R v W, L

[2025] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v W, L

Criminal Trial by Judge Alone

[2025] SADC 85

Judgment of her Honour Judge Fuller 

10 July 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

Accused charged with one count of rape upon the complainant on 5 June 2022 - accused married to complainant and they had two young children. Complainant alleged that after attending a birthday party together and then spending until the early hours of the morning in the city where they both continued drinking and consuming cocaine, the accused had sexual intercourse with her without her consent when they returned home. Complainant alleged she told the accused she was tired and did not want to have sexual intercourse with him, but he ignored her - immediately after sexual intercourse ended, the complainant used her mobile telephone to covertly record a series of conversations with the accused - prosecution case was that in those conversation the accused admitted to raping the complainant. Accused then fell asleep and complainant left the house and went to her mother’s house. A friend of the complainant received a Snapchat message from her between 6.30am and 7.30am on 5 June 2022 asserting that the accused had raped her - complainant did not recall sending that message.

Accused stayed in family home until end of October 2022 - accused alleged to have made implied admissions to complainant in a series of text messages, to her mother in a phone call, to her friend at his father’s wake and in a recorded conversation between the complainant and the accused on 30 October 2022.

Accused participated in record of interview and admitted having sexual intercourse with the complainant but said it was consensual. He denied the allegations that the complainant had told him she did not want to have sex with him but said she told him she was tired and to make it quick - accused said he did not think he needed to specifically discuss consent with complainant on this occasion because there was a mutual understanding between them as a married couple.

Held: Complainant’s credibility undermined significantly by prior inconsistent statements on material matters - complainant denied having sexual intercourse with the accused after 5 June 2022 - text messages from the complainant to the accused between June and October 2022 in which she invited him to have sexual intercourse with her were tendered - complainant admitted sending the messages but denied that sexual intercourse occurred. Denials were not credible. Complainant gave evidence that there had been prior occasions when accused had sexual intercourse with her without her consent but told police in 2023 that non-consensual sexual intercourse had never occurred before. Explanation for inconsistency not credible. Photographs and messages tendered in cross-examination established that complainant and accused had ‘rough’ sex and bondage in which she played a submissive role - complainant said she would have sexual intercourse with the accused on occasion even though she did not want to because she wanted to please him.

Complainant’s credibility and reliability undermined to such an extent that her evidence alone not capable of proving charge beyond reasonable doubt. Prosecution failed to prove beyond reasonable doubt that complainant was not consenting – evidence established that accused believed complainant was consenting. Prosecution failed to prove the accused made any admissions to having raped the complainant - accused’s denials in record of interview could not be rejected beyond reasonable doubt - complainant’s credibility not bolstered to any material degree by complaint evidence.

Verdict: Not guilty.

Criminal Law Consolidation Act 1935 (SA) s 46 (2), s 47, s 48 (1) (A) CLCA ; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34L, s 34M, referred to.
R v Salahattin [1983] 1 VR 521 at 528; R v S [2009] SASC 380; R v Christie [1914] AC 545 at 554; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Rahmanian [2010] SASC 137; R v Maiolo (No 3) [2014] SASCFC 89; Anderson (A Pseudonym) [2024] SASCA 36; R v P, S (2016) 261 A Crim R 329, considered.

R v W, L
[2025] SADC 85

The charge

1. The accused was charged on Information with the following offence:

   Offence Details

   Rape. (Section 48 (1) of the Criminal Law Consolidation Act, 1935).

   Particulars

   [W, L] on the 5^th day of June 2022 at Wynn Vale, engaged or continued to engage in sexual intercourse with [JW] by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting.

   The plea

2. The accused pleaded not guilty and elected for trial by Judge alone. I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.

   Overview of the prosecution case as opened on

3. The accused and the complainant were husband and wife at the time of the alleged offence. They had two young children. When they married in 2016 their relationship was good. However, it changed following the birth of their first child. The accused started to work very long hours in his construction business and his relationship with the complainant became distant and strained. His behaviour became erratic, and he would yell and scream at the complainant. She became scared of him and his outbursts.

4. On 4 June 2022, the complainant and the accused had been to his brother’s 30^th birthday party. Their children were staying overnight with friends. The accused and the complainant were drinking alcohol. The accused left the party to go to the city with some employees of his business and the complainant met him in the early hours of the morning on Hindley Street. They consumed more alcohol and also cocaine. Eventually, they caught an Uber to their family home. At that time, they had a young puppy who had been left in a sectioned off area of the house. Because the puppy had been left alone for around 12 hours, it had defecated several times and the complainant and the accused spent some time cleaning up the mess. After this, they both went into the bedroom to go to bed.

5. When the complainant got into bed, the accused was naked. She was extremely tired and just wanted to go to sleep. As she got into bed, the accused got up on his knees and the complainant knew he wanted to have sex with her. She told him ‘No’ she was not interested. There was further discussion, and she again said she was not interested and wanted to go to sleep. The accused then asked, ‘what would you do if I did it now?’ and the complainant told him she did not want to have sex. A short time later, the accused said, ‘Fuck it, I’m doing it’. He then grabbed the complainant, pushed her onto the bed, pushed her legs apart and inserted his penis into her vagina and had sexual intercourse with her. During the intercourse, the complainant repeatedly said no and told him she did not want this. She was crying and in pain. The accused eventually ejaculated, withdrew his penis and told her he hoped she ‘fucking hated it’.

6. The complainant and the accused remained in bed together and after a period of silence, began talking to each other. The complainant decided to record the conversation covertly on her mobile phone. On the prosecution case, the accused made admissions to raping the complainant during that recorded conversation. After the accused fell asleep, the complainant got dressed and went to her mother’s home. Before doing so, she sent a message via Snapchat to her friend, EG, telling her that the accused raped her. She then told her mother, JK, something had happened with the accused.

7. Later the complainant told the accused that she did not want to speak to him and the relationship was over. The following night, the accused left for a business trip to Kangaroo Island.

8. A few days after the complainant visited her mother, JK, her mother telephoned the accused whilst her husband DK was present. During the conversation, which was on speaker phone, she told the accused he had raped her daughter, and he said, ‘she’s my wife’ and told her to stay out of it otherwise she would not see the children.

9. On 4 May 2023 the accused was arrested and interviewed. He said he had sexual intercourse with the complainant on the morning following his brother’s 30^th birthday party. He said he did not inquire whether the complainant consented because in their ten-year relationship neither of them had asked each other for permission to have sex and they just had sex ‘mutually’. He said that the relationship had been a bit rocky at the time. When they got home and into bed, the complainant mentioned that she was getting tired but did not tell him she did not want to have sex, but said ‘just make it quick’. When he woke up the complainant was gone, and he called her mobile phone which was answered by her mother. Her mother told the accused that he had sexually assaulted the complainant, and he thought it was a misunderstanding and maybe they had got their wires crossed and he was in such shock that he thought it was a joke.

10. In the days and weeks that followed, the accused left the house but then moved back in. There were several text messages between the accused and the complainant in which the accused made admissions to having raped the complainant. On 30 October 2022, the complainant again recorded a conversation with the accused, but on this occasion, he was aware that she was recording it. In this conversation, the accused again admitted to having raped the complainant.

    Pre-trial applications

    Complaint evidence

11. Ms Abbey KC, for the accused, sought an order that the evidence of the complainant’ mother, JK in paragraphs 5-10 of her affidavit dated 14 April 2023 was not admissible pursuant to section 34M (6) Evidence Act 1929 (SA)(‘EA’) as an elaboration of the initial complaint made to EG which was as follows:

    Between 6.30am and 7.30am I received a Snapchat message from [JW] simply saying “[the accused] just raped me’. I asked her what she meant and she replied, ‘I don’t know what to do’. Soon after that she wrote, ‘I’ve got to go he’s waking up’.

12. The complainant said she could not recall sending EG this message.

13. In her affidavit, JK said that her daughter came to her house between 8.30am and 9.00am on 5 June 2022 and was sobbing and highly distressed. She said to JK, ‘[the accused] raped me’. She then said that the accused had wanted sex, but she said no. He forced himself upon her even though she was crying and repeatedly saying no. The whole time she was saying no.

14. EG said that around 10.00am the complainant messaged her again to tell her that she could not say much about what happened but a mutual friend of theirs had stayed the night and was present during the incident.

15. Ms Abbey KC argued that the conversation with JK was not an elaboration of the initial complaint because there was no identifiable connection between the two statements and that they were in truth two separate complaints. Further, the impediment to the complainant elaborating upon the initial complaint to EG no longer existed when she left home to travel to her mother’s home. Finally, the complainant did not elaborate upon her initial complaint to EG when she subsequently communicated with her at 10.00am.

16. The prosecutor, Ms McKendrick contended that the complaint to EG had been interrupted by the accused waking up. Accordingly, she was not able to continue to describe to EG what happened, and the elaboration of that complaint instead was made to her mother, JK. However, Ms McKendrick conceded that when the complainant communicated with EG again a few hours later that morning, there was no impediment to her providing the further detail or elaboration which had been interrupted by the accused waking up during their first communication.

17. In determining this issue, I have had regard to the authorities of R v Maiolo (No 3) [2014] SASCFC 89[1], Anderson (A Pseudonym) [2024] SASCA 36[2], R v P, S (2016) 261 A Crim R 329.[3] In Anderson the Court held:

    Whilst it may be acknowledged that there is a degree of flexibility in the determination of what is an “elaboration”, particularly having regard to the time between the complaints and the people to whom they are made, there must nonetheless be a readily identifiable connection between the complaints, with any later complaint elaborating the initial complaint in a manner sufficient to enable their proper characterisation as one, “initial complaint”.[4]

    [1] [75] – [80].

    [2]     [88] – [96]

    [3] [24].

    [4] [91].

18. In that case, the Court noted that the complainant, as is the case here, did not recall the first complaint at the time she made her later disclosure to different person. The Court said that this tended to suggest that what was later disclosed was not connected with, or in elaboration of the first complaint made, as it was difficult to see how what was later said could be regarded as “information provided by way of elaboration of the initial complaint”, as s 34M (6) required.

19. I ruled that I was not satisfied that what the complainant told JK was an elaboration of the initial complaint to EG. The complainant had no memory of making the complaint via Snapchat to EG. Further, there was a window of time during which the complainant was travelling to her mother’s house that morning when she could have contacted EG to continue the conversation. When the complainant did send a message EG it was at a time when she was still at her mother’s house, but she did not provide any further details about the alleged rape.

20. I concluded that the complainant made a separate complaint to her mother which was unconnected with her earlier complaint to EG. The complainant’s complete lack of recollection of her communication with EG supported this conclusion because if there had been a connection in her mind between her complaint to EG and her complaint to her mother one would have expected her to recall it.

21. Accordingly, I ruled that the evidence of JK regarding what the complainant told her was not admissible as an elaboration of the initial complaint to EG.

    Implied admissions

22. The prosecution relied upon evidence of what were described as implied admissions by the accused. In JK’s affidavit dated 14 April 2023, she described a telephone call between her and the accused on loudspeaker for which her husband DK was present. JK telephoned the accused and asked him what the hell had happened and said, ‘you raped [JW]’. The accused responded, ‘She’s my wife’. JK said ‘but you raped her’. The accused then told her to keep out of it or he would stop her seeing the children. DK’s account of the conversation in his statement dated 4 November 2023, was that JK told the accused that he had raped her daughter. JK kept saying to the accused ‘no means no’ and he responded, ‘but she’s my wife’. DK said the accused did not admit to anything but said to stay out of it or they would never see the grandchildren again.

