't realise the police officer had made a mistake, I didn't check that, and I remember that it happened very differently now. [TM] hadn't been drunk and he was somewhere in the house because I was waiting for him to go to bed. He hadn't been drinking.
I will return to consider the inconsistency as to (i) whether TM was drunk or not, and (ii) whether he ejaculated, or not, on this occasion, later in my reasons.
Relationship after birth of LM
Around the time of LM’s birth in 2006, EN said that her relationship with TM seemed to get worse – he was ‘very aggressive, angry. Wanting sex more often’. She said that she had both consensual and non-consensual sexual intercourse with TM at that time. She could not recall any specific incidents of non-consensual sexual intercourse after LM was born as ‘it happened so often’, apart from the incident subject to Count 4 which I will come to. She then said she could recall it happening but could not say how many times – it just had a pattern. Her evidence was that ultimately, no specific acts of non-consensual sexual intercourse stuck in her mind as ‘they were all blend[ed] in together’.
Count 4
The next specific incident of rape occurred about four or five weeks after the birth of LM on 13^th April 2006. She could specify that date as it was the day of TM's birthday. That incident is the subject of Count 4.
EN recalled celebrating TM’s birthday by walking to a hotel in Norwood for dinner and drinks with family and friends. After dinner, she said that TM was ‘a bit cross with [her] because he’d given her a list of things to do and [she] wasn’t able to do them because she was breastfeeding [her] son’. As she got home, she put herself to bed and went to sleep. TM was still awake watching the television in a different room.
She said she was crying as she was disappointed that TM had asked her to do all those things while she was looking after LM. After she went to sleep that night, she described what happened next:
AI remember [TM] wearing his jocks and moving [LM], [LM] was in his crib and he - he leaned over me, started kissing me. I wasn't able to move very much because I'd just had a caesarean and I kept on saying 'No, we can't. The doctor told us to wait and I'm in pain' and he wasn't listening and he was saying something like 'Love you sweetheart', he wasn't saying much after that. And then he parted my legs, my knees, with his hands and put his penis in my vagina. I was really dry after the birth and it was very painful. He wasn't listening and I kept on telling him to get off and I had a caesarean scar and I was scared of that coming apart. So I kept asking him to be careful after that because I didn't - I had no control anymore. He had his arms either side of me and he kept going.
As he came into bed and approached her, she said:
AI just said that I - I already knew what was going to happen, what he was going to do, and I told him 'No, it's too early to have sex', the doctor or the obstetrician told us we had to wait six weeks. I was saying 'No'.
During him having sexual intercourse with EN, she said that she was telling him to ‘Get off [her], stop, I don't want to, no’. She said that she was shouting this at TM and that she was in a lot of pain. The incident came to an end by ‘[TM] ejaculating on [her] stomach and he always then got a towel and wiped it off’. Neither of them said anything to each other after the incident.
During cross-examination, EN agreed that she failed to mention the alleged rape after the birth of LM in her statement dated 28 March 2019 when detailing the alleged offending. That topic continued throughout cross-examination:
QYou see, I suggest [EN] that nowhere in that affidavit of 28 March 2019 did you mention either of the rapes following the birth of either your son or daughter.
ABecause we ran out of time. We were there for four or five hours, Claire was - Ms Walker was interviewing me, and it was not possible to continue making further statements at that time.
QYour evidence is that you didn't tell Officer Walker about those incidents because you ran out of time, is that right.
AI had mentioned it to her, and she said we could make another time to make further statements.
QThat's just not right is it [EN].
ANo, that's correct.
I will return to consider this issue later in my reasons.
Count 5
In March 2009, EN married TM and later that year in October 2009, her second child, ZM, was born. In the months leading up to their wedding, according to EN, their relationship was ‘really good’. She said ‘We were about to celebrate a wedding, welcoming a new baby, things were looking positive. TM had been made permanent at work, he was working full-time’. When asked what she meant by her relationship ‘really good’, she said that there was not as much shouting, and he wasn’t being aggressive. She said ‘we were starting to enjoy each other's company again … [TM] just wasn’t aggressive anymore, so it was easier to be around him’. Nevertheless, she said at that time in the months leading up to their marriage, there was non-consensual sexual intercourse, as well as consensual sexual intercourse, but ‘the non-consensual sex wasn’t as often’. Immediately after their marriage, she said their relationship was good:
AAgain, he wasn't picking fights with me, or pushing or shoving me, he wasn't aggressive.
QHow was your sexual relationship.
AIt seemed to be better. The non-consensual sex wasn't as often.
That changed when ZM was born on 1 October 2009 – the relationship stopped being ‘good’. She said that TM raped her about four or five weeks after giving birth to ZM. That incident is the subject of Count 5. TM gave the following evidence:
A[TM] raped me before the six-week period that I was supposed to wait to have sex.
QSo you said at the six weeks after you were supposed to have sex, what does that six weeks relate to.
ASo I had a caesarean, I had two fractured ribs, I had pneumonia leading up to the birth of [ZM], and I'd managed to fracture both ribs because of the coughing.
QSo this incident of rape that you - the word that you just used, can you describe what you mean by that.
ASo we had penile-vaginal intercourse.
QYou said this was within the six weeks.
AYes, it was about four or five weeks after [ZM] was born.
Q[EM], you described this rape, how did that happen.
AI remember I was asleep, and I was on my back, and [ZM] was asleep next to me on my right side, and in the My Little Bed crib, and I remember [TM] coming over while I was sleeping, and I woke up to find him parting my legs with his knees, and I told him that I couldn't, I couldn't suddenly, because I had two fractured ribs, I kept on telling him to stop - the same thing - he didn't listen, he goes something like 'I love you sweetheart', then he inserted his penis in my vagina, and he was thrusting, and I was helpless to do anything.
On this occasion, she was shouting at TM to get off her, that she didn’t want him to do it, and that she wanted him to stop.
During cross-examination, defence counsel went to the topic of whether ZM was in bed next to her while she was raped:
QYour evidence was that [ZM] remained in the bed whilst this was, the rape occurred, is that right.
