District Court New South Wales Medium Neutral Citation: R v DS [2017] NSWDC 207 Hearing dates: Hearing: 17 February 2017 – 8 May 2017 and Further submissions: 16 June 2017 and 17 July 2017 Date of orders: 04 August 2017 Decision date: 04 August 2017 Jurisdiction: Criminal Before: Hatzistergos DCJ Decision: In respect of the indictment dated 20 March 2017, the accused is found: 1. Guilty of Count 1; 2. Guilty of Count 2; 3. Guilty of Count 3; 4. Guilty of Count 4; 5. Not Guilty on Count 5; 6. Guilty of Count 6; 7. Guilty of Count 7; 8. Guilty of Count 8; 9. Guilty of Count 9; 10. Guilty of Count 10; 11. Guilty of Count 11; 12. Guilty of Count 12; 13. Guilty of Count 13; 14. Guilty of Count 14; 15. Guilty of Count 15; 16. Guilty of Count 16; 17. Guilty of Count 17; 18. Guilty of Count 18; 19. Guilty of Count 19; 20. Guilty of Count 20; 21. Guilty of Count 21; 22. Guilty of Count 22; 23. Guilty of Count 23; and 24. Guilty of Count 24. Catchwords: CRIMINAL LAW – TRIAL BY JUDGE ALONE - directions – unrepresented accused – prescribed sexual offences – witness intermediary – support person EVIDENCE – context and relationship evidence – ongoing conduct during their marriage – knowledge that complainant was not consenting – escalation of violence – disavow charged acts were isolated – failure to complain – vulnerable during relationship – cannot use evidence adduced as tendency evidence SEXUAL INTERCOURSE WITHOUT CONSENT – ATTEMPTED SEXUAL INTERCOURSE WITHOUT CONSENT – use of object manipulated by the accused – sexual connection occasioned by penetration – consent not freely and voluntarily given – knowledge about consent – consent negated as there were threats of force or terror CAUSE GRIEVIOUS BODILY HARM – complainant chased off balcony – suffered multiple injuries Legislation Cited: Crimes Act 1900 (NSW) ss 35(2), 61H, 61HA, 61I and 61P Criminal Procedure Act 1986 (NSW) ss 132A(1), 132, 133 and 166 Evidence Act 1995 (NSW) ss 89(1) and 177 Cases Cited: AK v The State of Western Australia (2008) 232 CLR 438; [2008] HCA 8 DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fleming v R (1998) 197 CLR 250 KJS v R [2014] NSWCCA 27 MJW v The Queen (2005) 80 ALJR 329; [2005] HCA 74 Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 R v AH (1997) 42 NSWLR 702 R v AN (2000) 117 A Crim R 176 R v Anastasiou (1991) 21 NSWLR 394 R v Jovanovic (1997) 98 A Crim 1 R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998) R v Markuleski (2001) 52 NSWLR 82 R v Matthews (1990) 58 SASR 19 R v Zorad (1990) 19 NSWLR 91 Wilson v The Queen (1970) 123 CLR 334 Category: Principal judgment Parties: DS (Accused) Regina (Crown) Representation: Counsel: Self-represented (Accused) Ms S Morkaya (Crown) Solicitors: Solicitor for the Director of Public Prosecutions (Crown) File Number(s): 2015/110707 and 2015/30628 Publication restriction: Non-publication orders in place for the accused, the complainant and their children. I prohibit the publication or disclosure of information tending to reveal their identities (or otherwise) JUDGMENT INTRODUCTION - [1] ELEMENTS OF THE OFFENCES Sexual intercourse without consent - [12] Attempted sexual assault without consent - [29] Recklessly cause grievous bodily harm - [32] DIRECTIONS The presumption of innocence - [38] Onus and standard of proof - [41] Dispassionate approach - [46] Inferences - [49] Multiple counts on the indictment - [53] Election not to give evidence - [56] The accused's record of interview - [62] WITNESSES The complainant's evidence Use of audiovisual link - [69] Use of support person - [70] Use of an intermediary - [71] The complainant's credit - [73] Motive to lie - [89] Delay in complaint - [100] JS's evidence - [103] Other witnesses - [107] Context and relationship evidence - [109] EVIDENCE - [121] Background - [122] INCIDENT 1 - [128] INCIDENT 2 - [130] INCIDENT 3 - [159] INCIDENT 4 - [173] INCIDENT (UNNUMBERED) - [178] INCIDENT 5 - [189] INCIDENT 6 - [193] INCIDENT 7 - [203] INCIDENT 8 - [207] INCIDENT 9 - [219] INCIDENT 10 - [225] INCIDENT 12 - [232] INCIDENT 11 - [236] INCIDENT 13 - [243] INCIDENT 15 - [249] INCIDENT 16 - [253] INCIDENT 17 - [256] INCIDENT 18 - [261] INCIDENT 20 - [310] INCIDENT 21 - [360] INCIDENT 22 - [365] CONFESSION AND PUNISHMENTS - [375] INCIDENT 23 - [393] INCIDENT 24 - [400] CONTEXT AND RELATIONSHIP - [405] COUNT 1 on the INDICTMENT - [482] INCIDENT 25 - [496] COUNT 2 on the INDICTMENT - [503] INCIDENT 26 - [514] COUNT 3 on the INDICTMENT - [523] INCIDENT 27 - [535] COUNT 7 on the INDICTMENT and INCIDENT 32 - [548] COUNT 8 on the INDICTMENT - [561] COUNT 4 on the INDICTMENT [1134] - [573] COUNT 5 on the INDICTMENT - [586] COUNT 6 on the INDICTMENT and INCIDENT 30 - [597] COUNT 9 on the INDICTMENT and INCIDENT 33 - [605] Events following Count 9 - [623] COUNT 10 on the INDICTMENT - [629] COUNT 11 on the INDICTMENT - [639] COUNT 12 on the INDICTMENT and INCIDENT 34 - [648] COUNT 13 on the INDICTMENT - [658] COUNT 14 on the INDICTMENT and INCIDENT 37 - [671] COUNT 15 on the INDICTMENT and INCIDENT 39 - [683] COUNT 16 on the INDICTMENT - [696] COUNT 17 on the INDICTMENT and INCIDENT 40 - [706] COUNT 18 on the INDICTMENT and INCIDENT 41 - [716] COUNT 19 on the INDICTMENT - [726] COUNT 20 on the INDICTMENT - [734] COUNT 21 on the INDICTMENT - [744] COUNT 23 on the INDICTMENT - [751] COUNT 22 on the INDICTMENT - [760] Accused's ERISP interview on 1 February 2015 in respect of Counts 18 – 23 Direction on ERISP interviews - [775] Accused's ERISP on 1 February 2015 - [776] COUNT 24 on the INDICTMENT - [780] Clinical notes from the Campbelltown Hospital admission - [789] Sergeant Linda Smith - [793] Plain Clothes Senior Constable Dean Stanley - [797] Detective Senior Constable Cole - [800] The complainant's other accounts - [810] Karen Sheehan - [811] Paula Nahas - [822] Detective Senior Constable Fiona Duncan - [827] Fiti Fepulea'i - [833] Tipi Fepulea'i - [838] JS - [841] Findings about the complainant's other accounts - [850] The accused's statement to Ajay Singh - [864] Accused's arrest - [890] Constable Scott Green - [891] Constable Carlie Evans - [893] Senior Constable Jack Mitchell - [896] Leading Senior Constable Paul Watson - [899] Accused's ERISP interview on 1 February 2015 in respect of Count 24 - [903] Consciousness of guilt Direction on consciousness of guilt - [917] There was no consciousness of guilt in respect of Count 24 - [923] FINDINGS on COUNT 24 on the INDICTMENT - [930] ORDERS - 936 INTRODUCTION 1. The accused was arraigned before me on 20 March 2017 on 24 counts in an indictment. To all counts he pleaded that he was 'not guilty.' The specific counts or charges brought against him allege:- CHARGE 1: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 2: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 3: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 4: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 5: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 6: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 7: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 8: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did attempt to have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 9: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 10: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 11: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 12: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 13: For that he between 13 January 2015 and 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 14: For that he on 27 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 15: For that he on 29 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 16: For that he on 29 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 17: For that he on 29 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 18: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 19: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 20: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 21: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 22: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 23: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales did have sexual intercourse with [AS] without the consent of [AS] knowing she was not consenting CHARGE 24: For that he on or about 31 January 2015 at Leumeah in the State of New South Wales caused grievous bodily harm to [AS] and at the time was reckless as to the causing of actual bodily harm to [AS] 1. This is the third trial in this matter. In each of these the accused has chosen to be unrepresented. The two previous trials resulted in juries being discharged by consent of both the Crown and the accused. On 17 March 2017 the accused sought and was granted leave to make an application for a judge alone trial pursuant to s 132A(1) of the Criminal Procedure Act 1986 (NSW). [1] Having received advice and provided a certificate in accordance with s 132(6) of the 1986 Act, the accused with the Crown's consent applied for a judge alone trial. In these circumstances, the trial proceeded by judge alone in accordance with s 132(2) of the 1986 Act. 2. The accused had in the course of the earlier trial proceedings been advised of his rights and information in accordance with the decisions in R v Zorad [2] and R v Anastasiou. [3] He did not require this to be repeated prior to the commencement of the trial by judge alone, bearing in mind that he had been so informed the same week. Nevertheless from time to time he was reminded of particular aspects of that advice when relevant. Arrangements were made for transcript to be supplied to him in accordance with his preferred method of delivery. The Crown provided him with copies of relevant legislation and case law. Arrangements were also made during the trial for him to receive independent legal advice. Time allowances were also made so that he could prepare for cross-examination and closing submissions. As he remained in custody during the duration of the trial, cooperation was also extended by Corrective Services for logistical arrangements to facilitate his preparation. 3. As will become apparent in the course of these reasons, the accused did not challenge parts of the evidence, and in respect of some witnesses, failed to challenge their evidence in its entirety. He acknowledged as much in closing address. [4] In this respect I bear in mind the principles discussed in MJW v the Queen. [5] 4. The Crown's opening statement comprised the same remarks made in the earlier trial and was marked for identification 1. [6] The accused did not make an opening statement. 5. The Crown was allowed to present evidence in relation to a number of alleged incidents [7] for the purposes of establishing context and relationship. [8] 6. In light of the fact that this was a judge alone trial and the accused was unrepresented, I allowed the Crown to make a closing address so that the accused was aware of the case the Crown was seeking to advance before his own closing address. For this purpose the Crown was asked and prepared two schedules [9] which summarised the relevant evidence pertaining to incidents the subject of the context material and counts on the indictment. Copies of these schedules were supplied to the accused in order to aid him in the preparation of his closing submissions. Following the Crown address I granted the accused additional time as he requested in order to facilitate the preparation of his own closing address. I have relied on the incident numbers referred to in in those schedules in these reasons. 7. Following a review of the evidence, I relisted the matter before me on 16 June 2017 in order to allow the parties to address matters which required further clarification. These matters were set out in a document marked for identification 23. At the request of both parties I stood the matter over to 17 July 2017 to enable a response. I have taken those further submissions into consideration. 8. As this is a judge alone trial s 133(2) of the 1986 Act requires me to state the principles of law to be applied, as well as findings of fact which are made. s 133(3) of the same Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter. 9. I approach these statutory obligations in accordance with the statements made in both Fleming v R [10] and Filippou v The Queen. [11] 10. In AK v The State of Western Australia – a trial by Judge alone involving numerous charges which were sexual in nature, where Heydon J stated:- "[85] … Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed." [12] ELEMENTS OF THE OFFENCES Sexual intercourse without consent 1. In order to prove the 22 charges of sexual intercourse without consent, it is necessary for the Crown to prove beyond reasonable doubt that on each occasion in question that: 1. At the time and placed alleged, DS had sexual intercourse with the complainant AS; 2. That AS did not consent to having sexual intercourse with DS; and 3. DS had knowledge that AS was not consenting. 1. The definition of "sexual intercourse" is that contained in s 61H(1) of the Crimes Act 1900 (NSW). [13] 2. The accused denied the events in Counts 1 to 6. Although in respect of the event in Count 5, this was not formally denied. However, I will deal with the circumstances of Count 5 separately. 3. In relation to Counts 7 to 23 the accused did not dispute the physical acts involving sexual intercourse with the complainant, but denies that the complainant did not consent to intercourse and/or that he had knowledge that she was not consenting. 4. The accused does not have to prove that the complainant consented – it is for the Crown to prove beyond reasonable doubt that she did not. A person consents to sexual intercourse if she freely and voluntarily agrees to have sexual intercourse with another person. That consent can be given verbally, or expressed by actions. Similarly, absence of consent does not have to be in words – it also may be communicated in other ways, such as the offering of resistance. However, this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. [14] Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily. 5. The definition of "consent" in relation to sexual assault offences found in s 61HA(2) of the 1900 Act, and specifically the Crown relies on s 61HA(4)(c) of the 1900 Act. The law provides that a person does not consent to sexual intercourse if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person). In considering whether the Crown has proved beyond reasonable doubt that the complainant did not consent regard may be had to whether that the complainant had sexual intercourse because of intimidatory or coercive conduct, or other threat, even though that conduct does not involve a threat of force. It does not follow simply because I find that fact proved that I should be satisfied beyond reasonable doubt that the complainant did not consent, but it is a relevant fact that you should consider in deciding whether the Crown has proved this element of the offence as it must do so before I can convict the accused. 6. The Crown must prove beyond reasonable doubt that the accused knew that the complainant did not consent. If the Crown fails to prove that the complainant was not consenting, the accused is "not guilty" of the charge. 7. If I am satisfied beyond reasonable doubt that the accused did have sexual intercourse with the complainant and also that she did not consent, then I must go on to consider the third element, namely, whether the accused knew that the complainant was not consenting. 8. The definition of "knowledge about consent" is defined in s 61HA(3) of the 1900 Act, in that knowledge could mean actual knowledge, whether the accused was reckless as to whether the complainant consented; or that the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse. 9. It is the accused's actual knowledge of the lack of consent with which must be considered. Absent any admission the Crown seeks that this be inferred or concluded from other facts that it has set out to prove, that the accused must have known and that he did indeed know that the complainant was not consenting 10. In a situation where the complainant does not in fact consent, the accused's state of mind at the time of the act of intercourse might be that he actually knew that the complainant was not consenting. That is a guilty state of mind for the offence. If the Crown establishes beyond reasonable doubt that this was the state of mind of the accused at the time of the act of intercourse, then the third element of the charge has been made out. 11. On the other hand if on the basis of the evidence led in the trial or relied on by the accused that he might have believed the complainant was consenting to intercourse with him Whether that belief amounts to a guilty state of mind depends upon whether the accused honestly held it and, if so, whether the Crown has proved beyond reasonable doubt that there were no reasonable grounds for the accused to believe that the complainant consented. Therefore, the Crown must prove beyond reasonable doubt one of two facts before the accused can be found guilty, either: 1. that the accused did not honestly believe that the complainant was consenting, or 2. even if she did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented to the sexual intercourse. 1. It is for the Crown to prove that the accused had a guilty mind. It must eliminate any reasonable possibility that the accused did honestly believe on reasonable grounds that the complainant was consenting. Unless it is establishes beyond reasonable doubt that the Crown has eliminated any such reasonable possibility, then this third element of the offence is not made out, and a verdict of "not guilty" of this charge must be returned. 2. In determining whether the Crown has proved that the accused actually knew that the complainant was not consenting to intercourse with him I must take into account what steps were actually taken by the accused to ascertain whether the complainant was consenting to intercourse. [15] 3. I have already indicated that the Crown can prove the accused had a guilty state of mind in one of two ways: 1. either the accused actually knew that the complainant was not consenting, or 2. even if the accused believed at the time that the complainant consented, the accused had no reasonable grounds for believing that the complainant consented to the sexual intercourse. 1. The Crown can also prove the accused's guilty state of mind if it proves that he was reckless as to whether the complainant consented to the sexual intercourse. If the accused was reckless, it is the law that the accused will be taken to know that the complainant did not consent to the sexual intercourse. [16] 2. To establish that the accused was acting recklessly, the Crown must prove, beyond reasonable doubt, either: 1. the accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if they had turned his mind to it, or 2. the accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not. Attempted sexual assault without consent 1. Count 8 involves an allegation of attempted sexual intercourse without consent. 2. In order to prove that the accused is guilty of the offence of attempt to commit sexual intercourse without consent, first, the Crown must prove beyond reasonable doubt that the accused intended to commit the crime which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted in circumstances which make those acts criminal. This means that the accused must have intended to have intercourse actually knowing that the complainant was not consenting or being reckless to that fact or having no reasonable grounds for believing that that the complainant was consenting. 3. If satisfied beyond reasonable doubt that the accused intended to commit the crime alleged, he is not guilty of the crime of attempt unless the accused has with that intention committed an act that is more than mere preparation to commit the crime. He must have actually embarked upon the commission of the crime that he intends to commit. If satisfied beyond reasonable doubt that the accused had the required intention and committed acts with that intention in mind, I must then determine whether the acts that I find the accused committed were merely preparatory acts toward committing the crime. If I form the view that they are preparatory acts, the accused is not guilty of the crime of attempt. If, however, the acts have gone further and are immediately connected to the crime and cannot have any other reasonable purpose than the commission of the intended crime, the accused may be found guilty of the charge of attempt. Recklessly cause grievous bodily harm 1. In order to prove the charge of recklessly cause grievous bodily harm, it is necessary for the Crown to prove beyond reasonable doubt that: 1. At the time and date alleged, DS caused grievous bodily harm to AS; and 2. That DS was reckless as to the causing of actual bodily harm to AS 1. Whether the accused's act caused the harm suffered by the complainant is a question of fact for me to determine. The Crown has the onus of proving beyond reasonable doubt that the accused caused the harm the complainant. 2. In deciding whether the Crown has established this fact to the required degree, I apply common sense to all the facts surrounding the infliction of harm to the complainant. I must appreciate that I am deciding whether to attribute legal responsibility to an accused person for the harm suffered by another person in what is a criminal prosecution. This is not an issue of philosophical or scientific proof. I am deciding a more practical issue, that is, whether an accused person has committed a crime involving the causing of the harm alleged to another person. 3. Provided that I am satisfied beyond reasonable doubt that an act of the accused substantially or significantly contributed to the harm allegedly suffered by the complainant the Crown will have proved this fact. It is not sufficient if the act of the accused was merely coincidental with the suffering of the harm by the complainant or was insignificantly connected with it. Whether the act of the accused relied upon by the Crown substantially or significantly contributed to the harm suffered by the complainant is a matter of fact for me to decide on a common sense basis. I must bear in mind that I am concerned with whether an accused person should bear criminal responsibility for the harm allegedly suffered by another person. 4. "Grievous bodily harm" means "really serious harm" and that "actual bodily harm" need not be permanent, but must be more than merely transient or trifling. [17] 5. The element of recklessness is made out if the Crown establishes beyond reasonable doubt that the injury was caused recklessly by the accused. An injury is caused recklessly if the accused realised that grievous bodily harm may possibly be caused upon the victim by his actions yet he went ahead and acted as he did. The accused cannot be found to have acted recklessly unless the Crown proves that he actually thought about the consequences of his act and at least realised the possibility of grievous bodily harm. DIRECTIONS The presumption of innocence 1. The key starting point in this trial is that DS, the accused, is entitled to the presumption of innocence. He has pleaded not guilty to all of the charges and has elected to proceed to a trial by Judge alone – it is my duty and responsibility to consider whether he is guilty or not guilty of each charge and to return my verdict according to the evidence. 2. He is not required to prove his innocence. The accused is presumed to be innocent of the crimes charged unless the evidence led in the trial satisfies me to the appropriate standard that he is guilty of the crimes. 3. During the trial the accused has been bail refused. There are also references in the evidence to him having been the subject of an apprehended violence orders and other charges. In relation to the matters subject of this trial no adverse inference is to be drawn against the accused by reason of these matters Onus and standard of proof 1. The prosecution bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the accused. The accused bears no onus and is not required to prove anything in the trial. 2. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the accused is probably guilty. 3. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offence. In the circumstances of this trial, the critical questions are whether the Crown has proved beyond reasonable doubt that the accused had sexual intercourse without the consent of the complainant, that he attempted to have sexual intercourse with her without her consent, and that he recklessly caused her grievous bodily harm. 4. However, the Crown is not required to prove the truth and reliability of every disputed fact nor to answer every question that might be posed concerning the evidence in the case. 5. In a criminal trial there is only one ultimate issue: Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is "yes", the appropriate verdict is "guilty". If the answer is "no", the verdict must be "Not Guilty". Dispassionate approach 1. It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment. 2. Certain evidence was admitted in this trial which emphasises the need for the Court to proceed without emotion in its assessment of the evidence. This was evidence of certain activities of the accused which was admitted as evidence of context and relationship. I have discussed this separately and the limited purpose for which this evidence is to be used. 3. In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice. I will keep this direction in mind particularly when considering the evidence of prior conduct of the accused relied upon by the Crown context and relationship purposes, in accordance with my earlier pre-trial ruling. Inferences 1. I may in my role as the Judge of the facts, draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a reasonable inference that can be properly drawn from those facts. The present case is fundamentally a direct evidence case, relying as it does upon the evidence of the complainant, AS. There are, however, surrounding circumstances from which the Crown seeks that inferences be drawn from established facts to draw a conclusion as to the existence of further facts. To the extent that such aspects of the case rely upon circumstantial evidence it is necessary to state and apply some fundamental principles. 2. Just how convincing and reliable a circumstantial case is will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole and whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important circumstantial aspect of the case be approached by considering and weighing as a whole all of the facts established by the evidence. If such a conclusion does not reasonably arise, then the Crown circumstantial case fails. 3. If, however, a conclusion of guilt is a reasonable one to draw based upon a combination of the established facts then, before the Court can convict the accused, it must be determined whether there is any other reasonable conclusion arising from the facts that is consistent with the conclusion that the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because the Court would not be satisfied beyond reasonable doubt of the accused's guilt. 4. The Court must not base its conclusion upon mere speculation, conjecture, or supposition. Multiple counts on the indictment 1. It is alleged by the Crown that the accused committed the various offences identified in the counts in the indictment. Those counts are being tried together as a matter of convenience. I am, however, required to return a separate verdict in relation to each of the counts. Each charge needs to be considered separately. There is no legal requirement that each of the verdicts must be the same. 2. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on some counts and not guilty on some other counts if there is a logical reason for that outcome. [18] 3. If I were to find the accused not guilty on any count, particularly if that was because there were doubts about the honesty or reliability of the complainant's evidence, I would have to consider how that conclusion affected my consideration of the remaining counts. Election not to give evidence 1. The accused has not given evidence and with the exception of exhibits 1 to 8, did not call any evidence in response to the Crown's case. There are a number of important directions of law which must be followed. 2. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. 3. As I have already pointed out, the Crown bears the onus of satisfying the Court beyond reasonable doubt that the accused is guilty of the offence charged. 4. The accused bears no onus of proof in respect of any fact that is in dispute He is presumed to be innocent until the Court has been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offences charged. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required. 5. As matter of law, the accused's decision not to give evidence cannot be used against him in any way at all during the course of deliberations. That decision cannot be used as amounting to an admission of guilt. The Court must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence. Nor can that fact be used to fill any gaps that might be thought to exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. 6. It is not open to speculate about what might have been said in evidence if the accused had given evidence in the trial. The accused's record of interview 1. The accused did agree to be interviewed at the time of his arrest in relation to Count 24. His interview also canvased the question of sexual intercourse now the subject of Counts 18 to 23. I will discuss this later in these reasons. However at the time of charging of Counts 1 to 23 the accused declined to be interviewed 2. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. There are some exceptions to this right, for example, when a police officer asks the registered owner of a car who was driving it at the time of some traffic incident. But those exceptions do not apply here. 3. Under our law, an accused person has a right to silence. [19] It would be quite wrong if the accused having decided to exercise his right to silence, later found that that was being used that fact against him. It is important, therefore, to bear in mind that the accused's silence cannot be used against him in any way at all. 4. In respect of the accused's interview answers in respect of Count 24 [20] as well as interview answers given by him in respect of incidents 19 [21] and 20 [22] the Crown submitted that I should accept that the accused is lying in his responses based on an acceptance of the evidence of the complainant, Glen Kelly and Bhavna Ahluwalia and Namrata Ahluwalia. [23] The Crown submitted that were I to so find, this should go to the accused's credit only. 5. Whether the accused in fact lied to the police in the interview is a matter for me to determine. To decide that a lie was told (or lies were told), I must be satisfied that the accused said something that was untrue and that at the time of making the statement he knew that it was untrue. Saying something that is untrue by mistake, or out of confusion or forgetfulness is not a lie. 6. If I decide that a lie was (or lies) were told, I cannot use that fact in support of a conclusion that the accused is guilty. A lie cannot prove the accused's guilt and nor can a lie be used in conjunction with the other evidence that the Crown relies upon to prove the accused's guilt. 7. The only use I can make of the fact that the accused told a lie is in an assessment of his credibility. If I am satisfied that he did lie then that may be considered as having a bearing upon whether I believe the other things that he said in the interviews. WITNESSES The complainant's evidence Use of audiovisual link 1. The complainant in this case has given evidence by audiovisual link. This is standard procedure in cases of this type. I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it was given in this manner. I will assess the evidence in the same way as I assess the evidence of any other witness in the case. Use of support person 1. Further, I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because of the presence of the support person when the complainant gave her evidence. Use of an intermediary 1. An intermediary, Ms Virginia Horstman, was appointed by the Court to cross-examine the complainant for the accused. She was not a lawyer representing the accused. During cross-examination, the intermediary asked the complainant questions — which have been formulated by the accused — on the accused's behalf. 2. This is a standard procedure and that I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it is given in this manner. Again, I will assess the evidence in the same way as I assess the evidence of any other witness in the case. The complainant's credit 1. The Crown properly concedes that in relation to its case, I have to be able to accept that the complainant was an honest, reliable and accurate witness. I have carefully examined the evidence of the complainant in this matter. 2. This was a relationship of some 16 and half years involving a larger number of asserted incidents. As these reason will demonstrate, I have found that the complainant's recollection of some events was not accurate, particularly as of some of the details. This is understandable in light of the time that has elapsed and the number of the events said to have occurred. Furthermore it is clear she has a strong sense off grievance towards the accused; a matter which I have borne in mind to the extent it might have impacted on the quality of her evidence. Nevertheless I did not find the complainant to be either dishonest or generally unreliable in her account. In recounting her experience during the trial she was at times genuinely distressed and to that end the Court provided regular breaks. I bear in mind that she exhibited similar distress to others to whom she has communicated on these matters. 3. The accused challenged the complainant's credit on a number of fronts. Many of these I will deal with in the body of these reasons. However some of those attacks related to previous events and allegations that the complainant deliberately manufactured her account. It is appropriate that I should address three of them at this point. 4. Firstly, the accused cross-examined the complainant in relation to allegations made against her former husband, Mr Vincent Barco in relation to an apprehended violence order which was subsequently withdrawn. He asserted that this instance demonstrated a pattern similar to what occurred in this case such that the complainant should not be believed. The circumstance was also said to demonstrate that that the complainant knew how to report allegations to the police. 5. Detective Senior Constable Fiona Duncan undertook some inquires in relation to this matter. Her evidence was that in relation to complainant's former husband, the police served an apprehended violence order application on him that was listed for 11 April 1996 at Penrith Local Court. Detective Duncan gave evidence that police records did not disclose that police attended an incident but rather that the order was taken out directly at the courthouse (as opposed to one issued by the police). [24] Detective Senior Constable Duncan stated that the complainant informed her that she had gone to reside with her brother at Erskine Park at the time [25] and Penrith Local Court was the nearest Court to that location. [26] The matter was listed for mention at Penrith Local Court on 9 May 1996 at which time it expired. [27] 6. A statutory declaration signed by the complainant and relevant to this matter was tendered in part. It disclosed that the complainant had taken out an apprehended violence order against her former husband on 28 March 1996. The complainant stated:- "[5] … The fear I felt was such so as to make me afraid to attend Court. I am informed and verily believe that by reason of my failure to attend the Local Court the application was dismissed." [28] 1. Whatever occurred in the incident with the complainant's former husband, I do not consider that it undermines the complainant's credibility. There is no evidence that the complainant made allegations that were false notwithstanding that the order was not ultimately pursued. Further, the evidence discloses that the complainant reported the incident to the Court, not to the police, when she was residing with her brother. 2. Secondly, the accused sought to attack the complainant's credibility by reference to her making false allegations that he had threatened to rape her sister-in-law Indira and her daughters. The complainant maintained that this threat had been made and stated that it was sometime between the 13 January and 1 February 2015. [29] The complainant conceded that on some days she would talk and others she did not talk to her sister-in-law stating that they got along but added that "it's a family matter." [30] The complainant stated that she did not say anything before she commenced talking to police following Count 24 because she was being tortured and raped and did not have the time. [31] 3. In relation to the allegation of threats to the complainant's family members, it was submitted that these allegations were analogous to those made in relation to her first husband, as referred to in Exhibit AN at [24]. In Exhibit AN, the complainant recounted the following conversation:- "[24] He said: If I don't get the money I will rape your sister in law and kill the kids in front of your brother and then kill him." [32] The complainant rejected the suggestion of analogy. [33] 1. The complainant further rejected the suggestion that she told the accused that she had made a false statement about her first husband maintaining that it was the truth as to what was said but added that no one was raped. [34] 2. The complainant accepted nonetheless that she had stated that the accused had threatened to rape her sister-in-law, Indira. [35] She rejected the suggestion that she had told the accused that she had made a false accusation against another man for raping her sister-in-law [36] or that she had ever made a false accusation against any man about raping her sister-in-law. [37] She rejected the suggestion that she told the accused that she knew how to use the legal system to her advantage. [38] 3. Detective Duncan confirmed that between 3 March and 9 April 2015 when the complainant made her statement she had informed her that the accused had threatened female members of her family, but it did not concern her because the accused was in custody, and the complainant had previously informed her why she did not report the matters to police earlier. [39] 4. The context in which the alleged threats were made is not established. I am unable on the evidence to form any view as to whether the threats were made and if so, whether they were such that the complainant should have reported them. They do not relate to the counts on the indictment except to suggest that the complainant made up her account. For the reasons otherwise stated I do not accept this is so. 5. Thirdly, when Detective Duncan commenced taking a statement from the complainant on 3 March 2015 she stated that the complainant was "distracted by the fact that she felt that there was a firearm in the house." Detective Duncan stated that the complainant had told her that she had extensively searched the house but was unable to locate the firearm. [40] However, she did not ask the complainant why she had not informed the police earlier. [41] She stated that after a search, they found no firearm in the house, but knives and a hammer were found in a ceiling cavity of the manhole. [42] She stated that to her knowledge, the accused did not have access to the premises since 1 February 2015. [43] 6. Detective Duncan added that she had been told by the complainant that the accused had told her that he had obtained a gun to kill Mr Glen Kelly. Mr Kelly is a person who the accused believed the complainant had a relationship. Detective Duncan stated that she did not believe that there was a gun but that the complainant had believed that the accused had concealed one in the house based on what the accused told her. [44] 7. The allegation concerning a gun was introduced by the accused in cross-examination. In submissions, the accused argued that the gun was something that the complainant created herself. [45] This was not put to the complainant in in cross-examination. In the circumstances, I decline to accept it so as to take an adverse view of the complainant's credit. Motive to lie 1. In the course of the trial the accused also asserted that the complainant made up the "rape story" to assist her financially in getting the proceeds from the family home which, at the relevant time, was up for sale. 2. A motive to lie or to be untruthful if it is established may "substantially affect" the assessment of the credibility of the witness. Where there is evidence that a Crown witness has a motive to lie, the task for the Court is to consider that evidence and determine whether they are nevertheless satisfied that the evidence given is true. The task does not include speculating whether there is some other reason why the Crown witness would lie and nor does it include the acceptance of the Crown witness' evidence unless some positive answer to that question is given by the accused. The accused bears no onus to prove that the complainant had a motive to lie and a rejection of the motive does not necessarily justify the conclusion that the witness is truthful. [46] 3. During the course of the cross-examination and in submissions it was put that the complainant made false accusations against him in order to obtain the proceeds of the sale of the family house at Leumeah. 4. The accused submitted: "That is the motive your Honour - that is the motive, greed is the motive for her then to go down and report on 24th that she was sexually assaulted. February has 28 days your Honour the 27th fell on a Friday in that year and that was the day the contract was to be completed." [47] 1. When I asked the accused about evidence as to the date of completion he stated that he had evidence but conceded that it was not before the Court. [48] 2. The complainant acknowledged that at one point she spoke to a lawyer regarding the sale of the house, but she did not have "any idea about that." [49] 3. The complainant was taken to a unsworn affidavit prepared in related family law proceedings for the complainant at Exhibit T where it is recorded: "[151] After [the accused] was taken into custody I received notice that his Aunty and sister: (a) Josephine Mohini Lata Singh (b) Sudha Somai Had registered a caveat on the property alleging they had advanced [the accused] and I funds towards the purchase of the land. [152] I say that this is not true and they have never contributed any funds towards the purchase of the property or to [the accused] and I for any other reason. [153] As a result the settlement of the sale did not proceed and we had to refund the deposit to the purchases [sic]." [50] 1. The complainant acknowledged that there was a caveat put on the property at Leumeah for sale by the accused's aunt and sister, but maintained that the money had been put into the house by the accused, and that no one else gave her a "single cent." [51] It was put to her that this was the motive for her to make the allegations of sexual assault up – the complainant rejected this accusation. [52] 2. So far as the solicitor, Mr Balram was concerned, the complainant stated that she could not recall the precise date, but he had approached her to sign a document so that the house could be sold. The complainant stated that the solicitor told her that the funds would go into a trust fund. [53] 3. It was also put to the complainant that her that getting the money from the sale of the house was more important to her than complaining about the sexual assaults. The complainant stated that a lawyer came to the house and that she did not call him. [54] She stated that the money was not important for her and that she complained when she was "ready." [55] 4. I do not accept the accused's attack on the complainant's credibility on this basis. The evidence establishes that the complainant acquiesced to all the accused's demands as to the sale of the house. There is no evidence that she made any demands her own in relation to the proceeds or that she had any expectations to receive funds. As will be later evidenced, on 22 December 2014 the complainant had arranged for $65,000 to be redrawn from Pepper Australia to her own bank account and she subsequently transferred $60,000 into the accused's account on 29 December 2014. This was at the accused's request. There was also a disclosure to Ms Karen Sheehan, the social worker at Campbelltown Hospital, that the house was to be sold to pay off the accused's gambling debts. [56] Delay in complaint 1. A matter raised by the accused in terms of my assessment of the complainant's credibility is that absence or delay in making the allegations of sexual assault. [57] 2. The accused's cross-examination sought to cast doubt on the complainant's reliability as a witness. The accused argued that the fact that the complainant did not report a number of the allegations she alleges to police or third parties discredits her account of what she alleges took place. The Crown however relies on the context material to explain the complainant's unwillingness to report. 3. In this respect it is important to state that absence or delay in complaining does not necessarily indicate that that the allegation that the offence was committed is false. There may be good reasons why a victim of a sexual assault may hesitate or refrain from making a complaint about the assault. JS's evidence 1. JS was a vulnerable witness. A transcript of her pre-recorded interviews recorded on 25 February 2015 and 29 May 2015 were tendered without objection as Exhibits E and F. 2. JS adopted the contents of the interviews in the court room. A support person was in attendance at the time. This again is normal procedure and I do not draw any inference against the accused or give the evidence any greater or lesser weight simply because it was given in this manner. I will assess the evidence in the same way as I assess the evidence of any other witness in the case. 3. The accused did not cross-examine JS as to the contents of the interviews. The accused submitted: "That's a 13 year old girl, I didn't ask her any questions. When I asked her what's her middle name and at 13 years old she still doesn't know her middle name, that's the correct middle name and I have always declared from the beginning your Honour not to ask any questions from the children and that's what has been. Whatever they're said in their wisdom or whatever manipulation that they are, they're not with me at the moment, they've been manipulated to say a few things. Because I get to Court, in the first statement that she made on 25 February, she didn't mention anything about the hair cutting. She was even asked about the hair cutting, she didn't say anything about the hair cutting. Yet in the next statement a few weeks later or more than a month later, she talks about it then." [58] 1. Notwithstanding the election of the accused not to cross-examine JS, it remains necessary to carefully examine her evidence. In her second interview, when told that it was important to "only talk about the truth", JS responded that she "… can kind of lie most of my time. That's the problem 'cause, 'cause of my dad's DNA, he lies." [59] She also referred to the accused as "blood" [60] because she did not want to refer to him as her father as it "haunt[ed]" her. [61] As these reasons will elaborate in parts I have not been able to accept her evidence or given it limited weight. This is in particular as to her interview answers in Exhibit E being as the events leading to Count 24. Nevertheless I accept that there are parts of the accounts she provided that do correspond with other evidence presented in the trial. Other witnesses 1. During the course of the trial evidence was heard from Ms Kamini Ranjit (complainant's cousin), Ms Paula Nahas (child protection case worker with Department of Family and Community Services), Ms Bhavna Ahluwalia and her sister Ms Namrata Ahluwalia (the complainant's neighbours in Leumeah), Mr John Overall (a witness to events on 16 January 2015), Ms Chandra Suarez (complainant's cousin), Mrs Sabnam Chandra (complainant's sister-in-law), Mr Ajay Singh (a family friend), Ms Karen Sheehan (social worker at Campbelltown Hospital), Mr Fiti Fepulea'i and Mrs Tipi Fepulea'i (neighbours), Mr Glen Kelly (former boyfriend of Chandra Suarez), Leading Senior Constable Paul Watson, Leading Senior Constable Eleanor Jenkins, Sergeant Jodi Carol (formerly Webb), and Detective Senior Constable Fiona Duncan. 2. Also tendered, by consent, were a number of other witness statements, the contents of which together with all other evidence will be discussed in these reasons. Context and relationship evidence 1. In addition to evidence going to the specific counts in the indictment, the Crown has led evidence from the complainant which goes to illustrate the context in which the specific allegations occurred. That is, the complainant's evidence includes allegations of ongoing conduct over a period of time which implicitly embraces other acts. Before the accused can be convicted in respect of any particular count in the indictment I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is the Crown must prove the particular act to which each count in the indictment relates as alleged by the complainant. 2. The relevance of other acts not subject of the indictment is to place the particular allegations into a realistic and intelligible context [62] and also to demonstrate the relationship between the accused and complainant. By context I mean the history of the conduct by the accused toward the complainant as she alleges it took place. 3. The Crown has adduced relationship evidence to demonstrate the nature of the relationship between the complainant and the accused. [63] The Crown is seeking to rely on the relationship evidence in the following manner: 1. To demonstrate on the part of the accused, his knowledge that the complainant was not consenting, or was reckless as to that consent, or had no reasonable belief in that regard, in relation to counts 1 to 23 on the indictment because he knew the complainant was vulnerable and was in fear of him; and 2. That the complainant did not consent to the sexual acts the subject of the indictment in relation to counts 1 to 23 due to her being in fear and forming a belief that further violence would be inflicted upon her. 1. The Crown is seeking to rely on the context evidence in the following manner: 1. To demonstrate an escalation of violence by the accused and the fear experienced by the complainant towards the accused; 2. To disavow the suggestion that the charged acts were isolated; 3. To explain the actions and reactions of the complainant, in particular, to provide an explanation of the reluctance of the complainant to make a complaint; and 4. To provide evidence to support that the complainant was vulnerable during her marriage, in particular, but not limited to her concerns about her children's welfare and her financial dependence on the accused. 1. The Crown's submission is that there was a history of violence inflicted on the complainant and the complainant did not resist those acts. Including when it escalated to sexual violence. The accused's knowledge of her behaviour is in the same context and as the domestic violence alleged to have been committed on her, in that she submitted or showed little resistance because she was under constant fear. 2. The Crown further submitted that it demonstrates that the complainant attempted to appease the accused, with one motivation being that she was focused in protecting her children, concerned about any adverse impact upon his employment, and that if she did appease him, her next punishment might not be as bad. 3. Without the evidence of these other acts the Crown submits that I may wonder for example, about the likelihood of apparently isolated acts occurring suddenly without any reason or any circumstance to link them in anyway. If I had not heard about the evidence of the other acts, I may have thought that the complainant's evidence was less credible because it was less understandable. Accordingly the evidence is admitted before me only to answer questions that might otherwise arise in my mind about the particular allegations in the charges in the indictment. 4. If, for example, the particular acts charged are placed in a wider context, that is, a context of what the complainant alleges was an ongoing history of the accused's conduct toward her, then what might appear to be a curious feature of the complainant's evidence – that she did not complain about what was done to her on a particular occasion – would disappear. It is for that reason, the Crown submitted, that the law permits a complainant to give an account of the alleged history between herself and an accused person in addition to the evidence given in support of the charges in the indictment 5. The account of ongoing alleged domestic and sexual history between the complainant and the accused, as well as her actions and reactions, avoids artificiality or unreality in the presentation of the complainant's evidence. For example, as noted by the Crown, it is capable of more naturally and intelligibly explaining the relationship between them and is a factor which I am entitled to take into account in giving consideration to the significance of the failure to make a contemporaneous complaint. [64] 6. Before I can use this evidence in the limited way that I have earlier directed, I must accept that what is alleged by the complainant happened beyond reasonable doubt. However, I must not use this evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged. I cannot act on the basis that the accused is likely to have committed the offences charged because the complainant made other allegations against him. This is not the reason that the Crown placed the evidence before me. The evidence has a very limited purpose as I have outlined and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proved beyond reasonable doubt. 7. Secondly, I must not substitute the evidence of the other acts for the evidence of the specific allegations contained in the charges in the indictment. I am not concerned with the particular and precise occasion alleged. I must not reason that, just because the accused may have done something wrong to the complainant on some other occasion, he must have done so on the occasions alleged in the indictment. I cannot punish the accused for other acts attributed to him by finding him guilty of the charges in the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law. 8. However the context evidence is not to be relied upon as establishing a tendency on the part of the accused to commit the offences. One could not reason that the accused was likely to have committed the offences charged because of the existence of the other allegations. The evidence of context is limited in its purpose as I have outlined above. I must not substitute the evidence of other acts for the evidence of the specific allegations contained in the charges in the indictment. EVIDENCE 1. I turn first to the evidence. Background 1. The complainant is a 53 year old woman of Fijian-Indian background. She arrived in Australia in 1996, and became a citizen in 1998/1999. [65] In 1998, she met the accused at a church they both attended. He was also of Fijian-Indian descent having arrived in Australia in 1996 on a bridging visa. [66] 2. In 1998/99, the accused returned to Fiji and the complainant went with him. The accused had a daughter from an earlier relationship, named ES. It was the evidence of the complainant that the reason for their return to Fiji was because the accused did not have a proper visa for the purposes of her adopting ES. After approximately one year, both the complainant and the accused returned to Australia with ES. At that stage, the accused was still on a bridging visa, but did subsequently become a permanent resident of Australia. [67] 3. After returning to Australia, the parties resided in a unit on Evaline Street, Campsie for two to three months, before moving to another unit on the same street, and resided there for four to five months. Their child, WS, was born on 11 April 2001, whilst they were residents in Campsie. Whilst living at Campsie the accused's daughter ES came to join the complainant and the accused in the household. Subsequently, the parties moved from Evaline Street, to Eighth Avenue, Campsie. The accused and the complainant then had a daughter, JS, who was born on 31 August 2003. [68] 4. WS was diagnosed with autism at age two and a half. [69] Around 5 November 2011, the family moved to a residence at Carrington Circuit, Leumeah. At that point, WS had been diagnosed with cancer and was having chemotherapy at Sydney Children's Hospital. [70] ES was studying nursing at the University of Notre Dame. [71] 5. The complainant's evidence was that when she first met the accused, he was a calm person who gambled and "was a bit controlling." She gave evidence that she worked in a factory, but stopped working in 1999, before they went to Fiji and did not work following her return. In particular, she did not work after WS was born. Throughout their relationship, the accused was working. Initially he worked in a printing company called SOS and subsequently changed jobs and worked at State Rail. 6. The complainant stated that she had two brothers – Mr Kamlesh Chandra and Ishwar Nayanan. The complainant's evidence was that at the initial stages of their relationship, she had to inform the accused where she was going. This included when he was working. She said that she was not able to see her family and friends without telling him and there were occasions where the accused would refuse or not allow her to see her family and friends. At times, she was allowed to go to the shops. In the event that she did not ask for permission and the accused found out about it afterwards, he became "very angry." [72] INCIDENT 1 1. The first incident that the complainant recalled involving violence was when she resided at Illawarra Road, Marrickville. The complainant's evidence was that the accused was sitting on a balcony and asked for a glass of water. She stated that when she got the glass of water, he threw the glass of water towards her and the glass smashed close to her head on the wall. She stated that neither the glass or any broken glass hit her in any way. However, she was scared and ran into the home. Next the accused asked for some food and she took a plate of stir fry and gave it to him, and the accused threw it on the floor. This occurred inside the home in the kitchen. [73] She stated that she thought that she had done something wrong. She said that she discussed the matter with her, and the accused told her that the stir fry was overcooked. She stated that she loved the accused, but thought that there was something wrong but did not know what it was. [74] After that, she said that they both made up and "apologised." She stated that she loved him and felt that he was not going to do it again. [75] 2. The accused cross-examined the complainant about the matter. The complainant denied that she was lying and maintained that the two events did occur. She conceded that she never made a complaint to the police about the matter which concerned allegations about violence. She conceded that she knew when to complain the police, when there was a need to complain to the police, but rejected the suggestion that she did not complain to the police about the water and the food because it did not occur. [76] INCIDENT 2 1. The second incident recounted by the complainant, concerned an occasion when her cousin, Ms Kamini Ranjit, was said to be staying with the accused and the complainant. The complainant stated that Ms Ranjit had stayed there during the night. WS was said at the time, to be 3 – 4 months old, making the timing of this event in mid-July 2001. 2. The complainant stated that the accused was supposed to make breakfast, and her cousin had informed her that she did not eat pork. The complainant told the accused that her cousin did not eat pork and he got mad and slapped her across the face in their kitchen. The complainant stated that she yelled and screamed: "Stop hitting me" to which the accused responded that the complainant had a bad habit of saying things in front of other people. At that point, Ms Ranjit was said to be in the lounge room with WS. [77] 3. The complainant stated that the accused was "very, very angry" and agitated and that he hit her on the back with his fist closed, and she then ran into the bedroom. [78] She maintained that at the time that she was being slapped and hit in the back, she was in the kitchen. She stated that the lounge room where her cousin was with WS and was further away and "you can't see clearly" and "it's not really close." [79] She stated that when she went to the bedroom she was closer to the lounge room. It was at that point that the accused came after her, and she was scared, trying to protect herself. She stated that the accused kicked her in the thigh and hit her with his fist closed on her shoulder and her back as well as on her tummy. He stated that the accused hit her on the breast and she yelled: "Please stop hitting me." At this point, her cousin came in and tried to push the accused away and Ms Ranjit said: "Stop", to which the accused responded: "Stay out of it." [80] 4. The complainant stated that she tried to climb on the bed to protect herself and get away from the accused. She stated that may be she turned around and pushed or "maybe punched him or something" but was not sure. She stated that whilst on the bed, she sought to be out of the accused's reach but could not remember much. She stated that he kept coming to hit her. She further stated that the accused tried to hold her legs and twist her hands. The complainant asserted that she pleaded with the accused not to do that because she had a small baby, but he did not stop. WS at the time remained in the lounge room. She stated that she was very scared and did not know what to do and her cousin interfered. She eventually pushed the accused away and he went into the lounge room. At that point, the complainant asserts that she and Ms Ranjit had a talk and she told her to call the police. [81] 5. She stated that she did not call the police because she was confused with a small baby and a girl with her (the accused's daughter "ES") [82] and she did not know what to do. At the time, the complainant stated that she was not working, the accused paid the bills and she was dependent on the accused's earnings and Centrelink payments. She stated: "I was confused that he's the only person who's bringing money and I have got two children what's going to happen if I call the police and if I lock him up or something then who's going to look after us because he was the only person working." [83] 1. She conceded that she was scared of the accused physically. [84] Notwithstanding what had occurred, she also felt that she had let him down, that maybe he would get better, or that they would sort things out. She stated that she felt as though it was her fault, but did not know what she had done wrong. [85] 2. The complainant stated that the accused did not want her to say that her cousin did not eat pork in front of her, and that she felt that the accused was hitting her because he did not like her saying things in front of other people. [86] However, the complainant's earlier evidence was that she made the remarks about her cousin not eating pork at a time when Ms Ranjit was in the lounge room with WS, which was "not really close." 