23. Ms Abbey KC referred to R v Salahattin [1983] 1 VR 521 for the principle that an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, ‘having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one upon which he might reasonably be expected to make some observation, explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations of explanations he thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence’ or that he has so conducted himself as to show a consciousness of guilt.[5]

    [5] (Ibid)527, 35-45 (McInerny and Murray JJ)

24. Whether that inference can be drawn depends on the coalition of a number of facts:

    1.   Whether the statement was heard by the accused.

    2.   Whether the accused understood the statement.

    3.   Whether the facts stated were within the personal knowledge of the accused.

    4.   If the matters set out above are established, whether the circumstances were such that a dissent by the accused would in ordinary experience have been expressed by the accused if the statement put to him was not correct.[6]

    [6]     527-528.

25. It is not what is said to an accused person that is admissible, but rather it is the accused person’s response, by way of silence or conduct, from which an inference might be drawn that he or she has acknowledged the truth of the statement or shown a consciousness of guilt.[7] 

    [7]     R v Christie [1914] AC 545 at 554 (Lord Atkinson); R v Salahattin [1983] 1 VR 521 at 528 (McInerney

    and Murray JJ).

26. Ms Abbey KC argued that it was not open to infer that the accused’s response to JK’s allegation was an admission. Ms McKendrick argued that the inference arising from the accused’s statement ‘she’s my wife’ or ‘but she’s my wife’ is that he was asserting that she was his wife, and he could do what he wanted. In other words, it was an implied admission that he had raped her by virtue of his justification for that conduct. Ms McKendrick referred me to R v S [2009] SASC 380 for the proposition that the existence of competing inferences does not render the evidence inadmissible.

27. I ruled that the evidence was admissible because it was open to the trier of fact to use the accused’s responses as implied admissions. I accept that the words ‘she’s my wife’ or ‘but she’s my wife’ may not signal the type of dissent one would expect if the allegation of rape was incorrect. On the face of it, there were other available and competing inferences open on the evidence which, if drawn, would lead the trier of fact to conclude that the accused had not made any admission to the alleged offending. However, the existence of competing inferences is not a bar to admissibility.

28. The prosecution also sought to lead a number of text messages sent by the accused to the complainant. Those messages were sent on 6 June 2022, 9 June 2022, 6 August 2022, 16 August 2022 and 10 November 2022. The accused objected to the admission of this evidence.

29. On 6 June 2022 at 10.29am the accused wrote:

    I hope you are ok after what happened to you. I’m really sorry I have put you through this.

30. The prosecution argued that this was relevant to the accused’s state of mind and demonstrated an acknowledgment that there had been an incident for which the accused was remorseful. I deferred my ruling on this message until the complainant gave evidence because it was not possible to determine at that stage what communications the complainant had with the accused leading up to the receipt of this message. Accordingly, given the lack of a contextual setting, it was not possible to determine whether this message related to the alleged offending the day prior.

31. On 6 June 2022, the following messages were exchanged between the complainant and the accused:

    Complainant: I’m angry because you raped me [L]. It’s very warranted.

    Accused: Ok.

32. The prosecutor argued that this was plainly an implied admission by the accused. Defence counsel argued that the response was ambiguous and the word ‘ok’ did not necessarily signal an assent to the allegation made by the complainant; it could in fact simply be an acknowledgment of the making of the allegation. In other words, ‘ok’ is equivalent to ‘if you say so’ or ‘I hear you’. I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission. Although there were competing inferences available which, if drawn, would lead the trier of fact to conclude that this was not an admission that was not a bar to admissibility.

1. On 9 June 2022 the accused sent the complainant the following message:

   I don’t want a reply message, I just wanted you to know this..

   I’m truly and immensely sorry for what I put you through the other day, it will haunt me forever.

   You are my best friend. I hope this can always remain.

   Thank you for the chat this evening.

   Goodnight [crying face emoji]

2. I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission. Although there were competing inferences available which, if drawn would lead the trier of fact to conclude that this was not an admission that was not a bar to admissibility.

3. On 6 August 2022, the following messages were exchanged between the complainant and the accused:

   Complainant: I told you I didn’t want you here after drinking! It’s not safe to be around you! you can’t help yourself & god only knows if alcohol is the only thing you’ve had tonight! I will not sleep under the same roof as a rapist that can’t understand what no means every time they drink! Get. Out. Of. My. House!!! You are not welcome here!!!

   Accused: Im sober [J]

4. I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission because the accused had not dissented to the allegation that he was a rapist. Although there were competing inferences available which, if drawn, would lead the trier of fact to conclude that this was not an admission, that was not a bar to admissibility.

5. On 6 August 2022, the following messages were exchanged between the complainant and the accused:

   Complainant: I don’t give a fuck! Sleep in a gutter somewhere if you have too! You lost your right to calling this home here when you violated me! You’re not getting it through your thick head! A downward spiral? You’re joking right? The one you put your “family” on. Don’t be me not to do the same thing yo you! I hate you! I told you not to come back here!!

   Accused: [J]. Your tired. Please don’t do this.

6. I ruled that this evidence was not admissible as an implied admission because the preceding messages (which were not being led by the prosecution but included allegations of other discreditable conduct which could meet the description of a ‘violation’) altered the contextual setting of the accused’s response. In my view, it was not open to infer that the reference to being ‘violated’ was a reference to an allegation of rape and therefore it was not open to infer that the accused’s response (which was to deflect and disengage) was an implied admission.

7. On 6 August 2022, the following messages were exchanged between the accused and the complainant:

   Complainant: You’re a rapist when you drink! I was very clear do not come here.

   Accused: I’m sober [J].

   I drove home.

   I had 4 beers over 5 hours. And good. I’m not even slightly intoxicated. I’m 100% sober.

   Food*

8. I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission because the accused had not dissented to the allegation that he was a rapist. Although there were competing inferences available which, if drawn would lead the trier of fact to conclude that this was not an admission, that was not a bar to admissibility.

9. The prosecutor sought to lead the following exchange on 6 August 2022 as relevant to the accused’s state of mind on the issue of consent:

   Complainant: I don’t want to hate you but I am so so damn angry with you. And I have every right to be. I hope you aren’t painting me in a horrible light to everyone because I don’t bloody deserve that.

   Accused: Of course I’m not. You know I’m fair and owning up to my wrongs. I’m not hiding what happened anymore, I need to get it out so I can fix it, or at least make it known to the world why went wrong so I can move on and you can move past it.

10. I ruled that the accused’s response was not admissible as relevant to his state of mind. The response was too ambiguous to enable an inference to be drawn that this was referable to the events of 5 June 2022.

11. The prosecutor sought to lead the following message sent by the accused on 6 August 2022 as an implied admission and as relevant to his state of mind:

    It’s ok to be angry at me, I understand you wanting to hurt me, I’m not going to fight back with you and that’s not me not caring.

    I care, but I don’t have it in me to fight anymore. I want you to know that I just want to be mutual with you for no other reason that we all deserve to be not making things worse. I want the kids disrupted as little as possible but I also want to see them as often as we can agree. I’ve accepted we’re over, I’m ashamed of why but I’ve made my bed and I’m punishing myself for it. And you want me to suffer is normal.

    I just wanted you to know this, I’m sorry, I want to be your friend when the time suits, forever, we were best mates and we have to be something coz we’re tied together with the kids. So I wish to be as good as we can be.

12. I ruled that this message was not admissible as an implied admission or as relevant to the accused’s state of mind. The apology in the message is not referable to any allegation of rape, particularly where the context is an acknowledgment of the end of the relationship and the effect of that upon the children.

13. The prosecutor sought to lead the following exchange between the complainant and the accused on 6 August 2022 as an implied admission and as relevant to his state of mind:

    Complainant: How could you so easily destroy so many lives. How could  you do this. How can you even live with yourself.

    Accused: I barely am. I’m getting help to improve for all my wrongs.

    Complainant: You will never be able to take back what you did. Get all the help you want but you singlehandedly destroyed this family.

    Accused: I know I did and I wish I could. I’m truly sorry [J].

    We all need sleep, we both have challenges in our minds from tonight’s conversations. Tomorrow will shed a better light on them

    Get some rest.

14. I ruled that these messages were not admissible as implied admissions or as relevant to the accused’s state of mind. The allegations made by the complainant in this text message are far too general for any inference to be drawn that they are referable to the alleged rape. Accordingly, the responses are not capable of being used as implied admissions, nor can they be used as relevant to the accused’s state of mind.

15. Finally, the prosecutor sought to lead the following exchange between the complainant and the accused on 10 November 2022:

    Complainant: Are you seriously blackmailing me that you are going to tell people I got weight loss surgery if I tell people you raped me? Are you seriously doing that to me [L]?

    Accused: You went against our promise [J]. I promise I won’t if you don’t fuck up anymore.

    We all have something to loose and your using what I have left against me and excusing it with the kids.

    Has nothing to do with the sexual assault. Making that clear.

    Complainant: You said if I told any more people you had raped me then you would publicly shame me that I had weight loss surgery to everyone! How is thay not about the sexual assault [L]!!!!!!!!!

    Accused: I never said that. It’s what you made up because you don’t listen and you have issues. I’m not normally like this, but your forcing me to defend myself ruthlessly, your choices have put me in this position. Now imagine if I started doing this to you but with your social peers and children. Then you might start actually being reasonable, coz I can bloody tell you, it’s appalling that someone has done this to me..

    You’ve made me this person. You well and truly know it’s not me, but yo I took advantage pf my generosity and now a very important part of this relationship we now have.

16. I ruled that these messages were not admissible as implied admissions or as relevant to the accused’s state of mind. The fact (if true) that the accused told the complainant that if she told others that he had raped her he would tell them about her weight loss surgery is not capable of being used as an implied admission. It is not open to infer that the circumstances and context of these messages are such that the accused has admitted he raped the complainant. The complainant was not putting the allegation of rape to the accused; rather she was challenging him on his response to her informing others that he had raped her.

    Elements of the offence

17. To prove the offence of rape, the prosecution must prove beyond reasonable doubt the following elements:

    ·The accused engaged, or continued to engage, in sexual intercourse with the complainant; and

    ·The complainant did not consent to engaging in the sexual intercourse – or – had withdrawn consent to the sexual intercourse; and

    ·The accused knew the complainant did not consent or had withdrawn consent – or – was recklessly indifferent to the fact that the complainant did not consent or had withdrawn consent.

18. Sexual intercourse for the purposes of this trial means penetration of the complainant’s vagina or labia majora by the accused’s penis and includes a continuation of that activity.

19. Consent involves free and voluntary agreement.[8] This requires a positive decision by the complainant to consent.[9]

    [8]     Criminal Law Consolidation Act 1935 (SA) s 46(2).

    [9]     R v Rahmanian [2010] SASC 137, [32] per Sulan J.

20. Consent can be given by words or by conduct or a combination of both.  Consent can be inferred by conduct, behaviour, or words.  Absence of consent does not have to be in words, it may also be communicated by conduct.

21. A complainant is not to be regarded as having consented to the particular act the subject of the charge because he or she consented to being touched by the accused in a different way or had consented to being touched by the accused in this way on some other occasion. Non-consensual sexual intercourse can occur between married people and is not less serious as a consequence of the fact that they are married.

22. Trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not. The presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.

23. It should not be assumed that a person consented to sexual activity because that person consumed alcohol.

24. An accused is recklessly indifferent to the fact that another person does not consent to an act of sexual intercourse if the accused:[10]

    (a)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or

    (b)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or

    (c)does not give any thought as to whether or not the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed.