AYes.
QThat's how it happened.
AYes.
QYou see on 6 October 2020 - have you still got that affidavit in front of you.
AYes.
QAt para.34. I suggest you said in your affidavit on 6 October 2020 'I don't remember the exact date, but I know it was only four weeks after I had given birth, I remember [TM] moved [ZM] from the co-sleeping crib into her cot in another room. I remember being worried that [TM] wanted to have sex with me, but I didn't think he would have as he knew about my ribs, as well as having just given birth'. Is that what you said in your affidavit of 6 October 2020.
AYes.
QAnd that's in relation to the same incident that you described in evidence about the rape shortly after your daughter's birth.
AYes.
…
QThat's different to the evidence that you've given isn't it.
AYes, it is.
Q[ZM] being moved is different isn't it.
AShe was there to begin with, that's what I remember.
QWell, what, was she moved during the incident was she.
AI remember that now. It could have happened, it happened so often, I can't tell whether it was that time or another time that he moved her, I'm not sure.
QWell this is a specific incident that you recall shortly after your daughter's birth isn't it.
AYes. I'm not quite sure whether he did or didn't, during that time.
QIs that because it didn't happen [EN].
ANo, it happened.
It remains to consider the impact of that inconsistency as to whether ZM was in the bed or was removed beforehand.
2010 to 2013
Moving in to 2010, EN said there was an improvement in their relationship. EN attributed that to them having homestay students residing with them from about the middle of 2010 to October 2013. During this time, EN said their relationship was a lot better:
AThere was only a couple of incidences of non-consensual sex but most of the time he would wait, he would wait until I was ready or I'd agree to his advances.
In 2014, EN said their relationship started to deteriorate again. TM having sexual intercourse with her without her consent started to become more frequent and there was more aggression in the relationship. Their relationship was toxic and punctuated by violence and non-consensual sexual intercourse, which continued to 2018.
Count 6
EN gave evidence that TM raped her for the last time in December 2018. That is the subject of Count 6. She gave the following evidence:
AAfter our end of year function with people from the gym, and [TM] took us to the Highlander Hotel about 6 p.m., I had six or seven drinks, I can't remember, and got a lift home about 11.30. I went to bed, [TM] wasn't home because he had been playing in the band. Then when I woke up I, I woke up to him performing oral sex on me, and I told him to stop, I didn't want to, I wanted to sleep. It's the first night I hadn't had the children for - the children were at my parents' place, so I actually had a night to sleep. And then he ignored me, he goes 'Come on, you want to' or something, I can't remember afterwards, after performing oral sex on me, then he held me down I remember and he put his penis in my vagina, and we had sex, and I kept on telling him to stop, then he went back to sleep. A couple of hours later he tried to have sex again, but I was quick enough to get away and I went downstairs.
Complaint evidence
At trial, EN gave evidence that the first person she talked about the offending to was her friend, AT. EN met AT through the gym and had known her since about 2017. On 18 December 2018, EN picked AT up from her house and drove to the gym. As she was driving to the gym, she complained to AT. I set out the relevant parts of her evidence:
AI recall telling her that [TM] was performing oral sex on me when I woke up after the gym drinks party whatever, and that he had then raped me and - and it was never going to happen again.
….
QOther than the words that you told us before is there anything else you remember saying to her.
AI think I opened up more about the violence in the relationship.
QWhat if anything did you say to [AT] about the other non-consensual sexual incidents that had occurred up to that point.
AI think I said to her it wasn't the first time, that incident in December 2018.
QDid you elaborate on any of those other incidents.
AI don't think I did, I can't remember.
QSo you said [AT] was in shock afterwards.
AYes.
QDid you have any conversation about what you would do after that.
AI can't remember.
EN was cross-examined in relation her complaint to AT. The following exchange took place:
QSee, I suggest you said something different to [AT] when you first told her didn't you. You stated to her, a couple of days following the alleged incident 'I was really drunk one time and [TM] had his way with me and I didn't want him to'.
ANo.
QI suggest that's what you told [AT] about the rape of December 2018.
ANo.
QShe'd be wrong about that is she.
AYes.
QI suggest, [EN], that you didn't tell [AT] anything about waking up to having cunnilingus performed on you, do you accept that.
AI thought I did.
QI suggest you didn't tell her you were trying to fight him off, did you.
AI think I did.
QAnd I suggest you didn't tell her anything about any of the other rapes or domestic abuse you say happened.
ANo, I did tell her. Not in that conversation.
QSo you are now asserting you had a second conversation are you.
AYes, we continued to talk through January. And I was opening up to her more, and my daughter was telling her how violent [TM] was, and she trusted her also.
QSo what's your evidence today about what you told [AT] in that first conversation.
AIt was about the rape, and the violence.
QSo you did tell her about the violence in that first conversation did you.
AI think - I don't know.
QYour evidence earlier today was that you had mentioned the violence.
AWell, the rape is violence.
QViolence other than the rape in December.
AI don't know now.
QYou're now not sure what you told [AT] in that initial -
AI told her about the rape, I'm certain.
QYou told her about the rape in full.
AAs much as I could in three to five minutes.
QYou told her about the cunnilingus did you.
AI'm pretty sure I did, yes.
QYour evidence is that you told her that you tried to fight him off, is that right.
AI'm not sure.
QYou're not sure what you told [AT] are you.
ANo, no, I'm sure about what I told her, about the rape.
QWell what did you tell her.
ASorry?
QWell what did you tell her.
AI told her about the rape, that he was performing cunnilingus on me, I was in shock, and I hadn't allowed him to have sex with me, but he did, and I said 'no', that's why I was angry about it and told [AT].
QThis is what you're telling [AT], is that right.
AYes.
End of relationship

In March 2019, EN’s relationship with TM had reached a point where they were barely talking to one another. She gave evidence of the night she told TM to leave the house. She said that her friend, AT, came over and TM got ‘really angry’ about her being there.
She ordered a pizza and he got angry about that. At around that moment, she told TM ‘I'm done, get out. I'm sick of the abuse. We’re finished’. She told him to leave, and he left that night. The following day, TM returned to the house for about two hours to gather his belongings ‘and after that, that was it’.