3. The complainant stated that she loved the accused and believed that because he was the father of the children, that he would not do it again. She stated that they each apologised to one another, and she was not going to say anything to anyone in front of him. The complainant stated that the accused said: "I'm sorry, I'm not going to do it again" and she believed him. [87] 4. The complainant stated that after the incident, she changed her behaviour, in that she did not: "… talk much to people, only something is there I try not to say." [88] She stated that she had bruises from the incident on her thigh, on her tummy, near her breasts, her head and her face. [89] 5. In cross-examination, it was put to the complainant that Ms Ranjit did not say anything about pork sausages in her statement. The complainant maintained that she did. [90] 6. The complainant was challenged about Ms Ranjit's staying the night as opposed to visiting. The complainant stated that at that point, she could not remember. [91] It was then put that Ms Ranjit stated that she did not go near the accused, but that she was asserting that Ms Ranjit pushed the accused away from her. On that basis, the accused challenged that the incident did not take place – the complainant maintained that it did. [92] She maintained that Ms Ranjit saw her climb onto the bed and that she was in the room. [93] It was drawn to her attention that Ms Ranjit said she was pregnant at the time although the complainant had stated that WS was in a pram. [94] 7. Ms Kamini Ranjit gave evidence that she has known the complainant since birth, and knew each other as "cousins." She arrived in Australia before the complainant, and when the complainant lived in Marrickville, Ms Ranjit also resided in the suburb herself. Her evidence was that during that period she would visit the complainant's home, mostly when the accused was not around. She stated that the complainant never discussed what was going on in the relationship, however, when the accused was about to arrive, she would ask if she could leave, but stated the complainant did not say much. She stated that as best that she could recall, this would be because she would be trying to organise things like cooking and so on. [95] 8. Ms Ranjit stated that at one stage, she did visit the complainant and saw the accused in when they were living in Campsie. She stated that at that point, the accused and the complainant were in the bedroom, and she was in the living room. She stated that she could hear them arguing, and could hear the complainant. She stated that she did not approach the room, however, she did not hear what the argument was about, but could hear the complainant saying: "Stop" or "Stop hitting me." [96] She stated that the tone was angry, but the complainant's voice was "more like sad, crying sort of voice, fearful voice." [97] She stated that she could not hear the accused but could hear noise, "like some kind of banging noise," [98] but would not say it was a "slap, but more harder." [99] Eventually both the accused and the complainant came out of the room, and when the complainant came out she fell, and the accused kept kicking her on the stomach. [100] At that point, she stated the accused and the complainant did not have children, but the complainant was pregnant. [101] She could not recall the year, but stated that she could recall the complainant telling her before the incident that she was about three months pregnant. [102] At the time of the assaults, she asserted that she was in the living room and she "… literally saw her falling down with her legs like that and he actually kicked her on the leg, the tummy." [103] 9. Ms Ranjit drew a diagram of the layout of the house. [104] Ms Ranjit could not recall which bedroom the complainant and the accused came out from. [105] She stated that when the accused and complainant came out, they were "more in the hallway." [106] At that point, she was more in the middle of the TV room, or closer to the kitchen. She stated that she had a clear view, but was "not really looking at them" and could not recall. [107] She stated that the complainant had her knees up "sort of trying to protect herself," [108] and they were "coming close to the tummy side." [109] She stated that the complainant was not completely on her back, but more or less on the side. [110] She maintained that she saw the accused's kick connect with the complainant's stomach. [111] She stated that she tried to stop the accused, but did not go and push him away, but verbally said to him: "You stop – you have to stop kicking her." She stated that the accused kicked the complainant twice more before he stopped. [112] Ms Ranjit stated that the accused was swearing in Hindi, using words like: "You motherfucker." [113] She recalled that the accused was angry and was hitting the complainant, and she responded by saying; "You have to stop kicking her." [114] She stated that she did not call the police, but stayed there and did not leave the house. She stated that she had no idea as to what they were arguing about, but recalled the accused saying: "Your brothers are here, he can come, I'll make them wee – they can drink me wee, I'll put the wee in the glass your family can drink the wee." [115] 1. Thereafter, Ms Ranjit stated that things went quiet for a while and they sat down around the table in the kitchen. She stated that they had cooked pork. The accused got "pissed off about that" and apparently stated to the complainant: "Oh why – you knew if she was not eating pork so why you had to cook pork." [116] 2. Ms Ranjit stayed for a little longer and left, and according to her evidence, she did not have the heart to go back, and thereafter she lost contact with the complainant. [117] Ms Ranjit attributed this to her moving away, getting married and changing jobs. She occasionally had contact with the complainant when she would see the complainant taking JS to school, but would never stop to talk. [118] She stated that if the accused was around the complainant, the complainant would not acknowledge that she had seen her. [119] 3. Ms Ranjit was cross-examined by the accused and maintained that the only assault she saw was on the floor, when the accused is alleged to have kicked the complainant, and two more times after she had asked him to "stop." [120] She conceded that she did not recall seeing any other assaults. [121] She maintained that the incident did not happen in the kitchen. [122] She did recall the accused verbally abusing the complainant in the kitchen, but not physically. [123] 4. She specifically stated that she could not recall seeing the accused, punch or slap the complainant in the kitchen. [124] Nor did she recall seeing the complainant run from the kitchen to the bedroom. [125] She stated that she did not see the complainant jumping on the bed. [126] She maintained that WS was not in the pram in the lounge room at the time. [127] 5. The complainant asserted that she could not recall if she told the childhood nurse about the injuries she sustained, [128] but maintained that you could see the parts of her body that were not covered by clothing. [129] She stated that she was not aware if the childhood nurse did anything after she spoke to her, but police subsequently arrived at the childhood centre to see her. They asked her what happened, and she told them that the accused had slapped her. [130] She stated that she could not recall what the police had said as it was "too, too long, long time" ago. [131] At first she stated that she told police about the punching, pushing, kicking and the bruises, [132] but subsequently stated that she could not remember. [133] When asked about what the police did then, the complainant stated that she could not remember. [134] It was then put to the complainant that she told police on the day that the accused slapped her, because she questioned him in relation to an open window. She stated that she did not [135] and that she could not remember. [136] It was then put to the complainant that she was telling lies about the sausage incident. The complainant rejected this assertion. [137] She was asked whether the police took her anywhere and she stated that they took her to Campsie Police Station. [138] She could not recall what she did thereafter. [139] 6. It was put to the complainant that she had no injuries on her and accordingly, she made up a story that related to the window opening. The complainant responded that she had injuries, as she was bitten by the accused. [140] She stated that the police obtained a statement from her. [141] 7. Whilst she stated that she was scared of telling the police about the accused, she did in fact make a complaint to the early childhood nurse and later to the police. The complainant later responded that she only told the police. [142] It was put to her that she did this on her own free will and the accused did not stop her. The complainant rejected this. [143] The complainant further rejected that the accused dropped her off near the train station on the day of the sausage incident. [144] 8. The complainant was cross-examined as to her assertion that she was confused because the accused was the only person bringing in money and that she did not wish to complain to police. She conceded that notwithstanding her earlier evidence, this was in fact, what she had done. [145] It was next put to the complainant that she lied about the injuries, as the police did not record any injuries. The complainant agreed that it was not recorded in the police report, but the injuries were on her and stated that she was "bitten like an animal." [146] 9. It was next put to the complainant that she did not wish to attend Court. The complainant responded by stating that the accused had told her not to attend Court. [147] The complainant rejected the suggestion that she told police at the day of the early childhood centre that she did not wish to attend Court. [148] She rejected the suggestion that she twice told police that she did not wish to attend Court. [149] She stated that the accused told her not to attend Court. [150] She stated that she could not remember the accused told her when to not attend Court. [151] Then it was put to the complainant that she did not report the sausage incident to the police on the day to the early childhood centre nurse because it did not happen. She stated:- "Not the childhood nurse, I called the police at home, the police came and took me." [152] 1. She gave a response to a specific question about making a complaint at the early childhood centre first, to which the complainant replied:- "There is no child involved in the sausages incident." [153] She later added:- "… After the childhood incident I went to my brother's house but not the sausage one." [154] 1. She added that that there was no childhood nurse involved with the sausage and that was what she remembered. [155] When asked why she said in her police statement that she told the nurse that she had bruises from where the accused had hit her, she stated that that was another incident. [156] 2. The complainant's evidence about the sausage incident was that she did not report it to the police. She said that she was very scared about calling the police or go further to tell someone, because she had children and she was not working. [157] 3. In the accused's case a NSW COPS entry referrable to 20 July 2001 was tendered. [158] It records that on Friday, 20 July 2001 at 11:30 am, the complainant attended the Campsie Health Centre to give her five month old baby a check-up. At the centre, the complainant mentioned to a nurse that she had been slapped across the face by her husband, after she had yelled at him for opening the window, as it might have woken the baby. The nurse thereafter is recorded to have contacted the police and the police arrived a short time later and spoke to the complainant. The record reveals that the complainant was very reluctant to give the police any information other than what she told the nurse. Police explained to the complainant that they would take out an apprehended violence order on her behalf and arrest the accused for slapping her in the face. The complainant was adamant that she did not want any action taken against the accused, and she did not wish to attend court. It was explained to her that she was a compellable witness and that she would have to attend court. However, the complainant maintained that she told police that she would not attend court. [159] 4. The entry records that the complainant then informed police that she would be staying at her brother's house in Liverpool, but she would not provide the address to the police. The entry records the complainant informing police that she needed time to think about the situation and talk it over with her friends. As the police did not have her contact details, the complainant was given a business card with all of the police details supplied, if she changed her mind. No further action was to be taken by the police unless they were contacted by the complainant on a later date. [160] The entry records that the complainant was dropped off at 11:30 am by her next-of-kin, as she had an appointment at health centre at Beamish Street. It further records that the next-of-kin returned home at 3:30 pm, and stated to the police that there were no concerns in the relationship, but had concerns for his safety as they had only lived in Australia for six months and had no friends. The child was recorded to be six months old. 5. On 21 July 2011, a COPS entry records that a missing person (who I infer was the complainant) was contacted by telephone at her brother's house, and stated that she was staying there because she was having some problems with her husband. It records that she was safe and well, and the next of kin (who I infer was the accused) was contacted and notified. [161] INCIDENT 3 1. The complainant recounted an incident that occurred when ES was coming from Fiji, and the accused was to go to the airport to pick her up. This is said to have occurred on 26 July 2001. The accused asked the complainant to go with him, but she stated that she felt tired because she was breast feeding WS. At that stage, there were residing at Evaline St, Campsie, in a two bedroom home. They did not have a car to drive and had to go to the airport by bus. She was concerned about carrying WS in the bus, stating that it was "hard" for her. [162] She stated that: "[WS] was crying a lot and he was not settling well because children with autism they cry a lot …" [163] She stated that at that point, the accused slapped her across the face, asked her to dress up and to come with him. She said: "No, I'm not going to come; you want, you go" and the accused slapped her again and he left. [164] She said when he left, she called the police and they took her to Campsie Police Station. When they arrived, the police saw that no one was there and they took her to the station. At that point in time, WS was with the complainant. [165] 1. The complainant told police that the accused had hit her because she did not wish to go to the airport as she was not feeling well, and was tired. [166] She asserted that she made a statement to police, but could not remember the date or if she signed it. [167] She stated that she saw ES at the police station and subsequently went to her friends' house, Michelle and Ricky Munsamay. [168] She had apparently met Mrs Munsamay when they were working together in a clothing factory in Condell Park. [169] The complainant gave evidence that she stayed at Mrs Munsamay's house but she thought that ES should be with her mother, so accordingly, her friend picked up ES and brought her to the house. She was accompanied by a man named Phillip, who brought some presents and some cards and a cake, and informed her that the accused was very anxious to meet up and to take her back. She stated that the cards and presents came from the accused, and it was for their wedding anniversary. [170] She said that the presents had come late for their anniversary. [171] She stayed at her friend's house with ES and the accused subsequently came over to ask her to come home. Accordingly, her friend Mrs Munsamay, dropped her off together with the children. The complainant stated that she spoke to the accused about what happened and:- "We talked about that this is not right and we, we have to have a family and violence is not good and … and I didn't know that, how things will be and I was just thinking about my children more than anything." [172] 1. The complainant was asked why she went to the police on this occasion, and she stated that she did so because she felt that if the accused came back, the accused was going to hit her some more. [173] 2. The complainant was cross-examined and it was put to her that she was ashamed to go and pick ES up from the airport, because she had stated that she was not her mother. She rejected this. [174] She further rejected that the accused told her to come and pick ES up from the airport to patch things up with her. She also rejected this. [175] 3. The complainant's evidence was:- "Q. COURT APPOINTED INTERMEDIARY: What did you report about to the police? A. WITNESS: I reported to the police that I didn't want to go to the airport because it's not the petting(?) for ES it was meaning that I had a small baby, I was breastfeeding, I was so tired, day and night, Sunny was autistic, he cried the whole night, I am doing everything by myself, I couldn't go because we didn't have a car because DS doesn't drive so we have to go by bus, I can't take a small child crying one way, nil, no stop to go and pick the girl up from the airport so I didn't go that's why DS hit me." [176] 1. The complainant maintained that she reported to police that she did not wish to go to the airport. [177] 2. The complainant next stated that the accused told her not to attend the court proceedings after the incident. [178] It was put to her that she did not attend the proceedings, because she was adamant that she did not wish to give evidence. She rejected this assertion. [179] The complainant maintained that she did not tell police she did not wish to give evidence. [180] She conceded nonetheless that she made a statement to the police on 26 July 2001. [181] She then stated that she could not recall if she stated that she did not wish to give evidence on that occasion. [182] She rejected the suggestion that she made the decision not to go to court by herself, on the date she went to the Campsie Police Station on 26 July 2001. [183] The complainant asserted that the accused told her that if he was to be locked up, who was going to look after her and the children, if he did not have a job and she was not working. [184] At the time, the complainant thought that the accused was working at the printing press. [185] The contents of a NSW Police COPS entry, [186] dated 26 July 2001 records:- "On the 26/7/01 at about 9:45 am the victim was having an argument with the POI (husband). The victim went to walk past the POI to get some clothes. The victim said, 'why don't you answer me, when I'm calling you answer me.' The POI then slapped the victim with an open hand to the right side of the face. The POI then got dressed and left the unit. As a result the police were called to the location. The victim and her 3 month old baby left the unit and are now in the hands of DOCS. An AVO will be applied for on Friday the 27/07/2001. Offender was not charged at this stage as the victim did not want any action taken in relation to this. Vict was informed that she would be a compellable witness but was adament [sic] she would not give evidence." [187] 1. The complainant maintained that it was the accused who stopped her from going to Court. [188] She stated that she did not want to go to Court for the reasons she had given earlier. Specifically, she stated:- "Why I didn't go to Court, is not that - I didn't want to go to Court, before here all the time when anything happens, DS always tells me not to go to the police, not to report otherwise he's going to go to gaol, he is going to be convicted, he's going to lose his job, so I was his wife so I was scared, whatever he was telling me all the time, I was to do it." [189] 1. It was put to the complainant that the accused did not assault her on the occasion in question. She rejected this suggestion. [190] 2. The complainant was again asked, in relation to the airport incident, whether she remembered telling police at Campsie that she did not want to go to Court. The complainant responded:- "I went to the police station and I said, I can't exactly remember at the moment that what I told, it's a long, long time. So I just can't remember what I told, told them. I can't remember, I told something but I can't remember, maybe I did but I can't remember at the moment." [191] 1. The complainant was then taken to the contents of Exhibit 3 and she agreed with the account written. [192] During the course of her evidence, she stated:- "All this here written is confusing me but I know that when I went to the police and why I didn't press - didn't want them to arrest him or anything because DS is a ex-police officer and he always used to tell me that whenever if I go to the police or tell anything about him, if he gets arrested or anything, he told me that it's not going good for me. So police are doing their job, they're not helping the family or anyone. So I, I just state, said whatever here, is I was scared." [193] 1. The movement records of ES show that she arrived in Australia on 26 July 2001 from Fiji. [194] The contents of the incident in the COPS of that day gave a different account to that relayed in the complainant's primary evidence. When the history in the COPS report was put to the complainant, she stated that she could not remember it. [195] 2. A statement from Detective Constable Brett Harris was tendered in the proceedings. It stated that he heard a message was heard at about 10.18 am on broadcast via police radio. As a result he and Senior Constable Frost attended the complainant's residence at Campsie and spoke to the complainant who claimed that her husband (the accused) had slapped her across the face following a disagreement. The statement records that the complainant and her three month old child left the unit where the assault occurred and were in the hands of the Department of Community Services. [196] A police report was prepared which by reference to the number identified is Exhibit 2. According to the indicated time, it was entered at 17.27. Detective Harris also records that the Domestic Violence Officer applied for an Interim Apprehended Violence Order at 12 pm and that an order was obtained that day. [197] 3. The application describes the circumstances of what occurred as follows:- "… There has been a history of domestic violence in the relationship over the past three months however the victim has not reported this to police. The victim states that in the past the defendant has said: 'I am going to kill you and cut your head off. I will leave the baby beside your body and go to the airport and fly back to Fiji.' On the 26th of July 2001 at about 9:45am, the victim and defendant were arguing. The defendant said: 'Get your things and move out in ten minutes.' The victim was walking past the defendant when the defendant said: 'Why don't you answer me, when I'm calling you answer me.' The defendant raised his right hand and hit the victim in the face, causing the victim to fall to the ground." [198] INCIDENT 4 1. After reporting the matter to Campsie Police, the complainant's evidence was that there were Court proceedings which involved an apprehended domestic violence order (ADVO) application and she had been informed by police that she would need to go to Court and that the ADVO would protect her. [199] She stated that she had been informed by officers that she had to go to Court and they came to check on how she was going. She asserts that the accused informed her not to go to Court because if she did he would be "locked up" and there was no one to look after the children as he was "earning and providing." [200] 2. She could not remember the name of the officers, but stated that they were from Campsie Police Station. She stated that on the day the matter was in Court, she drove ES to school and went to the shops, so if the police came to their home, they could not find her. She stated that she went for a few hours. [201] She also stated that she was concerned that if the accused was found guilty, or if he had been "charged or something, if he's locked up, if he comes out then he'll come to me and kill me and then we're not going to have a family …" [202] She described as feeling "bad" and "scared" but at the same time, she loved him. She also stated that she had children with him and had a girl who needed her mother. She stated that she wanted to have a family "as everyone has it, a loving and caring family … and a loving and caring husband." [203] 3. The complainant in cross-examination stated that she could not remember whether or not in her evidence in chief, police officers came to her home and told her to attend Court. [204] She nevertheless asserted that the accused told her not to attend Court. [205] She could not recall whether the accused had any charges against him laid by police at that time. [206] It was put to the complainant that she had similarly declined to go to Court in circumstances which involved her first husband. She rejected this. [207] 4. The complainant stated that she did not remember going to Court, and that she did not remember it. [208] It was then put to her, that following the airport incident, she told the police that she did not wish to attend Court. She stated:- "I went to the police station and I said, I can't exactly remember at the moment that what I told, it's a long, long time. So I just can't remember what I told, told them. I can't remember, I told something but I can't remember, maybe I did but I can't remember at the moment." [209] It was put to the complainant that she could not remember things in her evidence, like accusing the accused of stopping her from going to Court. She stated: "I didn't accuse him. I'm not accusing him" before claiming that she was confused. [210] 1. The complainant's signature appears as the "protected person" on the interim order that was issued on 27 July 2001. The accompanying summons required the attendance of the accused as defendant at Burwood Local Court on 31 August 2001 at 9.30 am. It appears from the Court record that the accused attended that day as well as the 14 September 2001 when the interim orders were continued. The record confirms that there was no appearance for the accused on the adjourned date of 5 October 2001 and the matter was marked as withdrawn. [211] INCIDENT (UNNUMBERED) 1. The complainant then gave evidence in relation to a further incident which occurred when she was residing in Eighth Avenue in Campsie. At that stage, she resided with ES, WS and the accused, and was five to six months pregnant with JS. By reference to exhibit A would make it around May/June 2003. 2. The complainant stated that she went upstairs to the bedroom and had an argument with the accused and he hit her with his closed fist and she developed a bleeding nose. WS was in the room at the time. She stated that she was hit once in the face so hard that it gave her a bleeding nose. She stated that she told the accused that she loved him and he told her to go away again. She then went downstairs with ES and WS to the kitchen to wipe her nose and came to sit on the lounge with her children. [212] The accused then started to call her back, but she did not go upstairs. [213] She stated that whole night, she stayed in the lounge room downstairs because she was scared to back upstairs. [214] In the morning, she called her friend Michelle to tell her what had happened and the latter contacted the police. [215] She stated that she knew the police were called because they arrived at her house "everywhere" at her "front door, my back door." [216] She stated that she did not tell Michelle to call the police [217] because she thought there would be "more trouble" and: "… I'd have to go to Court and he's going to lose his job and I've got children and I am carrying one more and it was very hard for me." [218] 1. The evidence of the complainant was that the police went upstairs and put handcuffs on the accused before bringing him downstairs. The accused said to her: "What did you do?" and the complainant did not say anything, and the police took the accused away. The police also took the complainant and the children to Bankstown Hospital in an ambulance. She was thereafter taken to a refuge with her children. [219] She stated that she stayed at the refuge for one or two nights and then called the police in Bankstown to go home if it was safe. The police stated that it was safe for her to go home and the refuge gave her a taxi voucher and a train fare so she could return to Campsie. [220] 2. She stated that when she arrived, the accused was on the phone in their unit. She stated that she had been informed by police that he would not be there. [221] She nevertheless continued to stay there because he was her husband, the father of her children, who she loved and he was certain he was not going to do it again. The complainant added that she was also carrying one more child. She stated that she came back for support from the accused and other people, including the police and the community whoever can support her. [222] She stated that she told police about what had happened. [223] She stated that after the accused got off the phone, he went to go to work. [224] At that point, the complainant stated that the accused was working at RailCorp. [225] 3. The complainant stated that there were Court proceedings and described them as involving an apprehended violence order application and the accused went to court and took her with him to "take the AVO away …" She stated that she went with him and asked the Magistrate to remove the order and the prosecutor declined. [226] She stated that she was in the courtroom at the time, and left WS in childcare and ES was in school. [227] 4. She subsequently stated that when she came out of Court, WS was in the pram. She then said that the accused told her to go home and she did not know how to go home and did not have any money. She accordingly asked a lady on the street, and she was seen by the accused who then told a bus driver where to drop her off and paid her fare so that she could go home. [228] She stated that the accused said that she should go home. [229] She stated that she did not know what it was like to be in Court and that it was scary for her as she was heavily pregnant and the only thing she wanted at the time was to go home as she was "tired and it was a bit scary" for her. [230] She then went to speak to her next door neighbour, Elma, because she was "very scared" and "needed someone to talk to [her]." [231] The complainant stated that she provided her about details about how she was hit and the accused gambling, and how she had children to look after financially. [232] She stated that she did not know whether police were aware that the accused was living with her. [233] So far as the AVO proceedings were concerned, her evidence was that she understood that nothing had happened. [234] She stated that she did not go back to Court thereafter. [235] 5. The complainant stated that subsequently the relationship was "normal type" and she and the accused reconciled because of the children. She stated:- "… who's going to pay the school fees for the children and [WS] and I'm carrying another one and all those things, we talked about his work if something happens to him he's going to lose his job and how am I going to look after my children, I was not working." [236] 1. In cross-examination, the complainant conceded that the accused had been defending "charges" at that time. [237] It was put to her that she failed to sign over a medical report to the police investigation. The complainant responded that she could not remember. [238] The complainant was challenged about the accused telling her not to go to Court for the AVO hearing, but she maintained that he had told her not to go. [239] 2. The complainant was asked specifically about her inability to recall whether she went back to Burwood Local Court in relation to the AVO after she had returned home. The transcript records as follows:- "Q. COURT APPOINTED INTERMEDIARY: Did DS convince you not to go to court for the AVO hearing? A. WITNESS: At first he convinced me not to go and then when - after the court he came home and then he took me with him. That's what I remember. Q. COURT APPOINTED INTERMEDIARY: So you understood that you were to go to court, is that correct? A. WITNESS: Yes I was supposed to go to court. He told me that not to go to court, when he comes back then he's going to take me. Then he came back and then he took me to court. That's what I remember. Q. COURT APPOINTED INTERMEDIARY: So do you agree that in your earlier evidence you said that you couldn't remember? A. WITNESS: At that time I was confused." [240] 1. A statement from Ms Elmaza Youssef dated 2 September 2015 was admitted into evidence. [241] Ms Youssef stated that the accused and the complainant were neighbours of hers in Campsie for 6 years when they lived in Eighth Avenue and they know her as Elma. She also knew the children WS and JS and "DS's daughter" She stated that over her fence she would hear the complainant and the accused fighting and yelling. On one occasion she spoke to the complainant about the accused kicking her head. She also stated that she once saw her crying with bruises all over her face. She had not seen any assault and did not know why. She stated she once spoke to the accused about not hitting his wife. She was then told by the complainant not to talk to the accused about it as she was worried that he would know what she had told her. [242] 2. No records relevant to this incident were tendered nor was any police witness or other civilian witness called. Detective Duncan gave evidence that as a result of what the complainant told her she made enquires of Bankstown Lidcombe Hospital for any clinical records of the complainant and spoke to a medico-legal officer on 11 May 2011 who advised that there were no patient records. [243] INCIDENT 5 1. The next incident which the complainant gave evidence of was reference to a period which JS was close to three months old. By reference to Exhibit A, the alleged incident would have occurred near the end of November 2003. 2. The complainant's evidence was that the accused was home and asked for some money so he could go to the club to gamble. She informed him that she did not have any money and he picked up a Chinese bowl from the sink and threw it at her. At that point, she stated that she was holding JS up towards her shoulder and as the bowl came towards her, she put JS down and the bowl hit her. She stated that the bowl hit her on the right side of her head. [244] At that point, her evidence was that she was living at Eighth Avenue in Campsie and that it occurred in the kitchen downstairs. She stated that she had a big lump on her head and that it was very sore. [245] She stated that she was in "terrible … pain, agony …" and she felt sad at the time that someone she loved could do that to her. [246] She stated that she could not remember whether she told anyone about the incident at the time. [247] 3. She stated that when the accused was angry "whatever he says goes, if he says something [has] to be done it should be done his way or no way, it's his way." [248] Her evidence was that at the time, she did not have much contact with her family. [249] She further stated that she did not know many people who could help her and she was keeping it to herself. She stated that if she did tell someone or if something went wrong, she could find herself in more trouble and the family would be destroyed. [250] She further stated that if the accused found out that she had told people about what had happened; he would become very angry with her. [251] She stated that she would contact her family on the phone, but could not talk much because she was not allowed. [252] She asserted that sometimes when he was around or he was in the shopping centre if she saw her family, she would never talk to them, because she was scared that the accused would get angry and yell and scream at her in front of them. [253] 4. The complainant was cross-examined in relation to this incident with an assertion that the incident never happened. The complainant maintained that it did [254] and that the bowl broke. [255] INCIDENT 6 1. The next incident is said to have occurred at a time when JS was five years old and WS was eight years old. [256] By reference to Exhibit A, this would be within the time period of 12 months following 31 August 2008. 2. The complainant gave evidence that at one lunch time around 1 or 2 pm in the afternoon, she was asked by the accused to make tomato chutney and an argument developed and the accused slapped her, giving her one blow on her face. She asserted that she was three months pregnant at the time, and flew one metre before falling on the floor, and blacking out. The complainant then alleged that as she was lifting herself to get up, the accused kicked her. [257] She stated that he kicked her on her thigh, back and she tried to lift herself up to sit on the lounge. [258] She gave evidence that the accused was very angry at the time and did not know what was wrong. She then asked the accused to go and pick up JS, however he declined. The complainant then went upstairs to wash her face and went out and asked her neighbour's (Elma) daughter to give her a lift to school. [259] She then went to Campsie Public School, where JS at the time was in kindergarten or in year 1. [260] 3. The evidence of the complainant was that thereafter the accused went to New Zealand and stayed there for a day or two, and on the morning when she was alone with the children, she had a miscarriage. [261] She stated that she took the baby out from the toilet and wrapped it in a plastic bag. [262] 4. She stated that she was feeling sick and getting cold and shivering, and that there was no one to look after her. She was waiting for the accused to return and as soon as he landed at the airport, she called him and told him to come home via taxi as she was lying on the lounge with a fever and shaking and shivering, and had to look after the children. She informed the accused that she had had a miscarriage. [263] The accused then came home and called an ambulance. She thereafter went to Canterbury Hospital and remained there for what she described as a day or two, but could not remember. [264] The complainant stated that during her marriage with the accused, she had two miscarriages and one occasion where the baby died at four months stillborn. [265] This miscarriage was said to be her third. [266] She stated that she did not tell the hospital staff about the violence occasioned before the miscarriage the subject of this incident. She stated:- "Because I didn't want more problems, more trouble in the family, just to movie on with life otherwise more trouble he goes to, the police comes, he goes to court, if he's charged and who's going to look after, he's going to lose his job, the family will be destroyed. I love him because he's father of my children, to keep the family together, I didn't open my mouth." [267] 1. She further stated that she had concerns as to how long the accused had been treating her in this way, because he had said to her that he loved her and "then does that to me." [268] She stated that she had concerns but still had to feed her children and the accused had to support them because without him, the family was not complete. Accordingly, she declined to say anything to anyone. [269] 2. In cross-examination, the complainant conceded that she did not show the accused the foetus before she took it to the hospital. [270] She stated that this was because the accused did not ask her. [271] It was put to her that she was lying about taking the foetus to the hospital for the doctor to see, however she rejected this assertion. [272] It was further put to the complainant that the accused did not assault her before the miscarriage, however again, the complainant maintained that she was not lying and that she had told the truth. [273] She maintained that the accused occasioned a blow to the right side of her head, towards her temple. [274] 3. The complainant stated that two days before the accused went to New Zealand, she started to bleed the accused knew it. She asked him if she could bring someone to be with her whilst he went to New Zealand but stated that the accused had denied this request. [275] The Crown conceded that it could not assert that the violence caused the miscarriage. However, the Crown noted that the violence was "proximate" to the miscarriage. [276] 4. The clinical notes of Canterbury Hospital were tendered. [277] Those notes reveal that the complainant was admitted on 30 August 2005. The resident medical officer reported that the complainant presented to Canterbury Hospital within 12 hours of abdominal pain and had pelvic bleeding. At the time, she was nine weeks into her pregnancy. The complainant was referred for an ultrasound. [278] That ultrasound was carried out on 30 August 2005 and reported on by the radiologist, Dr Gaden. Dr Gaden reported:- "The uterus is anteverted and normal in echotexture. No gestational sac can be identified within it. Within the endometrial cavity is echogenic material, in keeping with retained products of conception. The cervix is closed. There is no free fluid in the pouch of douglas. Both ovaries have a normal appearance. Conclusion: The scan findings are consistent with incomplete miscarriage." [279] 1. The records do not support that the complainant discharged a foetus. However, there is a record in the clinical notes that "she passed the products of conceptus in the toilet." 2. The clinical notes did not record any injury from a blow to the face. INCIDENT 7 1. The complainant stated that the next incident occurred in 2010, close to September when JS was five and in year one. [280] The evidence was that she and the accused were residing at Eighth Avenue, Campsie at the time. [281] The complainant stated that she and the accused had an argument about money and many other things, and he swore at her and said "nasty things" to her. She stated that she was quiet and wondered when he might calm down. However, he came and hit her across her face, on her shoulder, on her back and on her tummy. She stated that he hit her "like no tomorrow" and "he just kept hitting me". She stated that she was crying, felt upset and scared. [282] Thereafter she went upstairs to comb her hair and told the accused to go and pick up JS. She stated that the accused apologised and said that he would not do it again. He then asked the complainant to "hold him tight." She did this and he replied that he was not going to pick up JS. The complainant went to pick up JS. [283] 2. Consequent to this incident, the complainant stated that she had a swollen left eye, bruises on her tummy and on her breast. [284] She stated that she did not tell anyone because if the accused found out he would get more angry because she was not "allowed" and her family would fall apart, and her "children will be more disturbed and I will be more disturbed." [285] She stated:- "If he becomes angry he's going to be more violent, he's going to be verbally abusive, too, swearing and saying nasty things about me and my family. That's – that's not what I wanted because I won't be able to take both physically and mentally and verbally. So I keep quiet because I've got children. Because where am I going to go? If something happens I have nowhere to go to. I have to compromise and forgive him and look after my children and my family. That's what I was doing." [286] 1. In cross-examination, the complainant reiterated the injuries she earlier described [287] but stated that when she went to school her friend "saw it." [288] Later she stated "… my friends asked me" and then she told them. [289] She described these persons as being "Seini" and "Fanny Anthony Hammond." [290] 2. It was put to the complainant that this incident did not happen and that she was making up stories. She maintained that it did happen. [291] The complainant stated that she and the accused had sex after the incident but was challenged about this occurring. [292] She stated that following the assaults, the accused held her tight and then they had sex upstairs and she went upstairs to comb her hair, and then returned to ask the accused to pick up JS. It was put in cross-examination that neither the assault nor sex took place, however she maintained her account. [293] It was then suggested to her that the second term of school was not close to September, and she could not remember which part of 2010 the incident occurred. The complainant asserted: "I am not a computer but the incident happened, it happened to me, and I'm telling the truth." [294] INCIDENT 8 1. The complainant stated that this incident occurred on a Friday, after the accused had come back from a pub or club. She described the incident as having occurred when WS was nine close to ten years of age and JS was either seven or eight years of age. [295] At the time she was residing at Eighth Avenue, Campsie. [296] By reference to Exhibit A, WS would have turned ten years of age in April 2011. As will be later seen the hospital admission notes relevant to this allegation refer to an event on 25 September 2011. 2. The complainant stated that she was sitting in the front with her next door neighbours, Tina and Michael sitting with her. The accused came and shook Michael's hand and looked at the complainant but did not say anything. The accused went inside the house and the complainant followed him. He was seated on the lounge and the complainant took her phone upstairs but did not say anything because she did not wish to cause an argument. She was on her mattress and was texting her niece when the accused is said to have come upstairs and grabbed her phone and stomped on her chest. She stated that she was crying, out of breath and the accused did not bother to help her. She stated that she went downstairs and was with her children when the accused called for an ambulance. She told the paramedics that she had fallen down the stairs. [297] 3. The complainant described the incident as having been brought about when the accused lifted his leg and stomped on her chest. Prior to the incident, she stated that the accused gave her a look from which she surmised that something was not right or very wrong. It was for that reason that she did not say anything. She remained quiet and calm to avoid any argument. [298] She stated that the look the accused gave her was one which she had seen previously [299] and which she understood to mean that he was not happy about something. [300] The complainant described this incident as having occurred in 2010. [301] 4. She stated that she was feeling "very sad, depressed, scared, not knowing what's going to happen." [302] She stated that she loved the accused, but did not know how the accused could do that to her and she was also confused, with "the other side of [her] mind … saying that this is your family." [303] 5. The complainant stated that the accused accompanied her in the ambulance. 6. She was taken to Canterbury Hospital for treatment and stated that when she went there, the accused was beside her. [304] She stated that the accused had a discussion with her either at the hospital or on the way in which he said: "You have to think about my job and our children." She was concerned about what would happen if he lost his job and was "thinking that if something happens to him what's going to happen." [305] She stated that she told the hospital that she fell from the stairs but that was not the truth, and that she lied to save the accused's job and "to have a better life and a happy family for me and him." She also thought that he would not do it again and she gave him another chance because she loved him. [306] 7. She reiterated these concerns further in her evidence. [307] In particular, the complainant was concerned about the ages of her children, the fact that WS was autistic and that ES was going to university and that she did not know how she was going to provide for them. [308] She stated that she saw the "look" that the accused gave her when she first saw the ambulance arrive, [309] and the next occasion, at the hospital. [310] She described the "look" as the accused having his eyes wide open and his head nodding up and down. [311] In cross-examination, it was put to her that she was telling lies in relation to the stomping incident, however she maintained that she was telling the truth. [312] She stated that, in her mind, the accused used non-verbal communication in front of the ambulance officers because he was very scared that if she opened her mouth and told the truth, the police would arrive and he would be arrested. [313] She conceded that the accused was not in the hospital all the time, and when it was put to her that she could have told the doctor about the stomping incident in such circumstances, she stated that she was "scared, that's why I didn't tell the doctor." [314] 8. The complainant stated that prior to the stomping incident, the accused took money from her and went to the pub or club, and came home drunk and smelling of alcohol. [315] She stated that she knew from the accused's look that he had lost all the money, having gambled it all because he was a gambler and he needed more money but there was no money in the bank. [316] She described the accused's look, just before going into the house, as one where he "at first he didn't nod his head but he opened his eyes wide …" [317] She stated that the accused had his eyes wide open and was nodding his head when the ambulance arrived and at the hospital that was same.. [318] She described the warning that she received from the look as one being that he had done something wrong, and the other was a warning to not open her mouth. [319] She stated that the look was given to her as soon as the doctor moved away in the hospital. [320] She rejected the suggestion that the account that she gave to the doctors about falling from the stairs was not a lie, insisting that it was a lie. [321] She conceded that during the stomping incident, she suffered a black out and was breathless. [322] She rejected the assertion that she had a history of black outs or panic attacks. [323] She maintained that she did not fall from the stairs, but that the accused had stomped on her chest. [324] She nevertheless conceded that she may have had a panic attack during her evidence in chief. [325] 9. The hospital clinical notes relevant to her admission on 25 September 2010 were tendered. [326] The account recorded in the ambulance report was that she was sitting on a chair in the lounge and fell. [327] 10. The account recorded in the clinical notes on handover was that she had a "Fall ? # sternum, chest pain, nil LOC, dizzyness [sic]." [328] In the case history notes it is stated that the complainant had a mechanical fall down three steps and hit her "chest on edge of step' and "hit head on carpet." [329] The handwritten notation is : "[D]escribes possible postural hypertension. Frequently gets light headed/dizzy when standing. This episode whilst seated on stairs Got up + felt dizzy Slipped but did not lose conscious [sic] Hit chest on step." [330] 1. The notes record the complainant as complaining about acute onset of sternal central chest pain radiating to the left side. A history is recorded of the complainant frequently becoming light headed or dizzy when standing. When initially seen, the pain was described as being "10/10" but diminished after taking medication. It also reveals that the complainant remained in hospital until 27 September 2010. 2. The complainant rejected the suggestion that the accused was downstairs with her phone when she went upstairs. [331] She stated it was a warning not to open her mouth. [332] She stated that she did not tell the doctor what happened because she was scared. INCIDENT 9 1. The complainant's evidence was that WS had commenced chemotherapy for cancer on 5 November 2010 and finished in 2012. [333] She stated that the family had moved to Leumeah on 5 November 2010. [334] She further stated she was confused by the diagnosis and was worried about WS's life expectancy. [335] 2. The complainant stated that on an occasion in 2012, the month of which she could not remember, the accused had been at the Wests Club in Leumeah and she recalled the phone ringing at around 9:30 pm, but she did not respond as she was tired. This incident is said to have occurred two weeks before incident 10 in relation to which a report was made to police on 6 June 2012. [336] 3. At the time of this incident the complainant was sleeping with her daughter JS. She stated that she fell asleep and did not hear the phone ringing, and the accused came up and opened the door and went to WS's room, with whom she previously used to sleep. [337] She heard WS yell and consequently woke up from JS's room, and opened the door. When the complainant did this, the accused hit her on the head. She then ran back into the corner and the accused kept hitting her on the back of the head, and kicked her on the thigh, the tummy and breast. [338] She was telling the accused to "stop what you are doing" but he kept hitting her. [339] WS then came and tried to push the accused away and JS was sitting on the bed rubbing her eyes and saying: "Daddy stop it." [340] WS and the complainant then pushed the accused away and the accused went into the lounge room. She then sought to comfort the children and make them go back to sleep. She then heard the accused calling out to her. She decided to go and the accused told her that she was a "useless person", "not educated" and "like a bitch like [her] mother:" [341] She recalled that he said that he "had got plenty of women out there better than [her]" and that there was "no use sleeping with [her] because [she] can't have children." [342] He further stated that she was a "person with no emotions" and "good for nothing." [343] 4. The complainant said that the assault made her feel "very sad, very painful, mentally, physically, everywhere." She stated that she felt like a "punching bag" however, she had to "put up with it for [their] family and [her] children because they are too small." [344] She stated:- "… How am I going to look after him he's so sick, sickly boy I have and the girl is so small. Who am I going to ask – who's going to provide and all these things in me." [345] When asked whether she told anyone about what had happened, she stated that she did not think so, but could not remember clearly. [346] In further questioning, she stated that she did not report the incident to anyone. [347] She subsequently stated that she could not remember reporting anything in 2012. [348] 1. In cross-examination, the complainant stated that she was concerned that if she told someone she would "… get more, more beating." [349] She stated that she knew that the accused had been to the Wests Club because she had dropped him off. [350] She went on to state that she could not remember the year exactly, but she thought that the incident may have been in 2013. [351] 2. The complainant was again asked in cross-examination whether she reported the matter to the police. She stated that she could not remember but thought that she did. [352] It was then put to her that on another occasion, two weeks later when police were called, she could have told the police about the incident. The complainant stated that the accused had promised not to hit her again and told her that he loved her, and if she called the police, he would lose his job and go to jail. [353] She rejected the suggestion that the incident did not happen, maintaining that it did, and that the children were around as the accused was "bashing" her. [354] INCIDENT 10 1. Although the complainant did not give evidence-in-chief about this incident, she was cross-examined about the contents of a COPS report of 6 June 2012. The complainant gave evidence that she called the police in order to teach the accused a lesson, so that may be he would stop hitting her. [355] Her evidence was that this was two weeks after the club incident where the accused is said to have punched the complainant in the head, knee butted her and punched her in the stomach and breast. [356] The complainant confirmed that she made a complaint to police but was not sure to what it related. [357] She conceded that the police could not see any injuries [358] although she had bruises "everywhere" on her thigh breast and stomach. [359] She maintained that she told the police that she needed the accused to keep his job to pay the mortgage, food and bills. [360] 2. The COPS entry was tendered. [361] It records:- "Police attended the location and spoke with the victim who did not appear to be upset. She disclosed to police that the POI had assaulted her but did not wish to make a formal statement or provide police with any other details of the offence. The victim signed police notebook F520714 in relation to this request. Police sighted that the victim did not have any injuries as a result of the punch. The victim stated to police that she did not have concerns for her welfare as this was a one off matter. Police still have to speak to the POI in this matter. Police do not have concerns for the victim's welfare as the last matter reported was over nine years ago. Police will be doing a VOCFU in person on the victim to ascertain any further information and to observe any injuries. After these enquiries police will determine whether there is enough evidence to apply for an AVO." [362] 1. The complainant agreed with the account in the COPS entry. [363] Her evidence was that when she was calling the police on the occasion the subject of the report of 6 June 2012, the accused was still at home and was telling her not to speak to police as he was going to lose his job. The accused left the house before the police arrived. She maintained that he told her not to report the incident and to bear in mind that their son was very sick. [364] The complainant maintained that she told police that he was going to lose his job. [365] 2. The complainant was cross-examined and she accepted that there was only one incident in 2012 and on that occasion, the police were called. [366] She further accepted that may be she said to the police that it was a "one-off incident." [367] She accepted that she knew how to contact the police. [368] She stated that she called the police because there was a need to do so. [369] 3. On the occasion that the complainant claimed that she spoke to the police, she was asked whether she had showed them her injuries. She stated that she never showed her injuries to anyone. [370] She later stated that because of her skin colour, police could not see the bruises. [371] 4. The complainant's evidence was that she did not report the earlier incident when she reported on 6 June 2012 because the accused begged her, and stated that he would lose his job, that the children were on the line, the house was on the line, and stated that he loved her. [372] 5. Also tendered was a statement from Senior Constable Evry who attended the complainant's residence on 6 June 2012. [373] Senior Constable Evry states that she attended the residence at Leumeah on 6 June 2012 with Constable Grimson and observed the complainant to be upset. A copy of the message received identified the complainant as being the informant. It was broadcast at 7.41pm and notes the assault as having occurred in front of the children following a call from the complainant. [374] It is clear from the COPS entry that the accused was not present when police attended. INCIDENT 12 1. The complainant next gave evidence that in early 2014, the accused, WS, JS and herself went shopping at Minto. In coming out of the parking lot, she said the accused started to argue with her. She stated that the accused had stated that she did not know how to drive the car properly and did not know how to park properly. She stated that she did not know how to move the car properly because she was a new driver. She proceeded to drive towards their home and there was a road near a roundabout. There it was claimed the accused became very aggressive and started to say things about the complainant's mother, herself and her family. She told him to be quiet and the accused then hit her using the back of his hand on her face. She stated that she nearly lost balance and control of the car. She then managed to park the car in the emergency lane. [375] Both of their children were in the car and WS told the accused to stop, however, he hit the complainant again at which point she stated that she was going to get out of the car and walk home. She stated that the children were upset and the accused told her that if she got out of the car, he would chase her down the street and hit her in front of everyone. The children then told the complainant that she had to stay in the car and the accused continued to abuse her verbally. [376] According to the complainant the accused was alleged to have said "nasty things to me about my mum … my mum is a bitch, she sleeps with – she slept with my uncle and I'm because I'm her daughter, I'm not good." She subsequently described the accused as follows:- "He was very angry, he was agitated, and he was swearing a lot and he was keep picking his fist towards me to hit me again. And he was swearing and saying things 'mother fucker' and saying that my ‑ about my mum, my family, my dad that died so early, about me, that I'm useless, a person who can't have children, I'm not good for him, I'm not emotionless person, I'm good for nothing, I am just a bitch." [377] 1. The complainant stated that she proceeded to drive the family home. [378] 2. Her evidence was that at the time, the accused was seated in the front. In this incident the complainant stated that she sustained a cut and described it as a "big cut" on her lip and upper lip. [379] She confirmed that the big cut was on her upper and lower lip. [380] She stated that it was about half or one inch. [381] According to the complainant, the police were not called. [382] She maintained that there was no false allegation [383] and that she was not lying, but telling the truth. [384] 3. The contents of a police interview with the accused's daughter JS were tendered in the proceedings. [385] The accused did not cross-examine her on its contents. JS stated that the accused told the complainant in the car that she was not driving properly, he took control of the wheel and he hit the complainant in the face. She asserted that she recalled one such incident coming from McDonalds and that the complainant tried to get the accused out of the car. JS stated that most of the time, she and her brother WS would stay at home and the complainant went in the car with the accused alone. [386] INCIDENT 11 1. The Crown led evidence from the complainant in relation to an incident that occurred in early 2014 by reference to evidence which the witness had given on 21 March 2017. The complainant stated that she was coming out of a car park and was approaching a roundabout after her and the accused went shopping. [387] It appears that this incident occurs after incident 12. [388] 2. The evidence of the complainant was that after she got home, the accused was very angry with her and followed her upstairs. The accused then hit her on the head, and kicked her and held her hair, and hit her head on the door. She said that her next door neighbour, Bhavna Ahluwalia, and her grand nana and aunty came and separated them. She went downstairs with them and their children whilst the accused remained upstairs. She stated that Bhavna went upstairs and asked the accused why he had done that to the complainant. The accused is alleged to have told Bhavna that the complainant had a "big mouth" and she was a "mental person." [389] The complainant stated that she heard Bhavna state: "… if this mental how can she look after you, your children? And she's doing all the household and she's driving a car, if she was a mental person how can she get a licence?" [390] 1. She then stated that Bhavna came downstairs and asked her whether she wanted to call the police, but the complainant stated that she was not ready. Bhavna returned upstairs and spoke to the accused and asked the complainant again whether she wished to call the police. The complainant stated that the accused had stated to Bhavna that if the police were called, he would lose his job. The complainant stated that she was not ready to call the police and with her children, they left to go to the park for a few hours to get away from the house. [391] The complainant stated that Bhavna, her "grandnana" and aunty separated them upstairs in the kitchen. The complainant thereafter came downstairs. [392] She stated that she heard the conversation between Bhavna and the accused. [393] The complainant stated that she was hit on the cheek, mouth, eye socket, thigh, shoulder and the accused held her hair and hit her head on the door. [394] She stated that the door led to the balcony, the backyard and the kitchen upstairs. [395] She described her injuries as a cut on the lip, swollen eye socket, bruises on the tummy, breast and shoulder. She stated that the bruises remained for three to five days. She stated that because her skin was dark, these injuries did not show much, but it still hurt and it took its toll on her physically and mentally. [396] She stated that: "… at the end of the day it's my house, my husband. I thought I have to compromise, move on, maybe he will think and he will change himself and we'll be – we'll be a good family again." [397] 1. She stated that she did not report the matter to the police because she was not sure what was going to happen and in her mind she "just wanted to be myself and just calm down and deal with things as I always try to deal" and not to "rush into anything … and then calm down and sort things out." [398] After she returned from the park, the complainant stated that she spoke to the accused and he stated: "Don't trigger me. If you trigger me things are going to get worse, I get angry and I can't control my anger." [399] She later stated that he said:- "You always say things it's not acceptable, and you try to not to say anything that I don't get angry and I don't hit you." [400] 1. The complainant thought that if she stayed calm and did not say anything then she would not be hit, and she took all the blame herself, even though she thought that she had not done anything wrong. She felt that if she took the blame, then the situation would calm down and work. [401] She described the incident as having taken place in April or May 2014. [402] 2. In cross-examination, the complainant stated that the incident happened in May or June. [403] She insisted that she was not making things up. [404] Her evidence was that they were broken up by Bhavna's grandma ("Nanny-ma (sic)") and Bhavna's aunty. [405] Afterwards, Bhavna came to assist. [406] 3. The complainant was questioned about a statement made by Bhavna to police on 31 December 2014, which it was asserted did not mention the assault. The complainant stated that she did not know what Bhavna said in her statement. [407] The complainant stated that when she was hit on her mouth, one of her teeth "went inside so I have to pull it and put it straight" and that it was "so wobbly …" [408] It was put to her that she told lies and that she never mentioned anything to anyone about having a tooth broken in the past. She rejected this stating that she had told her family. [409] The complainant was questioned about her tummy being bruised when this was not an area which she had complained that the accused had struck her. She maintained that the accused hit her and was kicking her. [410] It was put to her that no assault took place, however she maintained that it did. [411] She reiterated that she was not aware of what Bhavna had stated in her statement to the police, or that Bhavna did not mention any injuries or the accused assaulting her. [412] INCIDENT 13 1. After returning from Minto the complainant asserts the accused went to the club, she was contacted some three to four times by the accused, who asked for more money. She stated that she told the accused: "No, because that's it, we have to put food, bills, we have to put mortgage." [413] The accused is alleged to have replied:- "Just bring the money because I earn. If you don't bring you know what is going to happen." [414] 1. She stated that at one point she drove, because she was scared that if she did not go and did not give the accused money, then he was going to get more angry and would come home and hit her more. [415] After dropping the accused at the club, she went back to the club three times. [416] 2. The complainant stated that at one point she did not answer the phone and the accused knocked on the door. She opened the door and the accused hit her before sitting on the front of the house. She put the children in their room and took her phone, walked to her neighbour's house and told the accused she was calling the police. The accused then went to Leumeah train station. [417] 3. In relation to this incident, the complainant stated that she contacted the police after the accused returned home, but did not pursue the matter as she was busy with WS's treatment and did not have the time to go to the police station and get an AVO. She stated that she informed police what had happened and that the accused had hit her. [418] She asserted that she told police that if the accused were charged he would lose his job as he works at Sydney Trains and her son was very sick and daughter was so small. She stated that she told the police to talk to the accused then after about a week or two, the police came to check on her and they told the accused that if he did it again, they would "lock [him] up or charge [him]." [419] 4. In cross-examination, it was put to the complainant that the accused did not threaten her about money. [420] The complainant replied that the accused did threaten her, not only on that day but "all the time." [421] 5. The actual assault asserted by the complainant in Incident 13 was not challenged. The accused did not pursue questions challenging the complainant reporting the matter to police. There was no other evidence supporting the matter being reported to police. I accept the complainant's account. Furthermore what is clear is that no complaint was ultimately pursued in relation to the matter with police. I accept the complainant's explanation for not doing so. INCIDENT 15 1. This incident is said to have taken place in the last week of September 2014 at 9.30 pm. [422] The complainant stated that the accused contacted her whilst he was at the club and asked for money. She believed she drove to the club and gave the accused some money. In cross-examination, the complainant further recalled the accused calling her and wanting more money and she told him there was no more. [423] She stated that after the accused came home he opened the door. Thereupon he hit her on the head and she proceeded to go upstairs. The accused came after her, grabbed her, pulled her hair, and took her down the stairs and then proceeded to kick and knee butt her before he told her to get out of the house. The complainant stated that she left the house and sat in the gutter. [424] 2. In cross-examination, she recalled being pushed out the front door by the accused. [425] She asserted that at some point she returned to the house to pick up her bag, and was then followed by the accused who tried to push and pull her. The children were crying and the complainant tried to settle them down. WS is said to have been told by the accused that he could stay or go with the complainant, the complainant said she proceeded to pick up her bag and sat in a room, whilst the accused was sitting in the lounge room upstairs. She stated that the accused called for her, and she went but stayed away from him and informed him that she was going to call the police. The complainant was told to go and sit in the room, and the accused refused to allow her to take the keys to the car, stating that the car belonged to him. [426] The complainant stated that she did not leave that day as she did not have anywhere to go, did not have a car and "my children, most important is my children." [427] She also stated that she did not go because she did not know where to drive and that she "only … kn[e]w around Campbelltown." [428] 3. In cross-examination, it was put to the complainant that she was telling stories and that the accused never pulled her hair as she alleged, and had never done so during their marriage. The complainant responded by stating that the accused did. [429] 4. In her interview with police, JS also stated that the accused would "pull my mum's hair a lot" and "kick her with his, his feet." [430] INCIDENT 16 1. The complainant gave evidence that in about April or May 2014, an incident occurred on a Saturday morning, when she was asked by the accused to go shopping, but was not ready to do so. The complainant stated that the accused asked the children to get dressed and they did so accordingly, and thereafter they waited outside. The complainant stated that she had "heaps to do at home and everything, that [she was] not ready to go." She asserted that the accused came upstairs and slapped her across the face, and stated that if she did not want to go shopping then he would go to the club. The complainant stated that she told the accused to go to the club and she would take her children when she was ready to shop, or to McDonalds or a park somewhere. [431] 2. In cross-examination, the complainant was taken to her statement where she said that she remembered the incident described as having occurred in October 2014. [432] It was put to her that she told lies about the accused slapping her for not wanting to go shopping, but she maintained that she was not lying and that the accused did slap her. [433] 3. I accept that this incident occurred as described by the complainant. There is no evidence that it was reported to police. INCIDENT 17 1. The complainant was next cross-examined in relation to an incident said to have occurred in December 2014, when she cooked food that the accused did not like or was not "tasty" and the accused tipped all the food from the pot into the sink. The complainant is said to have responded: "That's not right. If you don't like it just don't eat it." The accused is alleged to have stated: "You triggered" and then struck the complainant by slapping her in the face. [434] 2. The complainant stated that she remembered this incident. [435] It was put to the complainant that she was repeating stories to construct lies about the accused slapping her again. The complainant denied this suggestion. [436] 3. The complainant gave evidence that she was slapped by the accused because the food was not properly cooked and stated that it was pork. [437] Subsequently however, she stated that he once tipped a lamb stew into the sink and on another occasion, he threw roast pork on the floor. [438] She stated that in any event, the slapping was for speaking out, [439] even though she had earlier stated that it was because the food was not cooked correctly. It was put to her that the accused never slapped her on this day, and that she was lying. The complainant maintained that she was not lying. [440] 4. Although the complainant gave no evidence in chief relation to this matter her evidence is still able to be considered. 