    [10]    Criminal Law Consolidation Act 1935 (SA) s 47.

    Issues in dispute

25. The central issue in dispute was whether the complainant consented to the act of sexual intercourse with the accused. If the prosecution proved beyond reasonable doubt that the complainant did not consent, the secondary issue in dispute was whether the accused knew she was not so consenting or was recklessly indifferent as to whether she was consenting.

    General directions

26. The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G [2015] SASC 186, whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.

27. The general directions were summarised by Lovell J in R v G. They are as follows:

    As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

    The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.

    The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

    The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.

    I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.

    If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.

28. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[11] The accused’s record of interview, and any admissions or denials I find contained therein, is evidence in the case that I can take into account in determining whether the charge has been proved beyond reasonable doubt. There is no onus on the accused to prove anything he said in his record of interview.

    The evidence

    [11]    Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].

    The complainant – JW

29. JW gave her evidence via AVL, with a court companion present and the court was closed during her evidence. Her evidence was recorded by audio-visual means. Orders for those arrangements were made pursuant to s 13 EA. Pursuant to s 13 (7) EA, I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to JW’s evidence.

    Background and relationship with the accused

30. JW was 31 years of age when she gave evidence. Her mother is JK, and her father was deceased. JW is the mother of two children, F, born in 2017 and R born in 2018. JW met the accused when she was in high school and later started dating him. The accused moved into her family home in 2010, and they married in 2016. They moved into their house in Wynn Vale in 2018. [12]

    [12]   T 128-129.

31. JW’s relationship with the accused was happy when they were first married.[13] She was 22 years old when they married and the accused 25 or 26. Their relationship changed significantly after the birth of their first child. JW described the accused as becoming distant, aggressive and uninterested in family life or her. She said he was ‘quite mean’. He yelled a lot and damaged furniture.[14]

    [13]   T 129.

    [14]   T 130.

32. The accused’s occupation was that of a wall and ceiling fixer. By 2022 he had his own business in his partnership with his brother. JW was casually employed as a child youth worker.[15] In 2022, JW described the relationship as follows:

    It just wasn’t a nice environment to be in, there was no love, there was no togetherness, there was, I was just a shell of the person I am. Everything in my life was just controlled, it was, I was just a robot and a puppet. It wasn’t a relationship, it wasn’t nice.[16]

    [15]   T 130-131.

    [16]   T 131, 23-28.

33. JW said that both pregnancies were planned.[17] In 2022, she believed that their financial situation was fine, they had their own house, and they were building a holiday home. JW had access to a shared bank account into which they both put money, but the accused managed all the banking and paid the mortgage and similar expenses.[18]

    The evening before the alleged offence

    [17]   T 131.

    [18]   T 132-133.

34. On 4 June 2022, JW and the accused went to his brother’s 30^th birthday party at his home in West Lakes[19]. Their children were staying with friends overnight. They arrived at the party around 7pm. There were about twenty people there. JW was drinking vodka cruisers and when at the bar she had some ‘shots’. JW said she was about 3-4 on the sobriety scale of 1-10.[20] The accused was drinking beer, and she estimated he was 6 on the sobriety scale. He was being a lot more erratic and boisterous.[21] When asked to explain what she meant, she said:

    It was just a lot of in and out of rooms and not being really present. There was one time where I was sitting with a group of people and he came up behind my chair and kicked my chair out from under me. It was that, but then there was just him disappearing, coming back, no-one really knew where he was or what he was doing.[22]

    [19]   T 138.

    [20]   1 represents a sober person and 10 a paralytic person.

    [21]   T 133-134.

    [22]   T 134, 37-38; T135, 1-4.

35. JW said that she had been sitting out the back with a group of friends and the accused came up behind her and kicked the chair out from under her. She fell on the floor, and she then got up and sat on another chair. The accused was asked by a few others what he was doing, and he grabbed her head, kissed her and said, ‘she knows I’m joking’. Before kicking her chair out, he had not said anything to her, and she did not know he was coming up to her. She felt very embarrassed and was worried about how the accused would look in front of everyone.[23]

    [23]   T 135-136.

36. Whilst at the party, she and the accused had about half a gram of cocaine between them throughout the night. She had taken cocaine with the accused on previous occasions. Cocaine would make her feel more awake and energetic.[24]

    [24]   T 136.

37. Shortly after the chair incident and around midnight, the accused came up to her and said they had to go. She said she did not want to leave as she was in the middle of a conversation with her friend EG, EG’s brother J and other friends and family. He then told her that he was leaving with B and J, his apprentices, and that she should catch up with him later. She continued to drink after the accused left.[25]

    [25]   T 137.

38. JW left the party around 2am. She felt ‘fine’ and ‘completely coherent’. She had spoken to the accused, and he asked her to meet him in the city, so she booked an Uber and met him near the casino. When she met him, he was with B and J, but then they left. B had arranged to sleep the night at their house on the couch. They gave him the door code to get into the house. After B and J left, the accused and JW continued to drink and dance and socialise. They left the city in an Uber around 6am. At that time, she was feeling tipsy and was about 5 on the sobriety scale. She had been drinking vodka cruisers or vodka and raspberry. She and the accused also had cocaine on two occasions in the city, the last time was shortly before they left to go home. The cocaine made her feel more ‘levelled out’ and awake. The accused was happy, friendly, energetic and chatty.[26]

    [26]   T 138-141.

1. When they were in town, they had been kissing, cuddling and flirting and hands on with each other.[27]

   Sexual intercourse with the accused

   [27]   T 141-142.

2. The trip home took about half an hour.[28] A floor plan of the family home at Wynn Vale was tendered: Exhibit P1. When they arrived home, they discovered that their new puppy had defecated everywhere. They had left her inside when they went out. She thought the puppy was stressed being inside and left alone for a significant period of time. She had not expected to leave the puppy alone for so long. Both of them spent a significant amount of time cleaning up the mess.[29]

   [28]   T 141.

   [29]   T 142-143.

3. When they got home, B was on the couch. After cleaning up the mess made by the puppy, she went into the ensuite and washed her hands and make-up cloth. She put on a nightie and then got into bed. The accused was naked which was how he normally slept.[30] When she got into bed, she was exhausted. It was around 7am.[31]

   [30]   T 144-146.

   [31]   T 148.

4. Whilst she was lying in bed, almost immediately the accused got up and knelt between her legs. She described what happened next:

   And then I said to him, ‘I don’t want this, [L]’ and then he said ‘I know you don’t want this’. I said ‘No, I haven’t been wanting this for a long time. I’m tired, I just want to go to bed’.[32]

   [32]   T 149, 11-14.

5. The accused was:

   Just saying like just saying like, ‘want you to be my friend’ and I said ‘It doesn’t mean I don’t want to be your friend. I’m tired. It’s 7 a.m. We’ve been out all night. I just want to go to sleep’, and then he said, ‘what would you do if I did it?’ I said, ‘No [L] I don’t want this’. And then he just stopped and paused and, like, looked at the wall, just paused and said, ‘Fuck it I’m going to do it anyway’. And then he inserted his penis into my vagina.[33]

   [33]   T 149, 17-25.

6. JW said she was firm in her tone of voice when she told him she did not ‘want this’. She had rolled away from him when she said that. The accused had often told her he wanted to be her friend, but this usually occurred when they were arguing, and it was his way of making her believe that he did care about her.[34]

   [34]   T 151.

7. When the accused said, ‘fuck it, I’m doing it’ she was frozen and in complete shock. He then said, ‘way to be a dead root’ and she replied, ‘because I don’t want this’. He then told her he could tell she wanted it because her legs were up. She told him he was hurting her. She understood ‘dead root’ to mean not engaging or having ‘mutually benefitting intercourse’.[35] JW said she raised her legs because her vagina was hurting. She then started crying. The accused did not react to her crying but continued to thrust his penis in her vagina. She said, ‘[BS] will be able to hear’ and he replied, ‘I don’t give a fuck about [BS] and I don’t give a fuck about you’. The accused then ejaculated inside her and said, ‘and fuck you too’.[36] The sexual intercourse lasted for a maximum of one minute.[37] The accused did not normally ejaculate inside her when they had sex. They relied on the ‘pull-out’ method of contraception. She was not on any birth control medication.[38]

   [35]   T 153-154.

   [36]   T 155.

   [37]   T 156.

   [38]   T 182.

8. The accused did not use a lot of force when he rolled her onto her back. She did not resist because she was scared that his behaviour would escalate; she was not sure if he would physically hurt her.[39]

   [39]   T 181.

9. JW mentioned BS hearing what was going on because she hoped that would make the accused stop.[40] After the accused removed his penis from her vagina, she lay down facing the other way. She was in complete shock. She could not believe that this had happened in her own house with her own husband. She said to the accused, ‘I can’t believe you just did that’.[41]

   Recorded conversation after sexual intercourse

   [40]   T 155.

   [41]   T 156, 24-25.

10. Within minutes of the accused ejaculating, JW grabbed her mobile phone from the bedside cupboard and put it on record and put it back on the cupboard. She did not tell the accused that she had done this.[42] When asked why she did this, she replied:

    Because I was just in complete shock of what had happened, I didn’t feel safe, I needed this to, you know, to show that if it happens again or anything that’s – many times throughout our relationship where I did record things when I felt unsafe, it just felt at the time like the only thing that would eventually keep me safe.[43]

    [42]   T 156-158.

    [43]   T 156, 30-36.

11. JW had recorded other conversations with the accused on at least ten prior occasions. Prior to commencing the recording, the accused had said, ‘Sorry I just want your friendship. I just want you to want me’.[44] JW made one long recording and two short recordings. She did this in the course of checking that the phone was actually recording.[45] She had made videos in the past which had stopped recording, so she was constantly making sure that her screen was going to stay on and keep her safe.[46] The accused did not know she was recording the conversation.[47] The recordings were tendered: Exhibit P6.[48]

    [44]   T 157, 26-28.

    [45]   T 158.

    [46]   T 186.

    [47]   T 187.

    [48]   The transcript was marked MFI-P6A. An edited copy of MFI-P6A is annexed to these reasons. The text of the original copy of MFI-P6A has been amended to reflect the words that I heard when listening to P6.

12. The first recorded conversation commenced at 7.24.08am and lasted for 1 minute and 58 seconds. The second recorded conversation commenced at 7.26.12am and lasted for 28 seconds. The third recorded conversation commenced at 7.29.17am and lasted for 2 minutes and 34 seconds. The fourth recorded conversation commenced at 7.33.11am and lasted for 33 minutes and 31 seconds.

13. The relevant aspects of the first conversation on the prosecution case were:

    JW: Yeah, and that’s what I’m saying – if you think, it’s anything but rape.

    The accused: Yeah, yeah it’s my fault sorry.

    JW: I’m, I never thought we’d get to this part in our fucking relationship or our lives. I never thought you could cross that line, but you just did. And I’m not shying away from it. I shouldn’t feel ashamed to say it, but you just raped me.

14. JW said that there was no conversation during the breaks in the recording.[49] She thought she told the accused that all he wanted was a ‘fuckbuddy’ and did not think she used the word mate. She said this because sex was all he was interested in and there was no relationship or connection. The only time he interacted with her was when he wanted sex. Overtime the affection and connection diminished and the only connection he gave her was sex.[50]

    [49]   T 188.

    [50]   T 189.

15. When the accused said that they had had conversations about this in the past, he was referring to conversations they had previously in which they had agreed that if one of them woke up and the other person was engaging in sexual activity with them that would be okay.[51]

    [51]   T 189-190.