In cross-examination, defence counsel asked EN about (i) the circumstances in which she went to the police, (ii) why she decided to do so, and (iii) what information she provided to the police.
QIndeed, you plucked up the courage in 2019 to ask him to go, didn't you.
AYes, I did.
QWhat had changed.
AI was stronger, I was doing a course and I felt mentally stronger. I had had that last rape and I wanted to work - I had, I worked on myself during my course and I'd had enough, had enough of the abuse.
Upon TM gathering his belongings, EN said that she met with ‘her divorce lawyer’. After receiving advice from her lawyer to speak to the police, she attended the police station on the same day on 12 March 2019. She said the reason for her attendance at the police station was to apply for an intervention order to obtain protection for her and her children. To the extent that it can be inferred that an intervention order was put in place, I have ignored that evidence. Specifically, I direct myself that the fact that an intervention order was put in place does not supply any evidence that the events alleged in the application for a restraining order occurred.
Following her attendance at the police station, EN provided a police statement in support of her application for an intervention order. That statement only referred to an allegation of rape in December 2018 and an assault in August 2017.[11] It was suggested that she made no allegation of the abuse, she claimed to have suffered for in excess of 10 years. However, EN maintained that she did tell the police about the other abuse and was told that ‘there’d be further statements to be made and that they would put [her] in touch with an investigating officer’.
[11] See also: Exhibit P4, Agreed Facts under heading ‘Police Involvement’ [1]-[6].
It was agreed that Senior Constable Fulcher who took the statement in relation to the intervention order had no independent recollection of the conversation. However ‘it is normal procedure for a statement to be taken, or a note to be made on the occurrence report of something of some relevance said by a witness or complainant’.[12] To that end, the following exchange took place:
[12] Ibid [7].
Q[Officer Fulcher] told you, didn't he, that it was important for you to tell him about all of the violence that you'd suffered during the relationship, save for the rapes, didn't he.
AI can't remember. I thought he asked me for everything.
QSorry, you thought he asked you for everything.
AYes, I discussed it with him.
QI suggest you only discussed with Officer Fulcher one assault on 2 August 2017 and one rape in December 2018.
AStatements were made for them, but I did tell him about the others.
QTold him about 'the others' what.
AThe other rapes, and the abuse and the violence. That's where he said to me another officer would be in touch to take those statements. We had already been there for about three hours and it was getting late.
…
QSo I've got this clear, it's your evidence that you told Officer Fulcher about all of the allegations of rape and the fact that the violence had been spanning for 15 years; is that right.
AYes.
HIS HONOUR
QDid you give all of the detail about everything or -
ANo, I didn't. I mentioned it, I said it had been going on for years but the last recount I had was in December 2018 and after speaking to my divorce lawyer, after telling him what had been going on, he said to me 'It's really important you go to the police and report this, this is a police matter'. I didn't know what a normal relationship was anymore, so I went to the police and told them about it.
It was suggested by defence counsel that: (i) the only physical assault that she disclosed in her statement was the alleged assault on 2 August 2017; and (ii) that was only mentioned because the ongoing physical abuse is a fabrication. EN outright denied that proposition. I will return to consider this submission later in me reasons.
In my view, EN was frank about how she felt about TM. Her evidence was compelling. She said:
QAnd when you got engaged in April 2008 how was the relationship.
AIt was good.
QSo you were confident that things had changed or turned the corner, were you.
AI was hopeful that they would, yes.
QSuch that you were prepared to use in excess of $100,000 to get married; is that right.
AYes.
QAnd, indeed, have a second child with [TM].
AYes, I loved him.
QIndeed, you loved him throughout the entirety of the marriage, didn't you.
AYes, I did.
QAnd you'd loved him prior to getting engaged, hadn't you.
AYes.
QYou'd send flirtatious messages to one another, wouldn't you.
AYes.
QIndeed, you were having consensual sex throughout this period, weren't you.
AWhich period, sorry?
QWell, the entirety of the relationship, weren't you.
AAt times, yes.
QSo in amongst all these violent rapes you'd still consent to sex with the perpetrator, would you.
AYes, I would. I - my marriage was a contract, it was a family contract and I was trying to keep the family together and hopeful that TM would get better with the help of medication and psychiatrists and psychologists.
QSo you stayed with him because of your marriage, did you.
ABecause I'm Catholic, I have religious views, I didn't want to just walk away with the - from the marriage without trying my hardest to help and support him.
AT– initial complaint witness
AT, EN’s friend from the gym and the initial complaint witness, gave evidence at trial. She has known EN since 2017. The two would travel to the gym together to attend classes. AT gave evidence that EN complained to her in December 2018 that TM had had sexual intercourse with her without her consent following a Christmas party organised through the gym.
AT is a single mother with seven children. She is a registered nurse and midwife. When giving evidence, she was visibly distressed and continually apologetic, and, to my mind, was presenting in a way that seemed disproportionate to the nature of the evidence she was giving.
While giving evidence can no doubt be stressful; her evidence was on a relatively confined topic and the emotional way she presented, at times, left me with the impression that she was overwhelmed by the prospect of giving evidence. Her presentation caused me some concern as to her reliability as a witness. I have no doubt that AT was attempting to tell the truth although, as I say, I have reservations as to her reliability. I will return to this issue later in my reasons.
AT was asked by the prosecutor whether she could recall EN telling her about any incidents that occurred between EN and TM. In response, she said that EN had told her that she lived in a domestic violence relationship. AT said that she had told EN ‘That’s not good to live that sort of relationship. If that’s the case then why don’t you just leave him, if he’s hitting you’. She said that EN, in response said ‘Because I do it for love, and he’s my husband’. AT told EN that she would leave a man if he ever hit her. She was asked about any other incidents that EN told her about, to which she responded ‘no’.