5. JS in her interview with police stated that things that would make the accused angry including the cooking. [441] However she made no mention of the specific incident of which the complainant had given evidence. INCIDENT 18 1. The complainant next gave evidence in relation to events that occurred in December 2014. The complainant had stated that she had met a person named Mr Glenn Kelly, who had befriended her cousin, Ms Chandra Suarez. Mr Kelly is said to have dropped Ms Suarez off occasionally, when she was going to have lunch with the complainant's family. The complainant stated her cousin introduced her to Mr Kelly. [442] The complainant gave evidence that after that event, she was contacted by her cousin who informed her that Mr Kelly could purchase eggs from a farm. The complainant gave evidence that she received eggs from Mr Kelly, who had contacted her via phone because her cousin had given him the number. [443] The complainant stated that when Mr Kelly brought the eggs, she would ask him in for a coffee and then he came in on one occasion. [444] She stated that the accused was aware of this, but had insinuated that she was lying and had asserted that she had previously told him that Ms Suarez's ex-husband, Claude, had brought over the eggs. [445] The complainant stated that when Mr Kelly brought the eggs, the accused started to argue with her. She thereafter decided not to tell him who had brought them over to the house. [446] 2. In the last quarter of 2014, the complainant gave evidence that the accused told her that he was selling the house. The accused came home from work and after a real estate agent came the accused went upstairs and told her to sign some papers. She stated that she asked the accused why they did not renovate the house so that they could buy another house, and then either sell or rent the renovated house. The accused stated that she should sign the documents because he wished to sell the house. The complainant stated that she signed the papers as the accused was the person working, paying the mortgage and if she declined, she was concerned that she would be blamed. [447] She stated that by signing the document, she understood that the house would be sold and that they would buy another house. She understood that they would buy two or three houses, one of which would belong to WS, the other to JS and the other to the accused, and she would live with WS and JS in one house, the other would be rented out and the third would be for the accused and his new partner. 3. The complainant stated that the accused had raised getting a new partner with her on a number of occasions between 2009 and 2013. [448] In evidence-in-chief the complainant accepted that the accused told her on 12 December 2014 that there was no repairing their relationship as husband and wife. [449] She conceded that she and the accused also had discussions where he informed her that he was going to divorce her on 25 March 2015. [450] However, she could not recall the timing of this. [451] She further accepted that the accused told her that they would be good friends because of the children. [452] 4. The complainant stated that she believed that if she did not sign for the sale of the house, something else would have happened. She stated that she would have been blamed, and consequently, the accused would become angry, get aggressive and that there was a "price" for her to pay. [453] She stated that the price meant: "more torture, maybe he's going to hit me, he's going to isolate me …" [454] The complainant stated that she had a concern that the accused would hit her more, and if something was to happen to her, she would be concerned for her children. [455] 5. The complainant stated that she felt isolated most of the time, but she loved the accused and wanted to have a family, so she committed and stayed. [456] The complainant stated that she felt isolated from:- "My family, from every - I couldn't go anywhere because I was always with my children. Can't have any happy moments out or going anywhere, just home, shops and then home. If I go anywhere with the family or anywhere, at a birthday party or clubs for dinner there's something always there that I have - I'm not doing anything right, I'm not doing anything right or the children misbehaved or things like that. That at the end of the day we come home arguing; I'm not happy, that he goes to the club. He has, he has his moments, he goes to the club, he enjoys. I'm with my children in the house and I keep going, I keep going 'cause that's my daily life, as a mother I should stay home and look after my children and do housework, do whatever it takes, I'll do it and I'm committed to do and look after him and his children." [457] 1. The complainant then gave evidence about an occasion, after the real estate agent had come to the house, when there was to be an open house and the house had to be cleaned. She spoke to the accused and they spoke about cleaning the house as there was "too much soil, dirt in the carports" and they had to remove it. [458] She then spoke to Mr Kelly who offered to assist her in removing the dirt when he had time. The complainant stated that she told the accused, and Mr Kelly came and subsequently assisted her because she could not do it herself. [459] Thereafter, she stated that she picked the accused up from the Leumeah train station and went to the shops to buy some grout for the tiles. When they came home, the accused saw the carport and asked the complainant: "Who has done this?" The complainant told him that it was Mr Kelly and the accused responded that: "Glen was not supposed to come, he was supposed to come in the afternoon." The complainant stated that she explained what had occurred and that Mr Kelly had free time. She stated that they then unloaded the carpet that they had acquired and told the children that they were going to Bunnings Warehouse to buy some nails and clips to put on the stairs for the carpet. [460] 2. Whilst on route, the accused said to her: "Glen was supposed to come in the afternoon." The complainant replied that she was telling the truth and that Mr Kelly had free time and asked the accused to be quiet as she was driving and had to concentrate. The accused then struck her on her face. At the time, their children were in the car, and WS was upset and the accused then said: "Return the car and we're going home." [461] 3. The complainant then turned the car around and as they arrived home, took the children out of the car. The complainant stated that she was very scared that the accused was going to hit her. When they got out of the car, the accused chased her, hit her and kept asking: "Glen was supposed to come in the afternoon, why did he come?" She repeated that: "He had time so he just came and helped me, that's all he did, just to help, that's all." [462] She then stated that the accused hit her with his fist and tried to kick her as she ran in her front yard. [463] She stated that when she got inside the house, she sent Mr Kelly a text message thanking him for his assistance, and the accused asked her why the text message was being sent. [464] The accused then wrestled with the complainant to obtain the phone and was "very, very agitated." [465] The accused then grabbed the phone, but did not know how to open it. When the complainant took the phone to open it, the accused stated that he was going to read it. The complainant stated that as she held the phone tight so the accused could not get the phone out of her hand, the accused "tried to rip my finger off and as soon as my finger cracked, I let the phone go and I show[ed] him the text message." The accused responded: "If you would've give me the phone, this wouldn't have happened." [466] The complainant stated that the finger which was cracked was her left "pointing finger." [467] She stated that after the accused got the phone, the accused smashed it on the floor. [468] The complainant stated that the accused "just threw the phone on the floor … smashed [the phone] in pieces and he took the SIM [card]." [469] The complainant stated that this occurred downstairs in the lounge room. [470] 4. The complainant gave evidence that the following day, the accused had both his mobile phone and the home phone and told her that he had called Mr Kelly to ask if him if he was having an affair with the complainant. The accused informed the complainant that Mr Kelly had said: "Yes, I have an affair with your wife." [471] The complainant stated that she knew that this was not true and told the accused. [472] She stated that she was shocked, unhappy and scared, and did not know how this could happen when she did not have an affair. [473] The complainant stated that she was scared that the accused was going to hit her and that he was going to be "very abusive verbally and physically." [474] The complainant said that the accused told her to go somewhere as there was an open day at the house and so people did not see them fighting. She then took their children to the park. [475] 5. The complainant stated that she told the accused that she wanted to see a doctor and went to see Dr Zhang. She stated that she told the doctor that she had an accident when she slipped and the doctor had asked her whether it was a result of domestic violence. She replied to Dr Zhang by stating: "not really, just sort of." Dr Zhang then referred her for an x-ray at Campbelltown. [476] 6. In circumstances I will shortly come to, the complainant made a statement to police which was Exhibit 6 in the proceedings, stating that the incident occurred on 12 December 2014. In her statement she stated that she saw Dr Zhang on 15 December 2014 and that she had an x-ray on 16 December 2014. Dr Zhang's evidence was contained in an expert's certificate pursuant to s 177 of the Evidence Act 1995 (NSW) and was tendered. [477] In it, Dr Zhang states that on about 9:11 am on 15 December 2015, he examined the complainant. He records:- [5] Patient presented with swelling and pain to the left dosal hand since 12/12/2015 following 'pulled finger to the index and middle finger' which AS reported that she 'did it at home'. On examination, AS had swelling at 1st and 2nd left MC bones with tenderness to touch. She was unable to make a fist due to the swelling and pain. I referred her to have a hand xray for further investigation. The hand xray on 15/12/2014 showed: 'There is a 5mm irregular bony fragment and a lucency in the 2nd metacarpal head suggestive of a fracture. The fracture appears intra-articular. Alignment is near anatomic. The remainder of the joints appears normal.' Patient did not return for results despite a reminding contact on 18/12/2014". [478] 1. The complainant gave evidence that when she went home, she had a discussion with the accused about the consultation with the doctor. The complainant stated to the accused that the doctor had asked her about domestic violence but she did not say anything about the violence. [479] 2. The complainant stated the accused rang Mr Kelly and told him that he had broken her finger, and that the accused was "going after" Mr Kelly. The complainant stated that her cousin, Ms Suarez called her, asked her whether her finger was broken and told her that Mr Kelly had gone to the police. The complainant replied that her finger was broken, and then Ms Suarez asked: "Why aren't you doing something, if you can't do it for yourself someone else is going to do it for you." [480] The complainant gave evidence that she was present when the accused rang Mr Kelly, being downstairs in their home. She stated that she knew that the accused had contacted Mr Kelly because she had been told. [481] 3. The complainant gave evidence that she questioned the accused as to why he contacted Mr Kelly. She stated:- "[W]hy do you have to do this, why you have to call Glen and tell him that my finger is broken and you are coming after him, I told him that I'm contacting you, don't you think - you are my husband father of my children we are a family, I am protecting you". [482] The complainant stated that she was protecting the accused by not telling the doctor about how the broken finger occurred and did not think about telling anyone else what had happened. However, as the accused had told Mr Kelly that her finger was broken, the latter went to the police. [483] She stated that the reason why she did not tell the doctor was because she was protecting the accused, because "otherwise [the accused was] going to lose his job." [484] 1. The complainant gave evidence that police arrived and they asked for a name, but it did not match their names. The accused told them that they had the wrong people and they went back to their vehicle. Shortly after they returned and asked the complainant for her name and whether she had a broken hand. The complainant thereafter said she hid her hand under a cushion because she did not want the officers to see it. The officers told the complainant to lift up the cushion and then it was observed that the complainant's hand was bandaged and they asked her to go outside to talk. [485] The accused at this point was sitting in the lounge, and the complainant stated that before he went outside with the police, she looked at the accused to tell her what to say. She stated that she was told to go and "Whatever you just go and tell the truth, and you're my wife, you go and tell the truth." She then stated that she went outside and told the police the truth and at one point, the accused came outside to try and speak to the complainant, but the officer told him to go back inside. [486] 2. The complainant stated that she told the police that they had had an argument about a mobile phone and that the accused broke her finger. She noted that when the police officer was talking to her, the officer was writing. [487] After she had spoken to the police officer, another officer arrived and handcuffed the accused and took him away. [488] She stated that after the police took the accused to the station, she spoke to them. She stated that she told the police that because the accused was working, and he could be charged, he was going to lose his job and asked what would happen to them and the children. [489] She stated that she asked the police how she could stop the accused being charged. She stated that she felt the need to protect him from losing his job. [490] She stated that the accused was the only person she "tend to [sic]. End of the day he was the only person I tend to." [491] 3. In cross-examination, the complainant conceded that she had met Mr Kelly around the end of June or July 2014 with friends. [492] She further conceded that Mr Kelly had bought her a photo frame for her birthday on 8 October 2014, but that she had told the accused that she had brought it from a dollar shop in Minto. [493] She acknowledged that she had communicated with Mr Kelly over the phone and by Facebook. [494] The complainant also conceded that in the days before 12 December 2015, Mr Kelly was at her home and delivered a lounge from Fantastic Furniture. [495] 4. It was put to the complainant that she never told the accused that Mr Kelly would come and do some work in the home. The complainant responded that she had told the accused that when Mr Kelly was free, he could come over to do some work. [496] She stated that the accused was aware that Mr Kelly was to come to remove the dirt, because the accused himself was not going to do it, and she needed help. [497] Notwithstanding this, the complainant conceded that she could not remember whether she told the accused that Mr Kelly was home when the accused was at work. [498] She stated that she told the accused that Mr Kelly would bring a wheelbarrow whenever he was free, so the accused could use it. She conceded that she left the wheelbarrow in the garage. [499] 5. It was put to the complainant that when the accused rang her at 2:30 pm in the afternoon, on the day that Mr Kelly was at their home, she never told him that Mr Kelly was also present in the house. The complainant did not agree. She rejected the suggestion that when the accused questioned her as to who assisted with the car port, she hid the fact that Mr Kelly had helped and said that she did it herself. [500] Nevertheless the complainant conceded that when the accused was questioning her, she admitted that Mr Kelly was there in the day time at her home. [501] It was put to her that despite the fact that they were picking up carpet and varnish earlier on in the day, the complainant never told the accused that Mr Kelly was at the house during the day. The complainant conceded the point, but added that the accused did not ask her. [502] It was then put to the complainant that she was in a relationship with Mr Kelly – a proposition which she rejected. [503] The complainant conceded that she and the accused were removing dirt during the week on the Wednesday and Thursday, and that the accused was grouting the bathroom on the Wednesday of the week in question. [504] 6. The complainant was cross-examined as to the fact that when the police arrived, she did not tell them about the assaults that she alleged had occurred on the lawn. She replied by stating that she remembered that she told police about being kicked on the thigh, but cannot remember what she said, stating that she was "very, very confused, I had children around me and I had a sore head." [505] It was put to her that she told lies about the front lawn assault, however she rejected this stating that there was a big bruise on her thigh. [506] She stated that following the incident, she went upstairs and cried as the bruise was so big that she could not do anything and she just "left it like that …" [507] She maintained that the reason why she may not have told the police at the time that they were attending regarding her broken finger, and the broken phone, was because she was "very, very confused." [508] 7. The complainant was next cross-examined about her being caught "cheating", and the first thing that she did was to send a text message to Mr Kelly to thank him for his work. She responded that Mr Kelly helped and that she thanked him for the work. She stated that she never cheated on the accused. [509] It was then put to her that she contacted Mr Kelly on the night of 12 December 2014, to warn him that she had been caught having an affair. The complainant responded that she did not have an affair. [510] It was put to the complainant that the accused did not assault her on the front lawn as she had alleged. Again, the complainant maintained that the accused did assault her. [511] It was then put to the complainant that she told lies about the incident of 12 December 2014 about the finger dislocation, however she maintained that she had never lied. [512] 8. Although the complainant stated that the accused had made it clear to her that the marriage was not going any further on 12 December 2014 she stated that she was not very sure about it. [513] It was put to the complainant that once the accused was in trouble with the police, she would offer ways to stay in the marriage. She did not accept this proposition. [514] She further rejected the suggestion that she was begging the accused to stay in the marriage after 12 December 2014. [515] She accepted nonetheless, that she and the accused had sex on 14 December 2014. [516] 9. The complainant stated that when the police arrived, she could not find the phone that was involved in the alleged incident. [517] It was put to the complainant that she knew that the phone that she was providing to the police was a deliberate fraud on her part. The complainant stated that she did not think so. She stated that she did not tell the police that she could not find the phone which was used in the altercation because at that moment she was very confused. [518] She did not accept that the accused was charged with, an act he did not commit (being damaging the phone). [519] When asked as to why she did not tell the police that she gave them the wrong phone on 15 December 2014, in the subsequent two years, she stated that she was hurt on 1 February [2015] and gave an interview to the police. She was in pain and could not remember "so many things and [she] couldn't put it out there." [520] She stated that at the time she made her statement on 15 December 2014, she was very confused and "didn't know at that time how to put things and I just put it as I thought." [521] She stated that she was always used to protecting the accused, the accused not going to Court and that she always used to protect him because of his job and it was her family. She stated that she was a desperate mother and a wife that did not know how to deal with things and was "just trying to protect somehow." She stated that she was confused at the time. [522] 10. It was next put to her that she was a liar and made up protecting the accused in relation to the phone incident. However, she maintained that she was not a liar and was telling the truth. Nevertheless, she stated that when the police came to her home, they thought she was very confused. [523] She maintained that she did not lie to the police about her finger and her phone. [524] 11. The accused gave a caution interview to police which commenced at 8:29 pm on 15 December 2014. [525] In that interview, he stated that from the Friday to the Sunday, he had not noticed anything until the complainant mentioned it the previous day (14 December 2014). He stated that at about 5:00 pm, the complainant told him that her finger had been dislocated when he was trying to grab the phone off her. The accused stated that at the time they were having sex, and he told her to go and see a doctor. He stated that he had not noticed it because she never had a bandage at that point. [526] He stated that prior to the point when his wife informed him, they had been working together side by side laying carpet and cleaning the house, getting the house ready for sale. [527] The accused said that when they were having sex, he looked at the complainant's hand, saw that it was swollen and she told him what had happened. He did not believe her as they were working together. [528] Subsequent to that, he stated that Mr Kelly was calling on the phone, having re-inserted the SIM card from his wife's phone. The accused stated that when he answered the phone, it cut off. The accused then proceeded to use the home phone to call Mr Kelly and had a conversation with him on 15 December 2014. The accused told police that he said to Mr Kelly that he did not know him and he had been coming around the house, when he did not even know. In his interview, the accused stated that Mr Kelly was a bit rude. When the accused called Mr Kelly again, he told him not to come around to the house and to take his wheelbarrow. [529] 12. The accused stated that Mr Kelly said that he could throw it away as he was not coming back. [530] In the course of the conversation, the accused also said:- "Q103 What time was this phone conversation today? A Must be in the morning some time, after 9.00 o'clock or something. I'd better let him know. I sad [sic], Look, don't you ever come back here. My wife's got a broken hand. Could have been her neck. Not that it would. Could have been her neck. It was a broken hand. Better let him know, Don't you ever do this. Don't you ever come back. Just to let him know, Don't you ever come back. You see. That's all. So I believe this guy rang to the police." [531] 1. Subsequently, police asked the accused whether in making reference in relation to the fact that his wife had broken her finger or hand, was he implying that Mr Kelly was to blame for the injury. The accused responded: "Exactly right." [532] When questioned as to why the accused believed Mr Kelly to be responsible for the injury to the complainant's hand, the accused stated that Mr Kelly was probably not responsible, but he did not want him to come back and wanted to make sure, because of the wheelbarrow, that he did not come back. [533] 2. Ms Chandra Suarez gave evidence that she grew up with her in Fiji and then moved to Australia in 1989. She stated that she visited the complainant and the accused regularly when they resided at Campsie and at Leumeah. [534] She also had telephone contact with the complainant but stated that the she preferred to call when the accused was not at home, and the complainant had so told her. [535] She stated that the complainant had informed her of occasions that the accused had been drinking, that he had hit her and that she had bruises, but had told the neighbours that she had fallen down the stairs, despite the fact that it was the accused who had hit her. [536] She stated that she had not seen these bruises on the complainant, but subsequently said that upon visiting her she saw "bruises on her arm and her leg," which the complainant stated were from the accused hitting her. [537] This was whilst the complainant was living at Campsie. [538] She stated that during that time that the complainant was residing at Leumeah she noticed photos on the complainant's iPad with her having black and blue eyes with swollen legs. Ms Suarez asked the complainant what had happened and "what are these photos about?" The complainant told her that the accused had hit her. [539] Ms Suarez did not remember the dates when this had happened, [540] but it would have been in mid-2014. [541] 3. In 2014, Ms Suarez conceded that she had met Mr Kelly and that she introduced the complainant to Mr Kelly "around September 2014." [542] She stated that in December 2014, she had been contacted by the accused regarding Mr Kelly, and the accused asked her if she knew that Mr Kelly and the complainant had an affair. She responded by saying that they did not but the accused continued to tell her that they did, and the accused would "call [her] to talk about the same thing, about the affair." [543] She stated that this first started around Christmas 2014. [544] She stated that the complainant did not have a phone as the accused had taken it off her, and she commenced contacting the complainant through Facebook messenger. [545] Ms Suarez stated that the complainant had relayed to her that she had twisted her finger or "something like that". [546] 4. In cross-examination, Ms Suarez conceded that the Facebook conversation she had with the complainant in December 2014 was about the affair that the accused thought was happening between the complainant and Mr Kelly. [547] She further conceded that the accused did not know about any contact with Mr Kelly and the complainant before 15 December 2014. [548] She stated that she did not remember ringing the complainant and telling her that if she did not complain, somebody else would complain. However, Ms Suarez conceded that she and the complainant had talked. [549] She stated that the complainant had told her that the accused had taken her phone away, [550] but she was not aware that the phone was damaged. [551] She conceded that in all the time that she knew the accused, she had not seen him assault the complainant in front of her, [552] although she had seen some aggression between them. [553] 5. Mr Kelly for his part, gave evidence that he had met the complainant through Ms Suarez. [554] He stated that he used to drop his then girlfriend, Ms Suarez, off at the complainant's house, and that he had once gone inside for coffee. [555] Thereafter, Mr Kelly would deliver eggs to the complainant, which he had bought from the farm. [556] He had also assisted the complainant with picking up rolls of carpet, [557] and delivered some furniture that the complainant had purchased from Fantastic Furniture, [558] as well as assisting the complainant move some dirt and level the area out as the house was nearing open inspection. [559] Mr Kelly said that he had communicated with the complainant through Facebook, Viber and text messages. [560] Mr Kelly gave evidence that he received a call from the accused complaining about his attendance at his house whilst he was not home. [561] Subsequent to that call, Mr Kelly received a further call which he recalled being around 11:00 am as he was travelling down the Campbelltown Expressway towards the city. He described this call as follows:- "He just said 'Hi Glen this is DS,' I said 'Yeah I know what's up,' and then he just started again about AS, he said 'I understand now what's happened, I believe that you - I believe what you're saying and by the way I thought I'd let you know I broke AS's hand last night and I haven't finished there yet,' and I hung up. I said to him 'You're a complete idiot, there's something wrong with you, something needs to be done' and that was sort of it and I just hung up, 'Don't text me again.'" [562] 1. Following that call, Mr Kelly contacted Ms Suarez, who advised him to contact the police. Mr Kelly thereafter attended the Campbelltown Police Station. [563] Apart from these two phone conversations, Mr Kelly did not think that he had any text messages exchanged between him and the accused. [564] In all, he stated that he visited the accused's house some 12 times to drop off eggs, the lounge, the carpet and the wheelbarrow, and he thought that he had also dropped off some chicken wings. [565] Mr Kelly stated that he did not ask about the accused when he visited, and if the accused happened to be there, he would have seen him. He stated that whenever he went there he would park out the front. [566] Mr Kelly said that his truck and ute was fully sign-written. [567] Mr Kelly was not cross-examined. 2. The complainant gave evidence of Mr Kelly also visiting on her birthday 8 October 2014, when he bought her a photo frame. She denied it was a secret visit but later conceded that she told the accused that she bought the photo frame from the Minto dollar shop. [568] 3. Bhavna Ahluwalia stated that she also observed the complainant's finger being wrapped and she asked the complainant what had happened. The complainant stated that she hurt herself. She stated that the complainant's daughter, JS, stated that: "Daddy hurt her." She then confronted the complainant who denied it. She stated that the complainant did not want to share what was happening. [569] She stated that from her observations of the family dynamics between the complainant and the accused, she heard the accused on a number of occasions saying words such as: "I'm the man of the house", "I tell you what to do", and "This is my wife. It's between us. I'll [tell] her what to do. She only listens to me. This is my matter." [570] 4. In the course of his police interview, the accused stated that his relationship with his wife was "so far good." [571] He stated that they had been married for 18 years and they were selling the house because "it's a good market." [572] As to whether they would move to another location together, he had not decided anything, but they "will be together." [573] When asked the question as to whether he and the complainant would be separating or staying together, the accused stated: "No, not at the moment." [574] In his interview, he denied that he was accusing his wife of having an affair, but he did admit that he questioned her because he was concerned when he saw work carried out in the house and could not believe that someone had done it. [575] The accused conceded that they had been arguing with each other in the lounge room of the house at the time. [576] He stated that the work would have taken two days as it was "so perfect" and her answers were not clear. [577] It was in those circumstances that the accused told the police that he asked the complainant for her phone, as there must have been something on it, and wanted to know who she was talking to. [578] 5. The accused stated that the complainant decided to show him the messages, but because the phone was cracked, she pressed the off button on the phone. The accused stated that the complainant told him that the phone was not working, so he grabbed the phone from her and his finger touched a button and the phone lit up, at which point the complainant did not want him to see the messages on the phone and was trying to "surprise" him. [579] He stated that the complainant struggled with him to retrieve the phone and he fell on the bed. The accused said that he had the phone and did not want her to take it off him. [580] She was struggling too, and wanted to get the phone off him. [581] The accused said he finally got to look at the phone and the phone had "gone black" in that the screen was "coming off" and he observed that it was broken:- "… That's why I dropped on the floor there, no use. We missed it. That's what happened." [582] He stated that he put the phone down on the floor, but did not throw it or smash it. He "just left it on the floor." [583] The accused stated that the phone was previously damaged and because of the struggle, and he did not want to give it to her. [584] 1. The accused denied that the complainant received an SMS text message on her phone at the point in time that he had taken the phone from her. [585] He denied grabbing the complainant's left hand very tightly and removing the phone from her left hand. [586] The accused further denied throwing the phone on the floor, and said that the phone was already damaged. [587] He subsequently admitted to throwing it down. [588] He asserted that the police did not get the information from the complainant correctly, and as information as to the damage to the phone was "lost in translation." [589] 2. The accused stated that the complainant did not cry and did not tell him anything about her finger being dislocated. [590] The accused stated that he had noticed her hand was normally coordinated, but he saw swelling around the forefinger. [591] He could not remember which hand he observed. [592] When it was put to the accused in his police interview that the complainant denied having an affair with Mr Kelly, he replied: "She, she probably doesn't have an affair. She, she probably doesn't have an affair, I'm not blaming her. She probably doesn't have an affair. It's more like, well, I wanted to know something you didn't tell me now I'm handicapped here. I don't know how to find out. So I know that there were some phone calls and messages on the phone …" [593] 1. Also tendered in the Crown case was a statement from Sergeant Rob Hyslop of Campbelltown Police [594] . Sergeant Hyslop was rostered to perform duties as a mobile supervisor at the Campbelltown Local Area Command on 15 December 2014. In his statement he states that at 6:45 pm on that day, he attended the premises of the accused and the complainant. Upon arriving, Sergeant Hyslop spoke to the accused, who was seated in the lounge room with the complainant. Sergeant Hyslop asked: "does Karen live here?" to which the accused responded: "No, what's this all about?" Sergeant Hyslop then stated that police had received a call from a person who was concerned about Karen, who apparently lived there. The accused replied: "No Karen lives here, are you sure you have the right house?" He then asked: "Is there any one here who has any injuries?" He stated that the accused said: "No" and Sergeant Hyslop responded by stating: "I'll return to my vehicle to make some inquiries and I'll be back to speak with you further." [595] 2. A short time later, Sergeant Hyslop returned and asked the accused: "Do you know Glen Kelly?" to which the accused responded: "Never heard of him." Sergeant Hyslop then asked the complainant: "What is your name." He then observed that the complainant was hiding her left hand underneath a cushion and he asked for her to show her hand. He stated that the complainant raised her right hand and kept her left hand underneath the cushion. [596] 3. Sergeant Hyslop then asked her: "Can you show me your other hand please?" He stated that the complainant reluctantly raised her left hand and he saw the white coloured bandage covering her entire hand, with the fingers exposed. Sergeant Hyslop then asked her: "How did you hurt your hand?" and the complainant remained silent. Sergeant Hyslop then asked her to come outside and he would "have a chat with her." [597] In the company of the complainant, Sergeant Hyslop walked outside the house and spoke with her in the driveway, away from the accused, and he then contacted further police to attend the premises to arrest the accused. The statement that he obtained from the complainant was signed recorded in the official police notebook. [598] It relevantly read as follows: "[3] My husband accused me of having an affair with, Glen KELLY, who is a family friend. Glen has been helping us with fixing the front carport as we are selling our house. I denied having an affair with Glen when arguing with my husband. [4] During this argument my phone received a text message from Glen KELLY. I was holding the phone in my left hand and I checked the message and my husband said, 'Give me the phone, is that Glen?' My husband has then grabbed my left hand and squeezed it very tightly as I was holding my phone. He has then removed the phone from my hand and checked the message and threw the phone on the floor as he was very angry at this stage. He was yelling at me accusing me of having an affair with Glen. [5] I picked my phone up from the floor and saw the screen was cracked. The phone had no damage before my husband grabbed it out of my hand. [6] I went upstairs to feed my children and about 1 hour later I felt my left hand aching. [7] My hand has been aching over the weekend so I saw Dr Johnathon ZANG at Leumeah Medical Centre today (15/12/14). My hand is swollen and I need to have an x-ray on my hand on the 16/12/14. [8] I have been married to my husband for 18 years and we have two children together aged 13yrs and 11yrs old. My husband has been having mood swings for about the last 5 years. He gets very angry for no reason. I am concerned for his mental health but he refuses to seek medical help." [599] 1. Sergeant Hyslop stated that after Leading Senior Constable Jenkins and Young arrived at the location, the accused approached the front door and said something to the complainant in a foreign language. He stated that Constables Jenkins and Young then escorted the accused into the back of a caged truck and conveyed him to Campbelltown Police Station. Sergeant Hyslop stated that he remained with the complainant to enable her to complete her statement and to take the photographs of her injured hand, as well as the damage to the mobile phone screen. These photographs were tendered as Exhibit B in the proceedings. 2. The complainant stated that after that incident, the accused came back home. She stated that the police officer rang her and asked her if she wanted the accused home, and the complainant informed him that she did. She then proceeded to go to the police station and pick him up. The complainant told the accused that she did her best "not to put you – not to charge you … to ignore the system and … nothing is going to happen to you." [600] The complainant stated that she was going to achieve the latter by withdrawing from the case and to state that it was her fault that her finger was broken. She said that she would have "taken [it] all on me to just protect him and his job." [601] She stated that it had worked before and she "always did [protected him]." [602] 3. After the complainant returned home, she and the accused had a discussion about the broken phone. Her evidence was that she had given police an old phone, not the phone that was the subject of the incident of 12 December 2014. Her evidence on this issue at first was as follows:- "Q. In relation to the phone that you gave to the police when did you give that phone? A. WITNESS: When DS was taken away when the police was talking to me. Q. And the phone that you gave to the police, was that broken or not? A. WITNESS: Yeah, that was the old broken phone. Q. Why did you give the old broken phone to the police? A. WITNESS: To protect him. That if the police would've seen that phone, it was smashed so badly that he's going to get into more trouble and I will be in more trouble. So to just to save him, I gave the wrong phone. Q. And when you were speaking to DS about your broken phone after he had returned home, what was discussed about that? A. WITNESS: He ask me "Can you bring the old phone - the broken phone" so I went upstairs and I looked for the phone and I found it and I could bring it and gave it to him and he took it with him." [603] 1. The complainant stated that she told the accused that she had given the old phone to police and had left the phone somewhere upstairs but could not find it. She stated that the accused asked her to bring the broken phone. The complainant went upstairs to look for the phone and found it, and gave it to the accused. [604] 2. The complainant asserted that she gave the police the wrong phone deliberately to "save him." In subsequent evidence she gave this account in relation to the reasons why she gave the wrong phone to police:- "Q. AS, just to clarify a few things, in relation to the phone that you gave DS, this is after DS was taken away by the police and came back home? A. WITNESS: Yes. Q. That was the smashed mobile phone, is that right? A. WITNESS: Yes. Q. And that was your mobile phone? A. WITNESS: Yes. Q. And that phone was broken during the finger incident? A. WITNESS: Yes. Q. Where was this phone when you went to get it and give it to DS? A. WITNESS: I - when the phone was smashed, when he took the SIM card out, I left it on the cupboard. The time the officer ask me, I tried to find that phone. It didn't come where I put it, I was looking for it and - it's getting late, why I give this phone and obviously if something happens - if something goes wrong, he's angry on me or something ..(not transcribable).. I can save him, that this was not the phone. At that time, I didn't realise that I'm doing something wrong to protect him but at that moment I thought that this is the phone, I just give it to him and tell him this was the phone. Q. Are you talking about what you did to the police officer, that is, you gave him the wrong phone? A. WITNESS: Yes. Q. But when he asked you about the phone, which phone were you first looking for? A. WITNESS: I was looking for my smashed phone so it was getting late so I thought that this phone is just in front of me on the drawer so why don't I give this phone and it came in my mind, if it's some questions going to be asked, I wasn't(?) able to save him because the police has taken him. Q. And why did you give that phone to the police? A. WITNESS: Because I couldn't - at that time I couldn't find my phone because I forgot where I left it. Q. And when you came to give DS your smashed mobile phone, why did you give him that phone? A. WITNESS: Because when he ask me the phone, I went to look for it and I was very, very scared that if I don't give him the phone then maybe something else is going to happen. He arrest me or he would throw me out of the house or something so I gave him the exact phone, the smashed one. Q. And this smashed phone, did you have any difficulty finding it at that point? A. WITNESS: Yes, because I was - I left it on the drawer and I was looking everywhere and the children tried to look for it and I climb and I thought if I see - if I see if it's on the cupboard so I climb and I put my hand on top of the cupboard and I found it so I thought okay, I have to give it to him, I have to give it to him so I gave it to him. Q. When the police asked you or when you had a discussion with the police about the phone and you went looking for the smashed mobile phone, did you go to the same effort that you-- A. WITNESS: Yes. Q. --went to when you-- A. WITNESS: Yeah I found everywhere but I didn't look on the cupboard and that woman who did come with me, that I had to look on the cupboard so I was confused and I just want to do as I was told. Q. You said you were scared of DS when you gave him the smashed mobile phone? A. WITNESS: Yes. Q. What were you scared of? A. WITNESS: I was scared that he's going hit me or if he's going to chase me out of the house." [605] 1. In this account, the complainant asserts that she was looking for a smashed phone to give to the police and could not find it. She gave another phone to the police and felt that she was not able to save the accused because the police had taken him to the station. 2. During the discussion the complainant stated that the accused said that he was going to take the phone to work and have a man called Rama Reddy to extract all the photos, text messages, calls in the phone and then the accused would speak to her. [606] She stated the accused already had the SIM card, and that he took that card and phone to his workplace, however he returned an ST ([sic] SD) card that contained photos and videos of their children. [607] The complainant gave evidence that when she was asked to provide the phone, she went to look for it and was "very scared that if [she] don't give him the phone then maybe something else is going to happen. He arrest me or he would throw me out of the house or something." [608] The complainant stated that she gave the accused the "exact phone, the smashed one." [609] The complainant stated that she left it in the drawer and was looking everywhere, and found it on top of the cupboard. [610] She stated that if she did not give the phone to the accused, he would have hit her or was "going to chase me out of the house." [611] 3. Detective Senior Constable Fiona Duncan gave evidence that her inquiries revealed in relation to a Mr Raman Redi (or Rammareddy), that the name did not "come up" in police information holdings, but qualified that she did not have the exact spelling. [612] INCIDENT 20 1. The complainant stated that after she gave the phone to the accused, she never saw anything from Mr Rama Reddy. However the accused told her that he had taken the records. She stated that when the accused went to work, he would go to the "the guy works next door to him … he reads and he sees everything, messages and everything, in the TV, a computer, whatever and he all the time says that he gets it but he has never showed me anything." [613] She stated that when the accused would speak to her about these records, he was "very controlling and verbally abused and physically, physically abused." [614] She stated that the accused said that she had said things about him, and that she had texted Mr Glen Kelly. The complainant stated that the accused thought that she had said things about him to Mr Kelly. [615] She stated that the accused would speak to her about the phone messages whilst he was at work, and when he was at home, he would talk about it. The complainant stated that every time the accused would talk about the records, he would talk about the same thing. [616] She stated that the accused was "very, very aggressive" and that he manipulated her, and she had nowhere to go. She stated that she would have to admit to things that she had not done, [617] which she did in order to "keep the family together" [618] and because in her mind, the accused was still her husband. [619] 2. The complainant next gave evidence that on New Years Eve 2014, she went to pick the accused up from Campbelltown Train Station, and as soon as he came into the car, he asked her if she had slept with Mr Kelly. She stated that the accused kept asking her, and she told him that she did not sleep with anyone, and had never slept with Mr Kelly. She stated that the accused was "very angry, very aggressive" and kept repeating the same question. She asserted that the accused told her that she was "good for a slave", did not have a "good mentality" and was "not a good person", a "prostitute" and "like [her] mother, a bitch." She further stated that the accused again asked her: "How many times did you sleep with Glen" and she replied: "Stop asking me those questions because I have already told you." [620] 3. She then proceeded to drive home and the accused kept asking whether she had slept with Mr Kelly. The complainant again denied the accusation, and stated that the accused was "just looking at me straight" and was scared she might be hit. [621] She arrived home and the accused continued to ask her whether she had slept with Mr Kelly, and she responded: "I told you I didn't sleep with Glen" and that if the accused did not want to stay with her, then he should leave her alone. [622] When the accused continued to ask whether she had slept with Mr Kelly and she said that she did not, the accused got angry and is said to have struck the complainant on the head with a closed fist. He subsequently hit the complainant on her shoulder and she started to cry. Her children then came running down the stairs to check if she was okay. [623] At that point, the complainant was tired and wanted to rest, but the accused did not let her. She stated that the accused wanted her to admit that she had slept with Mr Kelly, and said to her that it would have been acceptable for her to have slept with an Indian man, but it was not acceptable for her to have slept with an Australian man. [624] The complainant stated that the accused continued to argue with her and she gathered the children and left the house for a walk. 4. Their next door neighbour, Tipi (Tuaupua) Fepulea'i is said by the complainant to have come over and asked her if she was okay. She stated that she did not want to stay at home because the accused was hitting her. Tipi is then said to have told the accused: "That's not right what you are doing to [the complainant] and it's not good for the children." Tipi Fepulea'i is then said to have told the accused to "stay home" and that she would take care of the complainant. As the complainant was making her way to Tipi's house, the complainant stated that the accused kept "calling me, keep calling me." At this stage, she stated she was seen by her neighbour Ms Bhavna Ahluwalia [625] who she referred to her earlier in her evidence in relation to incident 11. 5. The complainant stated that she told Tipi Fepulea'i that the accused was calling her and she had to see what he wanted. The complainant stated that she made her way back to her home and the accused was sitting in the front of the house and the accused asked her to sit beside him on the chair. At that stage, he spoke to her at the front of their house. [626] Bhavna then asked her: "Aunty, what's going on?" The complainant told Bhavna that the accused was hitting her. This discussion was said to have taken place as the complainant was walking home from Tipi's house. [627] The children at this point, remained at Tipi's house. [628] 6. The complainant stated that as she and the accused were sitting outside their house, Bhavna and her sister, Namrata Ahluwalia, said to the accused: "Leave Aunty alone, don't speak to her." [629] The accused is then said to have responded: "Just get out of my compound, you're not allowed to be here." [630] The complainant stated that the accused then held her hand, and Bhavna and Namrata wanted to take her to their house for a break, but the accused would not let her go. Bhavna and Namrata were pulling her from one side and the accused was holding the complainant's hand. The complainant then said to the accused: "Let go, I just go and talk to them and come." The complainant then proceeded to walk with Bhavna and Namrata to their house, as Bhavna said: "If you don't let aunty go I'll call the police." [631] 7. The complainant stated that she had concerns about Bhavna contacting the police, because the accused would be "locked up" and he would "lose his job" and this would be "more trouble for me." [632] By "more trouble", the complainant was referring to the accused being "more aggressive and more abusive." [633] She stated that the accused was "very, very aggressive [and] just wanted me to come back." [634] The complainant then stated that she went into yard of Bhavna's house and they closed the gate. The accused came up to the house near the gate, and Bhavna said to her: "This is not right, you have to call the police, this is too much on you." The complainant then said that the accused told her not to listen to anyone else but him. [635] The complainant stated that at that point, Bhavna called the police. [636] The complainant was inside the gate and the accused was on the other side. [637] When Bhavna was contacting the police, the complainant stated that she went home with the accused. The complainant stated that she was scared that if she stayed with Bhavna and Namrata, the accused would be "very mad" and "very aggressive" and she did not want "more trouble" as she "had enough trouble." [638] 8. When the complainant came home, the police arrived and they asked her if something had happened. The complainant denied that anything had happened and told the police that she did not call them. The officers asked the complainant if the accused had hit her – the complainant denied that he had done so. [639] In examination-in-chief, the complainant admitted that what she said to the police was not the truth, but stated that she wanted to "save him" because if the accused was charged, then he would "lose his job" and she would not be able to "put the mortgage for the house, not able to pay bills, I was not working, children, food and pay for the car." [640] The police also asked where her children were, and the complainant informed them that they were at Tipi's house. She subsequently stated that JS was at Bhavna's house and WS was at Tipi's house. 