Sondhi v The King - [2024] SASCA 7

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SONDHI v THE KING
[2024] SASCA 7
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Blue and the Honourable Justice Kimber)
8 February 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - EVIDENCE
CRIMINAL LAW - EVIDENCE - COMPLAINTS - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
Following a trial by Judge alone, the applicant was found guilty of five counts of rape. The complainant was the wife of the applicant. On the prosecution case, the five counts were committed on separate occasions in the months shortly after the birth of the only child of the marriage. There was evidence of an initial complaint with respect to Count 1, made to the brother of the complainant. At trial, the applicant contended that both the complainant and her brother had fabricated that the complaint had been made. The applicant did not give evidence. In submitting that the prosecution had not proven guilt beyond a reasonable doubt, the applicant placed reliance in particular upon inconsistencies in the accounts of the complainant, inconsistencies between her evidence and other evidence and evidence of his good character.
The applicant appeals against his convictions on five grounds which advance several contentions. Those contentions include, but are not limited to, the following: that the trial Judge erred in his approach to the evidence of initial complaint, including failing to properly evaluate alleged inconsistencies and failing to direct himself in terms consistent with s 34M(4)(c) of the Evidence Act 1929 (SA); that the trial Judge erred in his approach to the evaluation of the credibility and reliability of the complainant; that the trial Judge engaging in preferential reasoning and misapplied the standard of proof; that the trial Judge engaged in inadequate reasoning and, in the alternative, that his reasons are inadequate.
Held per the Court, granting permission to appeal and dismissing the appeal:
1.The trial judge did not err in his approach to the evidence of the initial complaint. The trial Judge had regard to the inconsistencies between the evidence of the complainant and her brother about the initial complaint. It was open to the trial Judge to find that the inconsistencies did not affect the complainant’s credibility in a material way. In the circumstances of this case, the trial Judge was not required to direct himself in terms consistent with s 34M(4)(c).
2.The trial Judge did not err in his assessment of the credibility and reliability of the complainant. The trial Judge did not overlook the reliability of the complainant. The extent to which the trial Judge was required to engage with that issue must be considered bearing in mind that the issue in each count was credibility.
3.The trial Judge directed himself appropriately with respect to the standard of proof and did not engage in preferential reasoning.
4.The trial Judge did not engage in inadequate reasoning. The approach…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sondhi v The King

Details

AGLC: Sondhi v The King [2024] SASCA 7
Case: [2024] SASCA 7
Decision Date: 8 February 2024

CaseChat Overview and Summary

The applicant, who had been convicted of five counts of rape, sought leave to appeal against his conviction. The complainant alleged that the offences occurred between January and March 2021, following the birth of the couple's child. The applicant's defence at trial was that he did not commit the alleged acts of rape, with his position on some counts being that no sexual activity occurred, and on others, his denial was less clear. Credibility was also a central issue, particularly concerning the complainant's initial complaint about the first alleged offence, which the applicant claimed was fabricated.

The legal issues before the Full Court of the Supreme Court of South Australia concerned whether the trial judge had adequately considered the complainant's reliability and credibility, particularly in light of inconsistencies in her evidence. Specifically, the applicant argued that the trial judge failed to properly engage with the question of reliability when addressing an inconsistency in the complainant's evidence regarding the date of the first alleged offence. The court was also required to consider the admissibility and use of the complainant's initial complaint to her brother as evidence.

The Full Court granted permission to appeal but ultimately dismissed the appeal. The court found that the trial judge's finding that the complainant's inconsistency regarding the date of the first offence did not affect her reliability or credibility was open to the judge on the evidence. The judge had correctly noted that the complainant remained consistent about the incident occurring on the day of her child's first doctor's appointment. Therefore, the court rejected the applicant's submission that this demonstrated a failure by the trial judge to properly engage with the question of reliability.

Orders

Orders of the court

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Background

Background to the litigation

The applicant acknowledges that there is considerable overlap in the grounds of appeal. For the reasons which follow, we grant permission to appeal but dismiss the appeal. Background The applicant and C met through an arranged marriage website and commenced a relationship in October 2019. They were married in India in February 2020. Prior to the marriage, C had been living and working in Melbourne. On 29 November 2020, C gave birth to their child. Following that, C said she was unwilling to engage in sexual intercourse for several weeks. It was in that context that the five counts of rape were alleged to have been committed between 11 January 2021 and 21 March 2021. On 24 March 2021, the complainant left the marital home. The case of the applicant at trial was that there was no occasion on which he raped C. It was put in cross-examination of C that there had been no sexual act on the occasions the subject of Counts 2, 4 and 5. The position of the applicant about whether there had been sexual activity on the occasions on which Counts 1 and 3 were alleged to have occurred was less clear. Credibility was also in issue with respect to the alleged initial complaint about Count 1. The applicant put at trial that the initial complaint was fabricated. The applicant did not give evidence, but called his father and brother, an employer and a witness as to his good character. What follows is a summary of the prosecution case on each count. Count 1 Count 1 was an act of vaginal sexual intercourse said to have occurred on 11 January 2021. On that day, the applicant and the complainant attended an appointment with a doctor for their child’s six-week check‑up. At the time, the brother of C was visiting from interstate and was in the apartment. C gave evidence that the rape occurred after arriving home from the doctor and before the applicant went to work. C said that she told the applicant that she was not ready to have sex due to the birth of the child and referred to her brother being present in the apartment but that the applicant said that he could ‘do anything’ as he was her husband and placed his hand over her mouth whilst engaging in vaginal intercourse. On the prosecution case, after the applicant left for work, C told her brother about being forced to engage in sex. This was the ‘initial complaint’ and was only used by the trial Judge with respect to Count 1. The brother of C and the applicant attended a cricket match at Adelaide Oval that evening but did not speak about what the prosecution said had been disclosed. Count 2 Count 2 was an act of anal intercourse said to have occurred in mid‑February 2021. C said that she was in the shower and the applicant penetrated her anus with his penis. C said that she asked the applicant not to commit that act but that he bent her down, placed his penis a ‘bit inside’ her anus and then ejaculated in the shower. Count 3 Count 3 was alleged to have occurred on 11 March 2021 at a time when C was fasting and dressed in traditional Indian clothing. C said that the applicant came into their room, lowered the curtains and had vaginal sexual intercourse with her. C said that she was repeatedly refusing but the applicant held her hands next to her head and used his body weight to hold her down.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant also draws attention to [219] of the reasons as an example of the trial Judge failing to properly engage with the question of whether C was reliable. This paragraph dealt with an inconsistency in C’s evidence as to the date of Count 1. The trial Judge found that this did not affect C’s reliability or credibility because she had been consistent that the incident had occurred on the date of her child’s first doctor’s appointment. That finding was open. We reject that this is an example of the trial Judge failing to engage with the question of reliability. Conclusion We grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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