16. JW was frustrated when the accused was crying during the conversation. She said this was one of ‘his many tactics’ when they had an argument or disagreement. At the time of the conversation, JW was feeling hurt and upset because she had been begging for a connection for years and he only showed her love when she was hurt.[52] She did not believe his tears were genuine on this occasion.[53]

    [52]   T 190.

    [53]   T 191.

17. Within minutes of stopping the recording, JW heard BS leave the house. By this time the accused was asleep. She then got up, went to the other bathroom, cleaned up and then left the house.[54] JW went to her mother’s house.[55]

    Initial complaint

    [54]   T 159.

    [55]   T 160.

18. At this time JW was good friends with EG and had been for many years. They would often communicate on Snapchat. JW explained that shortly after the events of 5 June 2022, EG told her that JW had messaged her on Snapchat and told her what happened. JW could not remember doing this.[56]

    [56]   T 160-162.

19. When JW went to her mother’s house she was feeling completely ‘rattled, distraught, unsafe, devastated, hurt’. Whilst at her mother’s house, the accused had messaged her asking where she was and she replied, ‘I’m out’. He messaged her asking her when she was coming home, and she told him she was not.[57]

    Conversations with the accused after alleged rape

    [57]   T 162-163.

20. A series of text messages between JW and the accused on Sunday 6 June 2022 were tendered: Exhibit P2. JW returned to the family home on 6 June 2022 and saw the accused but kept her distance from him. He asked her where she had been and what was going on, but she told him to leave her alone and that ‘we’re done’. On Monday he then left for Kangaroo Island to work. She could not recall if he stayed in the family home that night.[58]

    [58]   T 164-165.

21. JW said she sent the message, ‘I’m angry because you raped me, [L], it’s very warranted’ because he was trying to engage her in a conversation, and she wanted to shut it down.[59]

    [59]   T 166.

22. A further series of text messages on 9 June 2022 was tendered: Exhibit P3. At the time these messages were sent, the accused was on Kangaroo Island or staying with one of his employees. At this time the main focus of the conversations she had with the accused was the rape.[60]

    Relationship between JW and the accused in the months following alleged rape

    [60]   T 169-170.

23. Text messages between JW and the accused on 6 August 2022 were tendered: Exhibit P4. At that time, the accused had returned to the house, but they were sleeping in separate rooms. She said they were no longer in a relationship. She was asked if she had sexual intercourse with the accused again after the alleged rape up until August 2022. She replied:

    There were multiple times where I spoke to him about attempting, to try, as we were trying to rebuild the relationship, and I said that I wanted to try but didn’t actually get to any point of doing it.

    …

    Like we would kiss, like I was making my best efforts to try and rebuild the relationship but I consistently said, ‘We’re friends, we need to build up a friendship first before we are able to have a relationship again’.[61]

    [61]   T 174-175, 5-8,13-16.

24. JW was asked about the message she sent to the accused in which she said, ‘I’ll not sleep under the same roof as a rapist’. Although he had been sleeping at the house previously, JW explained that on this occasion he had been drinking, and he was more forceful and pushier when he had been drinking.[62]

    [62]   T 176.

25. Further text messages from 6 August 2022 were tendered: Exhibit P4A. In one of those messages, JW wrote ‘you’re a rapist when you’re drunk’ and sent him an attachment with details for three organisations, Mensline Australia, 1800RESPECT and Men’s Referral Service. The attachment was tendered: Exhibit P5.[63]

    [63]   T 179-180.

26. The accused sent her his tax file number after she messaged him requesting it. She wanted it to apply for a single parenting allowance through Centrelink.[64]

    [64]   T 180.

27. By October 2022 they were living together again but sleeping in separate bedrooms. She was asked about the state of her relationship with the accused by this time:

    It was strained. I was trying everything possible to save our relationship. I was trying to steer past everything that had happened, and I was trying to ignore what had happened and I was attending counselling. I was getting therapy and asking him to get therapy. I attended couples’ therapy. I was booked into a psychiatrist. I tried everything to build up a friendship and I just couldn’t. I just couldn’t do it anymore.[65]

    Second recorded conversation

    [65]   T 191, 26-34.

28. On 30 October 2022, JW recorded a final conversation with the accused. The recording was tendered: Exhibit P7. She recorded the conversation because the accused ‘gets angry’ and she was scared. She referred in that conversation to calling police because there were times when he would yell at her for hours and she did not feel safe. Her response was to tell him she would call the police if he did not stop yelling. At the time of the recording, she was feeling weak, numb, small and scared. [66]

    Cross-examination

    [66]   T 194-195.

29. Ms Abbey KC made an application pursuant to s 34L EA to cross-examine JW regarding her non-recent sexual activities with the accused prior to and after the alleged rape.

30. In support of the application, Ms Abbey KC relied upon several text or Facebook messages exchanged between the accused and JW before and after the alleged offence. The messages included invitations by JW to the accused to have sex with her. Others referred to JW’s sexual inclinations.

31. In addition, there were several photographs of JW in what I will loosely describe as sexy lingerie or bondage outfits, and one image of her and the accused engaged in a form of sexual activity. In addition, there were paintings of a woman in a bondage outfit which Ms Abbey KC said were paintings of JW by her sister-in-law. There was also a Facebook post created by the complainant depicting her in the nude which had been removed by Facebook for breaching Facebook posting policy. Finally, there was a photograph of the ceiling of the bedroom JW shared with the accused which had a hook in it which I was told was used to hang a ‘sex swing’.  Of note, on the evening of the 5 June 2022 (the date of the alleged offence) JW sent the accused a message in which she attached a picture of a Tinder profile she was creating together with a wink/kiss emoji and a hand with the middle finger extended emoji.

32. In September and October 2022, JW sent messages to the accused including ‘come home at lunchtime and fuck me’ and ‘sexy time tonight?’. JW had given evidence in examination in chief that after the alleged rape she did not have sexual intercourse with the accused again.

33. Accordingly, the messages in which she invited the accused to have sex with her undermined her evidence on this topic.

34. Ms Abbey KC submitted that the material demonstrated (and her instructions were) that the accused and JW had a sexual relationship that involved bondage, rough sex and that they had an agreement that each of them consented to sexual acts being performed on each other whilst asleep. I was also told that there was a ‘safe’ word which JW and accused would use and JW did not suggest that this word was used at the time of the alleged offence. 

35. Some of the material upon which Ms Abbey KC sought to cross-examine JW was material to which s 34L EA did not apply. For example, the messages containing invitations to have sex with her and the message attaching a Tinder profile. However, Ms Abbey KC indicated that she intended to pursue a line of questioning that involved putting to the complainant that her intentions were acted upon, and she did have sexual intercourse with the accused post the date of the alleged offence.

36. It was argued that the messages and photographs of JW, at times with the accused, established that they did not have a ‘vanilla’ sex life and that it was often JW who sought and pursued sexual activity with the accused and did so after the alleged offence. This evidence was probative of the state of their relationship and capable of undermining materially the credibility of her assertions that she was never interested in having sex with the accused and her evidence that after the alleged rape there were no other occasions of sexual intercourse between them.

37. Ms McKendrick did not oppose the application. However, she argued that if JW admitted the matters put to her, it was not necessary to tender the various messages or photographs.

38. I granted the application and indicated that I would deal with any objections to the tender of the photographs and messages as they arose. I was satisfied that the evidence was of substantial probative value as it was relevant to the state of the relationship between JW and the accused prior to, during and after the alleged offence. It was probative of their mutual understanding of consent and the boundaries of their sexual relationship.

39. Further, the messages sent by JW to the accused after the alleged offence were likely materially to impair confidence in the reliability of her evidence that she did not have sexual intercourse with the accused after the occasion of the alleged offence. I formed the view that cross-examination on these messages and images which involved consensual sexual activity in the marriage would not occasion unnecessary distress, humiliation or embarrassment to JW. Plainly, discussing her sex-life and the nature of the sexual activity in which she and the accused engaged in a public forum would involve some embarrassment, but I did not consider this to be unnecessary.

40. JW agreed in cross-examination that before 5 June 2022, the accused had had a vasectomy. However, she insisted that they were still practising the withdrawal method of contraception because he had not yet had a follow up test to see if it had been successful.[67]

    [67]   T 203-204.

41. JW agreed that when she went to the 30^th birthday party for the accused’s brother, she spoke to people about her intention to break up with the accused. One of those people was her friend EG.[68]

    [68]   T 204-205.

42. JW said that by August 2022 she was no longer in a relationship with the accused. They lived in the same house but slept in separate bedrooms. She said they did not have ‘physical sexual intercourse’. She agreed that on occasion in August 2022 she was scared of him coming home. He had ‘broken’ her and she did not feel safe with him in the house. JW said she was trying to get over what happened and continued to attempt to rebuild a sexual, physical and romantic relationship but it was too ‘much up and down’.[69] She then gave the following evidence:

    QAnd you weren’t about to start having sex with him again because you felt scared and unsafe.

    AYes, but I was attempting to rebuild that.[70]

    [69]   T 206.

    [70]   T 206, 15-17.

43. JW was then shown messages between her and the accused on 21 September 2022: Exhibit D8. In one of those messages, JW wrote ‘Come home at lunchtime and fuck me’. The accused responded, ‘Oh man’ and JW sent an eggplant emoji and winking emoji. Later that same day, the accused wrote, ‘that sounds like a hot date to me, I can’t wait to pound your kitty’ and JW responded, ‘bring it on’ with a love heart eyes emoji.

44. JW agreed that pounding her kitty meant having sex with her. The eggplant emoji was meant to represent a penis, and the wink face was flirtatious. JW agreed that she was still making sexual invitations and overtures to the accused in September 2022. However, she denied acting on them, and denied having sex from time to time with the accused.[71]

    [71]   T 207-208.

45. JW denied being untruthful about the state of her relationship with the accused at this time in 2022. When asked how she explained those messages, she said:

    I don’t explain this. I had still a type of knowledge in my brain that that is all that I was worthy of and that’s what I needed to please my husband. Hence why I was attending therapy at Yarrow Place for sexual abuse support and I did my best. I had lowered my worth to that being what it was that I needed to do to make him happy. And so that is what my belief was that I needed to provide for my husband to make him happy.[72]

    [72]   T 208, 36-38; T 209, 1-5.

46. JW was asked whether in the month before the accused left the family home permanently, she was having sex with him. She said she did not think so.[73] However, they were talking about having sex with each other. It was put to JW that on 9 October 2022, she sent the accused a text message saying, ‘sexy time tonight?’. She said she could not recall that, but it was something that she might have done.[74]

    [73]   T 209.

    [74]   T 210.

47. JW said she was still scared of the accused in October 2022. She was asked whether she and the accused communicated about rough sex and the enjoyment of rough sex in October 2022, and she said she could not recall.[75] JW was shown a series of Facebook messages between her and the accused on 4 October 2022. She agreed that one of the messages she sent to the accused showed a hand on a drink dispensing machine pressing buttons designated as ‘rough sex’, ‘love and attention’ and ‘want to be alone’. She agreed that she liked rough sex, wanted love and attention and also wanted to be alone sometimes. She agreed that throughout her relationship with the accused, she had enjoyed rough sex with him. However, they never talked about or engaged in rape fantasies.[76]

    [75]   T 210.

    [76]   T 211.

1. JW agreed that consent was something they had discussed and something they each respected when they were engaging in rough sex. She then gave the following evidence:

   QAnd it was your observation and experience from him that he respected that you needed to consent in whatever sexual activities you were engaged in.

   AI wouldn’t fully agree with that comment.