9. According to the complainant, the police then proceeded to talk to the children and brought them back to the house to ask them what happened. At that point, the complainant stated that JS said to her: "Mum why don't you open your mouth, why don't you tell the truth? Because you have to tell the truth." [641] She told JS: "Don't worry, let mummy talk about this, let mummy figure it out." [642] The complainant stated that she did not know where WS was at that point. [643] The accused was subsequently seen by the complainant to be handcuffed and to be taken to the police station. The complainant maintained that whilst she was in the presence of police, she did not provide an account as to what had happened. [644] She stated that this was because:- "… once I have done this and I'm getting beaten, he hits me, he beats me, he verbally abuses me, it was too much for me, so I didn't want to do much more to cause more problems, just to ignore." [645] Thereafter, the complainant's understanding was that court proceedings were brought as a consequence of what had occurred. These proceedings were said to have taken place on 13 January 2014. [646] 1. In cross-examination, the complainant was challenged as to her assertion that she picked up the accused from Campbelltown train station when he was returning from work. The complainant was shown the accused's work roster of 31 December 2014 [647] and conceded that it recorded the accused as "sick" on that day. [648] The complainant stated that she did remember that the accused cut the grass in the backyard on that day, but maintained that she was not lying about the accused going to work. [649] She stated that she did pick the accused up from Campbelltown train station but she may have mixed up the days. [650] She stated that she picked the accused up at 3:30 – 4:30 pm, [651] and conceded that she would normally pick him up at Leumeah train station as the Campbelltown train station was further away. [652] When asked whether she remembered the day very well, being New Year's Eve 2014, she stated that she remembered the incident. [653] She maintained that sometimes the accused went and picked up his bag in the morning, left and said that he was going to go to work. When the accused would call from Campbelltown, the complainant knew that he was coming home from work. [654] 2. Following further questioning, the complainant conceded that she picked the accused up from Campbelltown train station and remembered the incident, but not the day. [655] It was put to the complainant, that she made up the drive from Campbelltown train station and that it did not happen. She rejected this, stating that it did happen and that was why she "put it down on paper." [656] She rejected the suggestion that she lied to the police about picking the accused up from Campbelltown train station. [657] She further rejected the suggestion that she created the story "without a thought of integrity." [658] She also rejected the suggestion that she told lies about the accused hitting her on New Year's Eve 2014 on the lounge. [659] It was put to the complainant that she and the accused were sitting in the front of the garage after she had come home from shopping, and she replied that she remembered this occurring. [660] When it was suggested to her that the accused was "touching" her on her shoulders when the two neighbours (Bhavna and Namrata), the complainant stated:- "He hit me first inside the house then we came outside. He told me to sit with him acting that nothing happened. I was sitting with him, he was pointing me and he was talking to me, he was pushing me on my shoulder then the girls arrived." [661] 1. The complainant stated that she remembered that the accused was chasing the girls away from the compound. [662] Earlier in questioning however, when asked whether the accused hit her in the car, she stated that "things happened" but at that moment, she could not remember it. [663] When she was asked whether the accused had kicked her when she brought him home in the car, the complainant stated:- "When I came home I remember I was going upstairs. Things did happen but I can't remember exactly at the moment." [664] 1. It was subsequently put to the complainant that she told lies to the police on the occasion of 15 December 2014 so that the accused could be arrested for breaching his bail on New Years' Eve. She rejected this suggestion. [665] 2. The complainant had put to her, the contents of an affidavit that she swore before Ms Buttress, solicitor. Parts of that document were tendered as Exhibit AP, which was an affidavit filed in family law proceedings between the parties. In that statement, at [110] – [114], the complainant conceded that she stated:- "[110] On New Years Eve DS then breached that AVO. On New Years Eve in the afternoon DS was saying words to the effect of 'I know you're having an affair with Glen, I'm going to catch you, what's going on, tell me everything.' [111] I was saying to him words to the effect of 'Just leave me alone. I don't want to talk about it anymore'. [112] DS then approached me, punched me in the face, pushed me to the ground, commenced kicking me and hitting me. [113] My face was swollen, I had bruises on my stomach, my legs, my breasts and my back. [114] My face was so swollen and it looked quite severe, it was quite noticeable that I had been hit in the face." [666] It was then put to the complainant that no injuries were seen by the police. She stated that she "didn't show them" because her "hair was down." [667] It was suggested to the complainant that she was lying about being assaulted in the face, and she responded by stating that the accused did assault her. [668] It was put to her that Constable Carlie Evans only noticed a small cut on her elbow, and the complainant responded by stating that the Constable could only see what was on her elbow but if she had lifted her clothes up, the Constable could have seen "what's got on the inside." [669] She stated that she did not recall Constable Evans asking her how she got the elbow injury. [670] 1. The evidence as to what was on the complainant's elbow appears to have come from an account given by JS who told police that the complainant had been pushed violently into the microwave. [671] 2. So far as contact with her family was concerned, the complainant conceded that she spoke to her brother, Mr Kamlash Chandra, on the day at 6:00 pm. [672] She stated that she did this when she went to Tipi Fepulea'i's house. [673] It was suggested to the complainant that she told lies about not being able to contact her family like her brother and sister. She maintained that she was not lying. [674] 3. It was further put to her that the accused never isolated her from her family and that she had her own issues with her sister. The complainant responded by saying that "anything can happen in any family." [675] When pressed, the complainant stated that she did not have her own issues with regard to her family. [676] When it was put to her that she did have an issue with her sister-in-law Indira, the complainant stated: "not specifically." [677] She conceded that her brother and his family came to her house in October 2014, that she went to a birthday get together at her brother's house at the end of 2014 and that she went with her cousin, Ms Suarez, to a birthday with their children. [678] It was also put to her that she did not ask for permission to go to the beach with her children on New Years' Day after he was arrested. The complainant responded that she had told her brother, and that she thought she was old enough to make the decision to take the children to the beach with her neighbours. [679] 4. In relation to events of 31 December 2014, little specific evidence was given by Fiti Fepulea'i and Tipi Fepulea'i. Mr Fepulea'i stated that he lived across the road the complainant and he had limited contact with the accused and the complainant, except in the exchange of greetings. [680] He stated that the children of the complainant and the accused did come over to his house "after." [681] He stated that when he came to live across the road, the family of the complainant and the accused appeared to be a "quiet" one. [682] 5. Mrs Fepulea'i stated that she came to know both the complainant and the accused, and spoke to them as neighbours. [683] She stated that the complainant told her that she had been having problems with the accused and described it as "like he's being abusing her" [684] – that was all that the witness remembered being told by the complainant. [685] She stated that the complainant came around the house and started telling her things about how the accused was treating her inside the home. [686] She stated that the complainant looked stressed but did not see any police go over to the house. [687] Neither Mr nor Mrs Fepulea'i were cross-examined by the accused. 6. Ms Bhavna Ahluwalia gave evidence that she had resided in a neighbouring property in Carrington Circuit, Leumeah since 1998 and had known both the complainant and the accused, as husband and wife, together with their two children, JS and WS. She recalled that they had moved in around 2010 or 2011. [688] 7. Bhavna Ahluwalia described the relationship with the complainant as one which grew closer over time. [689] As a sign of cultural respect, Bhavna Ahluwalia called the complainant: "Aunty" and the accused as: "Uncle." [690] Bhavna Ahluwalia saw WS and JS as her younger siblings. [691] 8. Bhavna Ahluwalia stated that her relationship with the complainant and her family grew stronger over time and she had occasion to observe the nature and extent of the contact which the complainant had with the accused. [692] She stated that she heard screaming, yelling, shouting and the children yelling at things, and over time it got worse. [693] When she would go to the property, the complainant would usually tell her that nothing had happened. [694] She stated that the complainant would always "put a curtain over it. Like, sweep it under the rug." [695] At those times, usually the accused had gone out. [696] Bhavna Ahluwalia stated that the complainant would say: "Don't mention it to anybody. It's just house matters. Don't tell [the accused] that I came here." [697] 9. Bhavna Ahluwalia stated that as time progressed, the children would call to her for help. [698] She stated that in the initial stages she did not see anything for herself, but when she would go over and the accused was home, she could see that "things were all over the place." The children would then come and say: "Daddy just pushed me here." [699] She said that she recalled going over from about 2010. [700] She went over quite frequently, at least three times a week. She stated that initially it was "hush hush" and subsequently changed when the children started "saying more things and telling [her] exactly what was happening." At this point, the complainant was observed to have bruises and Bhavna Ahluwalia knew that "something had gone down." [701] Over time, the contact increased, particularly from 2015 onwards. [702] She would then go over about four times a week. [703] She stated that when she started observing the bruising, she would ask the complainant what was happening and eventually the complainant started telling her that the accused hurt her. The complainant would ask her not to say anything because she was concerned about the safety of the children, and that they might get taken away, or that something would happen to her. [704] 10. Bhavna Ahluwalia stated that she observed that the complainant had gotten thinner over the years and during 2014, each time she would go over, the complainant would just look "weak" to the point where she could not "carry herself properly." [705] 11. Bhavna Ahluwalia stated that after at least one to two years, the complainant commenced talking to her about some of the things that were happening. She stated that the complainant would be very brief, referring to arguments about money, the accused's gambling habit, and the fact that WS was sick and she was being questioned by the accused as to why she gave birth to a sick child. [706] She stated that the complainant told her that the accused got angry, had not been treating her well, and would subsequently down play the significance, for example, by stating: "Yeah, we had a fight, maybe just push and shove me." [707] Bhavna Ahluwalia said that she would hear from the children and she would question the complainant about what was wrong. The complainant would respond by stating that she was "too scared" and that she did not want to "say much because it will you know, land on me or something." [708] She stated that the complainant blamed herself, accepting responsibility for not being able to take care of the children properly. [709] The complainant had also stated to her that she was "so scared" and did not want to say anything. [710] 12. Bhavna Ahluwalia stated that the complainant would request her not to say things to the accused when she visited friends and on other occasions, when the complainant was not able to drive the car, and requested her to take her to different places. [711] She stated that the complainant told her that the accused had taken the keys to the car, or that she did not have enough money for petrol. [712] She stated that the complainant did not have the confidence to make decisions for herself, and the constant self-blame became as though it was the truth. [713] 13. In late December 2014, Bhavna Ahluwalia stated that the complainant disclosed to her that the accused suspected her of having an extramarital affair. The complainant advised her that the accused had the wrong understanding, that he was not being good to her, and that it was not her fault. [714] She stated that in late December 2014, she heard some screaming from across the road, and then saw the complainant and her two children, WS and JS, walk past the pre-school. The complainant stated to her: "I can't do this, stop, no more." [715] She stated that the complainant was standing in front of her at the time, and she was able to see her clearly because there was no obstruction. [716] She asked the complainant: "Are you all right?" and "Okay, you're all right, you can't do what?" but the complainant kept repeating: "I can't do this, I can't do this, I can't do this." Further, she stated that the complainant was in a state of shock and then she walked back into her house. Bhavna Ahluwalia then stated that she went back inside her house. [717] 14. She said that she noted that her neighbours, who were "Tongan Samoan" were outside. [718] She subsequently heard some more screaming and saw her neighbour: "She's in shock" and asked: "Should I call the police?" Bhavna Ahluwalia replied: "I don't know." [719] At this time, she heard JS' voice calling out her name. [720] She then stated that her and her sister, Namrata Ahluwalia, went across the road. [721] She said that she saw the accused and the complainant sitting on a chair outside the garage, and she did not go into the house. [722] She asked the complainant if she was "okay" and Namrata Ahluwalia asked the same, but the complainant would not respond. She stated that the accused said: "Everything's fine. Everything's fine. Don't worry. It's between me and my wife." [723] She stated that she was shaking the complainant but she "just didn't make sense, like she wasn't speaking anything." [724] She stated that she said to the complainant: "Okay we'll take you across the road" and the accused grabbed the complainant's hand. The complainant was crouched in the chair. [725] She stated that she had not observed the complainant like that before. [726] She said that the complainant was not responsive, but at one point, when she shook the complainant, she stated: "It's okay" and "Leave it. Leave it. Leave it." She stated that she replied: "But you don't look okay" and felt that she could not leave the complainant, asking her: "How can I leave you the way you look?" [727] She stated that the accused was sitting in the chair, saying: "It's a family matter. It's between me and my wife and my kids," [728] and he had also told her: "Get off my property" because it was none of her business. [729] 15. She stated that her sister, Namrata Ahluwalia then went to grab the complainant's wrist and the accused grabbed the wrist of the other arm and said: "You're not taking her anywhere. This is between us." She stated that her sister replied: "You can't touch her" and her sister was pushed backwards by the accused. The accused stated; "If you don't get off my property I'm going to be violent against you." [730] She stated that at the time the complainant had no comprehension of what was happening to her as she was in shock, and she would not forget the complainant's face as she was "literally - she was not responding properly." However, when the push happened, the complainant "realised what had happened" and stated to Bhavna and Namrata Ahluwalia: "You better go home." [731] When the accused pushed Namrata, Bhavna responded: "How dare you touch my sister" and the accused replied: "Well if you don't get off my property, I'm going to be violent towards both of you." [732] The complainant then responded, requesting them to go home and at that point, Bhavna and her sister left for their house. [733] Bhavna stated that at that point the accused was angry and she started having a discussion with her sister about calling the police. As they were walking to their house, Bhavna noticed that the complainant started to follow them. The accused remained at his home. [734] 16. As Bhavna and Namrata Ahluwalia were entering their gate, the complainant, who was in the front yard, pleaded with them to not call the police. The complainant stated: "Please don't call the police. Please" to which the witness responded: "But your kids … Look at them" and "They're in distress." [735] She stated that at that point, the complainant's demeanour was scared and fearful. [736] Bhavna Ahluwalia stated that once the complainant was inside the gate, she repeated: "Don't call, don't call." She stated that her sister replied: "No we're going to call" but this had "already been done by the neighbour." [737] She stated that the accused ended up coming inside her property and behind the complainant. She stated that at that point, her sister, herself, the accused and the complainant were present. 17. Bhavna Ahluwalia stated that she said: "Your kids, they're being affected, they're being affected," and that "They're going to take your kids away." The accused is then alleged to have said: "Well, they can take WS away, it'll give you some freedom as well." Bhavna Ahluwalia stated that she remembered those words "vividly." She stated that the accused was angry at the time and the complainant continued to state: "No my kids, my kids … I want my kids." She stated that the complainant repeated: "Please don't call the police …. It's a house thing, it's a family matter." [738] She stated that her sister then told both the accused and complainant to: "Get off our property" and they left through the back gate. [739] She stated that the accused did not drag the complainant, and she and the accused "both walked out." She stated to the complainant that she could stay at their property "until you know, you calm down at least." The complainant did not do that and "just wanted to go home." [740] She stated that when they left, she did not observe any physical contact between the complainant and the accused. 18. Bhavna Ahluwalia stated that she made a statement to the Police on 31 December 2014 at Campbelltown Police Station. She stated that she remembered that it was New Years' Eve because they were having a celebration at their home at the time. [741] 19. At the time, Bhavna Ahluwalia's sister was pulling the complainant from one wrist and the accused had the complainant's other wrist. Bhavna Ahluwalia stated that the accused told her that it was a "family matter. It's between my wife and my kids" and was telling the complainant "Don't say anything … It's between us. It's between us." [742] The accused is also alleged to have stated to the complainant: "You're not going anywhere" and "I can whatever I want. It's my wife. I'm her husband." [743] 20. After being invited to refresh her memory from her police statement, Bhavna Ahluwalia stated that as the complainant left her house, she called her back. [744] She remembered the accused pulling the complainant back home. [745] 21. In cross-examination, Bhavna Ahluwalia stated that the complainant had, prior to December 2014, been vocal about her kids, WS's cancer and about the accused working on the railway. However, the complainant's "vocalism" about her domestic life became "more prominent over the years." [746] She conceded that in December 2014 and January 2015, the complainant did not tell her that the marriage was over, although she was told that the accused had discovered that there was somebody coming to their home which he was not happy about. [747] She stated that on New Years' Eve 2014, she could not remember the complainant having facial injuries. [748] Her evidence was that the complainant was "changing" in 2014 and 2015, in that she became "more wary" and she was not as "quiet about what was happening to her. She was at least telling me." [749] However, the complainant then became "lost. She forgot things … she wasn't her normal self." [750] She stated that the complainant was always "watching what she's doing" and was "carefree initially and then over time she didn't." [751] 22. Namrata Ahluwalia gave evidence that she first met the accused and the complainant in around 2011. She stated that at first, the family was quiet and discreet but over time, she heard noises being shouting and screaming. She stated that this happened every few days, once she "really got to know them" which was about "six months into them moving into the place." [752] Before December 2014, she made observations of the complainant being scared every time she would come over to her house. She stated that the complainant's eyes would be "puffy" and that she would be crying. [753] She stated that the more they started talking, the more the complainant became close with her family. The complainant would tell her things that would happen in her home that made her feel scared and vulnerable. [754] She stated that she recalled the complainant mentioning one incident where tooth broke, before New Years' Eve, when she had come over to their house. [755] She stated that apart from her disclosing things, and her puffy eyes, she noticed that the complainant had lost weight. [756] She observed this at the start of 2014, around January and February. [757] She stated that during the hours that the accused was at work, she would visit the complainant's house. However she would not visit if the accused was at home, because he was "rude and arrogant" and she did not want to cause trouble in their house. [758] She stated that a lot of the complainant's disputes with the accused were about money, but the complainant had never stated who was at fault. [759] 23. On 31 December 2014, she had returned from work, got out of the car and saw her neighbours who were from New Zealand or Samoa [760] spoke to them and then looked at her sister, Bhavna Ahluwalia, who was on the phone. She approached her asked: "What happened?" and then proceeded to walk to the complainant's house. 24. Namrata Ahluwalia stated that near the garage she saw the accused sitting down and the complainant standing up. At one point, they went into the premises in front of the garage, and she asked them: "What's going on?" The complainant did not reply and described her as being "in shock." She stated that "nothing came out of [the complainant's] mouth" when she was asked the question. [761] The complainant's demeanour at the point was very scared, and was not replying to her. [762] The witness stated that she heard a conversation between the accused with the complainant. She saw the accused look at the complainant and state:- "Think about what you are going to say, whatever you say is going to put me down and the family down." [763] This according to her, was stated when they were at the garage. [764] 1. Namrata Ahluwalia said that the accused said: "Nothing happened. This is a family matter." [765] She stated that the accused told her to "go away, it's a family matter." [766] She stated that the accused got up, grabbed the complainant's hand and said: "Let's go inside and sort this out. It's a family matter." The accused grabbed the complainant's arm in a "tight grip" and it was so tight that she could see "veins popping" from his arms as he used so much force, and the complainant's hand was limp. [767] She then grabbed the complainant's other hand and said to her: "You need to come over. You need to think about your kids." [768] She stated that the complainant was walking away with her, but the accused grabbed her and was "holding onto her with such a tight grip that he wouldn't let her go" and broke them apart and then pushed her using both of his hands. [769] She stated that her sister, Bhavna Ahluwalia stated: "Don't touch her. I will call the police." She stated that she and her sister, and the complainant walked to their house and closed the gate, before the accused followed. He is alleged to have said to the complainant: "Let's go back." The children WS and JS were playing with children next door. [770] 2. Namrata Ahluwalia stated that the accused was outside the gate, and he opened the gate to come into the front yard. [771] She stated that she said something to the effect of: "You need to think about the kids. This is not fair on them." The accused is alleged to have said to the complainant: "Well let DoCS take WS. He's one less worry for you anyway." [772] She then stated that she and her sister said to the accused that they would call the police if he did not leave their property, and the complainant was insisting that the police not be called. [773] Thereafter, both the accused and the complainant went back to their house. [774] She stated that the accused was insisting that they return home to "sort it out." [775] Thereafter the police arrived and she spoke to the police, making a statement on the day. [776] 3. In cross-examination, Namrata Ahluwalia was asked whether she was aware that the complainant had "full front teeth" and that they were in fact, false teeth. She replied that she did not know. [777] 4. She conceded that when the complainant left with the accused from their property, the accused did not pull or drag the complainant away. [778] She stated that she saw them walk. [779] She conceded that she had not seen the accused assault the complainant. [780] 5. In re-examination, Namrata Ahluwalia referred to the incident when the complainant jumped off the top balcony and stated that the complainant had told her that the accused said: "Either you jump or I'm going to kill you." [781] 6. The accused was interviewed regarding the events by the police and the recorded interview was marked as Exhibit AH. The accused told the police that he did not know until the police had arrived at 8:30 pm, and that the neighbour had called. He stated that he spoke to different police officers and said that he did not do anything wrong, and that his wife had also spoken to police separately, and that they had agreed that there was nothing to talk about and there were no problems. According to him, he did not complain nor did anyone else complain. [782] He stated that after midday, his family went shopping, including his wife and two children and thereafter cut the grass. Following the complainant returning, he insisted removing things from the car and then they cooked fish outside. [783] He stated that from 7:00 to 8:00 pm they were watching television and the complainant was with him. He stated that she was probably getting the kids in order. [784] He stated that the complainant was telling him about a picnic or camping at Bulli with some families. [785] 7. It was then put to the accused that Bhavna Ahluwalia had prepared a statement. He stated that he did not know who she was. [786] He stated that there were a few people that he spoke to if he needed to, but he would otherwise mind his own business. [787] He stated that he spoke to the father, but besides him, he did not know anyone's name. [788] He stated in the interview that he never assaulted the complainant and that the complainant had plates up the front of her teeth. [789] He denied that the complainant had a broken finger or broken tooth. [790] Notwithstanding his earlier interview to the police, he stated that he had never assaulted the complainant or that he had done anything wrong. He further stated that he did not know why the children called out, but Bhavna Ahluwalia did not turn up on that day. [791] 8. The accused stated that the complainant was with him all the time. Further he did not know about Bhavna seeing the complainant and the children walking towards their house from the preschool, and appearing extremely distressed. The accused stated that she never left the house and repeated that the complainant was with him all the time. [792] He stated that subsequently the complainant went to the neighbour's house to go swimming but he did not know about this. [793] The accused was then questioned about the circumstances where the two sisters came across from their home, to take the complainant away. The accused stated that they were dragging her. [794] The accused then asked them what the problem was and denied grabbing the complainant's left wrist and pulling her towards him. He also denied saying things to the effect of: "She's my wife. She's not going anywhere. I have the right. I can do whatever I want." [795] He denied the various events that were relayed from the evidence of both the sisters, including the suggestion that he used his arms to push one of them on the chest. [796] He stated that he did not know why the two girls had shown up and denied threatening them with violence. [797] He conceded that he subsequently went across the street, but did not go into the house of the two sisters. He said that he went and visited the complainant. The complainant at that point went back inside the house, he came outside and she was there. The complainant is then alleged to have told the two girls to leave. [798] He stated:- Q135. Yeah A. These two girls threated her for something. I don't know what she was threatening. [AS] was saying, No, don't do that. You're not allowed to, sort of, well, she was trying to threaten them for something. I don't know what she was trying to threaten. The accused then added that he was not there. [799] 1. The accused was then questioned in relation to the statement provided by Namrata Ahluwalia. The accused stated that she did not know her real name, but knew that the two girls had come over that night. [800] He denied that there was any screaming and yelling, but agreed that the two girls had come over to where he was living. [801] He denied the version of events given by Namrata [802] and specifically rejected the allegation that he had pushed one of the sisters with both his hands, or that he grabbed the complainant's wrist and pulled her towards him. [803] The accused admitted that he went to the neighbour's house which was number 19, where the family was going to go to Bulli. [804] He said that he spoke to the complainant out in the front yard and after that, they returned to the house, with the complainant coming behind him. [805] When asked about what motive the two sisters would have to "say something that has happened if it hasn't?" The accused replied:- "Well, you can already see that they are telling lies. They say in the six months they've seen people have been yelling yet they never call the police. They didn't talk about any yelling today. They telling lies. I asked the father to pay me my money. Said, this has gone haywire now." [806] The accused stated that he went down to the neighbour's house that evening and saw the father, and asked him where was his money. [807] 1. The accused conceded that he was aware that there was an AVO in place between himself and the complainant by replying "Yes, something like that." [808] He stated that it had been in place for a "short amount of time." [809] He denied having arguments with the complainant that night. [810] He stated that there was no domestic violence in their house and he did not know why the AVO was put in place in the first place, but had a lawyer defending him. [811] He rejected the suggestion that he and the complainant agreed not to tell the police that anything had happened. [812] 2. Insofar as the complainant's broken finger was concerned, the accused stated that there was no medical record and he was not aware that she had ever broken her finger in recent times. [813] That answer obscured the events of the 12 December 2014. The accused stated that he saw the complainant hit her elbow on the door, but she did not complain and she never told him that she had a gash on her elbow. [814] 3. It was put to the accused that police had spoken to his daughter, JS, who informed them that she was petrified of him. He rejected this, stating that JS was a young girl, "a young child led by two other older girls is not good." [815] The accused was asked whether his wife had a mobile phone and he stated that it was broken at the moment. He was then asked how that happened and the accused stated that he did not know. [816] If this was a reference to the phone that he had been given by the complainant then in light of the accused's earlier interview it would be untrue. He stated that he did not know why the police had been called, and that he and the complainant had a very cordial relationship for over 18 years and hoped that they could "go on three times that." [817] This was untrue in light of the statements the accused made to the complainant at the time he had decided to sell his house, which the complainant accepted. [818] This cannot be reconciled with the fact that the accused had told the complainant that he was going to divorce her on 25 March 2015. [819] INCIDENT 21 1. The complainant gave evidence that following the above incident, she and her children went camping with Mrs Fepulea'I and her family for two days. [820] 2. The complainant stated that the accused had subsequently called her from the train station and asked her if he could come home. She stated that she told the accused: "I never told you that you can't come home" and proceeded to pick him up from Leumeah train station. [821] At the time, the accused was the subject of an apprehended violence order [822] and the complainant believed that this was for the matter for which the accused was taken away from the house. [823] Following that, they both went to Court on 13 January 2015 however, the matter was adjourned to 6 March 2015. She stated that the accused's demeanour in Court was calm and quiet, but when they returned home in the car, the accused was agitated and aggressive [824] and said "nasty things" to her. She said that the accused was telling her that she was "not a good person", that she "can't have children" and that she was "like [her] mother." [825] 3. In cross-examination, the complainant stated that she went to Court on 13 January 2015 because the accused told her that she had to go to Court, and he wanted her to drop the apprehended violence order. [826] However, under subsequent questioning, she conceded that the accused arranged for funds for a lawyer to be withdrawn on 22 December 2014. [827] She later stated that the money was withdrawn but she did not remember the date. [828] She conceded that the amount in question was $65,000. [829] The complainant did not agree that she was aware about moving out from the house on her own as at 13 January 2015. [830] 4. In cross-examination, the complainant accepted the contents of the documents tendered as Exhibit 8, which demonstrated that the sum of $65,000 was entered into the complainant's bank account on 22 December 2014 from Pepper Home Loans Australia and then transferred the amount of $60,000 from that account, to the accused's bank account on 29 December 2014. [831] The complainant conceded that if the bank statements revealed the transactions occurred in December then she accepted it, but she put in her police statement "whatever came to [her]." [832] The complainant accepted that she said the accused took all the money and never left any money behind. [833] It was suggested to the complainant that the reason why she made up all the false allegations of assault and sexual assault was because the accused had taken all the money. The complainant rejected this, stating that she did not and that she was "not greedy for money either." [834] It was put to the complainant that she was motivated by greed to make the false reports to the police when she realised that the accused had taken the money. She rejected suggestion. [835] 5. Otherwise the complainant was not cross-examined as to her evidence of the accused's actions following Court on 13 January 2015. INCIDENT 22 1. Following 13 January 2015, the complainant gave evidence about an incident involving her and the accused at the fruit market at Minto. She described the incident as follows:- "DS returned from work and he asked me not to bring any children with me and I have to drive by myself to pick him up. So I drove myself, I left the children home and picking him up from Leumeah train station, and I drove it towards Minto to there's an Indian shop. So we went to the Indian shop. And then while we were coming towards the roundabout he told me to pull the car, there's a reserve. So when I pulled the car he started to ask me about all the questions about Glen. And as soon as I wanted to open the door because he was then he hit me, I thought that he was going to hit me more, I opened the door and I jumped out of the car and I ran towards the main road. And he ran after me, and I hold the bushes tight and I didn't let it go." [836] 1. She stated that afterwards they went to the Indian shop that was near the Minto train station, but only the accused had gone in. [837] The complainant stated that she jumped out of the car and ran towards the main road, and held the bushes tight. She stated that she was about a metre or two metres from the road. [838] She did not know the name of the road, but knew there was a big roundabout because it was close to the shopping mall and other shops. [839] There was traffic on the road at the time and after she held onto the bushes, the accused held one of her hands. [840] She then observed two people pull up in a four wheel drive, jump out of the vehicle and come towards them. They then asked the accused: "Let go [of] this woman. Who is she to you?" The accused let her go and they were both standing there. [841] 2. The complainant stated that she did not know where these people were from, but they had later informed her that they were army officers. [842] She said that the accused was staring at her with his eyes, and she was quiet, numb, depressed and "just in shock." She also stated that she was "sick because of all the beatings, night time, all the time." [843] She stated that the accused was "saying things with his eyes" which was something that she had felt previously. She stated that it meant that she should "watch out" and "be careful what you're doing." Accordingly, she did not open her mouth, did not say anything and pretended that nothing had happened. [844] She said that the males asked her if she was "all right" and if she needed help. The complainant replied that she was all right but was "not in my mind." The two males were on the phone and then the complainant wished to go home because she was concerned about the children. The complainant went back into the car and drove. [845] 3. The complainant stated that the accused got in the car before she drove straight and then through a roundabout. The two males were following them and the accused told her to turn at the roundabout to go to Minto Mall. She went into Minto Mall, parked the car and she saw that the two males parking their van. The accused and the complainant got out of their car and went into Minto Mall to buy avocado, and the accused told her to pretend as if nothing had happened. She stated that the accused at this point, was holding her as "I'm a loving wife." [846] The complainant stated that she did this so that the people who were following them did not suspect anything. [847] She stated that all the time they were being pursued by the two people and observed that they were on the phone. [848] She later clarified this, by stating that one person was on the phone whilst the other person was driving. [849] She stated that she was confused and did not know what to say and she wanted to go home to see her children. [850] After she went to the Minto Mall, she and the accused went home. [851] 4. In cross-examination, the complainant could not confirm the precise date of the incident near Minto Mall, but it could have been the 16 January 2015. [852] She reiterated that the accused had hit her in the car, and that was why she tried to open the door. [853] When it was put to her that she told lies about the assault, she denied this, stating that she had told the truth. [854] It was put to her that she was trying to run onto the road and hurt herself but the accused ran and pulled her back. She rejected this suggestion. [855] It was then put to her that if she was scared of the accused, she would have told the people at the scene. She also rejected this, stating that the accused was shutting his eyes. [856] It was next put to the complainant that she was manipulating the accused to see if he would do anything to stop her from committing self-harm. However, she also rejected this suggestion. [857] 5. The Crown called Mr John Overall. He was a nurse paramedic in the Australian military, who on 16 January 2015 was driving towards the shopping centre on Pembroke Road in Minto. His evidence was that as he drove through a roundabout that day he noticed a lady in a struggle, an altercation with a man. He stated that both were of Indian appearance. The female from what he could see was trying to get away from the male. She was trying to pull her hand away at wave down cars with the other and the male was holding her with two hands on her right hand. He observed the lady to be quite distressed and was in what he regarded to be a "threatening situation". At that point, Mr Overall stated that he was not able to hear what was going on although when prompted by reference to a statement he had given to police, he recalled that there was screaming and crying. [858] He then stated that he could visually see the woman's face moving but could not hear what she was saying. He stated that he then pulled over and heard a language that he could not understand. [859] The traffic at the time was light. [860] 6. According to Mr Overall, he spoke to his companion Mr Nicholas Simone in the car and said something before parking his car to get out of his vehicle and moved forward to engage with the couple. He asked: "what's going on? Let' go of her." He stated that the male responded by asking who he was. He stated that he could not recall further conversation at that time although he did identify himself. He then stated that he gave the male commands to move away. He stated that the male responded by asking: "Who are you? You have no authority here." [861] At that he stated that he kept telling the male "please go" but quite aggressively, telling him to move back to his car and to move away and to stand near his vehicle so he could speak to the lady without him being present. Ultimately Mr Overall spoke to the female and asked "what's going? What's happening? Why is this man trying to hurt you?" [862] 7. Mr Overall observed that the female was submissive and the majority of the time that he asked a direct question she was looking over her right shoulder, making eye contact with the man who he had commanded to move away. He stated that the female was he quite visibly shaken and she did not really answer any of his questions. He asked the male to move to the vehicle and the male was pacing backwards and forwards approaching a few times whilst he was speaking to the woman. At one point early on he heard the male state: "Don't say anything" whilst pointing with his one finger with his right hand. [863] Subsequently he stated that the male told the female to get in the car as they were leaving right now. He stated that despite telling them to stay the woman complied and they left. He then followed them in his vehicle and rang 000. He stated that he saw them do a u-turn at the roundabout that proceed to Minto Marketplace. There he parked adjacent to their car and told them to stay as he had called police. However the male responded: "You can call whoever you want, you have no authority." They then went into the Marketplace and Mr Overall and his companion followed them. Mr Overall observed that there was no forcible contact but the female as not talking as she had her head down. He believes that they may have purchased fruit. When they were outside the male was again advised that police was called but did not respond and both left in their vehicle. He then contacted 000 a second time and gave a description of the vehicle and of the male and female. [864] 8. In cross-examination, Mr Overall stated that he did not see the female holding onto some bushes but confirmed he saw the male hold her right hand with both his hands and was facing the road. He stated that he did not see any apparent injuries but responded that he was not making a medical examination. [865] 9. Detective Duncan stated that in relation to Mr Overall she was aware that there was a 000 call made and the registration details of the vehicle alleged to have been involved in the incident indicated that it was registered with the accused at their residence in Leumeah. [866] CONFESSION AND PUNISHMENTS 1. The complainant's evidence was that from that point forward, when the accused was at work, he would contact her regularly, ten or eleven times, asking her whether she had slept with Mr Kelly. [867] She stated that the accused told her that he was going to take the television to Raymond Reddy, to take the satellite from the television and this would show the complainant and Mr Kelly having sex. She stated that the accused said that "it should be in the TV because these days the TVs are recording everything in the house." [868] She stated that she was upset as she did not do anything like that and did not have sex with Mr Kelly, but the accused kept saying it and confusing her. [869] She stated that at one point she got "fed up of all the questions all the time, every night and day …" and thought that she would "just say yes [and] I'll see what he does." [870] 2. The complainant was taken to her statement to police on 3 March 2015, and she accepted that the following statements put to her by the Crown were accurate: "Q. And just in relation to the second paragraph if I could read that to you and if you could read along, it states that: 'DS kept on going and going every single day, telling me `If you admit that you had sex with Glen 13 times I will forgive you.' but I have never had sex with Glen and I kept saying it over and over.' Third paragraph: 'But then after every day of torture and hitting me and abusing me I finally tell him `Okay, I did have sex with Glen.' but I was lying. It is my body, I would know, I did not have sex with Glen ever in my life.'" [871] The complainant stated that she was telling the police the truth. [872] 1. The complainant was asked to explain what she meant by the word "torture" and she replied:- "Because he was hitting me all the time. He was verbally abuse. It was just too much for me. I stopped eating, I couldn't sleep because I was ..(not transcribable).. to look after the children, driving I couldn't concentrate, everything on me. Finally I thought if I say "Yes" maybe he'll spare me and we'll be back together, him forgive me." [873] The complainant was then asked what she meant by the word "spare", and she stated that the accused was not going to chase her, or that he would not abuse her anymore, and would come to terms with her telling the truth. [874] The complainant was also asked what she meant when she stated that the accused would forgive her. She stated that she believed that the accused would "just to come to terms and just say that 'Okay you have done it. You have told me that you have done it. I forgive you.'" [875] She stated that she thought in her mind that by telling a lie that she had sex with Mr Kelly, the accused would smile and look at her, and thought that he would forgive her, and that they would "move on as a family." [876] 1. The complainant stated she lied to the accused, and admitted to having an affair with Mr Kelly. In response, the accused told her that she must have a "punishment" for every year that they had spent together. This was a total of eighteen years. [877] She said that she was "scared" and did not know what was coming. She stated that she "stayed there for [her] children" and because she loved the accused, and she thought that he would understand her. [878] She continued by stating that it was "heartbreaking, it was very upsetting" and that she had "stood beside [the accused] no matter what." She further stated that she "took everything on [herself] to save him, to be together because [she] loved him" and she was prepared to take the punishments because she loved him. [879] She also stated that another reason why she was prepared to take the punishments was because of her children, and in particular her sick son. She stated that she needed support as she was not working. She stayed with the accused because she had nothing and had nowhere to go. She further stated that people would talk about her, and suggest that she was not a good person, that it was her fault and that she must have done something wrong, and people would try to blame her. [880] 2. The complainant stated that when the accused first raised the idea of punishments, she agreed to it. [881] She stated that she agreed in order to keep her family together, because she loved the accused, and because she had not done anything wrong. [882] When asked whether she had any concerns for herself, the complainant stated:- "I thought that I am strong, have everything for my children and myself and for family. Inside me I wanted to be strong and I was staying strong to just put things together. He was having a good job so he's going to have a good job and then a time will come when we all forget everything and we move on so I just was holding everything tight for family." [883] When the complainant was asked whether she felt like she had a choice, she stated:- "At that time I didn't have a choice. Inside me I thought there is no choice, just not to stay, he will come to terms and he will realise that my wife didn't do anything wrong. I was waiting for him to realise that I have not done anything wrong." [884] 1. The accused submitted that the complainant had made up the 18 punishment story. As noted earlier in evidence-in-chief, the complainant had been told by the accused on 12 December 2014 that there was no repairing their relationship as husband and wife. [885] She accepted that the words: "friendly divorce" came up in conversation with the accused in December 2014 and January 2015. [886] 2. The complainant further accepted that the accused had told her family about their intention to go their separate ways, but stated that the accused stopped her from telling his family. [887] When it was suggested to her that the accused told her that there was "nothing [she] could do to repair the relationship of husband and wife," she stated that she recalled him saying to her to "first go to 18 punishments" and that then he would forgive her and keep her. [888] 3. It was next put to the complainant that the accused had said to her that he did not hate her, but he would not accept what she had done in the relationship. She responded that she was "just another woman", and that meant that he hated her. [889] She accepted that the accused opened his first bank account in late December 2014 [890] and was taking driving lessons. [891] The complainant did not accept that the accused, as at 12 December 2015, had moved from upstairs to downstairs in the house [892] although she accepted that he was sleeping downstairs in the lounge. [893] 4. The complainant also accepted that the accused told her that their two cats were not to be separated. [894] 5. On 17 December 2014, the accused opened his own bank account and what appears to be his work remuneration was deposited into it commencing on 23 December 2014. [895] Previously on 11 December 2014, it had been deposited into the complainant's account. [896] 6. There was evidence that the accused was cutting up new and old clothes with a scissors and asking the complainant to assist. [897] The complainant stated that the accused thought that he was no longer in the family and just wanted to get rid of his clothes. [898] That day the complainant stated that she went to Campbelltown Library with a person described as Tomasina from Campbelltown Community Care to complete forms for single parenting with Centrelink. [899] It was put to the complainant that this was on 20 January 2015 but the complainant did not appear to recall the actual date. She conceded that it was the day that she threw an aloe vera cream bottle. [900] The complainant stated that Tomasina was just outside the door at the time of the aloe vera incident, [901] and stated that the accused had rung her sister to tell her that the complainant would be going to Fiji without a nose and a mouth. [902] 7. The complainant stated that she left the forms for Tomasina to submit and could not recall what payments were coming. [903] When it was put to the complainant that she was lying about being separated from 20 January 2014 when this was not the case, she responded that the accused had talked to her and "he told me to say and he had co-operated." [904] 8. The complainant also gave evidence that she may have attended the domestic violence office in Campbelltown in December 2014 and January 2015, but she could not recall. [905] She conceded that Constable Lumas' number was in her mobile phone. [906] 9. The complainant conceded that the accused had told their children that they had to listen to her, as the accused was not the "boss" anymore. [907] She further conceded that the accused had destroyed some photos in their house in January 2015, but stated that he did not destroy them all. [908] 10. The complainant did not recall the accused stating to her that there was nothing in the Bible to say that two divorced persons cannot remarry. [909] The complainant did not recall seeing a house in Beerawra Street near Leumeah Primary School where she wanted to move in the last week of January. She stated that she was not planning to move because she was in a house. [910] The complainant however conceded that in the last week of January 2015, she "maybe" told her sister-in-law, Ms Sabnam Chandra, that she would be moving out. [911] She also accepted that on 30 January 2015, she had said to Chandra Suarez that the Department of Housing and Centrelink representatives were coming that afternoon because she needed them and they were helping her. [912] 11. She also conceded that together with the accused she drove to see a private catholic school for JS for the following year. The complainant's evidence was that this was at the accused's instigation and she was forced to drive. [913] 12. The complainant further conceded that the accused had told her that his boss was asking both the complainant and himself, to see a counsellor in relation to their separation. [914] It was put to the complainant that the date of the counselling session would be on 16 February 2015 through the accused's Employee Assistance Program, but the complainant could not remember the date. [915] 13. The fact that the accused advised to the complainant about attending counselling is consistent with the complainant having reason to believe that the marriage with the accused was potentially salvageable although the complainant was in the course of making some arrangements nonetheless. INCIDENT 23 1. The complainant gave evidence that the punishments commenced in the second or third week of January 2015, [916] however by reference to incident 22 this must follow 16 January 2015. The complainant stated that she was driving the accused to the train station in the morning, and the accused said that he had a punishment for her. The accused stated to the complainant that she was required to shave her head before he came home from work. [917] She stated to the accused: "You can't be that cruel to me" and the accused replied: "Punishment is punishment, you have to do it." [918] The accused is alleged to have further told the complainant: "If you do this maybe I'll think to forgive you." [919] 2. The complainant stated that she dropped the accused at the train station and then went home, but did not shave her head. She stated that the accused was calling her all day, asking her whether she had shaved her head and she replied that the children were very upset and they did not let her do it. [920] When the accused arrived at the train station, the complainant picked him up. The accused looked at her and said to her: "You didn't shave your head." She told him that the children were very upset and he responded: "Quick we have to go home I have heaps to do." [921] At that point, she stated that she was "very sad" and "confused." [922] After arriving home, the accused asked her: "Where are you going" to which the complainant responded: "I'm going upstairs to have some tea or something." The accused stated: "You're not allowed to go, you have to come down." [923] The accused is alleged to have proceeded to pull the complainant down from upstairs by her hair. [924] She stated that she then sat downstairs in the lounge room, next to the accused. The accused then asked her how many times she had slept with Mr Kelly. [925] The accused stated that the complainant had slept with Mr Kelly thirteen times, to which she responded that it was eighteen, as there were eighteen punishments. [926] At that stage, the complainant thought she had told the accused: "I didn't sleep with him." [927] 3. The accused then hit her and the complainant ran upstairs to lock herself in the bathroom, and cut her hair into a small pony tail. [928] She stated that she ran into the bathroom because if the accused got to her, he would have taken her to the downstairs bathroom and shave her head. [929] She then proceeded to go to the kitchen to feed the children. [930] 4. In cross-examination, it was put to the complainant that she said that the head shaving incident happened on Wednesday or Thursday, the second week of January and that it happened two or three days after the court date of 13 January. The complainant stated that if she said it happened in the second week of January, it did happen, as that was what came to her mind, [931] and that the incident did happen. [932] 5. It was then put to the complainant that she lied about the head shaving incident. She rejected this, stating that she was telling the truth. [933] It was further put to the complainant that she lied about the cutting of the hair story, but this was also rejected. [934] She stated that in response to why she might have been having difficulties in recalling the date of the head shaving incident, that she was "not a computer" and that she was a "human being like everyone else." [935] She further stated that her children were aware of the head shaving incident. [936] It was then put to her that the accused was nowhere near the upstairs bathroom when she had cut her hair. She responded by stating that he was standing outside that bathroom. [937] 6. The complainant was questioned about the punishments that she alleged that the accused had imposed. She reiterated that the eighteen punishments were for eighteen years of marriage. [938] She stated that as at 31 January 2015, she had only been married for sixteen and a half years. Under further questioning, she stated that the accused had told her that there would be eighteen punishments for eighteen years of marriage. [939] It was put to her that she was making up the eighteen punishments story – the complainant rejected this suggestion. [940] She further rejected the suggestion that she was confused at the time. [941] 7. JS also gave evidence of being aware that the complainant being asked to shave her hair off. The evidence is that she knew because "mum's friend was on speaker" [942] and "mum told me a bit of it." [943] She stated that her mother "cut a bit of it off" [944] and after she had not shaved her hair off "[n]othing happened." [945] She conceded that the discussion she overheard on the phone was mostly in Hindi and she "didn't really know much of it [Hindi]." [946] JS was not aware of what the accused said, but was made aware from her mother that the accused threatened to shave her hair off. [947] INCIDENT 24 1. The complainant gave evidence that whilst she was upstairs, following the cutting of her hair, the accused call her to come downstairs. She stated that she thought she had to go and listen to him because he wanted something, or otherwise the accused would have hit her more. [948] When the complainant went downstairs, she was "shaky … very upset … hungry [and] … feeling sick." [949] The complainant alleged that the accused told her to sit beside him and answer his questions. [950] She stated that the accused kept asking her questions about Mr Kelly, in particular, about how many times she had slept with him. She stated that she could not remember clearly what she had said, but remembered to make him happy, she said: "Maybe I slept three or four times." [951] She said she said this because she thought that if she said it, the accused would say: "I forgive you." [952] At that point, the accused was "just beside" her on the lounge. [953] She clarified that the accused kept asking her questions over and over again about Mr Kelly and told her that if she admitted it, he would have forgiven her. [954] According to the complainant, the discussion was taking place for the whole night [955] and the topic of the conversation was Mr Kelly. [956] 2. She stated that at the time, the accused hit her on the head, shoulder, "many times" but could not remember. [957] Thereafter, she heard her son, WS call her upstairs and state: "Daddy is talking too loud" and complaining that he could not get any sleep. 3. The complainant went upstairs to calm him down, and she fell asleep in between WS and JS. [958] The complainant stated that DS started to call her, but she replied: "I'm not going to come, [I'm] very tired." The accused responded: "You have to come downstairs. If you don't come …" She stated that if she did not go downstairs, then he would have come upstairs. [959] The complainant remained in bed and the accused came upstairs, pulled the blanket and hit her on the head, and then pulled her from between her children and took her downstairs. [960] The complainant stated that the accused held her hand and took her downstairs. She stated that she was "scared … sleepy … very, very tired" and did not know what was coming next. [961] She elaborated that she was scared that the accused would hit her again. [962] The complainant went downstairs. [963] 4. When the complainant went downstairs, she stated that the accused asked her if she wanted to have sex with him. The complainant replied that she was very tired, but the accused replied that whenever he would ask, she would be tired, but whenever Mr Kelly asked, she would not be tired. [964] The complainant then stated that there was a "punishment" she had to do, and if she continued with the punishment, then the accused would "let me stay with him." [965] 5. The complainant stated that the accused hit her on the face. In cross-examination it was put to the complainant that the accused was not at the house at that time however she maintained he was. It was then suggested that the accused did not punch her in her face and did not push her in the chest. The complainant rejected both propositions. [966] CONTEXT AND RELATIONSHIP 1. Incident 1 involved an allegation that the accused threw a glass of water at the complainant. This was whilst they resided in Marrickville [967] which would be in the period from 1998 [968] and before they went to Fiji in December 1999. [969] The accused challenged the complainant's account on the basis that it was not reported. The complainant's evidence was that the accused apologised, they made up, she still loved the accused and she felt that he was not going to do it again. This evidence, which I accept, adequately accounts for her actions not to make any report of the matter and I am satisfied that her evidence should be accepted. 2. Incident 2 involved an allegation of assault in the presence of Ms Ranjit who was visiting. It was not reported to the police and what is recorded in the Exhibit 3 referred to another different incident. [970] Nevertheless on the complainant's account it would have occurred in mid-July 2011. 3. Although the complainant was subject of extensive cross-examination in relation to the contents of COPS entry of 20 July 2001, I am satisfied that the incident to which it refers does not relate to the incident involving Ms Ranjit. The cross-examination sought to cast doubt as to the reliability of the complainant's account. Although there may be a correlation in timing, I accept the complainant's evidence that she did not report any incident which involved Ms Ranjit either to the police or to the "childhood nurse." To the extent that the complainant may have said in her police statement that she did report the incident, I accept that she may have been mistaken or confused in some of her responses in cross-examination. 4. The incident involving Ms Ranjit occurred a long time ago and the accounts given by Ms Ranjitt and the complainant have variations. The accused's daughter ES had not arrived from Fiji at the time and WS was born in in April 2001 making him three months of age at the time. Ms Ranjit does not give evidence of witnessing two incidents of assault. She gives evidence of verbal but not physical violence in the kitchen and hearing things in the bedroom and later seeing assaults in the hallway. The incident was such that she stated that thereafter she did not have the heart to visit the complainant. What is significant however is that the complainant declined to report this to police despite Ms Ranjit's suggestion. The incident the subject of Exhibit 3 was reported by the childhood nurse and the COPS entry showed a reluctance on the part of the complainant to involve the police. No explanation for the reluctance is provided. 5. In relation to incident 2, I found Ms Ranjit as a witness who sought to accurate. Nevertheless the discrepancies between Ms Ranjit and the complainant's account are such that whilst I am satisfied that an incident of violence in incident 2 probably did occur towards the complainant, I am unable to give it much weight to it in my assessment of context. 