I make it clear that the evidence given by AT is hearsay. It did not relate to sexual offending, and in those circumstances, is not initial complaint evidence. I have not relied on it in any way. In particular, I have not relied on it as evidence of the truth of the assertions contained in the statement said to have been made by EN to AT about the nature of her relationship with TM. AT was then asked if she knew why she had come to Court – I presume alluding to the initial complaint she would ultimately make. In response, AT said:
ALike to give evidence for what [ZM] said to me maybe. I don't - I just know what [EN] has said to me, other than that I don't know anything further.
It was not until AT was specifically asked if EN had ever said anything to her while they were on the way to the gym that AT gave evidence about the initial complaint that she says was made to her.
At first instance, AT gave evidence that she was not told anything on the way to the gym, but was told something by EN when she was at the gym. That is, when she was actually inside the gym, just prior to a ‘pump’ class with people surrounding them.
AT said that EN initially told her that on the night of the Christmas party (hosted by the gym), she had ‘got really drunk… she went to the next-door neighbour’s house… she drank [homemade alcohol] … she got really drunk and then she went home and then she fell over the fence and got home’.
According to AT, upon arriving home, EN said to her:
AShe said to me that [TM] had his way with her and she said to me that she didn't want him to do that. And we were at the gym, and there's so many people from our area around, I didn't think it was the right place to be talking and I just, I didn't ask any more questions.
…
QDo you recall were they the words used, or were there any other words that you can recall.
AWell, pretty much, it was really uncomfortable, yeah. And she said to me that she didn't want him to do that, and she felt really ashamed. Something along that - it was really too hard to talk, there were people all around us.
QDid she tell you what she meant by [TM] having his way with her.
ASex, sexual intercourse.
QIs that what she said to you.
AYes.
HIS HONOUR
QWhat words did she use.
AAlong those sort of words, that - like she said he had his way with her, he had sex with her, and he said that - she said to me that she didn't want to do it, but she said she was really drunk and she said it was - and I said 'Oh it sounds horrible'. Honestly I tried to cut it short, because there's so many people around us, and I felt like it wasn't the place to be talking about this.
XN
QDid [EN] tell you what she was doing while [TM] was having sex with her, had his way with her.
ANo. She just told me she was really drunk.
QShe told you she didn't want him to do that.
AThat's - yes, she did say that.
QWere they the words, or were there other words she used.
ANo, she just said to me that she didn't want that to occur. Something, you know, like feeling ashamed or uncomfortable. I don't know, honestly, because I did try to cut it short. Honestly, to tell you the truth, I just felt it wasn't the place for us to be chatting about this sort of stuff, because everyone around us all know us from that area, like we know everyone there.
AT said that she cut the conversation short. She acknowledged that she could have asked more questions but did not because ‘there was [sic] too many people around [them]’. There is an apparent inconsistency between the circumstances of the complaint as recounted by EN, when compared with AT’s evidence. There are differences as to where the complaint was made, in the car or at the gym, as well as to the detail.
Complaint evidence – discussion
EN gave evidence that she complained to AT while they were in the car driving to the gym. EN said that she told AT that she woke up to TM performing cunnilingus on her and thereafter, raped her. AT did not mention any detail about cunnilingus, but said that EN had said that TM had ‘had his way with her’. By ‘having his way with her’ she meant ‘sex, or sexual intercourse’. AT added that was in fact what EN had said to her.
AT could not recall the exact words that were said to her by EN. She agreed it was to the effect that EN had told her that she was ‘really drunk’, that TM had ‘had his way with her’, and that she did not want him to. AT added that she had said to her ‘that she didn't want to do it, but she said she was really drunk’.
I found AT to be an unreliable witness. She was unable to explain the detail of what was said to her. There was an element of reconstruction and paraphrasing. On the whole, AT was an unimpressive witness. As I have already mentioned, she presented in a very distressed manner. In fact, she had an unusual presentation. In my view, she was unnecessarily nervous at times. It maybe she is just a person with a nervous disposition. However, I got the impression that her stressed state contributed to her fragmented thinking. When asked a basic question designed to elicit the initial complaint evidence, she responded with evidence in relation to EN telling her about TM hitting her. When asked if EN said anything further, she responded with ‘no’ and that ZM had told her something, at some stage.
I found EN to be a far more reliable witness having regard to the detail of the complaint, and the location of where the complaint took place. I consider it unlikely that EN would complain to AT in a gym full of people. AT was the first person she had talked about TM offending against her. As a matter of common sense, it is more likely that the initial complaint would be made in circumstances of privacy, and in this case in EN’s car. I note here that EN said that AT appeared to be in ‘shock afterwards’. It may be that the shock of what she was told has affected the reliability of her evidence.
To the extent that there are inconsistencies, I prefer the evidence of EN. The inconsistencies arising out of the initial complaint evidence has not caused me to doubt EN’s account. For those reasons, I am satisfied that EN complained to AT in December 2018 (in the way she described) about TM raping her on the night of the 2018 Christmas party organised by the gym.
The initial complaint does show some degree of consistency of conduct of EN, in that she complained to AT at a time when she might have been expected to. At that point, she had only recently been raped and was at a point in her life where she felt strong enough to complain. To that end, the evidence is capable of buttressing the credibility of EN’s account. I direct myself that this is the only use that can be made of the initial complaint evidence. Specifically, I direct myself that the evidence is not admitted and cannot be used as evidence of the truth of what was alleged.
Submissions
Prosecution address
Central to the prosecution case is the creditability and reliability of EN. It was submitted by the prosecution that I should accept EN’s evidence about the offending beyond a reasonable doubt. In circumstances where I did accept her evidence about the six particular occasions, being the subject of the charges, the elements of rape are clearly made out.
The prosecution submitted that the reason I should accept EN’s evidence was because of her detailed and specific account of the alleged offending. Her evidence that there was consensual intercourse in between the incidents was a marker of her credibility. As was her evidence that there were periods when the two, more generally, got along with one another – in other words, there were ‘good times’.
While some parts of her narrative contained inconsistencies, EN’s fundamental evidence that she did not consent to intercourse, and that she made that known to TM, remained unchanged. Any inconsistent statements made outside of court were, in the prosecution’s submission, about relatively minor details and did not materially undermine her credibility, if at all.