   QYou’ve described an occasion on 5 June 2022 where you say that [the accused] had sex with you without your consent and that he knew you weren’t consenting, don’t you.

   AYes.

   QThat’s the first time you something like that has happened, isn’t it. You don’t say that anything like that’s happened before.

   AThis was a direct, ‘No, this isn’t happening’ and I continued to say ‘No’ during it, whereas previously there was other times where there was coercion and pushing me into saying ‘Yes’.

   QWe’ll come back to that, but I want to first ask you a very direct question. You’ve told us about one occasion. Do you say there was ever another occasion where [the accused] and you had sex and you were not consenting.

   AYes.[77]

   [77]   T 212, 17-37.

2. JW agreed that in November 2023 when she spoke to a police officer for the first time about the allegation of rape by the accused, she was asked whether the accused had ever had non-consensual sex with her before this. She agreed that she told police that it had not happened before, and this was the first time it had happened. JW then said that when she told police it had not happened before, that would have been her belief at the time.[78] When it was put to her that there had never been a time when she had said no to having sex with the accused and he had done it anyway, she said:

   I suggest that my beliefs and understandings of the circumstances around consent and what I was coerced or manipulated into, I would believe as no at the time of that statement. Since undergoing psychological therapy and treatment, my understanding now is yes, he did push me or coerce me into sex on numerous occasions.[79]

   [78]   T 214-215.

   [79]   T 215, 21-26.

3. JW was asked whether the message she sent to the accused in D8 in which she said ‘come home at lunchtime and fuck me’ was sent because she was being manipulated, and it was against her will. She said:

   AYou can see that just before that he’s saying ‘Anything to be by your side’ and I am saying ‘Bit cute’ because at that time he was being nice and engaging so, yes, there was a lot of manipulation, coercive control that happened throughout that relationship.

   QDo you say that those comments are coercive control ‘Anything to be by your side’ and being nice.

   AYes.[80]

   [80]   T 216, 2-12.

4. JW agreed that the message she sent the accused in D9 did not seem like an example of her being controlled and manipulated. This was because she did like rough sex.[81]

   [81]   T 217.

5. Further text messages between JW and the accused on 21 September 2022 were tendered. They were the same messages in D8, but they were missing the emojis.[82] Text messages dated 9 October 2022 were tendered: Exhibit D11. In one of those messages, JW wrote ‘sexy time tonight’. She agreed that this was her inviting the accused to have sex with her.[83]

   [82]   T 217-218.

   [83]   T 219.

6. JW said on the evening of 5 June 2022 she could not recall whether the accused was in the family home. At that point she was scared of him.[84] She agreed she would not have wanted to provoke him.[85] When it was suggested to her that he was there that night and there was a difficulty getting one of their children to bed and she had messaged the accused asking her to help him, she said she could not recall the details of that night. She could not recall messaging the accused around 8.50pm that evening saying, ‘should have got that melatonin, hey’. However, she said that the children were prescribed melatonin. JW did recall sending the accused a message at 9.05pm showing him the Tinder profile that she had created.[86]

   [84]   T 219-220.

   [85]   T 220.

   [86]   T 220-221.

7. Text messages between JW and the accused on 5 and 6 June 2022 were tendered: Exhibit D12. Those messages included one from JW with her Tinder profile and wink with a kiss emoji and an emoji with a hand with the middle finger extended. JW said she sent that message because she was angry, emotional, sad and hurt. She agreed the purpose of the message was to tell the accused that she was getting back out on the scene with other men, and it was a bit of a ‘stuff you’. JW said she was scared of him at this time.[87]

   [87]   T 222.

8. JW agreed that she had been suggesting to the accused for some time before 5 June 2022 that they should have counselling as a couple. She really wanted this to occur.[88] JW said their relationship was a good and happy one in the beginning, but it started to deteriorate in 2017 after their first child was born. JW was upset because she felt that the accused devoted all his attention to his work and not her and the children. She wanted him to be present in the home.[89]

   [88]   T 223-224.

   [89]   T 224.

9. JW said that the accused became disinterested in the family or her, and became aggressive, often shouting and yelling. JW agreed that she also got really angry and yelled and shouted. When it was put to JW that for the most part her relationship with the accused was happy enough since 2017, she said:

   AAt the time I believed it to be, yes.

   QHave you looked back and changed your mind.

   AI’ve looked back and I’ve sought therapy and a clearer understanding of what my relationship was like and since leaving and experiencing freedom and choice of thought and not walking on eggshells every day, yes, my mind has changed.

   QYou had freedom of choice and thought since 2017 in your relationship I suggest.

   ASo I thought.

   QSo your answer to that is that you didn’t, is that my understanding correctly.

   ANot fully, no.

   QNot fully.

   ANo, I was able to say when I’d go to the toilet or what I would wear, I had some range of choice, yes, but there was a lot of things that I didn’t.

   QWhat were the things that you didn’t have freedom of choice about, could you come and go from the house when you chose.

   ANo.

   QYou say you were a prisoner in the house, do you.

   AYes.

   QYou had a car.

   AYes.

   QYour complaint was that [the accused] was not at home and he was at work all the time, isn’t it.

   AThat’s correct.

   QSo what was it that was holding you at home.

   AMy children mostly.

   QDo you say they were oppressing you.

   ANo, absolutely not. [90]

   [90]   T 225, 29-38, T 226, 1-24.

10. …

    QDid he ever do any nice things for you.

    AFrom time to time, yes.

    QYou’ve said in your evidence that sometimes he would just be nice and that was a manipulation.

    AYes.

    QWere there ever any times where he was nice in a loving and genuine way, in your view.

    AI don’t know what was genuine from him any more.

    QDo you look back at the relationship and assess it differently from how you did when you were there.

    AAbsolutely yes.[91]

    [91]   T 228, 9-19.

11. Text messages between JW and the accused from 9 October 2022 were tendered: Exhibit D 13. These messages preceded the message ‘sexy time tonight’ which JW sent at 9.24pm on 9 October 2022. In one of those messages the accused said, ‘please leave your car out of the garage, baby’ with two love hearts. JW responded to that message, ‘FFS, it’s already back in’. JW said FFS meant ‘for fuck’s sake’ and that she said that when she was frustrated. When it was put to her that she was able to stand her ground and say how she felt when she was frustrated, she replied ‘no, not all the time’ and sometimes she became a little more confident.[92]

    [92]   T 235-236.

12. When it was put to JW that she initiated and invited sexual contact from the accused in October 2022 she said:

    As we spoke about yesterday, yes, I was trying to initiate a relationship and a sexual relationship again as I was trying to build up a relationship again because that is a trauma response that you want to get closer to your abuser.[93]

    [93]   T 238, 4-8.

13. Text messages between JW and the accused from 23 August 2022 were tendered.: Exhibit D 14. JW said that the message from the accused ‘how do you feel on the meds’ was a reference to the accused supplying her with prescription medication, namely dexamphetamines. JW agreed that this was the first time she had ever alleged he supplied her with prescription medication. She denied that she had been prescribed that medication by her psychiatrist.[94]

    [94]   T 239-240.

14. JW agreed that the message ‘it’s okay, I made the fuck up. I made the fuck-up. I’m going to fix it’ was a reference to a hole she made in the gyprock wall in the main bedroom. However, JW denied doing this on purpose and said that she and the accused continuously undertook renovations in the house.[95]

    [95]   T 240-241.

15. JW agreed that the message at 9.28am on 23 August 2022 from the accused, ‘how has your morning gone, love’ was a loving interaction. She also agreed that she sent him a humorous meme later that evening.[96]

    [96]   T 242.

16. JW agreed that during her relationship, including after their first and second child was born, she and the accused would spend a night together having cocaine, alcohol and sex. When it was put to JW that there was love and consensual sex between her and the accused, she said:

    There was also times that he would feed me drugs and alcohol to ensure that he got sex that night.[97]

    [97]   T 242, 32-33.

17. Text messages dated 5 June 2021 were tendered: Exhibit D 15. In one of those messages, the accused wrote, ‘What the plan when we get home? Shall we have a drink and a smoke LOL’. JW responded, ‘coke, drinks, sex, movie’. JW said she could not recall this conversation but agreed that this is something that she may have wanted at the time. Coke was a reference to cocaine.[98]

    [98]   T 243-244.

18. JW said that, before 5 June 2022, initiating or inviting sex with the accused was definitely something she did.[99] Text messages dated 24 and 25 January 2022 were tendered: Exhibit D16. In those messages, JW wrote, ‘can we have sex tonight without you thinking that everything has gone back to normal?’ The accused responded, ‘I thought you’d never ask. I’d love that. Although I’d love for things to be normal’. JW replied, ‘I don’t know if things will ever be able to be normal again. I’m so gutted at everything. I honestly wish you had just cheated, killed someone, anything but this’. JW agreed that they had had a disagreement over the parenting of their child F. It was put to JW that there was nothing that was manipulated by the accused in her request to him to have sex with her. JW agreed.[100]

    [99]   T 244.

    [100] T 246-247.

19. One of the messages from the accused in D16 was, ‘If you want sex that’s fine. I’ll never turn it down but if not I don’t want you to be doing something you don’t want to’. JW said that this message demonstrated that the accused had a full understanding of what consent was.[101]

    [101] T 248.

20. Photographs dated 25 January 2022 were tendered: Exhibit D17. In the first of those photographs JW was wearing a dress with sexy underwear underneath. When asked whether this was an occasion when she had asked for sex, she said ‘I imagine so’ although she could not recall specifically if she had sex that night. She was then shown the second photograph in D17. She explained that this was a photograph she took of her wearing green coloured underwear and the accused ‘blowing cocaine up my bumhole’. She agreed she enjoyed having sex with the accused and said she had initiated it many times in the past.[102] Two more photographs of JW and the accused dated 6 March 2022 were tendered: Exhibit D18. JW could not recall the occasion of those photographs or whether it was a night of togetherness.[103]

    [102] T 250-251.

    [103] T 252.

21. A photograph of JW dated 6 August 2021 was tendered: Exhibit D19. JW agreed she had added text to the photograph which read ‘husband of the year award. Come home from work and [the accused] has brought me latex pants from honey birdette’ with love heart eyes. JW said this was a snapchat photograph she had sent, although she could not recall to whom. JW agreed she was not manipulated into thinking the latex pants she was wearing in the photograph were a good idea; she had asked for them and she liked them. JW explained that Honey Birdette was a lingerie store.[104]

    [104] T 253.

22. A text message dated 30 September 2020 from JW to the accused was tendered: Exhibit D20. The same message but in a different format was tendered: Exhibit D 21. The text message contained a ‘honey birdette wish list’. On that list were the following items:

    ·Belinda orchid body suit set with bra, g string, stockings & suspenders 12 D or 10D

    ·Black latex leggings

    ·Latex dress

    ·Latex dressing aid and shining spray

    ·Fox mask rose gold

    ·Handcuffs equestrian

    ·Strap in set

    ·Salted caramel lube

23. JW said the accused bought the leggings, dressing aid and salted caramel lube. The leggings were the ones shown in exhibit D19. JW denied that this was a list of things for sex. She said not all of them were for sex. She said the strap in set was some type of sex toy but she could not remember. JW agreed that ‘to an extent’ she initiated bondage sex and liked it in her sex life.[105]

    [105] T255-258.