6. Incident 3 is alleged to have occurred on 26 July 2001 and is said to involve a decision by the complainant not to go to the airport with the accused to collect ES. It is not in issue that the complainant did not go to the airport. Her reasons for not wishing to attend matter little. Whilst WS was 3 months old at the time, he was not diagnosed with autism until the age of two and a half. [971] Nevertheless the complainant's evidence regarding being tired and concerned about travelling on the bus is plausible. 7. A large section of the cross-examination related to the recordings in the COPS entry, which indicated that the complainant herself had stated to police that she did not wish to go to Court. [972] 8. An incident was reported to police. It was not suggested that there was any more than one event on the day. The account of the complainant in her primary evidence was not fully documented in Exhibit 2, however the circumstances of the complaint recorded in Court records in Exhibit T do support an assertion that the complainant was asked to "get her things and move out in ten minutes" as well as the complainant being hit in the face. A complaint as to being slapped was also recorded in Exhibit 2. 9. I accept that the events occurred a long time ago, however I am satisfied that the recorded event was consistent with the account given in the complainant's primary evidence. Further I am satisfied that the records show that the complainant was adamant that she did not want any action taken and was also adamant that she would not give evidence. I am satisfied that this is what the complainant told police on the day of the complaint. I accept that she reported the incident as she was concerned that the accused would return and hit her again. The circumstance of the complainant signing the interim order and her subsequent use of temporary accommodation was not explored in cross-examination. 10. I accept that the complainant was reluctant to report this incident for the reasons she gave in evidence, in particular her concern for the security of her family if the accused was imprisoned and consequently lost his job. 11. In the case of incident 4, the complainant recanted from her earlier account that the accused stopped her from going to Court. In light of the recording in the COPS entry on the day the complainant made her report, I cannot be satisfied that the withdrawal of the matter was a consequence of any action taken by the accused telling her not to go to Court. There is no suggestion in the complainant's evidence that the actions she took to absent herself the day the matter was withdrawn in Court involved the accused. I accept that she had ongoing concerns as to what would happen in any Court action for her family and that she still loved the accused nonetheless. 12. An unnumbered incident involved allegations of assault by the accused resulting in AVO proceedings which it is alleged the accused pressured the complainant not to pursue around May /June 2003. Much of the factual evidence relating to this matter was not challenged although the complainant conceded that the accused was defending the "charges." The complainant's evidence as to circumstances in which she came not to attend Court was confusing. The stage at which it is alleged that the accused convinced her not to go to Court before returning to take her is not clear. 13. The accused and the complainant were residing together at the time. The complainant's evidence was that she returned herself because she loved the accused, that he had made her promises, her concern for her family and that she needed the support. Whilst she sought support from others she did not on her evidence initiate the complaint to police. No relevant court records were tendered. Overall I cannot be satisfied the outcome of any court action resulting in dismissal of proceedings were the consequence of the accused's actions. However I am satisfied that the complainant herself did not initiate any police action and was reluctant to pursue the Court process. 14. Incident 5 involved an allegation of the accused throwing a Chinese bowl at the complainant after she informed the accused that she did not have any money for him to gamble. The complainant's evidence was given in some detail. That detail was not challenged although it was put that the incident did not happen. I accept the complainant's evidence in relation to this incident. In particular, I accept that she did not know many people who could help her and she was keeping it to herself. I also accept that she did not tell anyone as she was concerned that she would find herself in more trouble and the family would be destroyed. 15. Incident 6 relates to an alleged assault in the period leading to a miscarriage. Although the complainant's evidence suggested that this was within the twelve months following 31 August 2008 the records of Canterbury Hospital show the relevant admission being on 30 August 2005. [973] This is consistent with Exhibit O, which show that the accused arrived back in Australia on 30 August 2005 and it also records that the accused left for Fiji on 27 August 2005. Exhibit J records a history of the complainant presenting with a history of abdominal pain commencing at 8pm the previous evening. There was no history recording any symptoms before the accused left to travel overseas. 16. The fact that the miscarriage occurred in 2005 indicates that the complainant's account as to the ages of the children at the time was incorrect. JS would have been two years of age and WS would have been four years of age. Neither would have been of school age. 17. Again there were clearly some errors in the complainant's account perhaps due to the age of the matter. In the circumstances, I am unable to determine whether this incident occurred as the complainant alleges and I would give it no weight in my assessment. 18. Incident 7 relates to an alleged assault when the accused struck the complainant following an argument about money and "other things" whilst residing at Eighth Avenue, Campsie close to September 2010. I am satisfied that the complainant's account should be accepted. I further accept that her reluctance to report the assault was due to her concerns as to her family and in particular, her concern for her children. I accept that she did not tell her family because she was isolated from them, was concerned about the accused's reaction and also her desire to reconcile with him. 19. Incident 8 involves an allegation of the accused stomping on the complainant's chest following his return from a pub or club around April 2011. The accused did not challenge the complainant's account of the circumstances of the events leading to this event. The complainant's description of her symptoms correlate with the description in Exhibit K. The injuries appear consistent with an incident where she describes tenderness over the sternum and right side anterior pain. The clinical notes also record no other injuries. The description in the history in the ambulance notes and the hospital notes show some variation in the account that was given by the complainant to those who attended on her. The complainant's account in evidence was detailed and plausible. I am satisfied that the complainant was stating the truth as to what occurred and that she did not tell either the ambulance or the hospital the truth as to what happened was because she was scared. 20. Incident 9 relates to an allegation that in 2012, the complainant was assaulted in front of her children following the accused returning home from Wests Club after the complainant had declined to provide him with more money. The accused did not directly challenge the circumstances of the alleged assault, although he did challenge the complainant by reason of a failure to report the matter to police. 21. I accept the complainant's account which I consider to be reliable. In light of my findings as to Incident 10, I am satisfied the extent of any reporting was minimal for the reasons the complainant provided. 22. Incident 10 was said to be an incident of assault where the police were called on 6 June 2012, two weeks after incident 9. In cross-examination, the complainant conceded that she could not remember the dates. [974] The content of the COPS entry as to Incident 10 is certainly consistent with the complainant wishing to limit the information provided to police with a view of stopping the accused hitting her rather than pursuing any action. The circumstances of this incident were not identified in the tendered material except that it occurred in front of the children (as did incident 9). This incident may in fact not be separate to incident 9. Constable Evry described the complainant as being upset. The COPS entry recorded that she did not appear to be upset. Nevertheless the fact that the complainant did not refer to the details of the incident or any incident two weeks earlier is consistent with attempts by her to minimise the significance of her concerns and to avoid police action. Similarly her reluctance to provide details, a formal statement, and referring the matter as "one off" are also consistent. [975] I accept that the complainant had continuing concerns for herself and her family's security at this time. 23. Incident 12 involves an allegation that in early 2014, the accused physically assaulted the complainant and verballing abused her whilst driving. This it is said resulted in a big cut to the complainant's upper and lower lip. Much of the accused's cross-examination related to whether the complainant had contacted the police, although it was put to the complainant that she had told lies about this matter. [976] The complainant was adamant that she did not lie and there is no evidence that she did. I am satisfied that the incident occurred as alleged by the complainant. 24. Incident 11 for the reasons earlier stated appears to occur after incident 12 when the complainant arrived home and the accused followed her. It is said that the accused assaulted her upstairs by hitting her on the head, kicking her, holding her hair, and hitting her head on the door. The complainant's evidence supplied much detail of what is said to have occurred. She was not cross- examined as to that detail. Neither Bhavna Ahuluwalia nor any other witness gave evidence in relation to it. This is a matter the accused draws attention to in his submissions. [977] However I am satisfied that the complainant's account should be accepted as well as her reasons for not reporting the matter. The accused submitted that this did not occur [978] and drew attention to the evidence of the complainant that her teeth were broken sometime before 2008. [979] The evidence of the complainant was that she could not remember but she thought she had an upper plate of false teeth since 2008 and that the accused broke her teeth at a time she could not remember. [980] There was no evidence however that the complainant broke her teeth in this incident. I also accept the complainant's explanation for not reporting the matter to police. 25. Incident 13 followed incident 11 and related to a threat to the complainant made by the accused that if she did not bring him money she would know what would happen to her. The actual threat was not challenged. Nor did the accused pursue questions challenging the complainant reporting the allegation to the police. I accept the complainant's account. There is no evidence of any police initiated action in relation to the matter. I accept the complainant's explanation for not doing so related to concerns for her children and her financial security. 26. There was no evidence as to incident 14. 27. Incident 15 is alleged to have occurred in September 2014 and involved an allegation that the complainant was assaulted. This included having her hair pulled by the accused after he came back from the club and following her refusing to bring him money. It was recounted with significant detail. The only aspect directly challenged by the accused was the allegation of him pulling the complainant's hair. There was no evidence that the complainant pursued her threat to report the matter to police after the car keys were taken from her and she was told to sit down. I accept the complainant's account and her explanation for not leaving being that in her mind she had nowhere to go, no means of travel and her continuing concern for her children. 28. Incident 16 involved an allegation that the accused slapped the complainant after she declined to go shopping in April or May 2014. I accept that it occurred as described by the complainant. The accused's cross-examination on this allegation comprised him asserting that that family liked shopping and the complainant was lying about being slapped for not wanting to go shopping. However I accept the complainant's evidence on this matter. There is no evidence that it was reported to police. 29. Incident 17 involved an allegation that in December 2014, the accused slapped the complainant following cooking pork that he did not like. Although the complainant had stated she was slapped because the accused did not like the food, her account was that it followed her protesting at his actions and after the accused was "triggered." I do not regard any variation in the complainant's account as being of significance. I am satisfied based on the complainant's evidence that this incident occurred. It was recounted in some detail and the complainant was not moved in cross-examination. There was no evidence of the incident being reported. 30. Incident 18 related to events following the accused becoming aware of Mr Kelly's interaction with the complainant in December 2014 and in particular, Mr Kelly assisting the complainant in performing manual work. 31. It is clear that the accused believed the complainant and Mr Kelly were in a relationship of some kind. He had, on the complainant's evidence, knowledge of Mr Kelly's attendance at the residence (whilst the accused was at work) and knowledge of Mr Kelly performing labour works at the house and him supplying eggs from a farm. At some point (although it is not clear when) after the complainant's birthday, the accused would have been aware of the birthday gift of a photo frame which the complainant represented as a purchase made by herself. The accused sought to access the complainant's phone after she was seen texting a message. The complainant said that the accused told her the following day that he contacted Mr Kelly and that he was told by Mr Kelly that they (being Mr Kelly and the complainant) had an affair. There is no evidence that this was true. Mr Kelly's unchallenged evidence was that the accused called him and made the statement: "I know what's up". 32. The accused did not challenge the complainant's account as to the circumstances leading to the assault on the lawn, although he did raise the fact that it was not reported to police. It is true that she did not mention being assaulted on the lawn to police. There was no evidence that police were aware of what is said to have happened on the lawn when they arrived to speak to the complainant and the accused. However Sergeant Hyslop's evidence was that there was reluctance on the part of the complainant to provide information. Her own account included telling police her concern about the accused being charged as he could lose his job and the impact this would have. 33. Before the accused was taken by police, he is said to have said something to the complainant in a foreign language. There was evidence of the accused attempting to speak to the complainant at an earlier time before being stopped by police. There was no evidence of what the accused intended or said but it is clear on the complainant's account that she did not want the accused to be charged even though she had given an account of the circumstances of her injury after the accused told her to tell the truth. 34. The accused's police interview underplayed what occurred and his involvement. His description of the relationship with the complainant and circumstances of selling the house and his future intentions were inconsistent with what he had informed the complainant. He had informed the complainant that they were to separate on 12 December 2014. The accused stated that he and the complainant did not have an argument, [981] although he conceded that he questioned the complainant about the work that was done and was anxious to view the contents of the phone. Earlier he conceded that there was an argument. [982] On any view he was strongly suspicious of the relationship between the complainant and Mr Kelly and told police: "… her answers were never clear." [983] His account as to the damage to the phone was inconsistent. On the unchallenged account of the complainant, the accused had retrieved the phone's SIM card. 35. I accept the complainant's account as to the circumstances of the hand injury which in my view is consistent with the evidence of Mr Kelly and Ms Suarez. I accept that she was also assaulted on the lawn. I reject the version of the accused given to police to the extent that it is inconsistent with the complaint's account. 36. The complainant did not report the injury she received either to the doctor or to police. Rather it came to the attention of the police from Mr Kelly following a conversation with the accused. When police arrived the complainant and the accused were aware they were coming. The accused did not seek to volunteer information about the matter when the police first arrived. The complainant and Sergeant Hyslop's account of the complainant hiding her hand when police arrived was not challenged. I am satisfied that the complainant only made her subsequent disclosure as a consequence of being advised by the accused to tell truth, the police having seen the bandaged hand and being aware of the contact Mr Kelly already had with police. She had up until that point, sought to conceal the occurrence of the event not only from police but from others. 37. The accused made submissions that the complainant's credibility is affected by her purposely not giving the damaged phone to police and not subsequently revealing it to police. The accused's focus on this aspect however overlooks the broader context of this incident. 38. The complainant's account as to why she gave the wrong mobile phone in the first place to police was inconsistent. This may have been as a consequence of her confusion or a desire to emphasise her submissiveness to the accused. At one point she said that she could not find it when the police initially asked it and at another point, she stated that she gave the wrong phone to protect the accused. She came to rationalise her actions by referring to the fact that the phone she provided to the police was less damaged. At the time of his interview, the accused conceded that the phone was damaged and he dropped it on the tiled floor. [984] The complainant later provided the phone to the accused at his request. I accept that she did so in an endeavour to reassure him and minimise any potential retribution from him at the time. To this end I accept that she told the accused that she would not go to Court against him. It is plausible that she may have forgotten where the phone was at the time when police asked for it, however handing over another phone which she knew was not damaged in the relevant incident is not. The fact that she did not subsequently advise police of the wrong phone being handed to them is consistent with her desire to protect her husband by not going to Court, as is her apparent failure to refer to the incident on the lawn earlier that day. 39. There was no evidence as to incident 19. 40. Incident 20 relates to allegations of the accused verbally and physically abusing the complainant on 31 December 2014. The accused's concerns as to his wife's relationship with Mr Kelly had clearly not resolved. As was earlier noted, the accused had told the complainant that he had requested Mr Reddy to undertake work in relation to the contents of the SIM card. He did not challenge the complainant's account of how those matters were raised by him to her. 41. There is evidence of the complainant confiding in Mrs Fepulea'i about her circumstances but it is unclear when this occurred and the full detail. 42. Whatever occurred it was sufficient to result in the complainant visiting Mrs Fepulea'i and for neighbours Bhavna and Namrata Ahluwalia to later attend her property. It was also sufficient to have led police to subsequently be called on 31 December 2014. 43. The accused's account to police that nothing happened and that there was no yelling and screaming and that he did not know why Bhavna and Namrata Ahluwalia came to his property is implausible. The complainant was anxious for police not to be called even more so if it could impact on her children. The accounts given by the complainant, Bhavna and Namrata Ahluwalia were consistent, in particular as to the demeanour of the complainant and the accused during their collective interaction. 44. The accused's suggestion and submission that the Bhavna and Namrata Ahluwalia collaborated to make false accusations due to their father owing money to the accused cannot be accepted. The accused's account was that they both turned up to his house when nothing happened. He suggested that they threatened the complainant about something about which he did not know. This is implausible. I am satisfied that the complainant knew that the threat related to reporting the matter to police and the potential ramifications for the ongoing care of the children. 45. The complainant clearly did not want police involved. She went to her neighbour's house to prevent it, told police nothing happened and then left to go with Mrs Fepulea'i's family. 46. JS had been recorded by police as pleading for her mother to tell them what was happening to which the complainant is recorded as responding: "[D]on't be silly [JS] nothing has happened." When the complainant was reminded that she had told JS that the accused had said that he was going to kill her (being the complainant), she responded in the presence of police: "I was just joking [JS]". [985] The complainant was recorded by police as being "extremely withdrawn" and not answering questions. [986] When asked about the elbow laceration and bruising, the complainant stated that she had slipped in the kitchen. 47. Much of the accused's challenge in cross-examination relating to this incident centred on the date of its occurrence with the accused being recorded as being sick in his work records. [987] The complainant asserted that she picked the accused up from Campbelltown train station, whether or not the accused went to work that day is not a matter the complainant can definitively account for – her evidence was that she had collected the accused from the station on that day. 48. There was some attack on the complainant's credibility based on the observations Constable Evans was able to make as to the extent of any injuries that the complainant asserted she sustained. 49. I am satisfied however that the complainant's evidence should be accepted. Her account was supported by the evidence of her two neighbours. Moreover that evidence supports the complainant's attempts to avoid the police being called and concealing the events that had transpired. The complainant did not wish to cooperate with police when they attended. The interview with the accused shows that Constable Evans asked about injuries including the broken tooth, broken finger and bruises to her upper body based on information provided by Bhavna Ahluwalia. [988] 50. Incident 21 related to an allegation that on 13 January 2015, the accused was said to have been abusive to the complainant in the car following their attendance in Court in relation to an apprehended violence order. I accept that the accused was intending to defend the AVO proceedings and had engaged a lawyer to that end. There is no evidence that the lawyer spoke with the complainant on 13 January 2015. The proceedings were adjourned on 13 January 2015 to 6 March 2015. A sum of $65,000 was redrawn to the complainant's account and on 29 December 2014, $60,000 came to be transferred to the accused's account. It remained there on 31 January 2015. The purpose of the transfer was not established on the evidence, although at that point the accused had arranged for his salary also to go into his account and not the complainant's account. Nevertheless the complainant's account as to what she said the accused said to her in the car following their attendance at Court on 13 January 2015 was not challenged. I accept the complainant's account. 51. Incident 22 relates to events which occurred at Minto on 16 January 2015 which led to the interaction with Mr John Overall. I accept the complainant's account that she was assaulted, and fearing that she would be further hit she sought to leave the vehicle. She was not challenged as to the accused having asked her questions about the relationship with Mr Kelly and to the extent she was cross-examined, the suggestion was made that she was "ashamed" although the precise circumstances of that were not put to her. The complainant's version of events is supported and consistent with that of Mr Overall. I found him to be a most credible witness. He responded to a situation where he perceived the complainant to be distressed, screaming and crying. He was unable to ascertain the circumstances at the time. The complainant was submissive to the accused to the point that she said nothing either to Mr Overall or Mr Simone, and left the scene re-entered the vehicle and followed the accused's instruction to make a u-turn went to Minto Mall and behaved like nothing had happened. Mr Overall's evidence at that point was that the accused was "less aggressive" and there was no "forcible contact". He saw them make a purchase of fruit. The accused's account of the complainant attempting to manipulate him and the complainant wanting to hurt herself are implausible. They do not account for the interactions Mr Overall said he made and observed that day. The complainant did not suggest that she was injured in this incident and the absence of observation in this regard by Mr Overall did not advance the matter. 52. In relation to incident 23, I accept that the complainant harboured beliefs that should she undergo the punishments she may be forgiven and would reconcile with the accused. This was a prospect clearly left open by the accused's statements including informing her of the proposed counselling arranged through his employer. She stated that the punishments started in the second or third week of January 2015, however it appears by reference to incident 22 that they commenced after 16 January 2015. 53. I accept the complainant's evidence that she cut her hair partially in response to a demand made of her by the accused that she shave her hair. It is not clear on the evidence, the timing as to JS's knowledge of the complainant being asked to shave her hair. Although JS recalls seeing the accused pull the complainant's hair it is not clear that this was the occasion in relation to incident 23. [989] JS stated that that the complainant cut her hair but it "wasn't a lot." [990] The complainant stated that she cut her hair into a small pony tail, but in any event, she did not shave her hair. 54. Although JS's evidence provided some support for the complainant, I would give the evidence relatively little weight. In particular, I am unable to accept her evidence as to the circumstances in which she was aware of the demand said to have been made by the accused to cut her hair which was based on her overhearing a telephone conversation. 55. Incident 24 is alleged to have followed events described in incident 23. I accept the complainant's account. It was not in issue that the accused continued to have a grievance over what he believed the complainant had done. She acquiesced to the accused's demands despite being tired, hungry and sick fearing that she would be assaulted. Indeed she was assaulted and at one point when she did not come back downstairs after settling WS into bed, the accused forcibly removed her and she was scared she would be hit. 56. There was no evidence that incident 22, 23 or 24 was reported to police by the complainant at the time. 57. I have earlier outlined the Crown's contentions as to the use of the context and relationship evidence. 58. The accused's argument is that the Crown's contentions must be rejected as the complainant was not in a controlling relationship. 59. The accused draws attention to the following factors: (1) their relationship of sixteen and a half years; (2) that during that period, the complainant held all the bank accounts; (3) that they had two children; (4) that the complainant drove the family car and; (5) that she had a touch phone. He draws attention to the fact that Chandra Suarez gave evidence of spending time and sleeping over with the complainant in Campsie and Leumeah, as well as having regular contact via phone and visiting once a fortnight. Ms Suarez's evidence however was that the complainant had made complaints to her about the accused being violent towards her and she had seen some evidence of the complainant being injured. Further, Ms Suarez stated that the complainant had told her to only visit when the accused was not at home. 60. The accused also draws attention to the contact the complainant had with her cousin, Kamini Ranjit. Whilst different accounts of an incident described as incident 2 are given by the complainant and Ms Ranjit, the complainant's evidence was that after it that she did not: "… talk much to people, only something is there I try not to say." [991] The evidence of Ms Ranjit is that following the events she described, she lost contact with the complainant. She would occasionally see the complainant taking JS to school, but would never stop to talk. She stated that if the accused was around the complainant, the complainant would not acknowledge that she had seen her. 61. The accused draws attention to the fact that the complainant operated email and Facebook accounts. The complainant's evidence however was that she was unaware whether the accused knew she had Facebook and he never asked her whether she was on it. [992] She described it as the only outlet for her and her family. [993] She conceded communicating with her family through Facebook Messenger. [994] 62. The accused also draws attention [995] to the fact that at the end of 2014 the complainant went to a birthday celebration at her brother's house. [996] Furthermore, that the complainant made contact with her brother to go to the beach on 31 December 2014 [997] and stated that she was old enough to make the decision. [998] 63. The accused draws attention to contact with Kathy Canti who he asserts was close to the complainant. [999] Her relationship with the complainant was not explored in evidence beyond the fact that she had met the complainant at ten pin bowling all the time at one location and that the accused rang her to inform her that the complainant had an affair with Glen Kelly. [1000] 64. The accused also draws attention to the evidence of Ms Sabhnam Chandra the complainant's sister-in-law. She stated that there was regular contact with the complainant from 2011 when WS was in hospital between once and twice a week. Ms Chandra gave evidence that she was looked upon as a person of support who was very close. [1001] That of course can be accepted, however it was also her evidence that the accused did not get on with her husband, the complainant's brother and had not confided with Ms Chandra in relation to things not being right in the marriage prior to 30 January 2015. The exception to this being that in July 2015 when she was asked to visit the complainant at her home to "compromise" the matter between DS and AS – something that did not happen. [1002] 65. The accused further draws attention to how he spoke to the complainant about JS's schooling for next year in private school, however the complainant retorted that the accused forced her to drive there. [1003] 66. The accused also draws attention to the fact that he had a conversation with the complainant about her sister needing a washing machine. [1004] The complainant admitted to such a conversation following a request on 6 January 2015. The complainant further admitted that the accused agreed to give $500 although she stated that she had to ask him many times and she offered to pay him back from her Centrelink monies. [1005] 67. The accused also asserts that the complainant was being visited on 21 January 2015 from Tomasina from Campbelltown Community Services who was making arrangements to fill out a Centrelink form. The complainant acknowledged this event but she did not remember the date. Nevertheless the accused submitted that at that date the complainant was aware that the marriage was over and they were separating. [1006] 68. The complainant did not report incident 1. I have previously outlined my approach to incident 2. The complainant did report an incident on 20 July 2001 being incidents 3 and incident 4, but declined to cooperate with law enforcement processes. The unnumbered incident was not reported by the complainant to police but rather by a friend who she had confided in. I am not satisfied in either incident 3 or the unnumbered incident that the accused acted to pressure the complainant to have the matters withdrawn. Rather the evidence supports that the complainant herself was reluctant to pursue the matters. I accept the reasons she gave being that she loved the accused, that she was dependent upon him and that she needed support. 69. Whist the complainant spoke to her neighbour at the time, Ms Youssef, the latter's evidence was that the complainant told her not to discuss matters she had raised with the accused. This is consistent with the complainant's evidence in relation to her not telling anyone about incident 5 in respect of which she stated that she did not know many people who could help her and she was keeping it to herself. The complainant stated that if she did tell someone or if something went wrong, she could find herself in more trouble and the family would be destroyed. She stated that this included family members. 70. I have earlier stated that I am not satisfied as to the circumstances of incident 6. 71. Incident 7 was not reported to police for reasons previously described. I am satisfied that the complainant did not report incident 8 to police and concealed the true circumstances of her injury both to police and the paramedics Incident 9 may well have been the subject of the incident reported in incident 10, however the complainant again was reticent to cooperate with police and the records display a downplaying of the events I have referred to. Incidents 11 and 12 do not appear to have been reported to police. The complainant told Bhavna Ahluwalia that she was not ready to call the police and was concerned that the accused would lose his job. The complainant again stated that she hoped the accused calmed down and they could be a good family. Following Incident 13 the complainant stated that she called the police but did not pursue the matter because of concerns for the family's security and the accused's job. Following incident 15, the complainant threatened to call police but did not do so expressing concerns as to having nowhere to go and her children. There was no evidence as to incidents 16 and 17 being reported. Incident 18 again involved the complainant not reporting or telling the doctor the true circumstances of her injury, denying that the accused had hurt her to Bhavna Ahluwalia and initially concealing it from police. Further, the complainant was not responsible for the report to police when initially made. 72. Similarly, incidents 19, 20 and 21 were circumstances where there was a marked reluctance on the complainant's part to cooperate with police and court proceedings. Incident 22 also showed the complainant as being submissive to the accused with no evidence of her reporting any matter to police despite the circumstances described by her and observed by Mr Overall. 73. Incidents 23 and 24 show the complainant was prepared to submit to punishments the accused had required of her. 74. For much of the relationship the complainant was primarily dependent on financial support from the accused. She had two children including WS who suffered autism and cancer as I have previously mentioned. Although the complainant had some contact with family and friends that contact was limited and I am satisfied that she was reluctant to confide in them. 75. The incidents overall demonstrate that the complainant had reason to fear violence from the accused when she did not accede to his wishes. This included: demands for money, demands to accompany him to various locations, speaking out or doing other things against his wishes, and conceding to an affair with Mr Kelly notwithstanding that she denied that it had occurred. During the course of the marriage and in the events leading to the charged acts, I am satisfied much of the complainant's contact with family and others was undisclosed to the accused or limited to the extent it occurred. This is clear from the evidence not only of the complainant but from Kamini Ranjit, Elmaza Youssef, Chandra Suarez and also JS. 76. On the evidence I am satisfied beyond reasonable doubt that: 1. the circumstances in which the charged acts are alleged were not isolated and follow what involved a history of other acts of domestic violence during the course of the marriage; 2. the acts involved demonstrate an escalation of violence and an elevated fear by the complainant towards the accused; 3. the complainant was dependent and saw herself as vulnerable within the relationship resulting in her being submissive and acquiescing to the accused's wishes. Accordingly I bear this in mind in accounting for her actions and reactions; and 4. the complainant was reluctant to report and cooperate with law enforcement processes because of concerns that included of the potential consequences for her and her family in light of the economic dependence on the accused and limited other support. 1. The evidence further satisfies me that the complainant was submissive to the accused's demands due to a fear that in not doing so would result in violence towards her. That evidence included apologising for things for which she was not responsible, telling others not to report the accused to the police, agreeing to the accused's proposal for the sale of property and signing of relevant paper work, giving him money when he asked for it, conceding to an affair with Mr Kelly that she did not have, not answering him back and otherwise agreeing to the punishments and submitting to his wishes. I am satisfied that the evidence relevantly assists: 1. To demonstrate on the part of the accused, his knowledge that the complainant was not consenting, or was reckless as to that consent, or had no reasonable belief in that regard, because he knew the complainant was vulnerable and was in fear of him; and 2. That the complainant did not consent to the sexual acts due to her being in fear and forming a belief that further violence would be inflicted upon her. COUNT 1 on the INDICTMENT 1. Following the events described in relation to incident 24, the complainant stated accused hit her on the face told her that she was a "very good person to suck him" because that she had "sucked Glen's dick" and that she would do "it" to him. [1007] 2. The complainant said that the accused stated that if she did not do it, then it would be "no good" for her, and she had to do it, as she had done the same to Mr Kelly. [1008] She said she thought that if she did not do it, the accused would hit her again, and she was "scared that he is going to hit me." [1009] She also stated that she complied because the accused would have hit her if she did not suck his penis because he thought she had "done [it] to Glen" that she had to "do it to him too." [1010] 3. As it was nearly time for the accused to leave for work in the morning, the complainant said she thought that she "better do it and then let him go" and that she could stay at home when he left. [1011] 4. The complainant stated that she sucked the accused's penis by having the accused's penis in her mouth. [1012] According to her account the accused held her head and wanted her to "keep going." [1013] He did this by holding her head tightly from behind so that she could not get away [1014] using both hands. [1015] 5. The complainant stated that the accused wanted her to "catch everything in [her] mouth" and stated that she had to do it as she had done the same to Mr Kelly. She stated that the accused did not have a "good coming out." [1016] When asked as to what she meant by the phrase "good coming out", the complainant stated that the accused's penis "was not there as it should be." [1017] 6. In cross-examination, the complainant admitted that she and the accused had consensual sex between 14 December 2014 and 12 January 2015. [1018] 7. The complainant re-iterated that the first incident occurred between 13 January and 1 February 2015. [1019] As previously indicated by reference to incident 22, the punishments would date following16 January 2015. 8. The complainant stated that she did not know the exact date, but it did happen. [1020] It was put to the complainant that the incident did not happen at all, however she rejected this suggestion. [1021] It was further put to her that she was lying, but the complainant responded by stating: "I'm not lying, that's the truth." [1022] She stated that from "so many assaults, so many abuses, every day, every minute, nights and nights" that she could not "remember everything, plus looking after the children and [the accused]." [1023] 9. The complainant stated that after she sucked the accused's penis, he told her to "hold it" in her mouth, which she did. [1024] Thereafter, there was "questioning." [1025] She stated that the accused did not go to sleep. [1026] She stated that she could not remember the number of occasions she had previously sucked the accused's penis between 1998 and 31 January 2015. [1027] She stated that she made a complaint when the "time was right" as she was scared, and did not want to live "without a nose and a mouth." [1028] This is a matter that was raised later in her evidence in the context of incident 25 not Count 1. The complainant reiterated that the incident occurred at night time. [1029] She was specifically asked whether she could remember if her hair was cut by the time of this incident and stated that she could not remember [1030] because "too many things were going around." [1031] She stated that afterwards she was questioned by the accused about Mr Kelly and she had to answer his questions. [1032] 10. In the case of Count 1, the complained act falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 11. In relation to this count, I am satisfied that the complainant gave a truthful and accurate account of what occurred. It was detailed and relayed the circumstances as she recalled them. 12. The Crown case is that the context material demonstrates that at this point the complainant was of the view that she had to listen to the accused otherwise it was going to get worse for her. Further, the complainant had formed the view that this was a punishment. It contends that even though the house was to be sold, the complainant was conditioned to acquiescing and wanted to get through the "punishments" due to her focus on her children and keeping the marriage together, having been financially dependent on the accused. 13. I accept that the complainant believed that if she submitted to the punishments, her relationship with the accused could be reconciled. I also accept that the circumstances were that she was tired, sleepy and had been removed from her bedding and taken downstairs. She had been assaulted multiple times and was scared that this would occur again. Accepting her evidence, in my view, any consent is negated by under s 61HA(4)(c) of the 1900 Act. I accept in any event that submission to a punishment cannot be consent that is freely and voluntarily given. The accused had told the complainant that as she had "sucked Glen's dick", she was to do "it" to him. In the context of a relationship where the complainant was submissive and the events described, I am satisfied that the accused was aware that the complainant was subjecting herself to the punishment he had imposed and that he knew that she was not freely and voluntarily consenting to sexual intercourse with him. 14. I find each of the elements of Count 1 proved beyond reasonable doubt and find the accused guilty of Count 1. INCIDENT 25 1. The complainant gave evidence that she then drove the accused to Leumeah train station so that he could go to work. She stated that when they arrived at the train station, the accused told her to drive towards the tennis club. [1033] Whilst in the car, the complainant stated that the accused told her that a new punishment would be coming. She asked him what the punishment was and he told her that she had to "circumcise." The complainant stated that she did not know what that meant, and only knew that "men circumcise, but women I didn't know." She asked the accused: "What is that? What do you mean by that I have to go into a surgery[?]" The accused is alleged to have told her that she had to "go in" and "cut off [your] tits" and that "all Muslim girls, mostly men do to their daughters" because "if they do it, then they never get any feelings towards any men" so if the complainant did it then she would not "have any feelings … [and] not going to have any men in my life." [1034] 2. The complainant stated that she understood that to mean that she had to "cut something close" to her vagina and that if she did it for the accused, then it was "going to be okay for him." She stated that if she did not do it, then "another harsh punishment is when I come or I have to lose my nose, my mouth and my vagina." [1035] The complainant stated that she could not remember anything else said at the time. [1036] At that point, she described feeling "very sad … very nervous" and "scared" that someone so close to her could ask her to do such a thing. She stated that she could not "come to terms" and could not understand how it was to happen, or how she could "pull through." She stated that at times, her mind was "shut down" because she was "very weak … not eating … not sleeping day and night." Further she stated that she could not "think straight" but was there for her children because they needed her. [1037] 3. In cross-examination, it was put to the complainant that she was making these allegations based on an "Indian myth." The complainant rejected this and stated that what she had said was the truth. [1038] It was put to her that the she had accused the accused's family of "some past myths in regards to cutting of the nose, mouth and vagina" which were untrue. She responded by stating: "I never accuse his family, [the accused] told me that's the tradition in his family." [1039] It was then put to the complainant, that a suggestion that a person would cut off her nose, mouth and vagina, would be a motivating factor for her to run to the police for safety and security. She replied by stating:- "He is a manipulative person; he is a controlling person. He, the person who touches, he can do anything any time, I was had fear for my children, I had to live for my children. I tried to survive." [1040] When pressed as to the circumstances being a motivating factor to run to the police for safety and security, she responded that she did go to the police, but the accused called her several times to come home, and stated that he was not "going to do it." [1041] 1. The complainant stated that the accused told her family, in particular her sister in Fiji, that "[i]f your sister comes without a nose and a mouth how's this going to look like?" [1042] The accused had informed the complainant to not tell her family about the threat to cut off her nose, mouth or vagina, because he was going to tell them. [1043] When pressed again about whether she had told the police about this threat, she stated: "I can't exactly recall but I went and saw a Constable Lumas(?). As soon as we were talking the phone was just ringing every minute. And he told me to, 'Come home as nothing's going to happen. Come home please.'" [1044] 1. Subsequently, the complainant was asked how she felt after the accused raised with her, the cutting of her nose, mouth and vagina. She stated that she asked the accused how it was to happen, and he told her that he would book a doctor and that the doctor would do it so she did not have to worry. The complainant stated that she told the accused that no matter what, she would not do it. The accused replied: "If you don't do it then another punishment is coming." She stated that she thought hard because "there are 18 punishments" and she did not know what the other punishments would be. [1045] She stated to the accused:- "Oh my god all these awful things and everything is happening to me, how you going to punish him." [1046] 1. There is also evidence that JS heard the threats to cut the complainant's nose. [1047] 2. I accept that the accused made the threats as alleged by the complainant. Whilst the suggestion of losing a nose mouth and vagina might be thought to be an unusual threat to say the least, in the context of the complainant's history where she had been subjected to previous instances of violence and the accused's behaviour, I accept that she believed that the accused could seek to carry this threat out. Her evidence was that the accused told the complainant's sister in Fiji and she went to police but was recalled by the accused who told her nothing was to happen. There is also evidence which will be referred to later in these reasons as to the actions the complainant took to hide kitchen knives, cutters and sharp items as her consequence of her concern that the accused would carry out his threat. In addition, the complainant described the accused in her mind as capable of doing anything. [1048] COUNT 2 on the INDICTMENT 1. This count follows Count 1 and Incident 25 and accordingly is alleged to have occurred between 13 and 31 January 2015. At the tennis club the accused told the complainant to stop the car. The complainant stopped the car in a location where there were "big trees surrounding so the view was blocked towards the club." The accused got out of the car from the passenger seat and told her to come out. The complainant stated that she did not make a "big fuss" and "just came out." She stated that she thought the accused wanted to talk to her. The accused then said to her: "I want to piss in your mouth." She alleged that the accused told her to sit on the ground, but she refused. She told him: "I'm going to sit on the front seat" of the car. She proceeded to open the door and to sit in the car. The accused subsequently told her that he only had "five minutes to do it" and that it was "part of a punishment." The complainant alleges that the accused "took his penis out" and put it in her mouth. The complainant stated that the accused did not urinate but she did try to "bite" because she "didn't want him to do that" to her. [1049] 2. The complainant stated that the accused's penis was in her mouth for "five seconds." [1050] Thereafter, the accused stated that she was "worse than a prostitute" and started to say things about the complainant's mum being a "bitch" and that she was like her mum, and that the complainant's father had passed away "so early when he was 48 because [the complainant's] mum was … a bitch." [1051] She stated that she felt "let down" by someone who was "supposed to protect" her, but was "abusing" her and "doing things unbearable to his own wife, mother of his children." [1052] She stated that the accused had told her that this was "part of a punishment" and that "new punishments will be coming." [1053] 3. She recalled that the accused's penis was "loose" when he inserted it into her mouth and that he did not urinate. She stated that she did not like it and that she "tried to bite." [1054] She stated that when the accused picked up his bag to leave, she felt "a big relief" that he had left, and that she was now free to go home to her children. [1055] 4. In cross-examination, it was put to the complainant that the incident at the tennis club did not happen. The complainant maintained that it did happen. [1056] She stated that she could not recall the date, but that the incident did happen. [1057] 5. I accept the complainant's evidence as to count 2. I am satisfied that the she gave a truthful and accurate account of what occurred. It was detailed and relayed the circumstances as she recalled them 6. The complained act falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 7. Although the complainant's evidence was that she would not submit to having her nose, mouth and vagina cut, I accept on the basis of her evidence that she believed the threat to be real. She had earlier described her condition at the time which provides a further basis to her submission to the punishment. I accept that the complainant remained concerned for her and her children's safety and security. 8. I further accept that she submitted to punishment to focus on her children and keeping the marriage together, having been financially dependent on the accused. 9. I accept that the complainant believed that if she submitted to the punishment, she and the accused would be able to reconcile. 10. I accept that the threats of violence fall within s 61HA(4)(c) of the 1900 Act in that they were instilled in the complainant and negate any consent that may have been given. The complainant in any event was not freely and voluntarily consenting to the intercourse, but rather submitting to a punishment. I am satisfied that in circumstances bearing in mind the nature of the relationship as I have found it, the condition of the complainant at the time which would have been known to the accused, where a punishment was being imposed involving an act of the nature described early in the morning near a tennis club, the accused knew that the complainant was not consenting freely and voluntarily to sexual intercourse. 11. I find each of the elements of Count 2 proved beyond reasonable doubt and find the accused guilty of Count 2. INCIDENT 26 1. The complainant gave evidence that following the accused's departure for work (following Count 2 on the indictment), the accused rang her on the phone from the time that he was on the train, and had called her to discuss how many times she had slept with Mr Kelly, how she had sucked Mr Kelly's penis and to ask her how big was Mr Kelly's penis. She described these calls as "going non-stop." [1058] 2. The complainant stated that she told the accused to stop talking to her like that, that she was tired, and that she did not do all the things that he had alleged. She asked him: "Why are you doing all this?" but the accused continued. [1059] 3. In the afternoon, the complainant stated that she picked the accused up from the train station. At about 3:45 pm, the accused told her to take him to the Minto Indian shop and the food market. [1060] As soon as the complainant parked the car, she asserted that the accused stated to again ask her questions about Mr Kelly and commenced hitting her. She stated that there was a fitness centre where Mr Kelly used to attend, and as soon as the accused saw the fitness centre, he started to hit her and kept on hitting her. The accused stated to her: "If you get out and you run I'll chase you and I'll kill you." [1061] At that point, the complainant stated in her own mind, she felt that the accused would be capable of carrying out the threat as the accused was "so strong" and she was "just skin and bone at that time." [1062] 4. The complainant's evidence was that the accused hit her using a closed fist, on her head, face, breast and shoulder. The complainant stated that her face and head were swollen and that she had bruises near her breast and shoulder. [1063] She did not want to go to the fruit market because of her swollen face, and she did not wish to be seen. [1064] Nevertheless, the complainant followed the accused into the fruit market. She said that they shopped for vegetables and that she was quiet and as calm as possible because she did not want the accused to "get angry any more." She stated that she was embarrassed because she had a swollen face and tears kept coming into her eyes. [1065] 5. After shopping, the complainant and the accused left for their car. The complainant stated to the accused: "I'll walk or you walk." However, the accused had the keys to the car, and the complainant stated that if she walked, he would chase her and hit her more. She was also concerned about how she would get home, and accordingly she decided to drive them both. [1066] When they arrived home, the complainant went upstairs and the accused, according to her, was calling for her. She stated that she was going upstairs to feed her children and herself, and the accused responded: "Without my permission … you can't go upstairs." The complainant could not recall what she said in response. [1067] 6. The accused's cross-examination centred on the statement given by the complainant to the police, and where she referred to the fact that when they pulled in at the Minto fruit store, it was near the fitness centre which the complainant stated both she and Mr Kelly used to attend. The complainant stated this was mistyped. The complainant clarified that she used to attend a centre in Leumeah. [1068] 7. The accused put to the complainant that she had told lies to the police about going to that particular centre in Minto. She rejected this stating that it was a typographical error or a misunderstanding by the police. [1069] 8. It was further put to her that the accused did not punch her in the head four times on that day, however the complainant maintained that he did. [1070] The complainant stated that the accused knew exactly which fitness centre she was attending. [1071] It was put to the complainant that the police did not know anything about the fitness centre until she had raised it, and she told them that in order to justify the claim that the accused had punched her four times. Again, the complainant rejected this suggestion. [1072] 9. I accept the complainant's evidence in relation to this matter. Much of the detail as to what occurred was not traversed in cross-examination and the complainant's responses to an error in the police statement was accounted for and of little consequence. COUNT 3 on the INDICTMENT 1. This count is said to occur between 13 January 2015 and 31 January 2015. It was evidenced as having occurred on the same day as Count 2 after the accused and the complainant returned home. The complainant gave evidence that following incident 26, the accused called her whilst she was upstairs, and said: "It's time for your punishment." The complainant stated that she had to feed their children first, but the accused continued to call her. The complainant stated that JS told her: "Mum, you go down the stairs and listen to him, otherwise he's going to hit you." The complainant went down stairs and she described what occurred as follows:- "He said, 'The punishment is ready'. I asked him, 'What is that?' and he said that, 'Punishment is that I'm going to piss in your mouth'. So I went with him in the toilet and he told me to sit on the pan and I sat on the toilet pan and he wanted to piss in my mouth and I didn't want to open my mouth. And he told me he will take off your nose and your mouth and your vagina, what is best. I thought that at least he pisses in my mouth I would keep my nose, my mouth and my vagina. I had to live for my children. I made a decision to open my mouth and let him piss in my mouth. If he does that then at least I have my nose and my mouth so can I have to live for my children." [1073] 1. After this, the complainant proceeded to close the lid of the toilet, sat on it, and the accused held out his penis. The complainant saw that his penis was bleeding and the accused stated that she had given him a disease. The complainant informed him that she did not have a disease, and the accused said: "Piss is coming" and asked her to open her mouth. The accused then proceeded to urinate into the complainant's mouth. [1074] At the time, the complainant stated that the accused was wearing shorts and that they were down to his knees. [1075] She described having to swallow the accused's "piss with blood." She stated that it was "smelly" and described vomiting all over the floor because she could not "take it no more." [1076] She stated that the accused's urine came out "mixed with the blood" and that she could "feel" and "smell" it, but she did not let it go down her throat, notwithstanding the accused's instruction to "swallow it." She stated that she did not do it because it was "undescribable [sic], disgusting, so I vomited all on the floor." [1077] She described the accused thereafter as being pleased and happy. [1078] 2. The complainant was crying and thereafter went upstairs to be with her daughter JS, but did not tell her what had happened. [1079] 3. In cross-examination, it was put to the complainant that this incident did not happen. The complainant maintained that it did happen. [1080] It was put to her that she was lying because she could have made a complaint to the police straight away. The complainant replied that it was a punishment, and that she feared for her nose, mouth and vagina. [1081] 4. The complainant later stated that this was the first time that the accused urinated in her mouth, however, she later stated that the accused had done it "five times." [1082] She reiterated that because it was a "punishment", she did not complain at the time and feared for her nose, mouth and vagina. She stated that she did not want to lose her nose, mouth and vagina because she had to look after her children. [1083] 5. In Count 3, the complained act falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 6. I am satisfied that the complainant gave a truthful and accurate account of what occurred. It was detailed and relayed the circumstances as she recalled them. 7. In relation to this count the complainant again gave evidence of submitting in the context of the act being a punishment and to avoid the loss of her nose, face and vagina. Earlier at the Minto shops, I am satisfied that the accused had assaulted her in the way she described. The complainant stated that she submitted in order to be able to live for her children, which I infer relates to enduring the punishment so as to be forgiven and potentially reconciling with the accused. I accept her explanation for her not reporting to police which is properly accounted for by the nature of their relationship. 8. The complained sexual act consisted of the complainant taking the accused's urine and blood into her mouth. 9. In the context of the threats made to the complainant any consent was negated pursuant to s 61HA(4)(c) of the 1900 Act. 10. However, I am satisfied that the complainant was not, in any event, consenting freely and voluntarily to sexual intercourse but rather submitting to a punishment for the reasons that she gave in evidence. I am satisfied that bearing in mind the nature of the relationship as I have found it, where a punishment was being imposed involving an act of the nature described, and accepting the complainant's condition at the time (she stated that she was "skin and bone"), it would have been apparent to the accused, and that the accused knew that the complainant was not consenting freely and voluntarily to sexual intercourse. 