It was submitted that any suggestion that there was a motive to lie, for financial or other reasons, did not bear scrutiny. Nothing flowed from her failure to pursue the intervention order against TM. The order was withdrawn in the Court on 21 March 2019, and EN was satisfied, after speaking with the police, that there wasn’t an immediate need for her to have that protection. It was agreed between the parties that EN had disclosed to the police the allegation of rape that occurred in December 2018 when she sought the intervention order. To that end, it was submitted by the prosecution that there could be no suggestion that EN made up the allegations after the restraining order was withdrawn.
As to the complaint evidence, although there were inconsistencies between EN and AT’s accounts, it was submitted that some aspects were consistent, including that she did not consent to sexual intercourse following the Christmas party, held by her gym in December 2018. The difference of where the complaint was made, either in EN’s car or inside the gym, was explicable due to the length of time between the complaint in 2018 and the trial. It was further submitted that the other inconsistencies, including that EN said that she wasn’t intoxicated, did not deprive the initial complaint evidence of its ability to show a consistency of conduct. EN complained to AT at a time when she felt she like she needed support to end her relationship, and when she felt emotionally strong so that she could make such complaint.
Defence counsel address
Counsel for TM submitted that EN was an unsatisfactory witness who lied, embellished and rehearsed her evidence. It was further submitted that her credibility was undermined by inconsistencies on several topics.
In reference to any inconsistences that arise in the initial complaint evidence, EN said that she was not intoxicated at the gym Christmas party, but on AT’s evidence, EN told AT that she was ‘really drunk’. EN said that she complained to AT in her car, but AT said the complaint occurred inside the gym. EN also said that she told AT everything about what happened at the Christmas party, whereas AT said EN told her she was ‘really drunk’ and told TM that she did not want to have sex with him. There was no mention of cunnilingus, or any other details, including fighting him off. EN said she told AT about other incidents that had occurred. These were subject to conversations she had with AT in January 2020, but AT could not recall any conversation.
It was submitted that EN’s account of being a ‘downtrodden, beaten, and an abused victim of domestic violence spanning 14 or 15 years’, was implausible. The first incident of rape that occurred in early 2005 was a violent anal rape and occurred out of the blue. It was submitted that EN would not have stayed. Prior to that incident, TM had not subjected EN to any ongoing violence, such that she would accept whatever TM dished out. She had friends and family to support her and was financially comfortable. She was not isolated and vulnerable.
It was further submitted, having regard to the first incident of rape, that a significant inconsistency arose in relation to where TM ejaculated. At trial, EN said TM ejaculated on her stomach, yet in her statement, she said he ejaculated on her back. She also gave evidence at trial that TM must have been on top of her (as she laid on her back) whereas in her statement, he was behind her. There is a clear inference from her statement that she was describing the whole incident occurring with TM positioned behind her. However, at trial she included the addition of him rolling her onto her back at some stage. It was submitted that this was not an insignificant detail when it comes to an allegation of rape.
There was a further inconsistency about whether she did (or did not) speak with TM immediately following the first incident of rape. She initially said that she never spoke with TM about him raping her. Although, when pressed about whether she had done so, it was submitted that she anticipated the notion that that was unlikely, and so concocted an answer and said he raised it after the first incident and explained why she had never asked again.

Defence counsel submitted that her statement to Officer Fulcher that she provided in support of her application for an intervention order only detailed two incidents of violence – one assault in August 2017 and one rape in December 2018. Her evidence that she mentioned that she was the subject of ongoing abuse to Officer Fulcher, but such detail was not included in her statement, did not ring true. It was further submitted that her explanation as to why her first statement dated 28 March 2019 (not her statement in support of her application for the intervention order) did not detail the incidents of rape shortly after the birth of both her children was not true, in that she told the police officer, but they did not include it ‘because we ran out of time’. It was submitted that such detail would ordinarily be included in notes or on the police occurrence report.
EN gave evidence that she was not frightened of TM after their relationship ended in March 2020. Despite that, she called 000 when TM came near her (and AT) at the gym on 14 March 2020. Defence counsel submitted that she was indeed scared and that is why she made up the allegations of ongoing abuse because the restraining order was being withdrawn. I have considered this submission. I accept EN’s explanation that she was reassured by the police two weeks later that the accused did not pose an ongoing risk to her. At that stage the rape charges were likely to be laid. I do not accept that the restraining order not being pursued prompted her to make up a more detailed allegation of abuse.
Count 1
As previously mentioned, there was an inconsistency in relation to the location of where TM ejaculated on EN. It was submitted that such inconsistency is not explicable on the basis that there were so many occasions, so that they ‘all blend together’. This was the first time he raped her and the only time he anally raped her. That time, if it happened, would be etched in her memory – she would not be mistaken about where he ejaculated. It was submitted that EN’s explanation that she now remembers it differently is concerning. It was further submitted that EN was possibly confusing different incidents with one another to the extent that she may also be confusing charged acts, with times she managed to get away from TM.
Count 2
At trial, EN said that she noticed semen running down her leg when she went into the bathroom. In her statement, she said that she saw semen on the toilet paper but not on her leg. According to defence counsel, although not of itself that important, such an inconsistency assumed a greater significance due to the possibility that she was blending incidents together, and therefore may be talking about an uncharged act.
Count 3
As to Count 3, EN said that TM was not intoxicated and did ejaculate when he raped her. To the contrary, in her statement, she said that he was intoxicated and did not ejaculate. When asked to explain the inconsistency, she said that she had been questioned for many hours and did not notice the police officer had made mistake with her statement.
Counts 4 and 5
It was submitted by defence counsel that she failed to disclose the incidents of rape (the subject of Counts 4 and 5) following the birth of her children, LM and ZM, to the police in her first statement.
As to Count 4, EN gave evidence at trial that he was wearing underwear at the beginning of the incident, whereas she said that he was naked at the beginning in her police statement. Again, it was submitted that if she is recalling a different incident, then it is not the charged incident – her reliability is therefore doubtful.