24. JW said she and the accused had a word that they would use in their day to day lives which was meant to convey, ‘I’m being very serious about this’. That word was ‘fridge magnet’. JW denied using it as a safe word during sex.[106] JW said that she understood that a safe word was ‘a mutually agreed word to, like, stop activities’.[107] Two photographs of JW were tendered which showed her wearing a bondage outfit, eye mask, and wrist straps: Exhibit D22. JW agreed that D22 showed her wearing latex underwear and was an occasion when she and the accused engaged in bondage-style sex.[108] JW said that bondage was ‘hitting, like more rough, can involve like pain, tying up, like things like that’ during the course of sexual activity.[109] When it was put to JW that she was not manipulated by the accused into engaging in sexual activities of this kind she said:

    I would like to describe it in a way I mutually engaged in activities that I felt would please him.[110]

    [106] T 258-259.

    [107] T 263, 32-35.

    [108] T 263.

    [109] T 265, 27-30.

    [110] T 264, 12-13.

25. An image of a woman with ropes tied around her was tendered: Exhibit D 23. JW agreed that this image formed the basis of a tattoo she has on her right calf which was the size of her right calf. She did not know whether she had that tattoo put on her calf before or after June 2022. JW said she did not get this tattoo because she liked rough sex.[111]

    [111] T 265.

26. JW agreed that there was a piece of hardware in the roof of the main bedroom to which she and the accused would attach a swing used for sex. A photograph of that was tendered: Exhibit D24.[112]

    [112] T 265-266.

27. Two photographs of JW were tendered, one dated 24 July 2021 showing her in revealing underwear with a caption ‘outfit sorted for tonight’ and the other dated 5 June 2021 showing her in the nude with a caption ‘ready for tonight’ with a blowing kiss emoji and devil emoji. JW said the nude photograph was an example of her initiating and inviting sex with the accused. The other was just her being silly.[113] JW agreed that these were probably photographs that she sent to the accused via Snapchat and there were lots of other occasions upon which she sent the accused images like these.[114]

    [113] T 266.

    [114] T 267-268.

28. Undated text messages between the accused and JW were tendered: Exhibit D26. In those messages, JW wrote ‘I can’t wait to fuck you hey’ and the accused replied, ‘Same. Just come home and I’ll pound your ousts. Pussy*’. JW agreed that ‘pounding kitty’ or ‘pounding a pussy’ was the way they talked about sex. JW also agreed that there were occasions when she drank alcohol of her choice and not because she was being plied with alcohol.[115]

    [115] T 269-270.

29. JW said that by 5 June 2022 she had not yet decided that she wanted the accused to leave the family home. She had thought about who would live where if the relationship ended. The thought had crossed her mind that she would stay in the family home with the children. The other house they had was one that was being built at Mannum, about an hour’s drive away.[116]

    [116] T 271.

30. Text messages dated 5 and 6 June 2022 which included those in P2 were tendered: Exhibit D27. JW agreed that the accused must have been in the house that night, but she could not recall if he was staying there or not. JW said she did not want to be anywhere near him after he raped her.[117] The next day JW messaged the accused requesting his tax file number and told him she wanted it to organise single parenting payments. JW said that his response, ‘Great’ was sarcastic and she thought ‘why are you being snide and cocky after what you’ve just done’. When it was suggested that the accused’s messages showed that he was being quite responsive to her request she said:

    That is what he would do. He would play very friendly and want forgiveness and be very obliging and this was very common after any time there was an incident in the relationship.[118]

    [117] T 273-274.

    [118] T 275, 31-34.

31. Text messages between 9 and 10 June 2022 were tendered: Exhibit D 28. In one of those messages, JW wrote ‘did you call the psychologist today?’ JW said this was a psychologist the accused had seen previously but this request was for him to see someone about what he had done.[119]

    [119] T 281-282.

32. After that message, there were phone calls between her and the accused as a result of which at 10.39pm on 9 June 2022 she sent the accused a screenshot of the Uber transaction from 5 June 2022. JW said that he had accused her of stealing from the business when she booked the Uber.[120] At 11.48pm the accused wrote:

    I don’t want a reply message. I just wanted you to know this.

    I am truly and immensely sorry for what I put you through the other day. It will haunt me forever.

    You are my best friend. I hope this can always remain.

    Thank you for the chat this evening.

    Goodnight.[121]

    [120] T 282-283.

    [121] Exhibit P3.

33. JW said that the Uber account would not have been the only topic of conversation when they spoke between 10.39pm and 11.48pm but it was the basis of the conversation.[122] JW said the message at 11.48pm was an apology for the rape. The next thing that JW did was to send the accused photographs of the children.[123]

    [122] T 285.

    [123] T 286.

34. JW was asked whether there was ever a conversation in which the accused told her that he had not known she was not consenting. JW said:

    AHe described it following the rape as ‘It wasn’t rape, it was non-consensual sex’. That was his description of it to me, and others that he told too.

    QSo in talking with you, there were conversations where he was apparently accepting from you that you were not consenting and telling you he didn’t realise. If you were not consenting, he didn’t know that.

    AHe’s described it as non-consensual sex, not rape.

    QHe was drawing those two things as different.

    AYes. [124]

    [124] T 286, 21-30.

35. Text messages between 5 and 6 August 2022 were tendered: Exhibit D 29. Many of those messages were demands by JW for the accused to leave the house. JW said that she did not want him around her because she did not feel safe. She wanted to stay in the house for the best interests of the children.[125] When it was put to her that she was still making sexual invitations to the accused at this time she said:

    I’m unsure of the times and what was spoken about and dates, but this is also a very well-known fact of trauma and trauma bonding and how that is very confusing, that you want to be involved with your abuser and you want to do things like that. And that is a very well-known fact of trauma and trauma bonding.[126]

    [125] T 287.

    [126] T 291, 7-12.

1. The accused said that for years they had sex like that without needing to talk about consent. The accused’s description of the sexual intercourse sounded entirely plausible and consistent with their sexual history and the length of their relationship.

2. The accused’s account that after he had learnt from JK that JW was alleging he sexually assaulted her he was in shock and thought it was ‘like a joke’ is consistent with a genuine lack of recollection of any discussion on the topic with JW on the morning of 5 June 2022. It was after this that JW told him that he had had sex with her without her consent. The accused’s explanation that ‘it was never a thing’ that either of them had in the past needed to get consent, but it was ‘insinuated’ sounded entirely plausible and consistent with their sexual history and the length of their relationship.

3. The accused said that once he learnt what JW alleged, ‘some boundaries [were] set about how we go about ensuring each other are feeling on par prior to being sexual…permitting to each other.’[204] In other words, he had accepted her account that she had not consented but because he was not aware of that, he was careful to ensure that there was no repeat of this situation. He said they had spoken about it a few times. I find that this aspect of the interview had the ring of truth about it and was entirely consistent with the content and tone of the conversation he had with JW on 5 June 2022.

   [204] MFIP32A, A 378, page 19.

4. I am not prepared to reject the accused’s account that he could not recall any conversation with JW after having sexual intercourse and before he went to sleep. The accused looked genuinely surprised when told that JW had recorded a conversation with him immediately after the alleged rape. It is unfortunate that this recording was not played to the accused during the interview. Had that occurred, it may have refreshed his memory. In any event, it would have given him an opportunity to comment on the things he had said, and in particular whether, as was put to him by Brevet Sergeant McIntyre, he was apologising for having raped JW and thereby admitting to have done so.

5. The accused was firm in his denials of the particulars of the allegations. He looked genuinely surprised and shocked when he was told that JW had said she did not want to have sex with him and that he had said ‘way to be a dead root’.

6. The fact that the accused had no memory of BS staying the night at his place does not, in my view, undermine his reliability. BS left before the accused woke up and the accused did not see him upon his return home.

7. Overall, I formed a favourable impression of the accused’s responses in his record of interview; he gave a coherent and plausible account of his relationship and the circumstances of the alleged offence. I found his denials to be compelling. Based on the interview alone, there was nothing that caused me to doubt the accused’s denial of having committed the offence alleged against him.

   Conclusion

8. It is my task to determine whether the prosecution has proven the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview.

9. The findings I have made regarding the evidence of JW have left me in a position where I have a reasonable doubt regarding the credibility and/or reliability of material aspects of her evidence. The compelling nature of the accused’s denials in his interview have fortified that reasonable doubt. I am not satisfied that the accused has made any express or implied admissions.

10. As a result, the prosecution has not proved beyond reasonable doubt that JW did not consent to sexual intercourse with the accused on the morning of 5 June 2022. Whilst it is possible, indeed probable, that she did not feel like having sexual intercourse with the accused, it is a reasonable possibility that she did so to please him but regretted doing so at the time and immediately afterwards.

11. The prosecution has not excluded the reasonable possibility that JW initially indicated that she was tired and did not feel like having sex but then said to the accused to make it quick, thus signalling to him that she consented to sexual intercourse. That she may have immediately regretted it or resented the accused for acting on her reluctant acquiescence does not amount to proof of lack of consent. I am satisfied that the accused believed on reasonable grounds that JW was consenting to having sexual intercourse with him on 5 June 2022.

    Verdict

    I find the accused not guilty of the charge of rape.

ANNEXURE

This is a tape recorded conversation between [W, L] and [W, J]

The conversation commenced at Seven Twenty Four AM (07:24AM) on Sunday the Fifth Day of June, Two Thousand and Twenty Two (05/06/2022) and took place at WYNN VALE.