11. I find each of the elements of Count 3 proved beyond reasonable doubt and find the accused guilty of Count 3. INCIDENT 27 1. The complainant stated that she went downstairs following count 3 on the indictment because according to her, she had to "listen to him" or otherwise the accused was going to "come upstairs and then he's going to hit me." [1084] The accused told her to sit on the lounge beside him and she did this even though she did not want to. She stated that she had to answer his questions about Mr Kelly, about the voicemails and text messages. [1085] She stated:- "He said it's from my phone and all the voicemail from the home phone and my mobile phone and the rest, all the videos and everything from the TV and News Biz." [1086] 1. The complainant stated that she thought she had done nothing wrong, and did not have sex with Mr Kelly and did not know how she could have been recorded. However, somehow, she stated that the accused confused her into believing that it was "all true" and that he had "all the evidence." [1087] She thereafter described going into the lounge room to fold clothes to put away so that she would not have to answer his questions. She stated that she was "so depressed" and could not "handle it no more." [1088] 2. She described the accused entering the laundry and asking her: "Did you sleep with Glen in the laundry?" She responded: "No … who told you this?" The accused responded that he had an "ESP, that the ESP was pointing towards the stairs … [and] through that light it shines" and this showed the complainant "going into the laundry with Glen." [1089] 3. In the laundry, the complainant stated that she was trying to hang up some clothes using some string in the garage, and she asserts that the accused advised her to do another way, which would have been much easier for her. She asserted that the accused had also stated that she should not "do things like that because it's a sin." She believed this to mean that the accused thought that she was attempting to physically hang herself, because she was trying to tie up the rope. [1090] 4. In cross-examination, the complainant reiterated that she was not trying to hang herself, but was instead trying to tie the clothes line up, but it was so low that it got tangled on her. [1091] 5. The complainant could not remember anything else happening in the laundry, but she did remember going to the lounge room where she was again subject to the same questions about Mr Kelly and the accused is said to have told her that if she admitted it again then he would "spare" her. She stated that she wanted something to eat and the accused gave her two minutes to go eat or drink, and to have a biscuit. She stated that as soon as she went upstairs she did not have time to make tea or eat. She stated that as she was about to make tea, the accused began yelling and screaming, calling her to come back downstairs. [1092] The complainant stated that she was "feeling numb … feeling scared … hungry" and was "sick" in her stomach. She stated that she felt like she did not have a choice but to go downstairs, because if she did not, he would come upstairs and hit her more and verbally abuse her. [1093] 6. She stated that she went downstairs and the accused wanted her to sit and look at him "face to face" and answer his questions which were the same questions about her alleged relationship with Mr Kelly. [1094] He asked her how many times they had slept together, why they had done it, how big Mr Kelly's penis was, how they had had sex, and the locations where they did it. She stated that the accused came close to her face with his fist closed, and was "garnishing his teeth … about to hit [her]" and she lied. She told him that she had sex with Mr Kelly on the lounge. She stated that she said this to "survive a night" for her two children. [1095] The complainant gave evidence that she had seen the accused previously close his fist and come close to her face. She understood this to mean that if she did not open her mouth and say what he wanted to hear, then she would be bashed. [1096] 7. The complainant stated that they had a talk, when the accused stated that he would take four days leave. The accused is alleged to have told the complainant that he was going to bring his parents over and they were going to stay with him. The accused is alleged to have also said that he would "take all the money from the house and all the money" and that he would "get another woman" for himself, and then the complainant had to leave. [1097] The complainant was asked as to what she was thinking when the accused told her he was going to get another woman. She stated: "He knows that I'm not going to accept never, ever, and he thinks that if he says those things and manipulates me, my brain, then I will admit each and everything and let him go or I will stay with him." [1098] 1. She stated that during that night, the accused did not kick her, but only verbally abused her. [1099] 2. The complainant stated that she was very tired and stated that she wanted to sleep a bit. The accused told the complainant that she could go upstairs and she had one and half hours sleep. She stated that the accused called her at about 6:45 or 7:45 am in the morning, and asked her to have sex with him. She responded that it was early and that the children were not up. In turn, he replied: "If Glen was here you would have done with him." [1100] She recalled that the accused went to work but could not recall if she drove him. 3. She stated that and she was concerned about the accused's threats about cutting off her nose, mouth and vagina. Accordingly, she stated that she moved all the sharp objects like "knives and any sharp cutters or anything sharp" and hid them in a manhole and in one of the cupboards with a secret drawer underneath. [1101] The complainant stated that by that time, the accused had rung her sister in Fiji and said to her: "If your sister comes back to Fiji how she's going to look like when she's coming without a nose and a mouth." [1102] 1. The complainant confirmed that she hid these items in the morning following that where the accused was in the laundry with her, asking her all the questions about Mr Kelly and when the accused had left for work. [1103] These items were subsequently retrieved by the police. 2. I accept the complainant's evidence. In my view, it reinforces her belief as to the threats the accused had made. COUNT 7 on the INDICTMENT and INCIDENT 32 1. The complainant gave evidence that preceding the circumstances relevant to Count 4 on the indictment, she was not feeling well and told the accused that she was feeling sick. The complainant stated that the accused did not care and had told her that he was ready to proceed with another punishment. The accused then advised the complainant to: "Wait a bit, put the kids to bed" and then he would let her know what the punishment would be. [1104] I am satisfied that this occurred after Count 3 and within the period alleged of 13 January and 31 January 2015. 2. The complainant stated that she went upstairs to feed the children and put them to bed, but the children were asleep. She stated that the accused went to the bathroom and retrieved a toy. The complainant described the toy as being "shape[d] like a penis but it was very, very hard made out of a plastic" and "more than 12 centimetres" long. [1105] She added that the toy was connected to a belt. [1106] She stated that the accused put a gel on the toy, "halfway of the toy" and that it was "maybe two inches." [1107] She stated that it was "so big. I was very, very scared and I was terrified." [1108] 3. Her evidence was as follows:- "Then I told him but please, I begged him, please not to use the toy. Whatever you have I appreciate. I go with you rather than the toy because I have never, seen something like that in my life. How can someone do this to me? I was scared to death. My body was shaking and I didn't know that I was quite numb at that moment. I was splitting myself together and coming to terms that what is this, what is going to happen to me because I have only seen his. And something so huge comes in front of you, something happen to me, I was terrified and I plead, I begged him. I said, 'I love you to death, don't do this to me, whatever you have'. He told me that it's a part of your punishment, you have to get used to it. So he pulled his pants down. He wear, belt it around his waist and he pulled the ..(not transcribable).. thing and he told me to lie down and I was so scared. I had to lie down and just to go through a night and ..(not transcribable).. and he tried to push it in me. It was so big and it was so hard. It was so painful for me. I was just lying down. I couldn't ..(not transcribable).. thinking about beautiful children that I have to survive this, I have to be strong. I can do this to survive and he told me that it's a part of punishment I can't ..(not transcribable).. and this, then I told him, "I beg you to do it slowly" and he pushed it hard. I yelled and screamed, I got out, I pushed him away and my children heard it. They came running down. DS quickly sent all them out beside me he put a blanket on me. I was shuddered, I just kept quiet." [1109] 1. The complainant gave evidence that she laid on the lounge because the accused wanted to have sex with her with the toy. [1110] She stated that she was thinking about her children and that she had to "survive" and "be strong." [1111] She stated that if she pulled through the event, then the accused would have "sympathy" towards her and let her go, and that he would not torture her anymore with the toy. [1112] 2. She later added: "The night he abused me with the toy he told me to undress and told me to lie on my tummy and my bottom up for him to use the toy on me in my vagina, and he was pushing the toy in my vagina and it was very, very painful. I told him, 'Stop doing that, it's hurting me.' He told me that I had to get used to." [1113] At this stage, the complainant stated that she was "very much [in] pain because he pushed the toy in and without any gel or anything …" [1114] 1. The complainant gave evidence that she thought that if she denied the accused this punishment, another punishment would come which would be worse than the toy. [1115] She stated that as the accused was doing this, she asked him how it felt. The accused allegedly replied that it "felt much better" and that it was pleasurable to him. [1116] At the time, the complainant stated that she was naked as the accused had told her to undress. [1117] When specifically asked as to how the accused would respond, if she had denied him the punishment, the complainant stated: "He will – he will hit me." [1118] She later added that she did what the accused told her because "otherwise … the punishment is going to get worse." [1119] She stated that she was awake all night and that the accused did not let her sleep, and that he "verbally, mentally, [and] physically" abused her. [1120] 2. In relation to Count 7 the evidence clearly amounts to sexual intercourse within the terms of s 61H(1)(a)(ii) of the 1900 Act. 3. I accept that the complainant was tired and the accused knew that because she told him. I accept that the complainant was scared and she pleaded with the accused not to do this. The accused persisted and even though the complainant told him to do it softly, he did it hard and it caused her significant pain. The complainant was reminded that it was part of the series of punishments and she believed that if she denied the accused, she would be hit and the next punishment would be worse. 4. The accused did not dispute the physical act but contended that the complainant consented. 5. I am satisfied that any consent was negated in terms of s 61HA(4)(c) of the 1900 Act but in any event there was no free and voluntary consent. I accept that the complainant's submission was brought about by her condition at the time, her concern and the threats of further violence if she did not submit. 6. I accept that the accused knew the complainant was not consenting freely and voluntarily. What was administered was a punishment, which the complainant submitted to. Bearing in mind the relationship between the complainant and the accused as I have found it, the threats of violence he had made, the painful nature of the sex act itself, the fact that the complainant told the accused of her condition and not being well, I am satisfied that the accused knew the complainant was not consenting. 7. This toy was also alleged to have been used in subsequent Counts. There was evidence that a picture of it was drawn by WS who told police that he seen it. The picture drawn by WS was not tendered. Detective Duncan stated that she did not ask WS to draw a picture of the toy, but did make an observation of him drawing a pink phallic-type drawing to demonstrate what he had seen. [1121] Detective Duncan was questioned as to the capacity of WS to make such an observation and to draw, in particular in light of his "mental problems." However, Detective Duncan replied that she did not know. [1122] 8. I find each of the elements of Count 7 proved beyond reasonable doubt and find the accused guilty of Count 7. COUNT 8 on the INDICTMENT 1. Following the incident the subject of count 7 on the indictment, the complainant gave evidence of the accused trying to push the sex toy into her bottom. She could not recall if it was the same day [1123] as Count 7 although she had referred to this event as occurring between 13 January 2015 and 1 February 2015. [1124] 2. The complainant gave evidence that being instructed to have her bottom exposed. She stated that she was very scared and thought that if the accused pushed the whole toy inside her then she may not survive. [1125] She stated that she ultimately submitted in order to get through the night, to survive and maybe she will be spared. [1126] 3. The complainant stated that the accused held the toy in his hand and tried to push it into her bottom. [1127] 4. The complainant stated that she got up and pushed the accused away and told him that it was not the place to have sex and told him: "God has made that for us to poo, not to have sex." She added that the accused did not care. She stated that she asked him why he was doing this to her and he stated that it was "just pleasure" and it was a punishment that she had to go through. [1128] The accused is also said to have stated: "Other women do it, why can't you?" [1129] 5. The complainant stated that at that time, the accused was holding the sex toy in his hand and she was naked because the accused did not like her wearing clothes so she had to comply. [1130] She stated that just before this moment, she was "very, very scared" that if accused decided to push the whole toy inside of her, then may not survive and she would die. [1131] At the time, the complainant described the accused as being "very, very aggressive." [1132] The complainant's evidence was that after pushing in the toy, the accused wanted her to "suck him." [1133] 6. In relation to Count 8, the evidence clearly amounts to an attempt of sexual intercourse within the terms of s 61H(1)(a)(ii) of the 1900 Act. I find that the act involved went beyond mere preparation. 7. The accused did not contest the physical acts but submitted that the complainant consented. The reference to this act as a punishment clearly reflects its imposition as a sanction. 8. I accept the complainant's account. I accept that her submission was brought about by being scared and thinking that she might be spared and if she did not submit then she might be subjected to harsher punishment. Her fears were supported by the nature of the relationship earlier described. Her submissiveness is further supported by the relationship evidence earlier referred to. 9. The complainant's submission was also brought about by her physical vulnerability, the threats regarding her nose, mouth and vagina, as well as concerns for her family situation. 10. I am satisfied in any event that any consent was negated by the threats of force made to the complainant within the terms of s 61HA(4)(c) of the 1900 Act. I am satisfied that the complainant did not give free and voluntary consent but rather submitted to a punishment. 11. I accept that the accused knew he was administering a punishment that the complainant was submitting to. Such is clear from the words spoken which the complainant gave evidence. Bearing in mind the nature of the relationship, the nature of the act (described as very aggressive), the imposition of this act as a punishment, and the complainant's condition at the time, I am satisfied that the accused knew the complainant was not freely and voluntarily consenting to sexual intercourse. 12. I find each of the elements of Count 8 proved beyond reasonable doubt and find the accused guilty of Count 8. COUNT 4 on the INDICTMENT [1134] 1. The complainant recalled the next instance involving urination as post-dating the first use of the toy. She described having done this as the "third one." [1135] By reference to earlier counts this would be within the period alleged of 13 January and 31 January 2015. 2. The complainant gave evidence about an incident occurring in the afternoon, when she picked up the accused from work and she was called to the toilet downstairs. The complainant replied that she was feeding her children, and the accused stated: "Well you should know that if I call you, you have to come straight." She stated that the children asked her to go downstairs and she went downstairs. [1136] 3. As soon as the complainant went downstairs, she stated that the accused called her into the bathroom, and said that the "punishment" was ready. At that point, the accused was said to be in the bathroom waiting for her to arrive. [1137] The complainant stated that she was made to sit on the toilet pan and the accused wanted her to "be normal as possible." [1138] She stated that during this incident, as in the second one, she was "crying, worried, with none-half malnourish [sic]" and thought that she had to go through the punishment because she had previously done it, that the accused would "spare" her "just for mercy." [1139] She stated that she was concerned that if she did not do it, the accused would subject her to a worse punishment, and that this punishment was the "easiest one" because she had to "just open [her] mouth and sit there." [1140] 4. The complainant stated as she sat on the toilet pan, she said a prayer to herself, and the accused told her to open her mouth. The accused could not urinate and it is alleged that he went to the basin, and as soon as he commenced urinating, he could then insert his penis into the complainant's mouth to continue. [1141] 5. The complainant stated that the accused urinated in her mouth and she vomited the urine out into a bin bucket where she had placed a plastic bag. She stated that she asked the accused why he had made her do that, to which he replied: "It feels good", that it was part of the punishment, and that he got "a big relief" when he did it. [1142] She stated that at the time, the accused had his pants down and was not wearing a shirt. [1143] She stated that when she arrived in the bathroom, the accused was "very agitated" [1144] , but after he had urinated in her mouth, he looked "pleasure-y [as said]". [1145] She stated that throughout the episode, she was praying and thinking about what she would look like without a nose and mouth. She further added that she was "very sad … stressed … very, very, very depressed and … confused at the same time." [1146] 6. The complainant believed that the accused would "chop" off her nose and mouth because "he doesn't have remorse … no sympathy towards his wife, the mother of his children, who serve him day and night …" and that he was "capable of doing [it]." The complainant stated that if the accused could urinate in her mouth with blood in it, and instruct her to swallow he would be "capable of doing anything." [1147] 7. The accused put to the complainant that he never urinated in the complainant's mouth. The complainant maintained that he did. [1148] Otherwise, the accused submitted that all other sex counts were consensual. [1149] 8. In the case of Count 4, the complained act falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 9. In relation to this count, I am satisfied that the complainant gave truthful and accurate evidence of what occurred. It was detailed and relayed the circumstances as she recalled them. She described herself as "crying, worried, with none-half malnourish [sic]." I am satisfied that this would have been apparent to the accused. 10. The act itself involving urination in the complainant's mouth was identified by the accused to the complainant as a punishment. 11. The complainant again gave evidence of submitting in the context of a punishment and to avoid a worse punishment in the future. She reiterated concerns for her mouth, nose and vagina. Her submission involved putting herself in the position for the act to occur in circumstances where she felt unable to resist. I am satisfied that there was no free and voluntary consent and any consent in the circumstances was in any event, negated by the threat of force under s 61HA(4)(c) of the 1900 Act. 12. Bearing in mind the nature of the relationship, the threats made to the complainant, the complainant's condition as described, the nature of the act itself and its imposition as a punishment, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 13. I find each of the elements of Count 4 proved beyond reasonable doubt and find the accused guilty of Count 4. COUNT 5 on the INDICTMENT 1. The complainant gave evidence that following count 4 on the indictment the accused ordered her downstairs and was talking to her again about Mr Kelly, including "text messages all the video recordings, USBs and everything he has as evidence and he talked about the plot for Glen." [1150] At that point, the complainant stated that she was asked some questions about how she slept with Mr Kelly, and stated that if she denied it, he would get mad. She then stated that the accused stood up and hit her. The accused asked the complainant to have sex with him and she replied: "No, I'm too tired" but the accused retorted: "You can have it with Glen anytime that time you're not tired." The complainant then said: "No that's not true, that's not right, why are you talking to me like that?" The accused stated that he wanted a "straight answer" from the complainant and that he got up, hit her again, and demanded her to tell him what he wanted to hear. [1151] 2. The accused allegedly stated: "then suck me as you were sucking Glen and you are good at that." She replied: "I am, I am so tired I can't do this", and the accused hit her. The accused told the complainant to come and sit closer to him, and to do what she was told. [1152] She stated that at this stage, they were both down stairs in the lounge room. [1153] 3. The complainant also referred to the accused wanting her to swallow his sperm. [1154] The transcript records the complainant's evidence in chief: "Q. Where was he when he did this? A. WITNESS: Sometimes he's standing up and sometimes he's sitting down and I have to be sitting on the floor or sometimes he's lying on the lounge and I have to sit on the lounge. Q. On this occasion, do you recall here he was and you were? A. WITNESS: We were both down the stairs in the lounge room. Q. Did he urinate in your mouth? A. WITNESS: He did urinate in my mouth but he told me to because when he eject his sperm he wants to, me to swallow it and I keep it in my mouth because I can't swallow it and then he hits me. He says that, "If you love me you would swallow it.'" 1. After a break the evidence resumed and the following is recorded: "Q. When DS had his penis in your mouth I think you've said that he urinated? A. WITNESS: Yes. Q. And he asked you to swallow? A. WITNESS: Yes. Q. What did he ask you to swallow? A. WITNESS: He asked me to swallow his wee. Q. Did you do that or not? A. WITNESS: No. Q. Did you do anything else in relation to his penis? A. WITNESS: I think I tried to bite it. Q. Why did you try to bite it? A. WITNESS: I was sick and tired of it. Q. What did he say or so when you tried to bite his penis? A. WITNESS: He told me that I'm worse than a prostitute. If a prostitute was there she would have done a good job. Q. Did he have any physical injuries or say anything about the state of his penis? A. WITNESS: Can't remember. HIS HONOUR Q. Where was this incident, [AS]? A. WITNESS: We were downstairs in the lounge room. No, we was - it was in the bathroom. Sucking his penis was in the lounge room downstairs. CROWN PROSECUTOR Q. Yes, okay, we're just talking about downstairs, the penis in your mouth and him urinating. So that was in the bathroom? A. WITNESS: Yes. Q. And you tried to bite his penis? A. WITNESS: Yes. Q. And there was some exchange between you and him? A. WITNESS: Yes. Q. After that incident was there any other incidents where he put his penis in your mouth and urinated or not? A. WITNESS: Yes. If I'm correct it's - it was the same afternoon or night or it was the next afternoon." [1155] 1. It appears that at one point they were in the bathroom room. [1156] The complainant stated that she did not swallow the accused's urine, but tried to bite his penis. [1157] The complainant at that point stated that the accused had urinated in that mouth "two times … already" [1158] from which I infer refers to the circumstances in Counts 3 and 4 on the indictment. 2. The Crown on this count opened on the basis of the accused urinating in the complainant's mouth in the bathroom. [1159] In fact the evidence did not disclose urination at all. 3. At first the complainant stated that the accused wanted to ejaculate in her mouth in the lounge room. During the course of the evidence I queried to what count the first part of evidence referred to and expressed the view it was unclear. The complainant was subsequently asked as to urination and stated that she bit the accused's penis in bathroom. 4. The accused stated that with the exception of counts 1, 2, 3, 4 and 6 which never happened, the remaining acts were consensual. However he also put to the complainant that he never urinated in her mouth on any occasion. [1160] I infer from that questioning that he also denied seeking to urinate in the complainant's mouth. 5. In closing submissions, the Crown did not specifically identify the act they relied on except by reference to the transcript "page 200 and following." [1161] 6. An incident may well have occurred, however in my view the complainant's evidence on this count was confused and lacking in cogency. Her confusion may not have been aided by the break. 7. In the circumstances, I am not satisfied beyond reasonable doubt as to its occurrence. I find the offence not proved and the accused is not guilty of Count 5 on the indictment. COUNT 6 on the INDICTMENT and INCIDENT 30 1. The complainant described an incident which occurred on the same afternoon or night, or the next afternoon. [1162] She stated that she was called down by the accused who told her that the punishment was ready. She stated that she had to go because her children did not want to see her upstairs and to see the accused hitting her. She stated that her children were fed up seeing their mother struggling and crying. The complainant stated that she was called downstairs into the bathroom, where the accused asked her to sit on the pan and to open her mouth. She stated that she forcefully opened her mouth a bit and the accused told her: "You'd better open your mouth big." [1163] The complainant stated that she opened her mouth and the accused inserted his penis. The complainant described some urine coming out but it was "not much" and the accused said to her: "Just hang on, it's not coming, I have to wait." The complainant then spat out what was in her mouth. Eventually urine was expelled from the accused's penis, and the complainant spat it all out in the toilet and vomited. [1164] 2. The accused then said to complainant: "You are a bitch, you are good for nothing and your punishment is coming. You have to be ready for the punishment." She stated that she wiped her mouth and went into the lounge room. She tried to go upstairs, but the accused told her: "You have to come here and sit beside me very close to me." The complainant sat where she was told and the accused was "very agitated" and asked her the same questions "again and again" about her having sex with Mr Kelly. [1165] 3. In the case of Count 6, the complained act clearly falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 4. The accused submitted that this event did not occur. I am satisfied that the complainant gave a truthful and accurate account of what occurred. It was detailed and again, it relayed the circumstances as she recalled them. 5. In relation to this count the complainant again gave evidence of submitting in the context of her concern about being hit if she did not go downstairs and her concern that the children would see the accused hitting her. Her evidence was she was submitting to a punishment and the accused had stated words that clearly indicated as much. She was told "you better open your mouth big", that her punishment was coming and that she had to be ready for her punishment. 6. I am satisfied that any consent was negated within the terms of s 61HA(4)(c) of the 1900 Act and in any event consent was not free and voluntary. 7. Bearing in mind the nature of the relationship, the nature of the act, its imposition as a punishment and the circumstances in which the complainant submitted to the accused's demands, I am satisfied that the accused was plainly aware that the complainant had not freely and voluntarily consented to sexual intercourse. 8. I find each of the elements of Count 6 proved beyond reasonable doubt and find the accused guilty of Count 6. COUNT 9 on the INDICTMENT and INCIDENT 33 1. The complainant gave evidence about the next occasion she alleges that the sex toy was used, following the incident described in Counts 7 and 8 on the indictment. Two accounts were given of this incident by the complainant in examination in chief, the first on 27 March 2017 and second on the following day, being 28 March 2017. 2. In her first account the complainant stated that this incident occurred on the end of the third, close to the third week of January 2015 in the "afternoon to night". [1166] On the second occasion, she gave evidence that it occurred between 13 January and 1 February 2015, at 10:00 pm at night. [1167] 3. In her first version, the complainant described the circumstances involving the accused putting a rubber on the toy to make it bigger and thicker and stated that the accused said that it was like "Glen's dick as he saw it in a photo." She stated that the rubber was placed half way down the toy on the long part and she was instructed to lie on her back. The complainant stated that she laid on the sofa and was "very, very scared" as the toy was so big. She stated that the accused tried to push the toy from behind and she told him it was "very, very painful" for her to which the accused is said to have stated: "while doing it with Glen it wasn't painful for you." [1168] She further stated that she was kneeling down holding the sofa. She stated that her back was up so the accused could have sex with her from behind. She stated that the accused was acting "crazy" and "weird acting." The complainant stated that it was "very painful" and as the accused pushed more, the pain increased that she asked the accused: "Stop, don't be cruel to me" and begged him: "Please don't do that to me." [1169] 4. Thereafter the complainant stated that she pushed him away and screamed. The children came running downstairs and the accused put a blanket on the complainant and put the toy beside the lounge. In her first account of this incident, the complainant stated that both children asked: "What happened mummy?" The accused is then said to have stated: "You go quickly" and the complainant said: "just go to sleep" and don't worry about me." [1170] 5. The complainant stated that WS asked for a hug and the accused stated: "No, go to your room" and the children went upstairs. The complainant asserted that the accused asked for oral sex and they had "normal sex" although it was "not normal" and the accused complained that she had not done "enough for his penis to come up." [1171] The complainant stated that she did not sleep. [1172] 6. In her second account of this incident, the complainant stated that she was upstairs with her children and the accused called her downstairs. The accused asked her how many times did she sleep with Mr Kelly and the complainant stated that he kept "going about all the messages and everything." The accused then informed her that he wanted to have sex with her and the complainant said that she would. The accused then asked her: "Why are you saying yes all the time?" The complainant replied that she thought if she replied "No" then he would say that she had an affair with Mr Kelly, and given what she had done with him, she could also do it with the accused. The accused then told the complainant to undress and lie down. [1173] 7. The complainant stated that she did this although she did not want to do it because she was "very, very tired" and that she "didn't get anything to eat for days", that she "didn't sleep for days and night" and was feeling "very weak." She stated that she "just wanted to go and sleep" but the accused did not let her. [1174] She stated that the accused knew this because he was the one who had kept her awake every night and day. [1175] She stated that the accused knew that was not eating much and that she was feeling sick and "very, very depressed." [1176] She stated that the accused knew because she had told him as she was undressing: "Look at me, I'm just skin and bone and have some remorse, please." She stated that the accused did not care, and told her: "Just get – get on with your punishments." [1177] The complainant stated that at the time, she was concerned about her safety because she was not eating, sleeping and her vision was "not quite good", her breathing was "not good" because she was "just malnourishing [sic]." She reiterated that she felt "very, very sick." [1178] 8. The complainant stated that on this occasion, the accused used the toy and put "rubber" on the toy and was abusing her. She stated that the accused tied the toy around his waist and told her to lay down. Accordingly, she laid down on the lounge and the accused started to have sex with her. The complainant stated that the toy had a "rubber thing" put over it, which she had earlier described as making the toy "thicker" and it went "half way" up the toy. The complainant stated that the accused put the rubber on the toy because the accused told her that it was "like Glen's dick" that he had seen in a photo. [1179] 9. Both the accused and the complainant were said to be naked at that point. [1180] She stated that she laid on her back because if the accused wanted to "do it from the back in my vagina" it was "very, very hurtful" and she told him that she could not do it "from behind." [1181] She stated that the accused was "very aggressive" and "looked scary." [1182] She said that the accused told her that she had betrayed him and that was why he was punishing her. The accused is also alleged to have stated that the punishment gave him pleasure. [1183] 10. The complainant stated that if she did not listen to the accused, the accused said that he was going to hit her and "say all the things again and again about Glen that's not true and verbally abuse." The complainant stated that was "just too much" so she "listen[ed] to him whatever he says." [1184] The complainant described the toy as being pushed in "very hard" and that it was "very, very painful." The complainant stated that she pushed him away but the accused came back again and said that she should think about her nose and her mouth. The complainant stated that she was "very scared" and did what the accused wanted her to do, as it was "better to have this toy and that pain and not lose my nose and my mouth." [1185] The complainant believed the threat because if the accused "can abuse me every way he could, he didn't have any mercy when I asked for, so he will do it." [1186] The complainant described the motion of the accused as giving her "so much … pain, sharp pain." [1187] 11. She stated that she was crying at the time the toy was inserted. [1188] The complainant gave evidence that at first the toy went in slowly but all of a sudden, the accused pushed it and it hurt her and she experienced sharp pain. [1189] She got up and tried to push him away. [1190] She stated that she was screaming when the toy went in, and started to cry "like a normal weeping cry." [1191] In a later account the complainant stated that WS came to her and said: "Mummy." The accused was "so angry" and is alleged to have said to WS: "You fucking bastard, just go in your room." The complainant stated that she told the accused not to say that to them and that she would go and put them to bed. [1192] The complainant went upstairs, got dressed and spoke to WS. WS asked: "Mum are you okay?" to which the complainant replied: "I'm okay." WS then asked: "That there is a porn thing, mum, on the floor beside the lounge. Does it belong to daddy?" The complainant stated that she was embarrassed and told him not to worry about anything and to go to sleep. The complainant also comforted JS and told her not worry, and that nothing would happen to her. [1193] The complainant stated that she was tired and went to sleep with her children. 12. Although the Crown had scheduled the first version as part of the evidence on Count 10 it is more consistent with Count 9. [1194] There are some variations in the surrounding facts, however the two accounts of the sex act using the toy with the rubber, the complainant screaming and pushing the accused away before the children wake up are largely consistent and were not challenged. The complainant also begged the accused to stop. Despite some aspects of the complainant's account being conflicting, I am satisfied beyond reasonable doubt it occurred. The accused did not dispute the physical act. 13. In my view, there was nothing consensual about this incident. The incident was aggressive and painful, and was intended as a sanction. I accept what occurred was administered as a punishment and the use of the rubber was on the toy said to resemble Mr Kelly's penis. 14. In the case of Count 9, the complained act would fall within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 15. I accept that the complainant submitted in the context of threats of force against her safety. Any consent in these circumstances is negated pursuant to s 61HA(4)(c) of the 1900 Act. The complainant stated that she was weeping and crying and screamed when the toy went in. Her responses led to the children waking and in particular WS coming downstairs. Her evidence was she was submitting to a punishment and the accused stated words to her that clearly indicated as much. In any event, in the circumstances there was no free and voluntary consent. On her evidence, her condition was clearly known to the accused however his response was that she should get on with her punishments. 16. In all the circumstances, I am satisfied that the act occurred and that the complainant in any event did not consent freely and voluntarily. 17. I accept the Crown submission that the statement asking the complainant why she was always saying "yes all the time" [1195] is demonstrative of the accused's knowledge that the complainant was submitting to his demands because of her fear of him and the need to submit in order to avoid further violence. Bearing in mind the nature of the relationship, the complainant's condition at the time, and the circumstances in which the act was administered as a punishment, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 18. I find each of the elements of Count 9 proved beyond reasonable doubt and find the accused guilty of Count 9. Events following Count 9 1. The complainant stated that she did not tell anyone about these incidents. [1196] 2. She stated that during the month of January 2015, her support structure consisted of her neighbours and her cousin. She stated that she could not ring her brother and sister-in-law because she was scared that if the accused found out, she was going to be in "big trouble." as the accused was going to argue with them and drag them into her problems. [1197] 3. In her earlier account, the complainant stated that the day following Count 9 she picked up the accused from the train station and that he continued to question her about Mr Kelly. She stated that she was fed up and went for a walk with the children but was pursued by the accused. Eventually she was promised that he was not going to chase or abuse her, and told her she was allowed to come in the house as they were allowed to stay. [1198] She stated that the accused was "acting crazy" and "every minute he is calling" and "asking things." [1199] She gave evidence that she was told to call Mr Kelly and tell him that the accused had videos and photos of both of them having sex. The complainant stated that she called him and told him although Mr Kelly rejected this suggestion. [1200] Mr Kelly did not give evidence of this call although he did give evidence of receiving what he described as threatening calls from the accused and the complainant texting him at the accused's instigation. [1201] 4. The complainant also called her sister-in-law Sabnam Chandra and told her that she had an affair with Glen Kelly. The complainant said that she did this as the accused stated that he had videos and some calls and text messages that he would distribute to everyone in her country, her family and friends and that would be "devastating." [1202] The complainant stated that she believed the accused had the photos and believed that with technology he could "bring it together and make things as if [it] had happened." [1203] The complainant stated that in the daytime, when the accused was at work, he called her and was threatening to kill her and she dialled Ms Chandra for her to listen to what the accused was up to he told her "send me to gaol; when I come out I'll kill you." [1204] The complainant also stated that she told Ms Chandra that the accused wanted her to admit an affair. [1205] 5. Sabnam Chandra gave evidence. She stated that she received a call from the complainant on 30 January 2015. She stated that the complainant was crying told her that she had an affair with a man. She asked if DS had hit her however she denied this and denied that the accused was next to her. Ms Chandra stated the crying did not cease and the complainant sounded very upset. She stated that the complainant did not want the police called and instead should ring the accused on his mobile not work number. Ms Chandra stated that she did not call the accused thereafter. On the same day however she received a Facebook message from the complainant telling her that the accused was trying to solve the problem and he was beside her when she made the call. She stated that the complainant wanted her to call her, however she messaged that she should ring back herself. The complainant did this and told her that she was having people from Centrelink and housing because she decided to move out. Ms Chandra asked if it was true that she had an affair. She was told: "in DS's mind that's what he thinks but in my mind I never had an affair." [1206] 6. The complainant also stated that in the last week of January she could not recall if she had told Ms Chandra that the accused had raped her. [1207] Ms Chandra gave no evidence that she was so advised. COUNT 10 on the INDICTMENT 1. The complainant gave evidence of a further incident when the sex toy was used. She stated that this occurred again, between 13 January and 1 February 2015. She described the incident as follows:- "DS called me downstairs, and I came downstairs, and he told me to undress and he wants to have sex with me. So at first I told him that I can't, I'm very tired. And he told me that he said to me that, 'You can if Glen was here you wouldn't have hesitated, you would have done it.' So I said, 'Okay, if it's only you I will do it, if it's the toy I can't.' So he told me to undress and get ready for my punishment. So I undressed and I have to do the punishment. So I came and he had he had the toy and he told me to lie down, so I lie down on my back. And he started to have sex with me with the toy. And that time he didn't put any gel or anything, and he started to have sex with me with the toy. And it was very, very, very painful, it was unbearable. And if I if I yell and scream my children will know and I don't want my children to know that what I'm going through. And at times I am quiet, I am numb. And asking few questions, that how he feels if he he does that to me. He says that he feels better by punishing me, and then he keeps going. And it's hurting me, I'm crying in fear and in pain, pushing him away. He comes back and he does it again. He does he did it about eight minutes I'm lying on my back." [1208] 1. However, in the later description she gave, the complainant stated that the pain was "very, very sharp" and she could not bear it and cried. She stated that she feared that if the accused pushed the "whole toy" inside her, that she would stop breathing. She stated that she was numb, her eyes were blurry and she "just wanted to survive." The complainant further stated that her body was "just numb at times" and she could not feel anything and feared that "something is wrong inside" and she did not want to die. [1209] The complainant stated that the accused told her that he felt "better" by punishing her. [1210] She stated that the accused reminded her that he was going to chop her nose and mouth off, and that he would "destroy" her vagina so that it would be "unfixable" and her life would be "gone." [1211] 2. The complainant then gave an account that the accused asked her, after eight minutes, to turn around as he wanted to have sex with her with the toy from behind. The complainant stated that the accused started to push the toy from behind and she pleaded with him to do it slowly. However, the accused was "crazy" and "very rough" with the complainant. She stated that she was in pain and tried to push him away. The accused returned and stated: "You have to take it because it's your punishment." She stated that she tried to push him again, but he kept going and it caused her to feel a "sharp pain" that was "unbearable" as the "toy was so big." [1212] She stated that she could not remember if the toy was strapped onto the accused's waist or if it was in his hands. She stated that the accused did not put any gel on the toy, but it was "just dry and hard and big." The accused was "just pushing it" and pushed her head down because he wanted her to kneel, so that "he can have it easy." [1213] 3. When asked whether the accused had inserted the toy into anything, the complainant stated that the accused tried inserting the toy into her anus. The complainant stated that she told the accused about never, ever doing that previously. [1214] 4. In the case of Count 10, the complained act falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 5. In relation to this count the complainant again gave evidence of submitting in the context her concern for her nose, mouth and vagina. She stated that she asked for the toy not to be used but was told to get ready for her punishment. The pain was described as unbearable but she was concerned for the children not to know what she was going through. However, she later stated that she cried. The complainant stated that she pushed the accused away but he kept coming back. The accused was described as "crazy' and being very rough. Her evidence was she was submitting to a punishment and the accused stating the words that he did, clearly indicated as much. On her evidence, her physical condition was clearly known to the accused. 6. The accused did not challenge the physical acts but submitted that the complainant consented. I accept that what occurred was administered as a punishment, that the complainant protested about the use of the toy but he persisted even coming back after he was pushed away. In my view, there was nothing consensual about this incident. The incident was aggressive and painful, and intended as a sanction. 7. In all the circumstances, I am satisfied that complained act occurred as alleged. Any consent would be negated by the threats of force pursuant to s 61HA(4)(c) of the 1900 Act. In any event however, I am satisfied that the complainant did not consent freely and voluntarily to sexual intercourse. 8. Bearing in mind the nature of the relationship, the description of the act as a punishment, the nature of the act in spite of the complainant's protests, and the complainant's condition at the time which would have been apparent to the accused, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily. 9. I find the elements of Count 10 proved beyond reasonable doubt and find the accused guilty of Count 10. COUNT 11 on the INDICTMENT 1. The complainant stated that this occurred eight minutes after count 10, when she was asked by the accused to turn around so as to allow him to have sex with the toy from behind. [1215] By this reference it would have occurred within the period alleged of 13 January and 31 January 2015 2. The complainant's earlier account in relation to the toy was that the accused was wearing it. [1216] It was not clear if that continued to be the situation when, in her later account, she said that she could not recall. [1217] However, what she did state was as the toy was being inserted from behind her, the accused was holding one hand on her hair, and with the other one, was holding the sex toy and was pushing it inside her. [1218] She stated that he was holding two of his fingers straight on the toy and she felt that the accused was "pushing two fingers at the same time" in her bottom area. [1219] She stated that if she pulled through this incident, then the accused would be satisfied and that he was going to stop, because he had earlier stated that: "If you do your punishments I'll spare you, I'll let you go." She stated that she was waiting to go through all the punishments, the "harsh ones, brutal ones" thinking that the next punishment would be a "just a light one" that would not be as "brutal" and that she would be "spared." [1220] She stated that the accused was "agitated … angry … just moving around" and was "staring" at her, "coming close" to her and was giving her "weird looks." [1221] 3. The accused was described by the complainant as acting "very, very weird." [1222] She described this as meaning that the accused was staring at her and giving her, what she said was a "funny type of smile." [1223] She stated that she could not "figure" out what was going on in the accused's mind. She stated that the accused used to chew tobacco, and he used to keep chewing and he would "stick it in the cup" and his eyes were "very scary, just staring" at her as he was pushing the toy. [1224] The accused's stare was described by the complainant as involving "wide eyes." [1225] 4. In the case of Count 11, the act falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 5. The accused did not dispute the physical act but submitted that the complainant was consenting. I accept the complainant's description. It was an act that involved not only the toy, the effects of which the complainant had earlier described, but further, involved the use of the accused's two fingers. 6. In relation to this count, the complainant again gave evidence of submitting to the punishment so she would be spared and eventually let go. The accused is said to have told her this. She stated that she was waiting to go through all the punishments, the "harsh ones, brutal ones" thinking that the next punishment would be a "just a light one" that would not be as "brutal" and that she would be "spared." 7. In the context of the threats of force made to the complainant earlier described in relation to Count 10, any consent was negated pursuant to s 61HA(4)(c) of the 1900 Act. In any event I accept that the complainant was submitting to a punishment and her submission could not amount to free and voluntary consent to sexual intercourse. 8. Bearing in mind the nature of the relationship, the imposition of a punishment, and the nature of the act in the circumstances described, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 9. I find the elements of Count 11 proved beyond reasonable doubt and find the accused guilty of Count 11. COUNT 12 on the INDICTMENT and INCIDENT 34 [1226] 1. The complainant next gave evidence of reporting the fourth incident, involving the use of the toy, to the police. She stated that her account was as accurate as possible. [1227] In a statement to police, the complainant described this incident as being the "fourth" incident involving the toy and occurring three nights after count 10. [1228] She later described it as occurring in the last week of January [1229] which would be within the period alleged of 13 January and 31 January 2015. 2. This count related to the occasion where the children were in bed and the accused called the complainant to go downstairs. When the complainant went downstairs she saw that the accused had the toy beside him and that he was naked. She told the accused that she did not "want to" as it hurt her too much. The accused stated: "You must, it is your punishment." The complainant proceeded to undress and let the accused use the toy on her. The accused told her to "bend over the lounge" and she complied. The accused had the toy "belted onto him" over his penis and he put the toy into the complainant's vagina. After "doing it" to the complainant for a while, the accused "pushed it too hard and too far inside [her]" and it "hurt like a sharp pain." [1230] 3. The complainant "screamed out in pain" and their children came running down because they heard her. The accused is asserted to have covered himself and the complainant up with a blanket. The sex toy was on the ground next to the lounge and the complainant saw WS looking at it without saying anything. She stated that WS wanted to give her a hug but the accused did not let him. The accused is alleged to have chased WS up the stairs. The complainant told the accused to not yell at the children. [1231] The complainant then went upstairs to settle the children down. [1232] 4. The complainant stated to police that although she did not wish to have sex using the toy because it hurt her too much, there was "no point … triggering [the accused]" or he would have hit her. She stated that if the accused wished to do something or if she would not accept what he wanted, then the accused would have said things about Mr Kelly and she had to agree because if she did not, the accused "gets mad on me. Everything I should say yes. If there's a no, I trigger him." [1233] She further stated that at the time, she felt that she did not have a choice. [1234] She stated that this was because she was "not working … not earning" and her children were not "normal." She stated that she had to look after her children or work and that it was impossible to work because of WS, and she depended on the accused as their father and her husband "for support and to have a better life." [1235] 5. In the case of Count 12, the act falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 6. The accused did not dispute the physical act but submitted that the complainant was consenting. In my view, there was nothing consensual about this incident. It involved use of the toy in an aggressive and painful way that caused the complainant to scream. The accused demanded that the complainant submit to a punishment when she told him that she did not want to. She was plainly concerned that she would be hit and that the accused would get mad as the accused would be "triggered" if she declined. 7. In the context of the threats of force made to the complainant earlier described in relation to Count 10, any consent was in any event was negated pursuant to s 61HA(4)(c) of the 1900 Act. 8. In any event in relation to this count, the complainant again gave evidence of submitting to the punishment so she would be spared. She stated as much expressing the view that she did not have a choice, and that otherwise she would have "triggered" him. She stated she always had to acquiesce as she and her children were dependent on him financially. I am satisfied that there was no free and voluntary consent in any event. 9. Bearing in mind the nature of the relationship, the complainant's statement that she did not want to participate because it hurt too much, its imposition as a punishment, and the nature of the act itself involving severe pain, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 10. I find the elements of Count 12 proved beyond reasonable doubt and find the accused guilty of Count 12. COUNT 13 on the INDICTMENT 1. The complainant stated that following the incident, she went upstairs to put the children to sleep and fell asleep herself. [1236] As this follows Count 12, it falls within the period alleged of 13 to 31 January 2015. The complainant stated that she heard the accused calling her and her children were "very scared." JS, her daughter, told her to go downstairs and listen to the accused. [1237] She proceeded to go downstairs and as she was doing so, told the accused that she was not coming. The accused replied: "Bitch you come, if you don't come you are finished." [1238] She thereafter went downstairs. She stated that she was questioned "more and more" about having sex with Mr Kelly and she told the accused that she did not have sex with him. The accused quickly held his fist and came close to her face, but did not hit her and instead went back to sit down. The accused said to the complainant that if she admitted to having sex with Mr Kelly then he would "spare" her. The accused then asked her how many times did she "suck Glen." The complainant replied that she had done so three times, but the accused told her, "No, you have done five times." [1239] The complainant stated that she was lying when she had told the accused she had sucked Glen three times [1240] in order to make him happy and so that he would spare her. [1241] She stated that this meant that the accused would not chop off her nose and mouth and let her go. [1242] She stated that she understood the accused's earlier threat, that if she did not come, she would be finished, as meaning that the accused would kill her. [1243] 2. At the time, the complainant described the accused as being very aggressive and very agitated. [1244] The complainant stated that the accused holding his fist and coming close to her face was something she had seen before, and it was something that he would do whenever he wanted to scare her to "get things out" of her. Most of the time, she would admit to things she had not done as she was scared that she was going to be hit. [1245] 3. The complainant reiterated that she did not wish to use the sex toy as it hurt her, and wanted to have "normal" sex with the accused. [1246] The complainant stated that the accused agreed and they had "normal sex", however she stated that he did not have a good erection. The accused stated: "because I can't have good erection because you are having an affair and you're having sex with Glen that's why it doesn't happen to me." [1247] At that point, she described them as being downstairs in the lounge and that they were both naked. [1248] 4. The complainant stated that the accused then told her to "suck him as [she] suck Glen", however, after sucking the accused's penis, the accused still did not have an erection. [1249] At some point, she stated that the accused brought the sex toy and put it on himself and started to have sex with her with the toy. She described him as having tied the toy around his waist and his penis was covered by the toy. The complainant stated that she was lying on the sofa and the accused started to push the toy into her vagina. She stated that she was "quiet" and did not cry. She asked him why he was doing this to her and how he felt. The complainant asserted that the accused said that he felt much better when he punished her. She stated that whilst the accused was pushing with the toy "hard", she felt a "very, very sharp pain." [1250] She described the pain as causing her to cry. [1251] The complainant stated that she felt "very, very scared" because she did not want to go through the pain the accused had caused her previously. She stated that it was still hurting her and it felt like "burning fire." She described it as "dangerous", "painful" and "difficult." [1252] She described the physical difficulties as "holding straight and angry" and feeling "very dirty and very, very tired." [1253] 5. The complainant stated that she was concerned that her health was deteriorating. She stated that she could not concentrate properly and she was concerned that if something happened to her, what would happen to her children. [1254] She stated that she knew that the incident was a punishment because the accused used the toy. [1255] The complainant stated that she laid on the lounge and allowed the accused to insert the toy because that was what she was told to do. She stated that if she did not comply, then the accused told her she would have to bend down on the sofa and "have sex from behind" and that was "very hurtful" and she was "just scared and vulnerable at that time." She stated that it was "easier" for her to "just lie down." Although it was still painful "from front" it was not as painful as when the accused would go "from the behind." [1256] She stated that the accused was enjoying it because he was punishing her. She knew it was punishment as the accused told her he uses the toy as part of the punishment. [1257] She further stated:- "He just want to punish me and making me realise or come to terms that there's forgiveness or he's going to spare me and …" [1258] 1. In the case of Count 13, the complained act of falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 2. The accused did not dispute the physical act but submitted that the complainant was consenting. In my view, there was nothing consensual about this incident. It involved use of the toy in an aggressive and painful way that caused the complainant to suffer significant pain. 3. In relation to this count, the complainant again gave evidence of submitting to the punishment so she would be spared stating that the accused told that if she did not submit he would continue the act from behind which was more painful for the complainant. 4. In any event, the complainant was submitting to a punishment and was not freely and voluntarily consenting to sexual intercourse. I am satisfied that by threats of force, any consent was negated in terms of s 61HA(4)(c) of the 1900 Act. 5. What was administered was a punishment. It was prefaced with by claims that the complainant had sex with Mr Kelly. The complainant was concerned that a more hurtful act would follow if she did not comply. The accused is said to have stated that he felt better when he punished the complainant and threatened a more painful act if she did not submit. 6. Bearing in mind the nature of the relationship, the nature of the act, its imposition as a punishment and the complainant's words and the accused's response, I am satisfied that the accused knew that the complainant did not freely and voluntarily consent to sexual intercourse. 7. In all the circumstances, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily. 8. I find the elements of Count 13 proved beyond reasonable doubt and find the accused guilty of Count 13. COUNT 14 on the INDICTMENT and INCIDENT 37 1. Following Count 13, the accused thereafter told the complainant that there would be a new punishment coming, which he described as "honky" sex. [1259] The complainant stated that she did not know what this was, and the accused described this as "play with your hand or fingers." She stated that she replied: "No, no, I'm very scared. I don't know how it's going to go and I don't want to do it." [1260] She further stated: "I didn't know how it's going to be and I was very scared that if I don't do it what's going to happen next, and I was confused and terrified." [1261] She also stated:- "I mean that if I don't do that punishment then I have to lose my nose, my mouth and my vagina. I was, I was very, very scared. So whatever is told I have to do it, if I don't do it there's something big coming towards me, something dangerous coming towards me." [1262] 1. The complainant gave evidence about an incident occurring on 27 January 2015 where she was downstairs in the night time with the accused. [1263] She stated that the accused told her to undress and lie down. The complainant complied. She stated that she told the accused that she was scared and to "do it as slowly" and then the accused tried to "push" in one finger into her vagina. At this point, the complainant was "very, very scared." She stated that she was shaking and the accused then put two fingers, and then three fingers inside her vagina. She stated that the accused eventually put four fingers inside her vagina. The complainant stated that the accused was hurting her and it was "very, very painful" because he had "long fingers and fingernails." [1264] At the time, the accused was naked [1265] and she was shaking, "sort of numb" and was crying because it was "very, very painful". The complainant told the accused to stop, but instead "came back again." The complainant tried to push the accused, but she asserted that he "came back again and did the same thing again." The accused stated that this was a punishment that she had to do. [1266] The accused at the time was on his knees. [1267] 2. She stated that at the point she was on the lounge, she was thinking that if she did not comply, the accused would cut off her nose, mouth and would destroy her so that no man could have her. She later described this as being in reference to her vagina. [1268] When asked at what point she had told the accused to stop, she responded:- "When he pushed two fingers and then he pushed three and it was - because a third finger had long fingernail and it was like poke inside my vagina and then he push the third one, fourth one and it was very, very painful because previous night I'm already hurt with a toy so much, so swollen, so painful vagina I have. Then he pushes his fingers. It was painful for me, I couldn't bear it, I couldn't take it. But at the end I have to go through the punishment so the harsh punishment is not going to come to me, maybe he can spare me. Maybe he can feeling more sorry for me. Just even once let me go." [1269] 1. The complainant stated that she told the accused that during this incident that it was "very dangerous to do those things, it's a sin." The accused replied and told her that she had committed adultery and "other women can take it, why can't you?" [1270] She stated that the accused called her a bitch and stated that if she would not "do it" then she was to kill herself. [1271] The complainant stated that when she asked the accused to stop, he responded by stating: "Don't trigger me" and acted "crazy." [1272] She stated that the accused was "very scary" and looked as though he was going to kill her and came close to her to her his eyes to suggest "You have to do this, you have to do it, it's your punishment and get on with it." [1273] 2. She stated that there was nowhere for her to go, she was scared by his aggressiveness and it was "getting worse … getting bigger … [and] getting dangerous." [1274] She stated that she was concerned that if she trigged him, he would have hit her more and not let her sleep. The complainant stated that she was not eating, did not shower and did not sleep. She stated that her body "was not even taking water." The complainant continued and stated that "just for mercy" she had to "get on with the punishment" that was coming to her so as to avoid the "very harsh one which was going to destroy [her]." [1275] She stated that at that point, she went to the garage and picked up a petrol can and was looking for a match so as to end her life. She believed that she did not have anything to live for. [1276] The accused arrived in the garage and stated: "Well do whatever it takes." The complainant stated that this was so that he could tell everyone that she was "mental" and that she killed herself and he could be "free." [1277] The complainant did not go through with it because of her children, who needed her more than their father. [1278] 3. In the case of Count 14, the complained act clearly falls within the definition of sexual intercourse in s 61H(1)(a)(i) of the 1900 Act. 4. The accused did not dispute the physical act but submitted that the complainant was consenting. I accept the complainant's account. In my view there was nothing consensual about this incident. It involved repeated use of multiple fingers of a hand in an increasingly aggressive way that caused the complainant significant and escalating discomfort and pain. She asked the accused to stop and tried to push him away but he persisted by coming back. The complainant was also warned not to "trigger" the accused. 