As to Count 5, there was an inconsistency about whether EN’s daughter, who was a new-born at the time, was moved from her co-sleeper crib in EN’s bed prior to when she was raped, or whether she was in the bed as it happened. Her explanation for that inconsistency was put down to there being ‘hundreds’ of incidents of rape during that period, and she was confused about what occurred. Her evidence that there were ‘hundreds’ of incidents was at complete odds with her evidence that around that time, she was enjoying her relationship with TM and there were only a couple instances of non-consensual sexual intercourse due to the homestay students residing with them at that time.
Count 6
As also previously mentioned, there was an inconsistency in relation to whether EN was intoxicated, or not. EN gave evidence that she was not, yet AT gave evidence that EN told her that she was ‘really drunk’.
Discussion
I found EN to be a persuasive witness. There was nothing about her presentation that caused me to doubt anything she said. Her account was compelling. She provided a rich and detailed account both as to the way she described the sexual offending against her, but also the abuse that she suffered (at the hands of TM) over 14 years. The specific incidents that she was able to differentiate from the rest (the charged acts) were vivid recitals of what I regard to be events that happened. In my view, there was nothing about her evidence that indicated a fabricated account. She was prepared to give evidence, despite him raping her many times, that she had consensual intercourse with TM from time to time, that she simply began to accept that he would rape her, and that she loved him, all of which had the hallmarks of a truthful account.
In my view, EN was a credible witness who was doing her best to give an accurate account of events, some of which occurred many years prior. I have considered whether, despite my observation that she was a credible witness, was she nonetheless an unreliable witness. I accept, at times, EN was not certain as to some details. These included, for example, where TM ejaculated, whether ZM was in the bed (or was removed from the bed) before she was raped, if TM ejaculated or not, and if he was drunk or not. The issue is whether these aspects upon which she was uncertain make her an unreliable witness such that I should have a reasonable doubt about her evidence as they relate to each count.
In my view, the details upon which she was unsure were peripheral matters and did not materially undermine my assessment of her reliability as to the essential elements of each of the charged acts of rape.
Throughout the trial, EN provided small details that, continually reinforced my view of her as an honest and truthful witness. These included: (i) the way that she acknowledged that her and TM ‘did have good times’; (ii) that after she fell pregnant with LM, she didn’t leave her relationship with TM as ‘It was easier to stay, [she] was hoping [he] would change. He’d been given a diagnosis of BPD and was seeking help’ – she was hopeful that he would change; (iii) her description of their relationship immediately after they were married – that ‘It seemed to be better [as the] non-consensual sex wasn't as often’; and (iv) despite her being raped for the years leading up to her marriage to TM, that her relationship was ‘really good’ as they ‘were starting to enjoy each other's company again…[TM] just wasn't aggressive anymore, so it was easier to be around him’. EN’s evidence that from the middle of 2010 to late 2013 ‘There was only a couple of incidences of non-consensual sex but most of the time he would wait, he would wait until [she] was ready or [she’d] agree to his advances’ had the ring of truth to it. Lastly, I found her evidence compelling that she stayed with him because she loved him, that she would have consensual intercourse with him (from time to time) despite it all because to her a ‘marriage was a contract, it was a family contract and [she] was trying to keep the family together and [was] hopeful TM would get better with the help’. She was also Catholic; she had religious views and didn’t want to just walk away.
Separate consideration direction
I turn to consider the evidence as it relates to each individual count. I direct myself that each charge needs to be considered separately. A finding of guilty (or not guilty) on one charge, does not mean that I will find the accused guilty of the other charges. I must only consider each charge by reference to the evidence that applies to it.
In this case, I have not relied on a finding that TM is guilty of a particular charge as evidence of a propensity to behave in a particular way towards EM. I have not relied on propensity reasoning as an item of circumstantial evidence making it more likely that TM would commit any of the other charged acts. The only relevance of the other charged acts is that is provides the context and relevant circumstances surrounding the other charges.[13] To that end, I have only used the other charged acts to place the charged act in context by explaining how the offending continued over time (in that it did not occur ‘out of the blue’), by explaining EN’s failure to complain or rebuff TM, and by explaining TM’s confidence to act as he did, in that he knew that EN would comply and not complain.
[13] R v MJJ; R v CJN (2013) 117 SASR 81, [20]-[27] (Kourakis CJ).
Uncharged acts direction
In this case, EN gave evidence of being the victim of continual violence and incidences of rape that continued throughout the course of her relationship. Such evidence is discreditable conduct contrary to the Evidence Act 1929 (SA).[14] In circumstances where I accept her evidence about the uncharged acts, I must not use it to reason that TM is a person likely from his criminal conduct or character to have committed the offences for which he is being tried, and therefore I can convict on a particular charge.[15] I have not engaged in ‘bad person reasoning’.[16] I must only convict TM if I am satisfied beyond reasonable doubt that the particular conduct, the subject of the relevant charge, has occurred. Instead, the permissible use of the uncharged acts is to place the charged acts in context.[17] The evidence is relevant to inform why and how the offending continued, to explain why - the charged acts didn’t ‘come out of the blue’, to explain EN’s failure to complain and why TM felt able to act as he did and did not fear that EN would report the offending. That is the only way that I have used the evidence.
[14] Evidence Act 1929 (SA) s 34P.
[15] R v Nieterink (1999) 76 SASR 56.
[16] R v C, CA [2013] SASCFC 137 [76] (Kourakis CJ).
[17] Ibid.
I turn to consider the evidence in relation to the specific charges.
Count 1
As to the first time TM raped EN in early 2005, I am of the view that her description of him anally raping her was compelling. Her description of the shock of him doing that when up until then their sexual relationship never involved anal penetration, her descriptions of her protestations and his response ‘I love you sweetheart’ or ‘Come on sexy’, of TM getting a towel to wipe off his semen, that there was no conversation between the two, and that he went straight back to sleep, all in combination had the hallmarks of lived event. I accept her evidence that TM inserted his penis inside her anus, that she told him that she did not want to have sexual intercourse, that he ignored her protestation and proceeded to have sexual intercourse with her anyway.