Transcribed by G Gale

File Name: 82134E55-3BBA-46CB-9CA6-AB79E54969E6 Date/Time: 05/06/2022 – 07:24:08AM Duration: 01:58
ITEM	NAME	CONVERSATION
1.	[W, L]	It hurts.
2.	[W, J]	It hurts you?
3.	[W, L]	Yeah of course, it’s the fucking truth.
4.	[W, J]	Yeah, and that’s what I’m saying – if you think it, it’s anything but rape
5.	[W, L]	Yeah, yeah it’s my fault – sorry.
6.	[W, J]	I’m, I never thought we’d get to this part in our fucking relationship or our lives.  I never thought you could cross that line, but you just did.  And I’m not shying away from it.  I shouldn’t feel ashamed to say it, but you just raped me.
7.	[W, L]	Are you gonna leave me?
8.	[W, J]	Hu?
9.	[W, L]	Are you going to leave me?
10.	[W, J]	What?  I don’t know what I’m going to do [L].  I’m, I’m completely shocked. What, what do you expect me to do dude?
11.	[W, L]	I don’t know.  I don’t know ###.
12.	[W, J]	[sighs]
13.	[W, L]	I’m sorry.
14.	[W, J]	You’re sorry?  That makes it all better.
15.	[W, L]	Well it doesn’t, I know that. I presume I’m not allowed to cuddle you.
16.	[W, J]	No.  Not that you #### listen anyway.
17.	[W, L]	Sorry?
18.	[W, J]	Not that you could’ve listened anyway to what I want or don’t want?
File Name: 606439B8-3D2A-4AA2-AC2D-B77A2D6F0E2F Date/Time: 05/06/2022 – 07:26:12AM Duration: 00:28
19.	[W, L]	I’m not a bad guy.
20.	[W, J]	You’re not a bad guy.
21.	[W, L]	I’m not a bad guy. I don’t want you to think I’m a bad guy.
22.	[W, J]	Okay.
File Name: 070DC136-1B0C-4454-B7B9-FD9CE9F90DE8 Date/Time: 05/06/2022 – 07:29:17AM Duration: 02:34
23.	[W, J]	[sighs] What then?
24.	[W, L]	I don’t want to know.
25.	[W, J]	You don’t want to know?
26.	[W, L]	Mn, mn. ####.
27.	[W, J]	Are you seriously acting like this?
28.	[W, L]	Yep.  ####.
29.	[W, J]	Hu?
30.	[W, L]	####.
31.	[W, J]	What the fuck is going on right now.  Like I’m sorry, like it’s, I’m going to say the word - you raped me and you’re crying.
32.	[W, L]	Mhmm.
33.	[W, J]	crying.
34.	[W, L]	Mhmm.
35.	[W, J]	How does that make sense?
36.	[W, L]	There is something I want to ask you and I don’t like it.
37.	[W, J]	And what’s that question?
38.	[W, L]	####.
39.	[W, J]	Well don’t ask it then.
40.	[W, L]	I’m not. [crying] I’m sorry, okay.
41.	[W, J]	Mhmm.
42.	[W, L]	I’m sorry.
File Name: FullSizeRender Date/Time: 05/06/2022 – 07:33:11AM Duration: 33:31
43.	[W, L]	I’m very sorry.
44.	[W, J]	Mhmm. [tap, tap, tap, tap] What’s that?
45.	[W, L]	Me.
46.	[W, J]	What happened?
47.	[W, L]	Nothing.
48.	[W, J]	[sighs]
49.	[W, L]	I’m just so upset.
50.	[W, J]	Are you seriously acting like this?
51.	[W, L]	You have a right to be upset and that’s what I’m upset about.  It’s not that you don’t have the right to be upset.
52.	[W, J]	That’s why I don’t get why you’re being all upset about it.  You just did that to me.
53.	[W, L]	I know.
54.	[W, J]	I should be the one that’s upset.
55.	[W, L]	That’s not.
56.	[W, J]	Why are you upset?
57.	[W, L]	I know.  I’m sorry.  You have a perfect right to be upset and that’s why I’m sorry.  Because it happened. And now I’m worried.
58.	[W, J]	Mm?
59.	[W, L]	And now I’m worried.
60.	[W, J]	Worried about what?
61.	[W, L]	Of the repercussions.
62.	[W, J]	What repercussions?
63.	[W, L]	That I raped you.
64.	[W, J]	What?
65.	[W, L]	That I raped you.
66.	[W, J]	That’s what you’re worried about?
67.	[W, L]	I’m worried that you’re upset; I’m worried about all of it. Why do you hate me so much?  Why do you hate me so much?    Be nice and tell me.  And I’m not a bad guy.
68.	[W, J]	Bad guys don’t rape people.  Good guys don’t rape people.
69.	[W, L]	That’s all you got to say hey?
70.	[W, J]	Mm?
71.	[W, L]	That’s all you’re going to say, hu?
72.	[W, J]	Mm, I’m just saying that you are leading up to this; you’re a very self-centred selfish individual.  You have made it clear to me that that only happiness that you’re getting…. No you asked me, I’m going to tell you. The only happiness you get from life is from work.  When I have said to you about separating and what we do with the kids. You said I’ll just give you money if you want to look after them.  You know how much that breaks my heart to know that your children don’t even come first in your life?  It’s
73.	[W, L]	Please don’t go down this path.
74.	[W, J]	No, you asked me why I hate – you asked me, and I’m
75.	[W, L]	####.
76.	[W, J]	telling you.  You asked me and I’m telling you.  I’m telling you word for word what you said to me.
77.	[W, L]	I really thought we were friends tonight.
78.	[W, J]	Yeah I thought we were too.  And that comes from understanding too that sometimes I’m tired, sometimes I don’t want it.  It’s nothing to do with you or the night we had or anything.  This is, ‘no’ is a fucking complete sentence.
79.	[W, L]	Sorry?
80.	[W, J]	‘No’ is a complete sentence.  It doesn’t need an excuse, it doesn’t matter we’ve had a good night or something.  It doesn’t mean again you just take it into your own hands.  That’s what I mean, you sit here and you go ‘why do I hate you’, and I say ‘it’s because there is numerous things’ when you were just so focused on yourself and your work.  And I am, I’m so proud of you, I’m so proud of your work and you’re an amazing business man but that’s your only drive in life now you don’t care about us. ‘
81.	[W, L]	That’s a lie.
82.	[W, J]	You’re like ah, I, you do care of us about us in your own special fucking secluded way, you don’t.  You know I’ve got the kids; you don’t have to worry about them.  You never care about me and I’m very fucking aware of that.  You care about work and what benefits you, is growing your business.  That’s when you made it perfectly clear when I said to you that time – ‘what are we going to do with the kids if we separate blah blah blah’, and you said
83.	[W, L]	Alright.
84.	[W, J]	‘I’ll just give you money and you can have them’. and I said ‘###’
85.	[W, L]	I thought it was the best outcome for my kids.
86.	[W, J]	Because it’s.
87.	[W, L]	You can provide better for my kids than anyone else can [J].
88.	[W, J]	That’s what I mean, like it’s not that I ever want there to be an argument or anything but it’s like you, you don’t even have that fight in you about your children.
89.	[W, L]	Mm, I just thought
90.	[W, J]	###.
91.	[W, L]	it was best.  ####. I’m just so upset that you don’t like me anymore.
92.	[W, J]	Yeah and I’m so upset that I’m a minute person in your life now.  I didn’t.
93.	[W, L]	You’re not.  Don’t even think that.  ####.
94.	[W, J]	[L], me and the kids do not come first
95.	[W, L]	No don’t.
96.	[W, J]	####.
97.	[W, L]	Don’t.
98.	[W, J]	Don’t say we do because you are all about work.  I have tried counselling, I’ve tried getting you to go to counselling, I have tried, have spoken to.
99.	[W, L]	Are you trying to beat me, are you trying to make me, are you trying to kill me today?
100.	[W, J]	I’m not trying to kill you.
101.	[W, L]	Trying to kick me inside.
102.	[W, J]	Nup well you asked me and I’m telling you.  This is everything.  I have tried every. thing. we can.  I don’t know what else I can do.  I have stuck by you through three (3) years.  It’s been going for years.  You go behind my back, you were lying, you were hiding things on your phone, you were hiding fucking porn pictures and started hiding things from me. I had, I can’t see what I’ve done so bad that caused you to be so distant and I’ve been trying, I did everything we agreed on.  I gave up my business for you, I gave up.
103.	[W, L]	It’s not your fault.
104.	[W, J]	No, but that’s what I’m trying to say.  I gave up everything and I raised
105.	[W, L]	####.
106.	[W, J]	and I raise our children and I fucking put everything into it, and I continued to stay by your side and put up with everything that you do.  And you never, you’re never home, you’re never interested in us. You drink.  You yell at the kids all the time, you yell at me, you.
107.	[W, L]	Alright I’m shit, I get it.
108.	[W, J]	You asked me and I’m telling you.
109.	[W, L]	I don’t like it. That’s what I was worried about.  All of this is you just #### any chance of how much of a shit-cunt I am.  I’ve been good.  Fucking it hurts. [crying]
110.	[W, J]	It hurts me living this life too.
111.	[W, L]	[crying] Nah.  No.
112.	[W, J]	What?
113.	[W, L]	[crying] Who are you. I’m sorry.  It doesn’t fix ####. [crying]
114.	[W, J]	Why are you so sad?
115.	[W, L]	Hey?
116.	[W, J]	Why are you so sad?
117.	[W, L]	[crying] Because I want your friendship cos I do need a friend. [crying] ###.
118.	[W, J]	Do you not realise that all I have been asking for years is a friend?
119.	[W, L]	But you’re pushing me away ####.
120.	[W, J]	[sighs] It’s always my fault.
121.	[W, L]	No it’s not, it’s sad.
122.	[W, J]	Mhmm.
123.	[W, L]	Not your fault.  You’re a good person. [crying] ####. Sorry. [crying] I’m sorry.
124.	[W, J]	Mm.
125.	[W, L]	Sorry. I just, I want to be your friend for all the night, and so when we had so much fun, we had so much fun, I literally left everything just to meet you outside, to be your friend because we need it. [crying]
126.	[W, J]	And I enjoyed being your friend.
127.	[W, L]	[crying] I loved it.
128.	[W, J]	Yes and I. That’s all I’ve ever.
129.	[W, L]	I was prepared to stay out so long, so late with you.
130.	[W, J]	Yes and I appreciate that, and that’s all I want to is a friend.
131.	[W, L]	[crying]
132.	[W, J]	That’s all I’ve ever wanted was a friend and husband and a father.
133.	[W, L]	I don’t want any friend; I want you as my friend.  Just you, that’s it, I wanted you to come out.
134.	[W, J]	Friends don’t treat friends the way you’ve treated me.
135.	[W, L]	[crying] It doesn’t seem right does it ####, and I’m really sorry for that. I’m just so desperate for your friendship ####.
136.	[W, J]	[sighs] God, do you know how long I’ve been begging for your friendship.  All I want is
137.	[W, L]	I know.
138.	[W, J]	is a friend and you are equally rock solid.  You are an interesting ####.
139.	[W, L]	I was here, well yeah I was here.  Yes I am.  I #### I’m your friend.  I am here.
140.	[W, J]	Okay, well it seems that all you want is fuck-buddy.
141.	[W, L]	I was, at the start with you, whenever I was, you, you called it.  You know that.  Right?
142.	[W, J]	No.
143.	[W, L]	I was staying out with you.  I was with you as soon as you were there I go outside, did I not.
144.	[W, J]	Yes.
145.	[W, L]	I wanted you with me tonight..
146.	[W, J]	And we had fun until we got home.
147.	[W, L]	Yep we did, you are right.
148.	[W, J]	And I am not to blame for being tired and saying “no”.  I’m allowed.
149.	[W, L]	If not, I’m not saying you, like I promise you I’m not.
150.	[W, J]	Well that’s the thing you don’t understand cos we have a fun night it doesn’t mean you’re entitled to it.  We’d had a great night – yes I’m not denying that, but I’m saying then I got to bed and I was very tired, I wanted to go to s[W, L]p.
151.	[W, L]	And you didn’t want sex?
152.	[W, J]	Yes.
153.	[W, L]	Are you telling me you didn’t want it?
154.	[W, J]	I didn’t want it and I was very clear about that.  I was very clear about that.
155.	[W, L]	####. I wouldn’t have, sorry.
156.	[W, J]	You can not tell me that I was not clear about that.
157.	[W, L]	Yes, you were very clear, and you were ####.
158.	[W, J]	And then even during it you said to me “I hope you’re hating this”.
159.	[W, L]	I was trying to be funny and put a twist on. [J]?
160.	[W, J]	What?