5. In relation to this count, the complainant again gave evidence of submitting to the punishment so she would be spared. She stated that the accused told her that she had committed adultery and that if she did not submit then she was to kill herself. She was told it was her punishment and she had to get on with it and she believed that if she did not, a worse punishment would follow. She referred to her concerns for the loss of her mouth, nose and vagina and that no man would "have her." The complainant also contemplated taking her own life afterwards. 6. In any event, the complainant was submitting to a punishment and not freely and voluntarily consenting to sexual intercourse. I am satisfied that by threats of force any consent was negated within terms of s 61HA(4)(c) of the 1900 Act. 7. It was a punishment specified to have been imposed in the circumstances of her having allegedly committed adultery. 8. The accused is said to have stated that he felt better when he punished the complainant and threatened a more painful event if she did not submit. This in itself is evidence that he was aware that the complainant was not freely and voluntarily consenting. Moreover the nature of the relationship, the painful nature of the act, its imposition as a punishment, the words exchanged, and the complainant's poor state which would have been apparent to the accused, satisfy me that the accused knew that the complainant was not consenting. 9. I find the elements of Count 14 proved beyond reasonable doubt and find the accused guilty of Count 14. COUNT 15 on the INDICTMENT and INCIDENT 39 1. The complainant stated that the next night, she was told by the accused that the punishment would "keep going." She asked him what that would be and he replied by stating: "Honky sex again." The complainant told him that she could not do it because it was dangerous and she was scared. The accused is alleged to have stated that it was a punishment and he insisted that she had to do it. [1279] 2. The next incident, the complainant originally stated it occurred on 28 January 2015. However, when her memory was refreshed by reference to her statement that she had provided the police, she stated that it occurred on 29 January 2015. [1280] She described the incident as follows:- "He did the same honky sex with me. He told me to lie my bottom up and I have to listen to him so I positioned lying on the sofa my bottom up. He again tried to push his fingers in my vagina and I tried to push him - dangerously - he came back again and he keep pushing his fingers in my vagina and it was so, so painful like something has cut me inside. I was not sure in that pain that if I have bled inside, terrifying, trying to hang on there so that another punishment doesn't come. I ask him how he feels, he said that he feels a big relief." [1281] 1. The complainant stated that she and the accused were naked at the time of the incident, although he was wearing black socks on his feet. [1282] She described the incident as having occurred downstairs in the lounge room. [1283] The complainant described the accused using one finger, before inserting two fingers, then three and four fingers and pushing them further into her vagina. [1284] She stated that it was "very, very painful … like sharp knife tearing through" and she could feel "heat". She did not know whether she bled but it was "very, very painful." She described herself as being in agony and "very, very sore." She stated that she felt like the accused would "just rip everything apart" so she tried to push the accused away with her feet and leg. However, he was "aggressive" and he came and did it again. The complainant stated that she did not have much "power" and was "just hanging on" for her children. [1285] 2. The complainant described her condition as half worn, malnourished with numb eyes [1286] without being able to breath properly, eat or sleep. [1287] She stated she was confused and hoping that by undergoing the punishments he the accused would tell her to spare her or to stay. [1288] 3. In the case of Count 15, the complained act would clearly fall within the definition of sexual intercourse in s 61H(1)(a)(i) of the 1900 Act. 4. The accused did not dispute the physical act but submitted that the complainant was consenting. I accept the complainant's account. In my view, there was nothing consensual about this incident. It involved repeated use of multiple fingers of a hand in an increasingly aggressive way that caused the complainant significant and escalating discomfort and pain. The complainant tried to push him but he persisted by coming back. 5. In relation to this count the complainant again gave evidence that by submitting to the punishment, she would be spared. She was told it was a punishment and she had to get on with it and believed that if she did not, a worse one was to follow. In these circumstances, her submissions cannot amount to free and voluntary consent to sexual intercourse. There was no evidence that the previous threats of force against the complainant had been withdrawn by the accused. Therefore, in any event, any consent would be negated pursuant to s 61HA(4)(c) of the 1900 Act. 6. What was administered was a punishment which the accused told the complainant she had to complete, despite her protest and resistance by pushing back. The complainant was in a poor state. This would have been apparent to the accused. The accused is said to have stated beforehand that the complainant had to get on with the punishments so that he could feel better and he felt a big relief afterwards. 7. In all the circumstances, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily. 8. I am satisfied that the act of sexual intercourse occurred as alleged, that the complainant did not consent to the intercourse, and the accused knew she did not consent. 9. I find the elements of Count 15 proved beyond reasonable doubt and find the accused guilty of Count 15. 10. The complainant stated that after Count 15 she and the accused then discussed the kind of punishment that would be coming up next. The accused asked the complainant to "get on" with the punishment so that he could "feel better" and that if she completed all the punishments, he would spare her. The complainant stated that the accused told her that it was her "choice" and if she did not complete the punishment, he would "show all the photos and ESB [sic] messages everything" to her "family so that they will know it's all me." [1289] She later clarified that the accused told her that if she completed all the punishment she would be spared or that she could stay. [1290] She stated that she was "very, very confused" at that point, and she was "just surviving." The complainant further stated that she did not have anywhere to go. She stated that hearing the word "stay" at that moment "was very, very big" for her and that it was a "hope." She stated that the accused would maybe then "feel something, you know, just stop, not abusing me." [1291] She stated that although she did have a brother and sister-in-law, she was scared to contact them because the accused might find out. [1292] The complainant stated that the accused had threatened to "show all the USB videos" and managed to confuse her that "it [was] all true." [1293] The complainant elaborated that she felt as though she was "in a box, that there is exiting a box but I am scared to open the exit." [1294] 11. The accused told the complainant that he had USB videos, which included her having sex with Mr Kelly upstairs in the lounge, in the laundry and "doing all sorts of doggy stuff and sucking him" and stated that he had "all the text messages and everything …" [1295] She stated that she knew that she had no sexual contact with Mr Kelly, but the accused manipulated her and ultimately convinced her. She stated that she was "just scared" and did not know how to "come terms, into terms." [1296] The complainant stated that she knew "pictures, they're doing pictures of people and they make it real." She further stated that "maybe that's how [the accused] did it" and when "people see they will believe" because "everyone doesn't know it's like that." [1297] She described the person she was referring to being able to do this as Mr Reddy. [1298] The complainant stated that at the time, she felt "sad, terrified, let down … hurt inside … weak." She stated that she did not know what she was "holding to" and did not know whether she was going to survive, and was "just living a life with no certainty." [1299] COUNT 16 on the INDICTMENT 1. After count 15 (which would be still on 29 January 2015) the complainant stated that the accused told her to "suck him" and she told him that she could not, because she was very tired and wanted to sleep. The accused told her that if he was to be awake, she was to be awake. The complainant stated whatever she was told she had to do it so that she could survive or stay. [1300] She stated that she proceeded to suck the accused's penis with her mouth, and was told by the accused to "do as you do to Glen." [1301] She stated that the accused was sitting on the lounge and she was sitting on the floor, [1302] downstairs in the lounge. [1303] At the time, both the accused and the complainant were said to be naked. [1304] She stated that between the honky sex incident and the oral sex, she went upstairs to put her children to bed and did not want to go back down. However, the accused kept calling her and he eventually came to grab her hand and took her downstairs. [1305] 2. The complainant stated that "just before" she was sucking the accused's penis, she was feeling "very sick … not feeling well" and "scared" because she did not want to do it. [1306] The complainant stated that she was scared for her health, and was concerned that if she did not perform oral sex, that she was going to be hit, or that the accused would chop her nose, mouth and "destroy" her. [1307] The complainant stated that her feelings did not change, that it was against her will and only did it because she had to do it. [1308] She stated that the accused's demeanour was "very, very aggressive" and that he was "staring" at her with a "crazy look" that signified that whatever he told her to do, she had to do it. The complainant was scared of that look and did not want anything "bad [to] happen" so she complied. [1309] She stated that this look was different to previous looks, because his eyes were "wide" and "staring" at her "one way", and it was a look "like he's going to kill" her and she was "very, very scared." [1310] She said that the accused knew at the time that she had hardly slept, was not eating, was tired and had not showered, [1311] because she had told him. [1312] She stated that she did not tell anyone because she was concerned that the accused would kill her. [1313] 3. She said that after this occurred, the accused told her to "lick his arse." The complainant stated that she did not want to do it and the accused told her to think about her nose, mouth and vagina. [1314] 4. In the case of Count 16, the complained act clearly falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 5. The accused did not dispute the physical act but submitted that the complainant was consenting. After count 15, the complainant's evidence was that she went upstairs and he called her grabbed her and took her downstairs. 6. It was imposed in circumstance, where on the complainant's account, she still feared threats of force of either being hit or having her nose, mouth and vagina cut by the accused. There was no evidence the threats no longer existed, and indeed they were renewed that day. In the circumstances any consent would be vitiated under s 61HA(4)(c) of the 1900 Act. However there was nothing consensual about this incident. It was a punishment imposed against a threat arising from her alleged affair with Mr Kelly. 7. The complainant told the accused that she could not perform the punishment because she was tired and wanted to sleep. She was told by the accused that if he was awake, she should be awake. The accused was described as being aggressive and crazy. She was in a poor physical state and had told the accused. She was dragged downstairs. 8. In relation to this count, the complainant again gave evidence of submitting to punishments in order to be spared. What was administered was a punishment which the accused told the complainant she had to do despite her protest. The complainant was in a poor state. The accused is said to have stated beforehand that the complainant had to get on with the punishment so he could feel better and that he felt a big relief afterwards. 9. In all the circumstances, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 10. I find the elements of count 16 proved beyond reasonable doubt and find the accused guilty of count 16. COUNT 17 on the INDICTMENT and INCIDENT 40 1. The complainant gave evidence that after sucking the accused's penis, she recalled again going back upstairs to put her children to the bed and the accused calling her, grabbing her by the hand, and taking her downstairs. The accused is alleged to have told her: "There's more punishment coming" and that he wanted to use the toy. [1315] The complainant was told to undress and the accused was using the toy on her, downstairs in the lounge room. She stated that she laid on her back and the accused was naked "wearing just the black socks." She stated that the accused inserted the toy, without any gel, and "just pushed the toy in my vagina" having strapped the toy into the belt around his waist. [1316] 2. The complainant stated that the accused's hands were by his side, with one hand on the side, and the other hand was holding the toy. [1317] The accused was pushing the toy into the complainant's vagina. [1318] The complainant stated that she felt a sharp "knife" pain because she was "already bruised." [1319] The complainant stated that she did not want the toy to be inserted into her vagina, because it was "very hurtful" and she was "feeling sick." She stated that she could "hardly describe the pain." [1320] 3. The complainant stated that she laid on the lounge because that was what the accused wanted her to do. [1321] She stated that if she did not listen to the accused, the accused would have hit her more, or remind her about her nose, mouth and vagina. [1322] She stated that the accused was "scary … very brutal" and she had "visions just coming" to her like he would "do it" to her. The complainant reiterated that she did whatever he told her to do. [1323] She stated that the accused was "aggressive, crazy, a person with no remorse …." [1324] She stated that she tried to push the accused away and run, to put on her pants to go upstairs, however he came from behind, half way in the stairs and grabbed her to bring her back. [1325] The complainant stated that the accused grabbed her by the hair and by the hand, and brought her back to the lounge downstairs. [1326] She stated that she was still naked, but was holding onto her pyjama pants in her hand. [1327] The complainant stated that she was "terrified" and "lost … just in pain." She stated that the pain was unbearable and was terrified that the accused would push the toy into her vagina and she would die. She stated that her mind was "shut" and did not know how to scream, what to do, and "just act[ed] like a rag doll, just a timid rag doll" that "someone picks up and throws …" [1328] 4. In the case of Count 17, the complained act clearly falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 5. The accused did not dispute the physical act but submitted that the complainant was consenting. I accept the complainant's account. 6. The complainant's evidence was that she went upstairs and he called her grabbed her and took her downstairs. The incident therefore follows immediately the circumstances of count 16. The complainant was told that more punishment was coming and that the toy again was to be used. After using the toy, she tried to push and run away only to be grabbed back by the accused. The complainant suffered what she stated was unbearable pain as the toy was aggressively and brutally inserted with no gel. The complainant described herself as a timid rag doll who did not know how to scream. Such would have been apparent to the accused. There was nothing consensual about this incident. It was a punishment imposed against a threat following from her alleged affair with Mr Kelly. 7. The complainant had previously told the accused that she could not perform the punishments because she was tired and wanted to sleep. She was in a poor physical state and had advised this to the accused. 8. In relation to this count the complainant again gave evidence of submitting so that she would be spared from being hit or from losing her nose, mouth and vagina. In the circumstances any consent would be vitiated under s 61HA(4)(c) of the 1900 Act. However there was nothing consensual about this incident. It was a punishment imposed against a threat arising from her alleged affair with Mr Kelly. What was administered was a punishment which the accused told the complainant she had to do. 9. Having regard to the nature of the relationship, the painful nature of the act and its imposition as a punishment, the complainant's condition and all the circumstances described I am satisfied that the accused knew the complainant was not consenting freely and voluntarily. 10. I am satisfied that the elements of count 17 have been proved beyond reasonable doubt and find the accused guilty of count 17. COUNT 18 on the INDICTMENT and INCIDENT 41 1. The complainant next gave evidence that on 31 January 2015, their next door neighbour and their children were going to the park, and asked the children to play. She stated that she and her neighbour, Tipi, drove their vehicles with their children, to the park. [1329] She stated that whilst she and her children were at the park, the accused had called her to let her know that Ajay was coming over, and that the accused intended to sell his house and land in Fiji to him. [1330] She stated that she arrived home at approximately 7:00 pm [1331] and observed that her friend, Mr Ajay Singh, a family friend, was downstairs in their lounge room with the accused. [1332] The complainant stated that she went upstairs upon arriving home in order to give her children a shower, and then came downstairs because Ajay was to leave, and she had parked her vehicle behind his van. [1333] After moving her vehicle, she came back inside, Ajay had left and the accused told her that he was selling his land to Ajay for $85,000 and he would take the money for himself. [1334] 2. The complainant at that point was sitting with the accused on the lounge, whilst the children were upstairs. The accused got up all of a sudden, pulled his pants down and instructed the complainant to suck his penis. She stated that the accused was close to her face and he held her head towards his penis before asking the complainant to open her mouth and to suck his penis. [1335] She stated that she did not want to suck the accused's penis, but could not avoid it because he was holding her head so tight towards his penis and then the penis was in her mouth "forcefully". The complainant pushed her head away, but the accused would push her head and remind her about her nose. [1336] She stated that at the time, she was not comfortable and was "very much depressed." She stated that it was against her will, but did not have a choice. [1337] The complainant stated that the accused's demeanour was "very, very aggressive." The accused is alleged to have held onto her head tightly and was "very rough." [1338] She stated that she told the accused to stop, that it was "enough" but the accused told her that it was a punishment, and that she had to comply or else he would chop off her nose, mouth and vagina. [1339] She stated that this incident went "close to ten minutes". [1340] 3. Thereafter, the complainant's evidence was that the accused laid on the sofa and told her to "suck" him again, and she was, at that time, sitting on the ground on the floor. The accused is then alleged to have told the complainant to "lick" his "arse". She stated that this was the incident that she previously referred to. The accused told the complainant to lick his arse as she did "it to Glen, you're not doing properly." She stated that she did not know how to do it but tried her best to please him by licking him. The accused then told the complainant to put her tongue "inside" but she could not do it, so she only did it on the "outside." [1341] She stated that the accused at the time was undressed, and she was wearing a top but was not wearing anything on the bottom. [1342] The accused told the complainant to "keep going" and she did, "licking his arse to please him." [1343] The complainant stated that she was trying to please him because he had told her that he would spare her, let her go and that he was going to forgive her. [1344] She stated that her concerns were that if she did not comply, the accused would become "real aggressive" and that he would use the toy, hit her, or chop her mouth off. She stated that she was very scared and very depressed, and that her system and body were not responding well. The complainant was awake but the "trauma was so much" and her pain from the previous nights were "unbearable" and that her body was "not responding well." [1345] 4. She stated that she never stopped feeling like a "rag doll" as that was how she was treated every night. [1346] She stated that she first felt this way from 13 January 2015 until 1 February 2015, and the accused showed "no remorse whatsoever." [1347] The complainant stated that the accused was an "evil, evil man" and demanded her do whatever he told her to do. [1348] 5. In the case of Count 18, the complained act, being the insertion of the accused's penis in the complainant's mouth clearly falls within the definition of sexual intercourse in s 61H(1)(b) of the 1900 Act. 6. The accused did not dispute the physical act but submitted that the complainant was consenting and the complainant had made up the 18 punishment story. The complainant's evidence was that she went downstairs and the accused instructed her to suck his penis, held her head and he inserted his penis forcefully in her mouth. When she pushed away she was reminded about her nose. The accused was described as very aggressive. When she asked him to stop she was reminded that it was a punishment and she had to comply or otherwise she would lose her nose, mouth and vagina. 7. The complainant described herself again as a rag doll, who was physically unwell. Such would have been apparent to the accused. There was nothing consensual about this incident. It was a punishment imposed against a threat following from her alleged affair with Mr Kelly. I accept the complainant's evidence as truthful and reliable. It was detailed and described the incident as best she could. 8. In relation to this count, the complainant again gave evidence of submitting in so she would be spared, and that the accused became really aggressive and threatened to use the toy, and hit her or chop her mouth off. What was administered was a punishment which the accused told the complainant she had to do. By reason of the threats of force, I am satisfied that any consent would in any event be negated by the threat of force pursuant to s 61HA(4)(c) of the 1900 Act. 9. Bearing in mind the nature of the relationship, the circumstances of the act involving aggression and force, the reference to a punishment the complainant's condition at the time, which I accept was apparent and the circumstances described I am satisfied that the accused knew that the complainant did not consent to sexual intercourse. 10. I am satisfied that the elements of Count 18 have been proved beyond reasonable doubt and find the accused guilty of Count 18. COUNT 19 on the INDICTMENT 1. After the events described in Count 18, (again on 31 January 2015) the complainant gave evidence that the accused told her that he was going to bring down the sex toy to have sex with her. The complainant told the accused that she did not want to because she was scared. [1349] She stated that the toy was kept in the bathroom cupboard in the downstairs of their home. [1350] The complainant stated that the accused told her to undress and lie down. She did not want to lie down and according to her, the accused pushed her, tied the toy around his waist and pushed her bottom up so that he could insert the toy from behind. [1351] She stated that she was very scared that the accused would push the "whole of [the] toy inside" her and that she was still feeling the pain that he had previously caused. [1352] She then stated that she undressed herself, and did this because the accused wanted her to do it, and she had to listen to him. [1353] She stated that this was a punishment for her and whatever the accused wanted her to do, she had to comply. [1354] 2. She stated that the accused was naked, and her bottom was up, kneeling down on the sofa with her head down. The accused is said to have pushed her down so that her bottom was "up" and this allowed him to "do it from behind." [1355] She stated that the accused first tried to push three fingers into her vagina, and when they went inside her, she was crying. The complainant asked the accused how he felt, and he said that he felt pleasure and relief. [1356] She stated that the accused was "very crazy looking", his eyes were "wide open", "garnishing his teeth" and he was "very, very rough." The complainant stated that the accused was holding her head, pushing her down and did not let her get up. [1357] She stated that she could hear the "cracking" sound of the accused's teeth, [1358] which she described as sounding like "someone crackles nuts or something." She stated that at this point she was "very, very scared." [1359] The complainant stated that she was concerned about her safety because the accused was "acting crazy" and thought that if she did not comply, he had the toy and was using his fingers. She stated that the accused had threatened her about her "nose and everything. [1360] She stated that it was "very, very scared … scared to death" and that she was locked in a house with someone who did not care and did not think about her. [1361] The complainant stated that at that stage she was "just lost and just – just surviving and listening [to] someone" that was "controlling" her. [1362] 3. In the case of Count 19, the complained act falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 4. It follows Count 19 can be accepted as a continuation of the punishment earlier described. I accept the complainant's account. 5. The accused did not dispute the physical act but submitted that it was consensual. The complainant's evidence was that she did not want to lie down and the accused pushed her down so her bottom was up and then inserted three fingers into her vagina holding her head and not letting her get up. The accused was described as being very rough, and garnishing his teeth and acting crazy. The complainant stated that the accused was threatening her about her "nose and everything," [1363] and she was also concerned as he had the toy that he had it strapped around his waist. 6. In relation to this count the complainant again gave evidence of submitting in the face of threats of force such as to negate consent pursuant to s 61HA(4)(c) of the 1900 Act. There was nothing consensual about this incident in any event. It was an aggressive infliction of severe pain as a punishment following from the accused's belief of the complainant having an affair with Mr Kelly. 7. Bearing in mind the nature of the relationship, the nature of the act involving significant pain, the imposition as a punishment and the complainant's condition, which I accept was apparent to the accused, and the other circumstances described, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse 8. I am satisfied that the elements of Count 19 have been proved beyond reasonable doubt and find the accused guilty of Count 19. COUNT 20 on the INDICTMENT 1. This count follows Count 19. The complainant stated that the accused tried to push four fingers into her vagina. She stated the fingers went into her vagina, and after the accused did this, he inserted the toy. [1364] She stated to the accused that she did not want the toy inserted, and the accused stated to her: "I can't have normal sex with you because you have got disease." The complainant replied that she did not have any diseases. [1365] She stated that because the accused's fingers were "thick enough" and he was pushing the toy, the complainant was in pain and she got up, pushed the accused away and ran to the door. [1366] She stated that the accused's fingers went halfway into her vagina and the toy "went little bit inside" and the pain was "severe". She described the pain "like something through" inside of her. [1367] She stated that she cried and asked the accused if he felt sorry for her. The accused responded by stating that it was "just a punishment" and that he did not care because he did not feel sorry for her. She stated that she could not bear the pain, so she tried to push the accused and run for the door. [1368] She stated that at the point where the fingers and the toy were in her vagina, she had her head down and bottom up, kneeling on the lounge. [1369] The toy was being held by the accused with his other hand, and it was strapped onto the accused. [1370] 2. The complainant stated that at the time the accused had his fingers and the toy in her vagina, the accused called her a "low life prostitute" and "just another woman." [1371] At the point when the accused's fingers and the toy were being used, she stated that she could not see, she could only "feel" that the accused's four fingers were inside her. [1372] She stated that she told the accused that it was hurting her, and the accused knew what he was doing as she was crying and struggling. [1373] 3. In describing herself as a "rag doll", the complainant stated that the accused showed "no remorse, no sorry, no pain" towards her. [1374] She stated that she tried to run for the front door, but realised that she was naked. She tried to run upstairs but the accused came after her, grabbed her and brought her back downstairs. [1375] She ran to the door because she wanted to get away, because she said the accused was "raping" her and was "doing things" that were "unbearable" and she "couldn't take it no more." [1376] She stated that she was "running like a madwoman that doesn't know what to do, she just wants to escape for her life." [1377] 4. She stated that after she realised she was not dressed, she went upstairs to dress herself, and the accused grabbed her by the hair and brought her downstairs. The accused made the complainant sit downstairs, naked, and talk to him. [1378] The complainant was told by the accused that he had a "few strings to tighten" and that he was going to leave. [1379] At that stage, the accused was also naked and had left the sex toy on the side. [1380] She stated that the accused was speaking to her and staring at her. His eyes were "wide open" and looking straight into her eyes, and this was "very, very scary for her." [1381] The accused then told the complainant to "suck him more." [1382] She stated that she did not want to do it, and that she was tired, but did not have a choice [1383] as she was worried about her nose. She was also worried that if the accused hit her "hard" or if something happened to her, then what would happen to her children. [1384] 5. In the case of Count 20, the complained act falls within the definition of sexual intercourse in s 61H(1)(a)(i) of the 1900 Act. 6. The accused did not dispute the physical act but submitted that the complainant was consenting. The complainant's evidence was that she did not want the toy inserted, however he pushed the toy with his fingers inserted leading her to push the accused and run to the door. The pain was severe. The complainant was crying and told the accused he was hurting her. When the complainant asked if he felt sorry for her the accused reminded her it was a punishment and stated that he did not feel sorry for her. He described her as a low life prostitute and as being just another woman. When the complainant ran, the accused ran after her grabbed by the hair and brought back downstairs and required her to perform oral sex. Although the complainant was tired, she stated that she did not have a choice as she was worried about her nose. 7. I accept the complainant's evidence as truthful and reliable. It was detailed and described the incident as best she could. Again the complainant's condition would have been apparent to the accused. There was nothing consensual about this incident. The acts involved an aggressive infliction of severe pain as a punishment following from the accused's belief of the complainant having an affair with Mr Kelly. 8. In relation to this count the complainant again gave evidence of submitting in the face of threats of force. Any consent would in any event be negated pursuant to s 61HA(4)(c) of the 1900 Act. 9. In the circumstances of the relationship, the nature of the act involving significant pain, the imposition as a punishment and the complainant's condition, being apparent to the accused, along with the other circumstances described I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse 10. I am satisfied that the elements of Count 20 have been proved beyond reasonable doubt and find the accused guilty of Count 20. COUNT 21 on the INDICTMENT 1. The complainant gave evidence that the accused committed further sex acts against her that evening. She gave evidence that at one point, the accused tried pushing his fingers into her vagina, and push his whole hand into her vagina. She stated that it was painful and she jumped on the lounge. The accused grabbed her and told her to come down. The complainant stated that she thought the accused was going to push his whole hand into her vagina and "pull everything out" and she would die as a result. [1385] She stated that the accused was "acting very crazy, not normal." [1386] She stated that at the time the blinds in the lounge room were open [1387] and that both she and the accused were naked. [1388] 2. In the case of Count 21, the complained act falls within the definition of sexual intercourse in s 61H(1)(a)(i) of the 1900 Act. 3. The accused did not dispute the physical act but submitted that the complainant was consenting. The complainant's evidence was that it was painful and she jumped on the lounge before being grabbed and told to come down. 4. I accept the complainant's evidence. Again the complainant's condition would have been apparent to the accused. There was nothing consensual about this incident. The acts involved an aggressive infliction of severe pain as a punishment. 5. In the context of events that evening the complainant again gave evidence of submitting in the face of threats of force. Any consent would in any event be negated pursuant to s 61HA(4)(c) of the 1900 Act. 6. In the circumstances of the relationship, the nature of the act involving significant pain, the imposition as a punishment and the complainant's condition being apparent to the accused, along with the other circumstances described, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 7. I am satisfied that the elements of Count 21 have been proved beyond reasonable doubt and find the accused guilty of Count 21. COUNT 23 on the INDICTMENT 1. After being prompted, the complainant gave evidence of another incident on 31 January 2015 where the accused, instead of using the sex toy, tried to push his whole hand inside the complainant. She stated that she knelt on the sofa, with her bottom up, and the accused was naked but was wearing black socks. The complainant stated that the accused put his hand inside her vagina and she felt it. The complainant thought that the accused was going to kill her. At that point, she could not recall if the blinds were open. She stated that the accused was "very, very crazy, weird, evil" and was mumbling to himself. [1389] 2. The context of this Count was that of the other events on 31 January 2015. 3. In the case of Count 23, the complained act falls within the definition of sexual intercourse in s 61H(a)(i) of the 1900 Act. 4. I accept the complainant's evidence. 5. In relation to this count, as with other acts that took place on 31 January 2015, the complainant was submitting to punishment in the face of threats of force. Any consent would in any event be negated pursuant to s 61HA(4)(c) of the 1900 Act. 6. However there was nothing consensual about this incident. The acts involved an aggressive infliction of severe pain as a punishment. 7. I am satisfied that the act of sexual intercourse occurred as alleged that the complainant did not consent and the accused knew she did not consent. 8. In the circumstances of the relationship, the nature of the act involving significant pain, the imposition as a punishment and the complainant's condition, being apparent to the accused, along with the other circumstances described, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 9. I am satisfied that the elements of Count 23 have been proved beyond reasonable doubt and I find the accused guilty of Count 23. COUNT 22 on the INDICTMENT 1. The complainant gave evidence that the accused grabbed the toy he had been using, pushed her down and was using the toy from behind as he was garnishing his teeth and chewing tobacco. [1390] 2. She stated that the accused had strapped the toy on and was holding the toy with one hand and pushing the toy inside her. She stated that this was painful and that the accused kept pushing it in and taking it out of her vagina. The complainant stated that the accused did this "so hard" that she yelled and screamed. She pushed the accused away, but she did not have much power and the accused was a "big man." However, the accused did not care and continued to be very rough. She stated that she was "just there" to "take the punishment." The complainant described the incident as being "so brutal" and that she did not know how to explain it. The complainant stated that the accused had, at one point, said to her that her "time was coming" and that she did not have a choice. [1391] 3. At one point, she described the accused getting up and opening all the blinds, and him telling her that he would bring Mr Kelly, and that he (the accused) was going to have sex with her and Mr Kelly at the same time. She asked him: "I expect that you – the last time you would do or say to me" and the accused replied: "It's just my pleasure" and that it was revenge for what she had done to him. [1392] 4. The complainant stated that as the accused used the toy on her, he was chewing tobacco and instead of putting the tobacco into a jar, he spit it on the toy and he pushed the toy inside her vagina. 5. The complainant stated that it was "so disgusting [and] … smelly" and that the accused was "crazy" and "just doing things, it was not acceptable." At one point, the accused noticed WS standing near the stairs, and yelled at him: "You fucking bastard go upstairs" and WS complied. She stated that the accused did not care that WS had "seen everything" because WS was like her (the complainant). The accused did not stop, and was "just raping" her "like there's no tomorrow." [1393] 6. The complainant described struggling to breathe and being in a lot of pain. She tried to push the accused but she did not have enough power to do so. The accused kept holding her head and kept pushing in the toy "very, very hard" and the complainant told him that she could not take it anymore. However, the accused did not care. [1394] At this point, the blinds were open and she was ashamed, worried that people would see them from the outside of their home. The complainant described the pain as being "unbearable" and stated that she could not take the pain anymore. As the accused continued, she thought she was going to die and thought about how she could escape. [1395] She stated her body must have been shutting down as she did not eat and had not slept for so long. 7. In the case of Count 22, the complained act falls within the definition of sexual intercourse in s 61H(1)(a)(ii) of the 1900 Act. 8. The accused did not dispute the physical act but submitted that the complainant was consenting. I accept the complainant's account. 9. This was a brutal infliction of painful force that caused the complainant to yell and scream, and for her son WS to be disturbed. She attempted to push the accused away but he persisted. She was told that her time was coming and she did not have a choice. She stated she only had a choice to listen and survive. The complainant told the accused that she could not take it any more however he persisted holding the complainant's head as he was pushing the toy. 10. Again the complainant's condition would have been apparent to the accused. There was nothing consensual about this incident. The acts involved an aggressive infliction of severe pain as a punishment following from the accused's belief of the complainant having an affair with Mr Kelly. 11. In relation to this count as with other acts that took place on 31 January 2015, the complainant was submitting to a punishment in the face of threats of force. Any consent would in any event be negated pursuant to s 61HA(4)(c) of the 1900 Act. 12. I accept the complainant's evidence as truthful and reliable. In all the circumstances, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily. 13. In the circumstances of the relationship, the nature of the act involving significant pain, the imposition as a punishment and the complainant's condition being apparent to the accused along with the other circumstances described, I am satisfied that the accused knew the complainant was not consenting freely and voluntarily to sexual intercourse. 14. I am satisfied that the act of sexual intercourse occurred as alleged that the complainant did not consent and the accused knew she did not consent. 15. I am satisfied that the elements of Count 22 have been proved beyond reasonable doubt and find the accused guilty of Count 22. Accused's ERISP interview on 1 February 2015 in respect of Counts 18 – 23 Direction on ERISP interviews 1. The accused gave a version of the events in two recorded interviews with investigating police. The accused is entitled to rely upon that account and ask me take it into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused's guilt must satisfy me that it is a version of events that could not reasonably be true. Accused's ERISP on 1 February 2015 1. In my assessment of the matters in Counts 18 to 23, I have borne in mind the accused's answers in the ERISP interview to the effect that sex was consensual however I do not accept them. 2. When asked in the interview whether the sexual intercourse was consensual, the accused stated: "We've been doing it for every day last so many days." [1396] The accused then stated that the complainant had agreed to have sex that night. [1397] The accused further stated that he did not know why the complainant subsequently went upstairs. [1398] When asked why the complainant would jump off the balcony after sex, the accused stated:- "Mate, I've got no idea about this. I cannot give an opinion on this. She had all the chances to do other things if she didn't want to have sex. She had all the chances." [1399] The accused then stated that if there was something that the complainant did not like, she could have told me, and that he did not know why she jumped off the balcony. [1400] The accused stated that she did not say anything to him when she was out on the balcony, [1401] but she did have her phone with her. [1402] The accused stated that she "probably" was not talking on the phone. [1403] 1. The accused was then asked whether the complainant would have been hurt in any way during sex, or when they tried some new toys. The accused stated: "Why didn't you ask her that question?" [1404] The accused then stated that if it hurt the complainant, she would have let him know and that he did not know. [1405] When asked specifically if the complainant mentioned anything about being hurt, the accused stated: "No, no, not that I can recall, not that I can remember." [1406] The accused stated that they were not wearing clothes when they were having sex. [1407] 2. These responses are implausible particularly when considered alongside the events which followed Count 23 which I now come to. COUNT 24 on the INDICTMENT 1. The complainant next gave evidence that she told the accused that as the windows were open: "Why don't you go outside and have sex with me outside." She also told him that she was cold and she wanted to put a top on. The accused told her not to put on the top and that she did not have a choice. The complainant "forcefully put a top on" and managed to hold onto her pyjama pants and a torn jacket. The accused then went outside and the complainant managed to push the door, pull up her pants, grab her joggers, leave the door and run upstairs. [1408] The complainant stated that she thought she was going to die. [1409] The complainant stated that when she ran upstairs, she picked up her mobile phone and called the police. [1410] The complainant stated that when she was upstairs she sat beside her children, put on her joggers and looked at them, knowing that this was the end. [1411] The complainant then stated that she did not call the police because she did not have time. [1412] According to the complainant, she could hear the accused coming up the stairs, and heard him saying: "Finish, finish." She feared for her life. She stated that he was "just raging" and she was thinking to herself that the accused was coming to get her and if he did, that he would kill her. [1413] 2. The complainant stated that as soon as she heard the accused take one step upstairs, she made her way onto the balcony. The balcony was located in front of the bedroom, and she had gotten there from her bedroom. [1414] As soon as she made her way onto the balcony, she was scared because the accused was following her. The complainant felt that if the accused grabbed her from the balcony, he would throw her from it and she would not survive the fall. The complainant quickly went onto the carport, and heard the accused telling her: "Do it or if you don't do it I'll do it, just do it." The complainant asserted that the accused then tried to put his leg from the balcony towards the carport. [1415] At that point, she was standing on the edge, in the corner of the carport, facing towards the street. [1416] The complainant stated that she was "very scared" and feared that if the accused "did it" that she was not going to survive. She stated that the accused would have "throw[n]" her "hard" or if he grabbed her, he would take her inside or into the backyard to strangle her. She stated that she wanted to live, so she jumped. However, as she jumped, she slipped on the gutter and fell down. [1417] The complainant stated that the gutter was attached to the car port on the edge, and that she fell on the ground which was dirt. [1418] She stated that as soon as she fell down, there was something wrong with her leg, because it was not moving and she stood there, screaming for help. [1419] At that point, she described her hands as being "all crooked", her legs cramping and stated that she could not breathe properly. [1420] 3. The complainant stated that at the time she was screaming for help, the accused was standing on the balcony and that she could see him. The accused told her: "Don't yell and scream, just put your legs straight" and that nothing had happened to her. [1421] She stated that she then crawled up to the letterbox and managed to hold the letterbox to get up. She yelled and screamed further for help and hopped two car lengths to their next door neighbours who heard her and rushed out. The complainant stated that she managed to hop to their driveway before giving up and falling down. She stated that she did not have any strength and her neighbours came out to lift her up and put her in their car to take her to Campbelltown Hospital. [1422] At the hospital, she could not remember much, but could recall her neighbours talking about the children. The complainant heard Tipi's husband stating that the children were at home and that he needed to go and see the children. 4. In cross-examination, the complainant denied that she had previously jumped from the carport but conceded that her children had when the accused had been abusing her to try and tell the neighbour. [1423] She rejected the suggestion that having not said this for two years she was not telling lies. [1424] 5. The complainant maintained that the accused was on the balcony not far away from her when he was trying to get to the top of the carport. She stated that the accused was putting his leg on the carport railing and if he had grabbed her and thrown her she would not have survived. [1425] 6. When it was put to the complainant that there was "no element of threat" when she left to go downstairs, she stated: "Excuse me, he was raping me. He was (not transcribable)… to me ,he was spitting on me. He was making the spit and the gel and pushing he toy inside me. He was gnashing his teeth. He was raping me. Excuse me, I feared for my life for my two children to survive because no one can look after them better than their mother." [1426] 1. In relation to the sex toy, it was put to the complainant that she had enjoyed the sex toys and that was the reason why she did not complain to the police. The complainant stated that if she enjoyed them, she would not have complained and that it was "a torture … a murder." [1427] 2. The complainant added that she did not know where the sex toy was [1428] and stated that the police went to their home but could not find the toy. [1429] She maintained that when she left the carport that she did not take the sex toy with her. [1430] It was then put to the complainant that she created this toy in her imagination, but this was rejected. [1431] It was later put to the complainant whether she was sure that it was a sex toy and not a "house breaking implement." The complainant stated that she did not know the difference. She maintained that she was being raped and that her son saw it, and that her daughter saw it when the accused went to put it on the dashboard of the car. [1432] The complainant rejected the suggestion that during their married life, she and the accused would sometimes use a sex toy. [1433] The complainant maintained that a sex toy was involved before she fell. [1434] 3. The accused draws attention to accounts given relating to these events that were supplied to others. Clinical notes from the Campbelltown Hospital admission 1. The complainant was admitted to the Campbelltown Hospital and the clinical notes were tendered in the proceedings as Exhibit L. In those notes, it records:- "ADMISSION SUMMARY Progress Note Presenting history States husband was threatening and abusing her, asking her to jump off from balcony otherwise will kill her Landed with both feet on lawn, denied LOC, denied head injuries Recalled all event Left lower leg and foot pain immediately Accompanied by neighbour and presented to hospital Unable to weight bear fully on left lower limb after accident Denied vomiting, headache, neck, back, chest or abdominal pain Nil bleeding." [1435] 1. Evidence from Dr David Cottle, part of Exhibit H, was that the complainant suffered from the following:- [7] GENERAL PHYSICAL EXAMINATION Mrs AS was suffering from the following: A closed left intra articular distal tibia fracture; A left comminuted fracture of proximal second, third and fourth metatarsals; Minor soft tissue bruising and abrasions. 1. Dr Cottle stated that, based wholly or substantially on the knowledge he had referred to, he was of the opinion that the injuries suffered by the complainant were consistent with her having fallen from a height. [1436] 2. It is also of interest that at the time that the complainant was admitted to Campbelltown Hospital, the clinical notes record:- ADMISSION SUMMARY Summary of Progress Mrs AS was also identified as being at risk of Refeeding Syndrome and her EUCs and CMP were regularly checked and she was commenced on Thiamine and a multivitamin for the duration of the admission. [1437] The clinical notes also record that at 1:45 am, the police were in attendance. Sergeant Linda Smith 1. A statement was tendered as Exhibit X in the proceedings, being from Sergeant Linda Smith. Her evidence was that at 1:20 am on 1 February 2015, she received notification of a presence of a female casualty at Campbelltown Hospital with a suspected broken leg, apparently caused by her jumping from a second storey to escape her husband. [1438] She stated that she attended casualty and saw the complainant in a bed being treated by staff. [1439] 2. She stated that sitting next to the complainant was Tiperia Fepulea'i. Mrs Fepulea'i told Sergeant Smith what she and her husband had observed. Mrs Fepulea'i stated that at the time, the accused came out of his house and approached the complainant and herself. Mrs Fepulea'i told Sergeant Smith that she had told the accused to stay away and that her husband had picked up the victim and carried her to their home. [1440] 3. After this, Sergeant Smith spoke to the complainant. The complainant informed her that she had jumped in order to get away from the accused, who had been chasing her. [1441] Sergeant Smith stated that shortly afterwards Leading Senior Constable Watson and Constable Jack Mitchell arrived, and Mrs Fepulea'i was escorted to a quiet room where she supplied a statement to Leading Senior Constable Watson. Whilst that was occurring, Mr Fiti Fepulea'i had arrived at Campbelltown Hospital with JS and WS. At that point, Sergeant Smith stated that it came to her attention that the accused had spoken to Mr Fepulea'i in the car park of the hospital and was seated in the foyer. Police immediately made their way to the foyer to locate the accused but he could not be found. [1442] 4. Sergeant Smith records in her statement:- "[10] Police returned to the room where the witness and children were seated. The children were during the course of at least the next half an hour told Police about the arguing they hear that keeps them awake. JS spoke candidly about the accuseds [sic], her father's behaviour. Disclosing occasions where the accused had pulled the [complainant] by her hair and told her he would "cut off her lips and cut off her nose." JS was an articulate child who was not prompted by Police to make any comment. WS also participated in this conversation, complaining about arguing keeping him awake." [1443] Plain Clothes Senior Constable Dean Stanley 1. Plain Clothes Senior Constable Dean Stanley was briefed in relation to the matter by Chief Inspector Grady and a statement which was admitted as Exhibit AB. 2. Plain Clothes Senior Constable Stanley stated that during his briefing, he was informed that in addition to the complainant jumping off the balcony to escape the accused, there were suspicions that the accused had also sexually assaulted the complainant inside the family home. [1444] 3. Plain Clothes Senior Constable Stanley gave evidence that at about 10:20 am on 1 February 2015 he and Detective Cole attended the Campbelltown Hospital in order to speak to the complainant. When they arrived, there were a number of the complainant's family members present. Detective Cole was then noted to have had a conversation with the complainant which was in part, electronically recorded. Plain Clothes Senior Constable Stanley observed that the complainant appeared to be in pain due to her injuries and was upset, frightened and was talking softly. The evidence was that during the period where the recording device was turned off, Detective Cole spoke to the complainant about their concerns that a sex act had occurred without her consent. Plain Clothes Senior Constable Stanley stated that when spoken to about the possible sexual offences, the complainant did not answer and did not disclose any sexual offences to them. [1445] This is consistent with the complainant's evidence. Detective Senior Constable Cole 1. Detective Senior Constable Cole also prepared a statement which was admitted as Exhibit AC in the proceedings. In his statement of 1 February 2015, he confirms attending upon the complainant at Campbelltown Hospital and to have a conversation with her that was electronically recorded. [1446] Detective Cole stated that after the recorded conversation, he asked the complainant if a sex act between her and the accused had occurred and if this sex act had occurred without her consent. Detective Cole stated that the complainant did not make any disclosures of that nature to him. [1447] 2. Detective Cole stated that whilst speaking with the complainant, members of her immediate family were also present at the hospital. Detective Cole stated that he had a conversation with them. [1448] 3. On 25 February 2015, Detective Cole obtained an electronically recorded statement from JS. [1449] 4. Part of the recorded statement of the complainant of 1 February 2015, conducted by Detective Cole in the presence of Plain Clothes Senior Constable Stanley was tendered as Exhibit AQ. That recorded interview taken was taken at 10.25 the following was tendered in evidence:- "Q36. Was he allowed to be at your house last night A. Yeah Q37. Yeah? And that's 17 Carrington Circuit Leumeah A. Yes Q38. Yeah alright. Previous to him asking you to hurt yourself did you have an argument with him? A. Just talking Q39. Yeah A. Yeah, answering some questions Q40. Yeah. A. Yeah then I said it too much I can't handle it Q40 [sic] Okay A. I need to go and sleep Q41. Yep A. And that's the time he said, 'no you come and sit here'. Q42. Yep A. I said, 'no'. Then I came upstairs Q43. Yep A. So like two minutes like I came upstairs so I was a bit scared." [1450] 1. Exhibit AO was an extract of the NSW Facts Sheet statement dated 1 February 2015 was tendered in the Crown case as Exhibit AO. The evidence was that it had been prepared by Detective Sergeant Harvey Cole. It read as follows: "Detectives were appraised of the incident and attended Campbelltown Hospital and obtained a verbal version of events from the victim. This version of events was recorded electronically audio only. The victim stated that at some point during the evening she and the accused were downstairs in the residence, the children were in bed when the accused made a demand on her to physically 'harm' herself. The reason for this was the accused apparently felt the victim was having an affair. The victim declined to harm herself and the accused stated that if she did not do it he would do it for her. At this point the victim formed a fear that she would be physically harmed (assaulted) by the accused. The victim left the accused and went upstairs to a room to see if the accused would cool off. At some point later the accused yelled out to the victim 'I'm coming to get you' and the victim heard the accused come upstairs." [1451] 1. The complainant gave evidence that she spoke to Detective Cole. She stated that he asked if she was sexually assaulted, but she was "very ashamed to tell him" about what had happened. She stated that it was "very personal" to her and that she was "scared and embarrassed" to reveal what the accused had done to her "to a man" so she did not tell Detective Cole. [1452] The complainant's evidence was that she told Detective Cole that the accused had a job in the government and that if the accused lost his job, she would not be able to look after her two children, being WS who was "sick" and JS, who was "too small." Detective Cole asked her if she wanted him to charge the accused but the complainant stated that she did not know at that stage. She stated that she did not know what to do because of all the medication she was on and she was suffering from pain in her leg. She stated that she had a "few more conversations" but could not remember them. [1453] 2. The complainant stated that she told Detective Cole about what had happened to her leg. She stated that she jumped from the balcony and slipped from the carport, because if she did not, the accused would have done it for her. [1454] 3. She stated that on 1 February 2015, she was in "really powerful pain". When asked in cross-examination whether she could have asked for a female police officer to attend to her she conceded that they did sometime before 17 February [1455] 4. Also tendered in the proceedings was an unsworn affidavit which records it was prepared for family law proceedings. [1456] The extracts tendered, relevantly recorded:- "[1] I am the applicant wife herein. [2] I was born on 8 October 1963 in Fiji. [3] The respondent husband is [the accused] born 14 February 1967 in Fiji. [4] I migrated to Australia in 1996 on my own. [5] We were married on 31 July 1998 in Australia. … [132] I was scared and trying to get away from him. I said to him words to the effect of "Why are we having sex with all the windows all open, why don't you just go outside". I thought if I let him outside I'd be able to run away. [133] As soon as he opened the back door I then grabbed my joggers and ran upstairs. The children were asleep and I grabbed my phone. I could hear [DS] running upstairs and he said to me "this is the last time, that's it, I'm coming for you". [134] I thought that if he come and got me and took me downstairs this time he would have killed me. [135] I went into the master bedroom upstairs which has an adjoining balcony. I opened the door and went onto the balcony. He followed me and I then jumped over the balcony onto the carport roof." [1457] 1. The complainant was questioned about reference to [132] of Exhibit AP, having stated in the unsworn affidavit that the accused opened the back door at the point when she grabbed her joggers and ran upstairs. She clarified this by stating that she put the accused outside the front door. [1458] It was put to her that she had previously jumped from the carport – a proposition which she rejected, stating that her children did. [1459] She stated that when she was being abused and bashed, the children "tried to jump the carport" to "go and tell the neighbour … just to get away from things, what was happening in the house." [1460] It was put to the complainant that she was telling lies, but she