The inconsistent statement made as to the location of where TM ejaculated (back or stomach) and the precise location of TM when he ejaculated (whether behind EN or in front) has not caused me to doubt the credibility and reliability of her account. In circumstances where TM had had sexual intercourse with her on many occasions, her inconsistent recollection of that relatively minor detail is not surprising.
I have considered the potential effect of the inconsistency in EN’s evidence in relation to whether she woke up to TN’s penis already inside of her anus, as opposed to him being about to insert his penis in her anus. At trial, EN gave evidence that when she awoke TM was about to put his penis into her anus. In contrast, in her statement she said that she awoke to him forcing his penis into her anus. The defence submitted this was a material inconsistency. I do not accept that submission.
While what she said to the police is slightly different, it is not an inconsistency that has caused me to doubt EN’s evidence. EN acknowledged that she could have described it differently to the police, but I acknowledge that it may be easy to see how what she said to the police, could be interpreted as meaning the same thing she said in her evidence. While what she said to the police could mean that he was already inside of her anus, it could equally be construed to mean she awoke to him trying to do that and shortly after, he did.
It was submitted by defence counsel that following the first incident of rape, if it had occurred, she would have left TM. I reject that submission. It is difficult to predict how a person will (or will not) respond to being raped. I do not think that it necessarily follows that she would have left the relationship. There is a combination of emotions that may follow a rape such that how a person reacts may not be predictable – including in this case shock, embarrassment and perhaps disbelief.
EN did not try to overstate the reasons of why she decided to remain with TM. She did not include any allegation of a specific threat or other pressure that caused her to remain, or anything similar. The absence of that evidence reinforces the genuine nature of her account.
Count 2
The next specific incident that EN recalled occurred about two weeks before she found out that she was pregnant with LM. TM entered her bedroom and raped her. She recalled that he had been out that night with his band performing, he came home intoxicated, he positioned himself behind her, she felt his penis between her thighs, she said that he ignored her, she went to the bathroom afterwards, and recalled seeing semen running down her leg. Those specific details, that particular occasion, and the time in her life (she discovered she was pregnant with her LM two weeks later), all added to my view of her evidence. Coupled with what I regarded to be her compelling presentation, I accept her evidence about this charge.
Count 3
The third incident or rape occurred the night before she gave birth to her son, LM. She had been waiting for him to go to sleep as she did not want to have sexual intercourse with him and he had been wanting to have sex with her, at least he was showing her the usual signs of him wanting to – he had been massaging her shoulders during the day, being overly nice, and so on. She was hoping that he would fall asleep, and she thought he had. At about 2.00am in the morning, she woke up to TM holding her down. She told him ‘no’ and that she did not want to have sexual intercourse with him. She said that she felt ill. He then rolled her onto her back and inserted his penis in her vagina, had sexual intercourse with her until he ejaculated on her stomach. As he always did, he got a towel and wiped it off. She said she was telling him to stop, that she did not want to have sexual intercourse, but he proceeded to do it anyway.
In relation to this incident, EN emphasised that during the course of that particular rape he was not intoxicated, and she was sure about that. In contrast to the evidence that she gave at trial, she agreed that she said in a statement dated 28 March 2019 that ‘He had one arm around [her] holding [her] down and he was using the other hand on his penis…to arouse himself. [TM] was drunk and he was having trouble getting an erection’. She agreed that she told police that TM did manage to get an erection and did force his penis inside of her vagina. She said that when she re-read the statement, she realised that she had made a mistake by saying that he was intoxicated as he was not. She maintained that he was having trouble getting an erection, and that he was not intoxicated. She agreed that she told the police in that same statement that TM ‘thrusted inside [her] about 10 to 15 times, which was less than he would normally do. Because he was drunk, he was not able to ejaculate and [she] think[s] he gave up’.
As to the inconsistency in relation to whether or not he ejaculated, EN said that she had been questioned for many hours and did not realise the police officer had made a mistake. She did not check that statement and when she gave evidence, remembered that it happened very differently to the way it was described in her statement.
I have carefully considered whether this inconsistency should cause me to doubt EN’s evidence in relation to this incident. However, having regard to her detailed account as to the moments leading up to the incident, that she wanted to avoid TM because he had been showing the tell-tale signs of wanting to have sex with him, and the specific time that it occurred (hours before she went into labour), I am satisfied beyond a reasonable doubt that TM penetrated her vagina with his penis without her consent knowing she was not consenting. As to whether he was intoxicated or whether he ejaculated, I am not certain however it does not cause me to doubt that an act of sexual intercourse occurred in circumstances that amount to rape.
Count 4
EN recalled an incident where TM raped her about four or five weeks after the birth of her son. Her detailed account in relation to the events leading up to that incident impressed me as a truthful account. She said that they had been out for dinner and drinks with their family and friends to celebrate his birthday. As they returned home, TM was unhappy with EN because she had not completed a list of tasks that he had given her to do. She described feeling disappointed that he had said that to her, at a time when she was still breastfeeding and had a new-born infant. Her ability to be able to describe her thought patterns around that time, had a ring of truth to it.
Her description of TM forcing himself on her while she was still feeling the effects of the caesarean section (from the birth of LM), rang true. Her evidence that she told TM that the doctor had told them that they should not have sexual intercourse at that time because of the caesarean section, her telling him that she was in pain but despite that he parted her legs and had penile vaginal intercourse with her, her ability to describe that her vagina felt dry after LM’s birth and that sexual intercourse was painful (on account of that), and her worry that the caesarean scar would open because of what was happening, all painted a clear picture of the rape she says occurred. That richness of detail with respect to this charge leads me to accept her evidence beyond a reasonable doubt.
The primary submission by defence counsel as to why I should not accept EN on this charge was predicated on EN failing to mention this incident to the police (despite detailing other rapes, including those around the time of the birth of LM) in her statement dated 28 March 2019. EN said that she did mention that incident of rape to Officer Walker when she was giving her statement, but they had been preparing the statement for about four to five hours and it was not possible to include that further detail. EN maintained that she mentioned that incident and that there was a discussion with the police that they could make another time to include that in a further statement. She disagreed that the first time she told anyone about rape was during the course of a statement on 6 October 2020 with Officer Walker.