161.	[W, L]	### I’m not, not a weirdo, I’m not a creep; I’m not trying to make you miserable for a second.  Oh I’m, I asked you, for your information because I wanted you to enjoy it with me.
162.	[W, J]	Mhmm. And then.
163.	[W, L]	Did I not?
164.	[W, J]	Yes. And then I said “it’s not happening”. And you said “fuck it, I’m doing it”.  And then.
165.	[W, L]	After a bit of conversation – yes.  Is it not mutual ground that we’ve got to though, do we not do this every time. Or is it not ok for me to assume that?
166.	[W, J]	No it’s not ok for you to assume that.  Just because we usually have sex after we come home and I’ve made it clear that ‘I don’t want it’. And then you said, ‘you know I just want you to want it.  And I said I’ve not wanted it for a long time. I always just say yes because I do it to make you happy. And I’ve made that clear that I don’t want it. Like you said, you know I haven’t wanted it and you said, “so if I was to do it now you would be okay with it”. And I said “no – but you’re going to do it anyway”.
167.	[W, L]	Okay.
168.	[W, J]	And you said “fuck it, I’m doing it”.  And it’s something that, and then you were rough and loud and I’m saying “I don’t want [B] to hear and stuff”. And you said “fuck it”.  Everything that I… happened during it I didn’t want, you were like “fuck you I’m doing it”.  That’s why.  You even
169.	[W, L]	I’m sorry.
170.	[W, J]	you even specifically said half-way through “you fucking hate this don’t you”?
171.	[W, L]	And ah, I, I don’t, I didn’t mean it.
172.	[W, J]	Oh no “I hope you fucking hate this”.
173.	[W, L]	I, I didn’t mean it as in like ‘I hope you hate it’, it was, I was trying to be fun.
174.	[W, J]	Mhmm.
175.	[W, L]	[J]?
176.	[W, J]	What [L]?
177.	[W, L]	Can I have eye contact for a second?  I’m sorry ####.  Sorry doesn’t take it away. Sorry doesn’t make it go away. Sorry doesn’t undo what happened. Sorry you went through that. That’s my fault.  I am really truly sorry.  If you feel like I raped you.
178.	[W, J]	I feel like you raped me.
179.	[W, L]	Then I’m truly sorry I raped you.  Is that what makes you happy?
180.	[W, J]	No, I’m not going to be like, have that swung back on me like that ev, everything that I.
181.	[W, L]	Alright I’ve said it.  It’s, it’s a horrible thing to admit and it’s just hard.
182.	[W, J]	Yeah.
183.	[W, L]	Okay? Like it ###.
184.	[W, J]	It, it’s a horrible thing to fucking receive, like it’s a horrible thing to digest in my mind that my husband just did that to me.
185.	[W, L]	We’ve had conversations about this in the past [J].
186.	[W, J]	Not when I’ve specifically say ‘no’.
187.	[W, L]	You didn’t specifically say ‘no’. You said if that’s what makes you feel good.
188.	[W, J]	[sighs] Oh my God.
189.	[W, L]	What [J]?
190.	[W, J]	###.
191.	[W, L]	No please.  ### you can see I’m trying.
192.	[W, J]	Yeah.
193.	[W, L]	Please [crying] I don’t want this to go this way.  I’m trying. Okay fine I’m a piece of shit, I raped you – whatever.  That does that make you feel good? [crying]
194.	[W, J]	No it doesn’t make me feel good at all.
195.	[W, L]	Does it make you feel better that I said it?
196.	[W, J]	No.
197.	[W, L]	Well what do you want me to say? [crying]
198.	[W, J]	I know it’s so hard for you to say it though.
199.	[W, L]	With what, well make, well what will make it better?
200.	[W, J]	Nothing [L].
201.	[W, L]	I’m sorry.  I just want you – my friend. [crying]
202.	[W, J]	Mm?
203.	[W, L]	I just want you as my friend.  Please? You can see how I care. [crying]
204.	[W, J]	Do you want me to turn on the TV or something so [B] can’t hear you?
205.	[W, L]	[crying] I don’t care.
206.	[W, J]	Hu?
207.	[W, L]	I don’t care.
208.	[W, J]	Yeah.
209.	[W, L]	I only care about us. [crying] Isn’t it obvious I’m a piece of shit.
210.	[W, J]	You what?
211.	[W, L]	Is it obvious, I’m a piece of shit.
212.	[W, J]	I don’t know who you are anymore to be honest with you.
213.	[W, L]	[crying] I am someone that misses you.  It’s my fault I know #### effort.
214.	[W, J]	That’s what I’m saying, like I tried everything.  I’ve begged and pleaded for your love.  Like I said I used to dote on you, no one in this world shone brighter than you.  I would’ve scream it from the roof tops how much I loved and adored you.  Nothing you could do was wrong.
215.	[W, L]	I know.
216.	[W, J]	And then.
217.	[W, L]	I know it is my fault.
218.	[W, J]	[sighs]
219.	[W, L]	####. Just missing you man.  I just miss our friendship.  That’s only reason why I’m so ### get my ####.
220.	[W, J]	What?
221.	[W, L]	Only reason why I was okay with getting what we did from [D] was because I miss our friendship. I need that, I need that connection.
222.	[W, J]	Mhmm.
223.	[W, L]	But I can’t deny it. [sighs] I’m sorry for crying. It’s probably not very nice to see. I’m really not much of a partner am I?
224.	[W, J]	Not much of a what?
225.	[W, L]	A partner.  Of a partner.
226.	[W, J]	You can fucking, I don’t know what road you’re going down, but you just on fucking self-pity and blah blah blah.
227.	[W, L]	Yeah that’s what I’m saying.
228.	[W, J]	But.
229.	[W, L]	You ####.  Yes I am making about me.  I’m sorry.
230.	[W, J]	Not just I, I have spoken to you in depth about all this stuff for years.
231.	[W, L]	#### .
232.	[W, J]	I tried so hard to have our relationship back, so hard, I tried so hard to have our friendship back with you, and you wouldn’t do it.  I’ve even gone to counselling myself, I’ve pushed you to go to the Doctor, and you.
233.	[W, L]	Am I’m a piece of shit.  I know.  I’m a piece
234.	[W, J]	I’ve.
235.	[W, L]	of. shit.  I’m the worthless piece of shit.
236.	[W, J]	There’s nothing more I can do and then it’s you are sitting here crying to me saying you just want your friend back, and it’s like
237.	[W, L]	Yeah I miss you.
238.	[W, J]	‘are you joking me’.  Are you joking me?
239.	[W, L]	Okay, I’m sorry.  I see how it’s going to go. I always want my friend back.
240.	[W, J]	Mhmm.
241.	[W, L]	[whispers] I’m sorry.  What’s the best thing for me to do for you right now?
242.	[W, J]	I just need space.
243.	[W, L]	I’ll leave you alone.
244.	[W, J]	Mhmm.
245.	[W, L]	What do you want me to do.
246.	[W, J]	You can do whatever you want [L].  No one tells [W,L] what to do.
247.	[W, L]	I’m asking to make you feel comfortable. I’m asking to make you feel comfortable. I’m nervous.
248.	[W, J]	You’re nervous?  At what?
249.	[W, L]	Our future.
250.	[W, J]	Our future?
251.	[W, L]	Don’t think into it.
252.	[W, J]	Mm?
253.	[W, L]	Don’t think into it.
254.	[W, J]	Don’t think into it.  What are you nervous about our future it’s like, what do you mean?
255.	[W, L]	The fact that you don’t like me at all.  Or the fact that I’m just continuously trying but not going anywhere with the outcomes.
256.	[W, J]	You’re tr.
257.	[W, L]	And the fact that.
258.	[W, J]	Trying?
259.	[W, L]	I, I just.
260.	[W, J]	Where, where have you tried to?
261.	[W, L]	I built you a whole house bro.  I built a whole house for you.
262.	[W, J]	It wasn’t for me.
263.	[W, L]	For everybody. [crying]
264.	[W, J]	It was your lifelong dream.
265.	[W, L]	For everybody.
266.	[W, J]	Maybe now you’ll realise that it wasn’t about the materialistic shit.  It wasn’t about the things.  Things don’t matter.
267.	[W, L]	I’ve tried everything to make you feel special though. [crying]
268.	[W, J]	You’ve tried everything.
269.	[W, L]	Whatever you want.
270.	[W, J]	Okay.
271.	[W, L]	To like, I like, I’m sorry that I raped you, I’m so sorry.  I will never do it again.
272.	[W, J]	Mhmm.
273.	[W, L]	if it makes you feel better I will never do it again.
274.	[W, J]	But had I heard you a week ago you would’ve said ‘you would never do it’, so why am I
275.	[W, L]	What?
276.	[W, J]	to. If a week ago you would’ve said ‘you would never do that’ so why am I to believe that you’d never do it again?
277.	[W, L]	I said how you said it. I’m not going to say it again.
278.	[W, J]	I am not having my fucking children
279.	[W, L]	Oh no don’t bring them into this. [crying]
280.	[W, J]	No, just because you fucking were raised seeing that and thinking it was okay?
281.	[W, L]	[crying]
282.	[W, J]	I will not have my children raised seeing that stuff.  It stops here.
283.	[W, L]	Mhmm. [crying] I’m so sorry. Please be my friend. [crying] I want your friendship. [crying]
284.	[W, J]	You’ve got plenty of friends at work that you enjoy being around more than us, so.
285.	[W, L]	Sorry?
286.	[W, J]	You’ve got plenty of friends at work that you enjoy being around more than us.
287.	[W, L]	Not true.
288.	[W, J]	You’ve told me that.
289.	[W, L]	Hey?
290.	[W, J]	You’ve told me that straight to my face.
291.	[W, L]	It’s not true how you’ve worded it. I don’t prefer them over you guys.
292.	[W, J]	Okay, but you prefer being at work more than at home.
293.	[W, L]	It’s less stressful – yeah.
294.	[W, J]	Yeah.
295.	[W, L]	You hate me don’t you.  You just say it.
296.	[W, J]	I don’t know.  I really don’t know how I feel.
297.	[W, L]	I’ll feel better if you said it now.
298.	[W, J]	I don’t know how I feel.  I never expected that I’d be in this situation in my life.  I’m, I’m numb.  I don’t feel anything.  I feel completely numb.
299.	[W, L]	You feel like I’m a monster.
300.	[W, J]	Hu?
301.	[W, L]	You feel like you’re with a monster. I can’t breathe.
302.	[W, J]	What’s wrong?
303.	[W, L]	My nose is blocked.
304.	[W, J]	Well breathe through your mouth then.
305.	[W, L]	I am but it’s hard.
306.	[W, J]	Go blow your nose then.
307.	[W, L]	Mhmm.
308.	[W, J]	Like do you need an Ambulance or something?  Like can you.
309.	[W, L]	No, I’m okay.  I will be okay.  Just really sad.
310.	[W, J]	Yeah.
311.	[W, L]	And it’s self-inflicted but it’s okay.  It’s my fault.  And I’m sorry you went through it.  I’m just really sad, upset with, really upset with us, like me but not.  You matter a lot.  I have so many songs to relate to.
312.	[W, J]	I can’t hear you.
313.	[W, L]	I have so many songs that relate to us, I can’t help.
314.	[W, J]	So many songs?
315.	[W, L]	Yeah. I listen to lots of music.  There are so many songs that relate to how I feel.  Just that ####. I’m not that guy that complains.
316.	[W, J]	I can’t hear you.
317.	[W, L]	I’m just hurt but I’d never say it because I’m not the guy that complains.  I don’t want to be a burden on anyone.  But I do hurt okay. [crying] Everyone thinks I don’t care.  I really do ### and I’m scared.
318.	[W, J]	Why are you scared?
319.	[W, L]	About us because you are my friend and I don’t want to lose you, my friend, I’m in love with you. [crying] I know you don’t care anymore – you’ve lost that.  I can’t. But for me I really love our friendship, well cos I love going out with you.  I love being in places with you. It’ so fun. You are my friend. I don’t have many. [crying] ####. [crying] I’m sorry. [crying] I can’t stop crying – I’m sorry. Do you want your eyepatch?
320.	[W, J]	Mm?
321.	[W, L]	Do you want your eyepatch.
322.	[W, J]	Do I want my eyepatch?
323.	[W, L]	Your eye thingy.  Your eye cover so it’s not bright.
324.	[W, J]	No, it’s fine. Why don’t you go sleep in River’s room so it’s dark?
325.	[W, L]	I don’t want to be away from you.  I’m scared it’s just ###.  I don’t care about me I care about you. [crying] Please don’t kick me out.
326.	[W, J]	Please don’t what?
327.	[W, L]	Please don’t kick me out.
328.	[W, J]	Kick you out of the bed?
329.	[W, L]	Yeah.