Defence counsel submitted that had EN mentioned it earlier to Officer Walker, it would have appeared in her statement. There is some force in that submission. However, on the other hand, EN’s statement on 28 March 2019 was dense with detail. Officer Walker had to collate a great deal of information about an ongoing rape that spanned many years. It is not beyond the realms of possibility that she did mention something to Officer Walker, but Officer Walker told her they could put that further detail in a further statement. Alternatively, it may be the case that EN is mistaken as to whether she mentioned that incident to the police on that occasion.

Whatever the position is, it does not affect my assessment of her evidence. I do not consider that if she said it for the first time in a statement on 6 October 2020, that it undermines her credibility or reliability with respect to her evidence. The detailed account that she gave and indeed, the way she described it, was compelling. It is easy to see why during the course of taking a lengthy statement that detail may not be given, that she thought she had mentioned it, or for some other reason, it did not end up in her statement. I reject the submission put forward by defence counsel that as the rape, the subject of Count 4, was not described in her statement dated 28 March 2019 but only in her statement dated 6 October 2020, her account was a fabrication.
I am satisfied that TM had sexual intercourse with EN about four or five weeks after she gave birth to LM, in circumstances where EN did not consent as she said and given her protestations (which I am satisfied she made), TM knew full well she was not consenting.
Count 5
After the birth of LM, EN described her relationship with TM as ‘really good’ and ‘better’. In a disarmingly honest way, she explained it was ‘better’ as ‘the non-consensual sex wasn't as often’. She wasn't being raped as much as she had been in past years but was still being raped from time to time.
Such was her state of subjugation, to only be raped every now and again, meant her relationship was improving. She said that after the birth of her second child, ZM, TM raped her again while she was recovering from a caesarean section. At that time, she said she was suffering from two fractured ribs and pneumonia. The fracture to her ribs was caused by acute coughing.
EN said that she was asleep in their bed with ZM sleeping next to her, when she awoke to find TM parting her legs open with his knees. She told TM that they couldn’t have sexual intercourse due to her two fractured ribs and asked him to stop. TM was telling her that he loved her as he inserted his penis into her vagina. Her description of feeling helpless to do anything to stop him, given her state, I found convincing.
A similar criticism was made of EN’s evidence in relation to this incident as was made for Count 4, namely that this incident was not mentioned in her dated 28 March 2019. For the same reasons that I have mentioned above (in the context of Count 4), I reject that criticism as being a basis upon which I should disregard EN’s evidence on this charge.
Defence counsel further submitted that I should reject her evidence on this incident as there is an inconsistency as to whether ZM was in her bed (in a crib) next to her while TM raped her. That evidence (given at trial) was inconsistent with what she said to the police, namely that TM on that occasion removed ZM from the bed into another room prior to raping her. The effect of EN’s evidence was that she maintained that her daughter was in her bed at the start of the incident. She said that she remembered her child being in the bed. She explained that he raped her so often that she couldn't recall whether it was at that time that he removed ZM from her crib or if it was another time. In the end, she wasn't sure whether TM removed ZM or whether ZM remained in the bed.
In my view, whether ZM was in bed, or was removed by TM, has not affected my assessment of her credibility and reliability in relation to this charge. As to whether the child was right next to her or removed at a time just before she was raped, is of little moment. It has not affected my assessment as to the quality of her evidence in relation to the graphic rape she described occurring in detail following the birth of her second child.
I have also considered EN’s explanation for being unsure as to whether ZM was removed from her crib prior to the rape as he had raped her ‘hundreds’ of times with ZM in the bed. It was submitted by defence counsel that such explanation was undermined by her evidence that he did not rape her much due to the presence of the homestay students at the house. I do not accept this submission. In my view EN’s comment he raped her hundreds of times was not meant to be taken literally but was meant to convey that he raped her many times while she had the baby in bed with her. I took it to be an incautious exaggeration that did not affect my assessment of her evidence.
Count 6
In December 2018, EN said that TM raped her for the last time. She described this as occurring after she got home from a Christmas party hosted by her gym. She said that she had a few drinks but was not intoxicated. Her description of going home and waking up to TM performing cunnilingus on her was a small detail that added to the richness of her account. She said TM then proceeded to insert his penis in her vagina and despite telling him not to, he continued to do so anyway. Her description of waking to TM ‘sucking and licking [her] clitoris’, her telling TM ‘no, go away, get off me’ and ‘stop’, TM holding her shoulders down, pressing his weight on her as her he had penile vaginal intercourse with her and her giving up as she could not escape from underneath him, I again found convincing.
I have considered the complaint evidence to AT. I am satisfied the complaint to AT was made in the terms articulated by EN. The complaint was made at a time when EN felt strong enough to tell someone. It was made shortly after the rape and in circumstances that in my view show consistency of conduct. The evidence supports her credibility.
I have considered AT’s evidence that EN told her that she was ‘really drunk’ after the Christmas party as ‘she went to the next-door neighbour’s house… drank [homemade alcohol] and got really drunk and then she went home and then she fell over the fence and got home’. As I have already mentioned, I found AT to be an unreliable witness. She was acutely anxious and parts of her evidence I found to be unlikely. I prefer EN’s evidence in particular as to the circumstances of the initial complaint. However, even if I did accept AT’s evidence that EN said to her that she was intoxicated, that is more intoxicated than she said during her evidence, that would not cause me to doubt her as to the core allegation of rape.
I am satisfied that the accused had penile vaginal intercourse with EN without her consent knowing she was not consenting after the gym Christmas function in December 2018.
Conclusion and findings
I accept EN’s evidence beyond a reasonable doubt about what she says TM did to her during her relationship with the accused. Specifically, I am satisfied the accused had sexual intercourse with EN without her consent knowing she was not consenting on the specific occasions she described which were the subject of Counts 1 to 6 (inclusive).
In relation to the charges of rape, the subject of Counts 1 to 6 (inclusive), I find the accused guilty.