maintained that she was telling the truth. [1461] The complainant reiterated that the accused at the time of the incident was on the balcony, "not far away" from her and that he was trying to get on top of the carport. She expressed concern that if the accused had grabbed her then he would have thrown her down or taken her inside and that she would not have survived. [1462] She stated that the accused was close to the balcony and was not opening the door, but was "just close to the balcony" and "coming to the carport" by "putting his leg on the carport to the railing." [1463] She reiterated that the accused had said to her: "If you don't do it I'll do it for you." [1464] The complainant's other accounts 1. The accused also draws attention to the complainant's statements recorded in other accounts relevant to events of concerning count 24 given by the complainant and the delay in reporting the allegations as to sexual assault. Karen Sheehan 1. Ms Karen Sheehan was employed by NSW Health as a social worker at Campbelltown Hospital on 2 February 2015. She gave evidence that on 2 February 2015, she came to speak to the complainant who was a patient at the time in the surgical A ward. She also stated that she saw the complainant on 4 February 2015, 9 February 2015 and 10 February 2015. [1465] 2. Ms Sheehan stated that on 2 February 2015, it was difficult to speak to the complainant as she was "emotionally very distraught" and "not long out of theatre." [1466] Ms Sheehan stated that the complainant had disclosed to her that she had jumped off the balcony of her apartment block to get away from her husband. She stated that the complainant was "very teary and quite reserved" and "frightened that [the accused] would find out where she was." [1467] She stated that the complainant was also fearful about talking to staff because she did not want the accused to know where she was. [1468] When initially asked about whether the complainant had disclosed anything about the nature and extent of her relationship with her husband, Ms Sheehan stated: "Yes, everything is documented in her medical records." [1469] Her evidence was that the notes were taken "straight after" her conversation with the complainant and that she had checked them to make sure that they were correct. [1470] 3. The hospital clinical notes record Ms Sheehan stating on 2 February 2015: "SOCIAL WORK: referal received for DV issues. Pt has been married for 17 years & stated DV has always been an issue from very early in their mariage [sic]. Pt stated that she will now press charges as her family has convinced her it is ok to have him charged. Pt has two children, a boy (14) and a girl (9). Both children were in bed at this DV incident. Pt stated that she jumped from 2nd storey to avoid husband throwing her off the balcony. Pt stated that she can continue to live in their home for a few more months then must move as house needed to be sold to pay of [sic] husband's gambling debt. Pt has asked that staff check with her before giving out information on the phone or allowing visitors. Could medical staff please do a Centrelink medical certificate please. Review Pt again tomorrow – KAREN SHEEHAN (SW) 39351." [1471] 1. Ms Sheehan stated that on 4 February 2015, the complainant was still "very emotional and upset", "terrified of [the accused]" and that a lot of their conversation was about that and how the complainant was worried about how "all of this would affect her children." [1472] 2. The clinical notes record that Ms Sheehan tried to complete a Centrelink file with the complainant. [1473] 3. On 10 February 2015, Ms Sheehan stated that the complainant's demeanour did not change and that she remained "very distraught and terrified" and that the complainant's "whole focus was she was terrified [the accused] would find her." [1474] 4. In cross-examination, Ms Sheehan stated that the complainant had disclosed to her that there had been various issues in the marriage over many years, but she could not remember what exactly was said. She stated that in relation to having the accused charged, the complainant was very fearful of pressing charges against him. However on this occasion, the complainant had the support to go ahead and press charges. [1475] 5. The evidence of Ms Sheehan was that on this day, the complainant did not mention any sexual charges. [1476] 6. She stated that the complainant did mention sexual abuse, which she described as the complainant talking at times about how often she "didn't have a say in their sexual relationships that if [the accused] wanted it that was the way it was." [1477] She conceded that this was not recorded in the notes and stated that "sometimes you have to be very mindful of what is written in notes because lots of people in the hospital read it and it makes it very difficult for the patient." [1478] Ms Sheehan stated that she was very careful in making notes in order to protect the patient and her task was to support the patient, and not to ask her to explain herself. [1479] 7. The accused's in-laws visited the hospital, requesting to see the complainant, however the complainant declined to allow them to enter, and told nursing staff to inform them she was suffering from a migraine. Ms Sheehan noted that this was correct. [1480] 8. The clinical notes also record that on 9 February 2015, Centrelink payments "had been sorted" [1481] and on 10 February 2015, the complainant noted that she had support in place and was happy to be discharged. [1482] Paula Nahas 1. Ms Paula Nahas was a child protection case worker employed by NSW Family and Community Services. She received a report from the Campbelltown office of the Department on 4 February 2015. [1483] She stated that she attended the complainant's home on either 24 or 25 February 2015, together with another case worker, Ms Dominique Quintal. [1484] At the time, the complainant's aunty was present. [1485] Ms Quintal was the secondary caseworker who was taking the notes. [1486] 2. Ms Nahas stated that the complainant recalled being in a violent relationship during the 18 years of their marriage. The complainant explained that she was physically, emotionally and sexually abused, and was controlled by the accused. She stated that the children had witnessed the domestic violence and they had acted out due to the violence. [1487] She stated that the complainant referred to the incident which took place and also the sexual abuse but did not go into a lot of detail. [1488] According to Ms Nahas, the complainant stated that she and the accused were downstairs where the accused was performing sexual acts on her that she did not approve of, but complied so that the children could not hear her screaming. The complainant also stated that she was afraid that if she did not "go ahead with it" that the accused would kill her and when there was a chance to run away from him, the complainant ran upstairs towards the balcony. The complainant stated to Ms Nahas that if she did not jump, the accused would have pushed her off and so she jumped in order to save herself. [1489] 3. Ms Nahas stated that the complainant told her that the accused had been using a sex toy and was forcing it into her. [1490] At the time, the complainant was crying and was unable to "get the words out" and that there would be a need to pause a few times. [1491] Ms Nahas stated that she had read through the notes made by Ms Quintal and that they accurately recorded the conversation. [1492] 4. In cross-examination, Ms Nahas stated that the complainant informed her that the complainant had asked the accused to "let's do it outside" and as the accused moved to open the blinds, the complainant ran upstairs but had nowhere to go. [1493] 5. Ms Nahas further conceded that the Department of Community Services had received reports relating to domestic violence between the complainant and the accused on previous occasions. [1494] Detective Senior Constable Fiona Duncan 1. Detective Duncan gave evidence that on 24 February 2015 she received an email requesting her to make contact with the complainant and to arrange taking statements from her and her children. [1495] She stated that she had a conversation with Senior Constable Watson who was originally dealing with the matter, and who she understood to have had previously had discussion with Ms Paula Nahas. [1496] 2. Detective Duncan stated that she met the complainant on 25 February 2015 at Campbelltown Police Station, and the complainant was accompanied by her brother, Mr Kamlesh Chandra, and her children. [1497] Detective Duncan arranged for the children to be separately interviewed. [1498] She stated she spoke to the complainant generally, and informed her that she had been advised that there was "more involved" than what she had disclosed to police on 1 February 2015. [1499] The complainant is said to have told her that she was "ready to talk to us about everything that had happened." [1500] She stated that the complainant seemed "very nervous" and was "non-specific" but noted that she was in "a lot of pain at that time with her leg." [1501] 3. The complainant's statement to police was not admitted into evidence. [1502] 4. In cross-examination, Detective Duncan was questioned as to whether she had contact with the complainant before 24 February 2015. She stated that she had not. [1503] She stated that the reference in her statement about contacting the complainant and arranging for her to attend Campbelltown Police Station on 15 February 2015 was a typographical error. [1504] 5. Although in her statement, Detective Duncan had said that she had a conversation with the domestic violence liaison officer, Sergeant Nicholl, [1505] she could not recall whether Sergeant Nicholl had spoken to the complainant. [1506] 6. When the complainant was asked about not telling the police about the sexual assaults in February 2015, the complainant stated that she was "crippled at that time", could not move and was more concerned about the welfare of her children. [1507] She stated that her marriage to the accused was over when she fell from the carport, but she could not recall whether she had told the police about it. [1508] The complainant conceded that she did not want the accused out of gaol and that she had conveyed this to the police. [1509] Fiti Fepulea'i 1. Mr Fiti Fepulea'i lived with his wife, Tipi, and their seven children, across the road from the accused and the complainant. He gave evidence in the trial. Although the accused's children did visit their house, he had limited contact with the accused and the complainant. [1510] He recalled an occasion around "12 to 1 at midnight" whilst he and his wife were asleep, hearing a voice calling for help. His wife woke him up and they ran and opened their door and saw the complainant "crawling very close to the footpath" of their house. Mr Fiti Fepulea'i knew that it was the complainant and then opened their door, and ran towards her to get her, noticing that she could not stand. He stated that he lifted her up, and then he and his wife took her to their house across the road. The complainant then fainted and at that moment, decided to take her to Campbelltown Hospital. [1511] 2. Mr Fiti Fepulea'i stated that he and his wife put the complainant in their car, with his wife staying in the backseat with the complainant. [1512] His evidence was that before they went to get the complainant, they saw the accused walking down from the house at the front door. He gave evidence that he said to the accused: "DS don't come here." The accused complied and they took the complainant to the hospital. [1513] When the accused came to the front door, Mr Fiti Fepulea'i stated that the accused was on the footpath, and he and his wife were there with her. According to his evidence, the accused did not say anything and was "just standing at the door." [1514] 3. Mr Fiti Fepulea'i then stated that he took the complainant to the hospital and helped take her inside to emergency. He then decided to go back to his house and leave his wife at the hospital, because he was thinking about his own children and the complainant's children. [1515] Upon arriving home, he saw that the accused's children were there and he told them that he would take them to see their mother. He then went back to the hospital and saw the accused at the car park. He stated that he told the accused: "I'm going to take the kids to see their mum." The evidence was that the accused did not say much at that time. [1516] He stated that the accused was "just looking, staring at the hospital." [1517] He stated that the accused was standing "very close to the emergency side of Campbelltown Hospital." [1518] 4. His evidence was that when he arrived home, the complainant's children were at his house, may be when they found out that their mother was not at home. [1519] He stated that he did not see the accused when he arrived home. [1520] However, later when he walked past the accused with the children to take them inside the hospital, he saw that the police were already at the reception. He then saw the accused outside the car park and that was the first occasion that he had seen police that evening. [1521] He stated that the children remained with him and his wife until the complainant was discharged from hospital. [1522] 5. Mr Fiti Fepulea'i was not cross-examined by the accused. Tipi Fepulea'i 1. Mrs Tiperia Fepulea'i also gave evidence. She gave evidence that the complainant had previously told her, when she came to her house, about how her husband had been treating her inside their home. [1523] On one occasion, she recalled being in bed around 12:30 to 1:00 am and hearing a female screaming outside. She woke her husband up, went to the front door and saw the complainant laying on the footpath in front of their house. She was screaming for help and calling her name twice: "Tipi, Tipi." She asked the complainant what happened, and the complainant replied that the accused had tried to kill her. [1524] She stated that the complainant then tried to get up, and "managed to get up and hop" and hopped from where she was to the front of her (the Fepulea'i) gate. Mrs Tipieria Fepulea'i opened the gate, and her husband picked up the complainant and walked her into their house. She then asked the complainant: "What happened" and the complainant replied that the accused tried to kill her. She tried to speak to the complainant further, but she did not respond – she had fainted. At that point, she and her husband decided to take the complainant to the hospital. [1525] 2. Mrs Tiperia Fepulea'i stated that she gave a statement to the police on the same night. [1526] She accepted that when she spoke to the complainant outside her house, the complainant stated that she ran across the top of the house, across the car port and jumped onto the ground because her husband was chasing her. [1527] She stated that the complainant "wasn't herself" because she was "really in pain" because her foot was hurt when she jumped from the carport. [1528] 3. In cross-examination, Mrs Tiperia Fepulea'i conceded that she did not see the complainant jumping off the balcony that night. [1529] JS 1. The accused's daughter, JS was interviewed by the police on 25 February 2015 in relation to the events of 31 January 2015. At the time, she was aged 11. Her record of interview was tendered in the proceedings as Exhibit E. 2. In her evidence before me, JS stated that she recalled speaking to the police on two occasions. [1530] She stated that in relation to her two interviews, when she spoke to the police she was telling the truth. [1531] 3. The accused's cross-examination of JS was confined to the question of her middle name. JS stated that she had "no idea" where her middle name came from or who she was named after. [1532] 4. In her interview of 25 February 2015, JS stated that she and her brother were asleep on the night that her mother, the complainant, jumped from the balcony. [1533] JS stated that she "did hear everything." [1534] She stated that "something was holding [her] down" and that her wrist started to "hurt a little." [1535] She stated that she went "sneaking somewhere" and thought that her mother and father "must have gone somewhere" and she started to yell for her mother. [1536] Eventually her father, the accused, came through the door. [1537] She was downstairs and asked the accused: "where is mum" and the accused replied: "She's gone for a walk." JS then told the accused that she was "going to see mum." [1538] JS stated that she thought her mother, the complainant, would be at the neighbours because she "never goes for a walk." [1539] 5. JS stated that she woke up because of the "quietness" and that it was "not usual for them to be quiet." [1540] She then stated that she went to sleep at around 10:00 pm but did not sleep much and heard (presumably her parents) go upstairs and "they went onto the balcony in the front." [1541] JS stated that she heard the accused state to the complainant: "Jump off the balcony or else I'll throw you down and kill you." [1542] When she was specifically asked by Detective Cole whether this was the truth or a lie, JS replied that it was the truth: "No, lie, ask my mum." [1543] JS then added that the accused went back a bit: "That's what my mum told me." [1544] 6. JS then gave an account of what happened to the complainant. [1545] She stated that she heard her mother and father fighting before they were on the balcony, although she had "no idea" about what they were fighting about. [1546] 7. In subsequent questioning, JS states that she went to her neighbour's house and was sitting on their drive "thinking what might have happened" and then qualifying that by stating "because I already knew what happened." [1547] 8. JS stated that her neighbour's two sons came out and saw her sitting there, and asked her what she was doing there. She asked them: "where's my mum." [1548] The two boys told her that her mother was in hospital. [1549] 9. JS later stated that she did not see the accused hurt the complainant at all, [1550] although she did see the accused "kick and bash" the complainant on previous occasions. [1551] JS stated that she identified her father, the accused, at the hospital. [1552] JS stated that when she went to the hospital, she heard the accused state: "[L]ook what she's done man, to me." [1553] Findings about the complainant's other accounts 1. The accused submitted that the accounts given show variation and that the complainant did not run way but rather they had finished having sex and they were talking before the complainant subsequently went upstairs. He asserts that the complainant stated that she went upstairs to allow the accused to cool off and that she told Detective Cole in Exhibit AQ that she went upstairs for two minutes because she was a bit scared. 2. Exhibit AQ does not disclose whether the interview was taken in the morning or evening. However the reference to last night and Constable Stanley's evidence indicates that it occurred in the morning. This was after the accused was interviewed commencing at 5.12 am. In that interview, the accused disclosed that he and the complainant had sexual intercourse before the events the subject of Count 24. Exhibit AO reveals that it was prepared subsequent to the electronic interview with the complainant. At that point, the police had information as to the accused and the complainant having sex before the circumstances of Count 24 as revealed in the accused's interview. However the complainant made no disclosures to this effect when questioned by Detective Cole. 3. I accept the complainant's evidence as to the reasons for her reluctance to discuss the sexual assaults with Detective Cole being that he was a man and the sensitive nature of the complaints. I further accept the complainant's evidence as to her reluctance to have the accused charged. This was that the accused had a job in the government and that if the accused lost his job, she would not be able to look after her two children, being WS who was "sick" and JS, who was "too small." Not all of the interview of which Exhibit AQ was tendered in the proceedings. 4. The evidence of Ms Sheehan shows the complainant was reluctant to press charges against the accused until convinced by her family that it was "okay" and that she had support. Ms Sheehan took the necessary steps to provide support from Centrelink. Ms Sheehan discloses that whilst a history of domestic violence is referred to the question of sexual abuse was not raised until a later time and was not recorded in the notes. 5. Exhibit AP is a draft affidavit which I infer was prepared for the complainant to sign. I draw little from the discrepancy referring to the back door as opposed to the front door, particularly in circumstances where it was not sworn. Otherwise the account disclosed is consistent with the complainant's evidence. 6. Ms Nahas's evidence as to what she was told on 25 February 2015 when she visited the complainant. The accused draws attention to the account given by the complainant to Ms Nahas which records that prior to going to the balcony: " I said to him let's do it outside and while he moved to open the blinds I ran upstairs. I had nowhere to go." [1554] In chief, the complainant gave little account of her meeting with Ms Nahas. The complainant was not cross-examined on the basis of the report. The complainant's evidence was that the accused had already opened the blinds and she was embarrassed and later told him to do it outside. I have noted Ms Naha's description of the complainant at the time as crying, being unable to get words out and pausing. Ms Nahas was concerned the safety and protection of the complainant's children and was not investigating the circumstances of what had occurred on the occasion of Count 24 . The statement itself seems somewhat implausible (ie open the blinds as a prelude to having sex outside). Whatever the true circumstance were, in my view it does little to undermine the complainant's credibility. 7. What is clear in my view is the assertion that the complainant said she was being pursued by the accused who threatened to kill her. The clinical notes on admission record "husband was threatening and abusing her, asking her to jump off from balcony otherwise will kill her." 8. It is also what is recorded by Sergeant Smith that the complainant told her when she spoke to her at the hospital being that she had jumped in order to get away from the accused who had been chasing her. 9. Further, on 2 February 2015, Ms Sheehan recorded that the complainant had disclosed to her that she had jumped off the balcony of her apartment block to get away from her husband. 10. Ms Nahas saw the complainant on 24 February 2015 and accepts a record of the complainant stating that if she did not jump, the accused would have pushed her off and so she jumped in order to save herself. 11. It is also consistent with the evidence of Mrs Fepulea'i who states that the complainant told her outside her house after the fall that the accused tried to kill her. 12. As to the delay in the complainant making a statement to police, I accept her evidence that she was in severe pain from her injuries and was concerned for the welfare of her children. Although the complainant stated that the relationship was over when she fell from the balcony, I am satisfied that she was reticent to give a full account in light of the nature of the disclosures and the nature of the relationship with the accused (in particular her fear of the accused and her dependence on him). Those circumstances changed when she felt supported as evidenced by Ms Sheehan. 13. JS's account is inconsistent. She states that she was initially woken up by the quietness [1555] but then stated that she did not sleep much and heard the accused and complainant fighting. [1556] JS's account as to what she heard and the complainant's actions after the fall appear to be based on what the complainant had told her. She could not have seen her mother crawl to the letter box and hop to the neighbours' house. She conceded that her mother told her that the accused tried to go downstairs to put a jacket on her. [1557] 14. The evidence of Sergeant Smith was that she spoke to JS and WS at the hospital however she obtains no record of the circumstances leading to the complainant's fall except about arguing they hear that keeps them awake. The accused's statement to Ajay Singh 1. Mr Ajay Singh had met the complainant through his wife when she resided in Campsie. Through his wife, he also met the accused. The relationship with the complainant was accepted as one where she was his cultural sister, and with the accused, as being a brother-in-law. [1558] Their relationship was described as being very close, including regular meetings and visits to each other's homes. [1559] There were also interactions between their extended families. [1560] There were "many things" that their families would do together, including projects at home. [1561] The relationship was described as getting stronger when the accused and the complainant moved to Leumeah, because they were now in closer proximity. [1562] 2. Mr Singh gave evidence that before the accused went into custody, he had a conversation with him at his house and recalled the next day as that where the complainant was in hospital. [1563] He stated that the accused had called him in the afternoon regarding the selling of a piece of land in Fiji, and that he was interested in buying it. He stated that he went to the accused's house later in the afternoon. [1564] He stated that he arrived at the house at quarter to six. [1565] At the time, he was alone with the accused and asked him: "Where is my sister AS." The accused responded: "She went to the park with the kids." [1566] He stated that they sat downstairs in the lounge and he was there for an hour and a half discussing price and other arrangements. [1567] The conversation was described by Mr Singh as being one where they were on "good terms" and having "jokes and fun … talking to one another like a normal like an extended sitting …" [1568] During the discussion, Mr Singh told the accused: "Hey I hear you sold the house" to which the accused replied: "Yeah, and I'm buying another house and I'm getting I want to get another marriage." The accused stated that the complainant agreed and when met another woman, he would buy two properties and live together, and that he would "take care of the kids." Mr Singh said that he was "a bit shocked" by what he had heard, but then said: "Well it's their life." [1569] He accepted that the accused had told him that the divorce would be "coming through" on 20 February 2015. [1570] 3. Thereafter, the complainant and her children returned home and they exchanged greetings. The complainant walked up stairs and then Mr Singh left. [1571] 4. The following morning, Mr Singh gave evidence that he received a telephone call at 9:30 am from the accused stating that he had been "locked up." He asked the accused what had happened, and the accused stated: "Oh [the complainant] jumped off the carport or balcony." Mr Singh asked where the complainant was and the accused stated: "Oh, she's in hospital." The accused then asked Mr Singh to go and see him, but Mr Singh responded: "No I'll go and see [the complainant] first and then I'll come and see you." [1572] At that stage, the accused told him that he was at Campbelltown Police Station. [1573] 5. Mr Singh stated that he went to the hospital and spoke to the complainant who started crying and stated to him: "Oh brother I've been abused for the last 17 years." [1574] He stated: "Well you didn't tell me before" and then the complainant started crying. He stated that he had his daughter with him as well as his wife and did not go into "details." [1575] At the time, he stated that the complainant was with her son and was "stressed." [1576] He then stated that he spoke to police officers and told them that he was going to go and see the accused. The police officers stopped him and stated: "You can't see him." He then went home. [1577] 6. A couple of days later, Mr Singh gave evidence that the accused contacted him and asked him to come and visit him at Silverwater gaol. [1578] He later stated that was, "three or four days" after his initial contact. [1579] Although Mr Singh stated that he had made an appointment, he believed that it was a "family issue" for them to "settle" so he subsequently cancelled it. [1580] He was later contacted again by the accused and asked: "Why didn't you come?" Mr Singh thereafter proceeded to rebook an appointment for 13 February 2015. [1581] Mr Singh then attended Silverwater gaol on that occasion and had a conversation with the accused. 7. Mr Singh stated that the accused said to him: "Are you still going to buy my land?" He replied: "Mate, we sort out this issue first, then we talk about the land." Mr Singh stated that they both sat down and the accused began to accusing the complainant of being "involved with someone." Mr Singh replied to the accused: "Mate you told me that you getting divorced and since you're separated she's an adult she can do anything you know." The accused responded: "What if your wife does the same thing?" Mr Singh replied: "You can't compare yourself with me because I'm still married." The accused, after hearing this, stated: "I think you're taking favour [the complainant]" to which Mr Singh replied: "No it's not the case this is what the life is." Mr Singh stated that their conversation continued and the accused asked if he could "help to compromise" between himself and the complainant. [1582] When asked specifically as to what was the "compromise", the transcript records as follows:- "Q. Compromise what? A. Whatever it was to just tell her to contact me and we'll talk and I want to go back to work and I'll take care of them in then she can live on her own the way she want. I said, "I can tell that but I can't make you do it." Q. What did he say? A. He said, "Okay try your best and let me know," and then I said to him that, "You had a good life you know, and why it's all happening," and he couldn't answer me that. Q. Is that all that happened on that day? A. No and then he said, "If I get out of there I'll have a job, nothing will change, but if I do get convicted I'll lose everything and once I lose everything I'll get out of here I'll finish the unfinished job," that's what he said to me. I said, "DS do you know what you're saying," and then we're sitting there he said, "Please organise some sort of meeting," him with AS, I said, "Well I can't make it happen," and then I left there, from there. Q. When he said to you, I think you said, "If I do get convicted will get out and finish unfinished job," so that's what he said to you? A. Mm." [1583] 1. Mr Singh stated that the accused was "really angry, upset." [1584] At the time, he stated that they were sitting in the yard in the gaol, and were next to one another. [1585] Following their conversation, Mr Singh stated that he left. [1586] 2. After this visit, Mr Singh started getting calls from the accused from Albury. [1587] He stated that there were an "unlimited times … so many times he did call me five, six, seven times even three four times a day" and the accused kept calling him until he asked him to stop. [1588] He stated that the accused was using a mobile phone, a landline, and on one occasion, the accused's brother-in-law called him and gave the phone to the accused. [1589] He stated that he spoke to the accused, and the accused wanted to know where his family was, including the complainant and his children. [1590] The accused wanted to know what they were doing and where they were going to move to. He replied to the accused: "… it's not right. You are breaching a – your – he was in his – you're breaching your bail thing." He then said the accused kept calling him and trying to make him meet with the complainant and him to "settle" whatever it is was. [1591] Mr Singh stated that the accused told him that there was a "case coming up" and wanted to know whether the complainant would attend the Court on Friday. He told the accused that he did not know and that he should "just go and attend your Court." The accused informed Mr Singh that he had two barristers and that he would win the case. Mr Singh replied: "I don't know, you go and see if she turns up …" [1592] He understood the relevant case to be that between himself and the complainant – the case "at the moment." [1593] 3. Mr Singh stated that the accused's tone during the conversation was "normal like" and that the accused "just wanted to know information" or that he "just wanted me to pass a message." [1594] He stated that in the conversation, the accused told him that the complainant had "jumped herself off the balcony." [1595] 4. In cross-examination, Mr Singh stated that he had seen the complainant assaulted, and that she looked a "bit worried" and sometimes he had asked her about it, but she did not want to answer. [1596] Later, Mr Singh conceded that he had not seen the complainant assaulted. [1597] Mr Singh had been informed that the accused and the complainant were to separate, and was asked why, having that knowledge, he would agree to meet. Mr Singh replied: "No, no, no you said to me that once I going to be out I going to buy a house, two houses where she can live on her own, with my children and we will stay together. Right, we can stay together as a partner, you told me that. Q. So what— A So that means you were trying to get out of goal or whatever or whatever regarding this, to get out of it, somehow to start your new life." [1598] 1. Mr Singh stated that he knew that on 13 February 2015, that the accused had "people" to represent him, and that the accused and the complainant were separating. [1599] Further, Mr Singh conceded that he was aware that on 17 February 2015, that the accused was released on bail. [1600] He later conceded that he was not aware of the accused's bail conditions. [1601] However, Mr Singh stated that he believed that for "some reason" if a person had been given bail "they are not been allowed to be in contact with the person …" [1602] Mr Singh was specifically asked what it was that he was going to "compromise." Mr Singh stated that it was not him, but it was the accused that had asked him to bring the his (accused's) family "in there" to which Mr Singh says he replied: "I can't" and that: "No I can't I've got no power." [1603] He reiterated that in prison, the accused had called with the "main idea" to somehow make the accused and the complainant "meet." [1604] He reiterated that the accused wanted to know whether the complainant was going to attend Court on Friday, but stated that he did not know how many cases were ongoing but believed the "case" to be this instant case. [1605] 2. The complainant gave evidence that Mr Ajay Singh had told her following his visit to Silverwater prison that the accused did not want to move back in with her. [1606] 3. Detective Duncan gave evidence that after the accused was arrested, she may have had a look through police holdings to see what else there was and found matters involving alleged domestic violence and AVO proceedings that were due to be heard at Campbelltown Local Court on 6 March 2015. She stated that a decision had been made to withdraw the charges on 6 March 2015 pending a full statement from the complainant. However the AVO remained on foot as did the charges from 1 February 2015. [1607] 4. Detective Duncan stated that the accused had been released at some point in February on conditional bail and the actions by police taken to detain the accused were a result of contact between the accused and Mr Ajay Singh. She described the AVO conditions that were in place on 1 February 2015 requiring:- "That the accused is not to assault, molest, harass, not to engage in any conduct that intimidates the complainant or the protected person, not to stalk and not to destroy property." [1608] Detective Duncan acknowledged that there was not a condition in place since 15 December 2014 preventing the accused could not contact the complainant or reside at the premises. [1609] However, she later gave evidence that following the incident on 1 February 2015, the accused was also the subject of a bail condition to reside at an address at Railway Pde, Erskineville. [1610] 1. Detective Duncan stated that Mr Ajay Singh had informed her in his statement of 5 March 2015, that he had visited the accused in prison when he had earlier been bail refused. She checked the accused's visitor records which disclosed that Mr Ajay Singh had visited on 13 February 2015. [1611] She stated that consequent to Mr Singh showing her phone and email records, the accused attended Campbelltown Police Station in the company of his sister and her husband [1612] at about 5:30 pm. [1613] Detective Duncan introduced herself and indicated to the accused that he was under arrest for breaching the AVO and bail conditions, [1614] being a result of the information given to her by Mr Ajay Singh. [1615] The emails referred to were allegedly sent by someone to the family of the complainant. [1616] Detective Duncan stated that she obtained a statement from the accused on 5 March 2015 at Campbelltown Police Station and then required him to present himself to the station because had had breached his bail conditions and the conditions of the apprehended violence order. [1617] 2. She stated that the accused was arrested and cautioned, and charged with a breach of the AVO. The accused was bail refused on 5 March 2015 and was bail refused by the Court on 6 March 2015. [1618] 3. Detective Duncan indicated that she afforded the accused the opportunity to participate in an interview on 5 March 2015, however he had exercised his right of silence. [1619] 4. The complainant's statement was then completed on 9 April 2015, at which stage, the accused was again afforded the opportunity to participate in an interview. However, through his solicitor, the accused declined. [1620] 5. As I have earlier stated, all people in this country have a right to silence and to choose not to answer questions put to them by police subject to exceptions provided by law but no such exception applies here. Accordingly the accused's silence cannot be used against him in any way. 6. Detective Duncan was questioned in relation to the circumstances of the accused's bail being revoked by reference to a statement made by Detective Duncan in Exhibit 9 at paragraph [18]. That paragraph reads as follows:- [18] On the 5 March 2015 [the complainant] showed me an iPad belonging to [JS]. Appearing on the iPad was an email account. [The complainant] told me the email account was that of [the accused] – {REDACTED EMAIL ADDRESS}. All emails sent and received from the email address {REDACTED EMAIL ADDRESS} are replicated and appear on the iPad of [JS]. The iPad is connected to a common family iTunes account and user name. [19] on the iPad of {JS} I saw an email which was sent from the work email account of [DS} (REDACTED EMAIL} to his private email address {REDACTED EMAIL} on the 19 January 2015. 1. Detective Duncan was challenged in relation to the concept of a common iTunes account for the family and conceded that she did not investigate it. She stated that she saw the email but didn't see a common iTunes connection. .She reiterated that she arrested the accused for breaching his AVO and bail conditions. She described the alleged AVO breach as follows: "I say that you breached your AVO by ending the emails to- that came up on JS's iPad or the family iPad and by having –being in continual contact with Ajay Singh in an attempt to have him contact AS." [1621] In relation to the alleged breach of bail she stated: "By contacting Ajay Singh and asking him to interfere with the investigation by having AS withdraw her statement." [1622] 1. The circumstances of the alleged breaches are not matters for determination in this trial and no adverse presumption arises from them. The facts are relevant only to the extent that they can cast light on the evidence of Mr Ajay Singh. The email itself was not in evidence and the circumstances of it coming to JS's iPad have not been explained. In the circumstances, it adds nothing to my assessment of Mr Ajay Singh's evidence. 2. Nevertheless, except in the limited respect mentioned, Mr Singh was not challenged as to his account. Whilst I accept that the accused had lawyers at the time he saw Mr Singh and secured bail in February 2015, the evidence indicates that at that time, he still had matters pending at Campbelltown Local Court and as well as the matter the subject of count 24. The bail outcome and the broader matters pending would have provided a reason for him to seek to make contact with the complainant. There is evidence from Mr Singh that the accused asked him if the complainant was going to attend Court on Friday. There is no evidence as to any other source of information apart from the accused. There was also unchallenged evidence that following the prison visit the accused rang multiple times including through his brother-in-law to determine the whereabouts of his family. The calls were stated to be from Albury which I presume was where the accused was before being released on bail. 3. The accused submitted that I should not accept Mr Singh's account as they both had business dealings which did not eventuate. This challenge however was not directly made, [1623] but I reject the submission nonetheless. It is clear that Mr Singh had a good relationship with both the complainant and the accused up until the event in question. Not only had they been on numerous social outings and frequent visits together but the accused rang him repeatedly to seek his assistance. The fact that the complainant had not mentioned to Mr Singh previously the nature of her relationship with the accused is consistent with the complainant's reluctance to discuss these matters with others. I accept the evidence of Mr Singh who in my view presented as a most credible witness. 4. I accept the Crown's submission that the reference by the accused to Mr Singh in the prison visit as to "complete the incomplete job" demonstrates his mindset as to Count 24 and is consistent with the complainant's account of how she believed he was acting at the relevant time when the complainant stated that thee was saying "finish, finish." [1624] Accused's arrest 1. The accused was arrested on 1 February 2015. The circumstances leading to it were as follows: Constable Scott Green 1. Constable Scott Green attended Campbelltown Hospital on 1 February 2015 and was thereafter requested to attend the accused's residence to arrest him for domestic violence offences. [1625] The evidence was that he and Senior Constable Evans, at 3:50 am, attended the premises when he heard a banging noise coming from the backyard. [1626] Constable Green stated that he was unable to raise anyone at the front of the house and as a result, he entered the backyard through a hole in the fence. [1627] He stated that both he and Senior Constable Evans searched the backyard for about five minutes but could not locate the accused. [1628] 2. Constable Green stated that as he and Senior Constable Evans were leaving the backyard, he heard a rustling sound coming from the bushes against the fence line of the property. Constable Green stated that upon looking behind these bushes, he saw the accused kneeling down attempting to "conceal himself" from sight. [1629] Constable Green stated that he directed that the accused come out from behind the bushes and the accused complied. The accused was then placed under arrest and declined to speak to Constable Green any further at the scene. The accused was then taken to Campbelltown Police Station. [1630] Constable Carlie Evans 1. Senior Constable Carlie Evans was also in attendance with Constable Scott Green. Senior Constable Evans had previously had occasion to investigate the matters which arose on 31 December 2014. Her statement is detailed in Exhibit AA1. [1631] 2. In relation to events of 1 February 2015, Senior Constable Evans stated that after attending the Campbelltown Police Station to assist Sergeant Smith and Constable Watson, she had a conversation with Sergeant Smith. Sergeant Smith requested her and Constable Green to attend the accused's residence and endeavour to locate him. It was explained that the accused was to be arrested for domestic violence related offences. [1632] 3. Senior Constable Evans stated that from her previous encounter, she was aware of what the accused looked like. [1633] She then attended the premises and saw the front screen door of the premises wide open, but did not receive a response. [1634] After a short time, she closed the door but could not secure it because it needed to be deadlocked. [1635] Both she and Constable Green then proceeded to patrol the Leumeah area as well as the Campbelltown CBD in an attempt to locate the accused. [1636] She stated that approximately 40 minutes later, she and Constable Green returned to the accused's place of residence, and she noticed that the screen door, which she had earlier left open, was now closed. Again, they approached the front door again and knocked loudly. Constable Green thereafter advised her that he had heard a noise in the backyard. [1637] She and Constable Green proceeded to go around to the back of the premises through an open gate but because of the darkness, she could not see very much. She checked the rear door of the house and it was locked, and she noticed that all the rear windows were shut and secure. Her evidence was that as she and Constable Green were about to walk back to the front of the residence, they heard a rustling sound in the bushes. Constable Green used his flash light to look behind the bush, and she heard him say words to the effect of: "It's Police. Get out where we can see you." [1638] The accused subsequently crawled out from behind the bush and Senior Constable Evans stated that she immediately recognised the person as the accused. [1639] Senior Constable Evans subsequently arrested the accused and conveyed to Campbelltown Police Station. [1640] Senior Constable Jack Mitchell 1. Senior Constable Jack Mitchell had been in attendance at the Campbelltown Hospital with Sergeant Smith and Leading Senior Constable Watson. His evidence was that he and Leading Senior Constable Watson were briefed by Sergeant Smith upon arrival. [1641] His evidence corresponded with that of Sergeant Smith as to the events at the hospital. However, he does not record searching for the accused at the hospital, but does state that he left the hospital to attend the accused's residence and meeting with Senior Constable Evans and Constable Green. [1642] 2. When he arrived at the accused's residence with Leading Senior Constable Watson, Senior Constable Evans and Constable Green informed them that the accused was in the rear of the police caged vehicle. Leading Senior Constable Watson then advised the accused that he was under arrest for assaulting the complainant. Senior Constable Jack Mitchell stated that the accused moved towards Leading Senior Constable Watson, and that the accused had to be pushed back from the door so that he remained seated. 3. Both Senior Constable Mitchell and Leading Senior Constable Watson returned to the Campbelltown Police Station and escorted the accused into an interview room. The accused refused to sign and date a document entitled "Pre-Interview ERISP Questions", so Constable Jack Mitchell co-signed it as a witness. [1643] At 5:12 am, Leading Senior Constable Watson commenced the record of interview with the accused, and this was suspended at 5:59 am and resumed at 6:06 am, and was finally concluded at 6:07 am. [1644] Leading Senior Constable Paul Watson 1. Leading Senior Constable Paul Watson attended the Campbelltown Hospital on 1 February 2015 with Constable Jack Mitchell, at "around the 2 o'clock mark" and spoke to Sergeant Smith. Following this, he spoke to two people who he had identified as Mrs Tiperia Fepulea'i and Mr Fiti Fepulea'i. [1645] He gave evidence of obtaining statements from both of them and thereafter arranged for a car to attend the address at Leumeah to arrest the accused. [1646] 2. Leading Senior Constable Watson stated that checks he conducted at the time showed that there was an AVO in place between the accused and the complainant. [1647] He stated that this order included "standard order" conditions to not assault, molest and harass the complainant. [1648] After his attendance at the hospital, he went to the accused's residence with Constable Jack Mitchell. Senior Constable Evans and Constable Green were in attendance when he arrived. [1649] He stated that he told the accused he was under arrest for assaulting his wife. [1650] Thereafter, he returned to Campbelltown Police Station with Constable Mitchell [1651] where the accused participated in an interview. [1652] 3. Leading Senior Constable Watson gave evidence that the photographs that the accused was referred to during his interview, being Exhibit AJ, could not be located. [1653] He stated that subsequent to 25 February 2015, he spoke to "DoCS or FACS in relation to some matters to do with the children" [1654] and the case file was handed over to Detective Fiona Duncan, who had taken carriage of the matter. [1655] 4. Leading Senior Constable Watson gave evidence that on 10 February 2015, it was recorded in the NSW Police COPS Event E57513168 that there was an application to vary the apprehended violence order. The application was to not allow the accused to contact and approach the complainant by any means whatsoever except through the Defendant's legal representative or as agreed in writing or as permitted by an order or directions under the Family Law Act 1975 (Cth) for the purpose of counselling, conciliation or medication [sic]. [1656] Leading Senior Constable Watson stated that the variation was not ultimately sought as the accused was in custody from there on. [1657] He conceded that those variations were not made, and were not enforceable on 31 January 2015. [1658] Accused's ERISP interview on 1 February 2015 in respect of Count 24 1. In the ERISP interview of 1 February 2015, it was put to the accused that he was, earlier that evening, placed under arrest and located hiding behind a tree, somewhere in the backyard of his residence at Leumeah. The accused conceded that he was arrested at his residence but could not remember where as there was no light. [1659] The accused was asked whether there was an AVO in place between himself and the complainant. The accused stated that he could not recall. [1660] Although the accused conceded having engaged a lawyer who was "dealing all this" [1661] and to "go to court." [1662] The terms of the AVO were read out to him, and the accused stated that he understood it. [1663] The accused stated that he was aware that there was an AVO but that he did not "know all the sections, all the words, but something to that effect." [1664] The accused was then asked whether he was aware of his bail conditions and he replied that he did not. [1665] However, he subsequently acknowledged that the bail conditions were "probably" explained to him by the Magistrate, but repeated that he "had a lawyer who was dealing with it." [1666] The accused was then specifically referred to a bail condition as to his residence and he replied that that condition had been "lifted up" and that it was an "old condition … that has been cleared off." [1667] 2. The accused was then asked what happened on the evening in question. The accused stated that he was having sex with the complainant downstairs in the lounge room and had "tried some new toys with her". [1668] When the "sex finished" the complainant went upstairs, and the accused "call again from downstairs." [1669] The accused stated that he did not hear a response and went upstairs, and told the complainant: "I'm coming to get you." [1670] The accused stated that he went to the bedroom and saw the complainant at the end of the balcony going onto the carport. [1671] The accused stated that he told the complainant: "Don't jump." The accused also stated that the complainant had a "habit of jumping from there." [1672] The accused stated that the complainant had jumped "yesterday without the shoes." [1673] The accused stated that he left the bedroom to go into the lounge room upstairs where there was another door, and he swung the door outside towards her. [1674] The accused saw the complainant and told her not to jump: "Don't jump." The accused repeated that the complainant had "done it a few times, she did it yesterday." [1675] 3. The accused stated about the complainant:- "Yeah, jumps over. I don't know she did it on purpose or she slipped off the thing there but she went over. Every other time she falls, she lands properly, it's not that high. It's high but not that high." [1676] The accused then added that he went downstairs to go and see the complainant. He went through the garage door because the keys to the front door did not work. [1677] 1. The accused reiterated that the complainant had done this "all the time", but did it without her shoes. [1678] The accused stated that he overheard someone speaking about the complainant being in hospital. [1679] He stated that he knew that the complainant was "hobbling." [1680] He stated that he did not see the complainant get up as he was coming from "upstairs downstairs." [1681] When asked how he knew the complainant was hobbling, the accused stated:- "I saw her hobbling, I think I saw her hobbling, I can't, I can't remember that I saw her. I can't remem-, I, I did not see her, but I think she must've hobbled." [1682] The accused reiterated that he did not see her. [1683] 1. The accused was then asked about him overhearing someone speaking about the complainant being in the hospital. The accused was asked to identify the people speaking, and he replied: "It was the kids." [1684] The accused was later asked how the complainant arrived at the hospital and he stated that he did not know. [1685] The accused then stated that when he went downstairs, he did not see the complainant [1686] and did not know where she had gone. [1687] The accused stated that whilst he had concerns for her safety, he did not know at the time what was happening. [1688] The accused saw that his kids were awake [1689] and stated that he then went to the hospital to check on the complainant. [1690] He stated that he noticed that kids were at hospital, but that he did not bring the children because he had left them at home. [1691] He stated that his children were 11 and 13, and denied that WS was autistic, describing him as needing "a bit of help, but I don't think he's autistic." [1692] The accused stated that he did not remember how he arrived at the hospital, [1693] but the children were already at the hospital and he did not ask them how they got there. [1694] The accused stated that this did not bother him even though it was 2:00 am in the morning, because his children were "quite old." [1695] 2. The accused stated that between him having sex and the complainant being on the balcony, around 10 minutes had passed. [1696] The accused further stated that he did not know why the complainant went upstairs. [1697] I repeat, when asked why the complainant would jump off the balcony after sex, the accused stated:- "Mate, I've got no idea about this. I cannot give an opinion on this. She had all the chances to do other things if she didn't want to have sex. She had all the chances." [1698] The accused then stated that if there was something that the complainant did not like, she could have told him, and that he did not know why she jumped off the balcony. [1699] The accused stated that she did not say anything to him when she was out on the balcony, [1700] but she did have her phone with her. [1701] The accused stated that she "probably" was not talking on the phone. [1702] 1. The accused was asked, when he went upstairs, whether when he told the complainant: "I'm coming to get you" and he had done so in an aggressive manner. The accused replied: "No, I'm not even seeing her." [1703] The accused stated that at the time of the incident, he was on "the floor, the stairs," [1704] and later stated:- "All I know that the leg when it left, it really hit the gutters. Normally when she jumps there's no sound but this time the leg caught the gutters." [1705] He stated that he heard the sound of the "tin, corrugated iron, the sound of the gutter." [1706] He then stated that the complainant was wearing shoes. [1707] The accused was asked to clarify how he had noticed this, to which he replied:- Every now and then we wear shoes in the house, it's not something that I pick out, you didn't wear shoes or you didn't wear, wear, we wear shoes all the time. [1708] The accused then repeated that he was "pretty sure" and "sure" that the complainant was wearing shoes. [1709] 1. The accused stated that he spent about a "minute" telling the complainant to: "Just hold on there, hold on, just hold on, just hold on, I'm coming." [1710] However, when he came down the complainant had left, but did not know how she left. [1711] When asked how long it took him to get down, the accused stated that it took him a "couple of minutes". [1712] The accused was then asked about how he came to overhear the children talking about the complainant going to hospital. In particular, the accused was asked, if the children were upstairs, and he had been upstairs but subsequently gone downstairs, and the complainant was no longer there, how could the children have known that she went to the hospital. The accused stated: "I met them at the hospital." [1713] The accused was again asked how he thought the children knew, when they were upstairs. The accused replied: "I don't know, mate, I overheard them." [1714] 2. The accused was then informed of the injuries that the complainant had sustained. The accused stated: "That's very sad." [1715] When the accused was questioned as to him being unaware of the injuries, he replied that a lady had told him to not "go out the back." [1716] He stated that he saw his children but could not remember who they were with. [1717] 3. It was then put to the accused that the complainant jumped off the balcony because he was chasing her. After some delay, the accused responded: "No, that is false. I did not chase her." [1718] He repeated that did not occur. [1719] The accused stated that he did hear the complainant "yelling" but did not see any injuries. [1720] The accused could not say whether she was injured or not. [1721] It was then put to the accused that the complainant had said to a witness: "He tried to kill me." When asked what he could tell the police about the statement, the accused stated, after a long break: "That is completely false. That is completely false." [1722] The accused stated that he did not hear the complainant call for the next door neighbour [1723] but he did hear a "painful scream." [1724] The accused told the complainant to: "wait there, wait there, I'm coming, wait there" and then the screaming stopped [1725] and that the complainant was no longer there. [1726] 4. Photographs of the house were shown to the accused on 1 February 2015, however the evidence from Detective Duncan at trial was that she was unable to find them. [1727] 5. The accused in the ERISP repeated that he saw his children at the hospital however they went "past" him towards the "back of the place." [1728] He stated that the children had been "in and out of hospital all their life" so they knew "about it" so they went "past it" whereas he was "stopped from going." [1729] The accused stated that he had a conversation with his children but could not recall it. [1730] The accused simply stated that there were "lot of things involved", that he could not recall what he was doing and that he must have caught the train. [1731] 6. The accused's version of what he asserted took place was put to the complainant. 7. The complainant was questioned about whether WS had jumped from the carport previously. The complainant stated that JS did. [1732] She stated that she did not tell police about the alleged rape when she was at the hospital because she was "tired" and "was in the hospital and the medication", and that because she was a "woman." [1733] She stated that the accused was chasing her in order to kill her. [1734] It was put to the complainant that she was frustrated when she was downstairs because the accused had not agreed to continue their relationship. She responded that she was not frustrated and that if the accused did not want her, she would have just left and gone. [1735] She rejected that suggestion that she had been telling lies the whole trial. [1736] Consciousness of guilt Direction on consciousness of guilt 1. The Crown relies on the evidence of police finding the accused in the backyard of his house hiding in the bushes late at night following the events in Count 24 as evidence of consciousness of the accused's guilt in relation to that count. [1737] 2. If I determine that the accused so acted conscious of his guilt in relation to Count 24 with a view to hiding to avoid the police then care must be taken in approaching the task of determining the significance if any this has. I may take this into account in determining the accused's guilt, but I can only do that if I find two further things which I shall refer to shortly. When I say I can take this into account as evidence of the accused's guilt, I am not suggesting that it could prove his guilt on its own. What it means is that it can be considered along with the other facts that the Crown relies upon and which I find established on the evidence in considering whether the Crown has proved its case beyond reasonable doubt. 3. If, I am satisfied that the accused acted in deliberate contemplation of hiding then I must also be satisfied that the circumstance, firstly, was carried out by the accused because of his knowledge of the offence he had committed in Count 24 and secondly, occurred because the accused realised that to reveal himself would lead to his arrest and prosecution. And thirdly, it occurred because the accused knew and realised his own guilt, in relation to Count 24 on the indictment. 4. It needs to be remembered, however that people do not always act rationally and that conduct of this sort, may sometimes be explained in other ways. A person may have a reason for so acting quite apart from realisation of his guilt, For example it might be done out of panic; to escape an unjust accusation; to avoid a consequence unrelated to an offence or concern for his safety. 5. If I consider that the accused acted as alleged by the Crown for some other reason other than to avoid being implicated in the commission of the offence for which the accused is on trial then it cannot be used as evidence of the accused's guilt. If that is the case then I should put it to one side and focus my deliberations on the other evidence in the case. 6. To this end I must be satisfied that what was in his mind when he undertook this act in question, was his guilt for the offence in question and not of some other unrelated matter. In particular I must be satisfied that the circumstance I have identified point unequivocally to consciousness of guilt for the offence in question. There was no consciousness of guilt in respect of Count 24 1. The Crown alleges that the accused knew at the time that police were coming to his house, as they had knocked loudly on his door, called out police and the police cars were conspicuous. It asserts that inferences can be drawn from the fact that he had been at the hospital following the complainant's injury and he had been denied access to her. It further relies on the fact that at the time of the complainant's fall the accused was told by the neighbour to stay away after the complainant had told him that the accused had tried to kill her. 2. The accused's submission in this regard was that he was not hiding but that the front door could not be open or closed except from the front not inside and needed to access it through the garage. [1738] He points to the fact that he participated in the interview on 1 February 2015, he did not run away and he was accustomed to the doorbell ringing not banging at the front. He also submits that the evidence does not disclose that he was aware at the hospital that the police were after him or that anyone had told him. [1739] 3. Although the accused was not in breach of the apprehended domestic violence order for being at Leumeah with the complainant on the occasion in question it cannot be said that the relevant act on his part was because of Count 24 and not any other matter. In the ERISP interview, the accused was told that police were investigating an alleged breach of AVO, intimidation, assault and a breach of bail. [1740] The evidence discloses that the accused had an AVO at the time the terms of which included not to assault, molest and harass. On the evidence of Detective Duncan proceedings in relation to domestic violence and the AVO were due to be heard at Campbelltown on 6 March 2015. The accused stated that he was unclear as to the terms of the AVO and bail although in relation to the condition that he reside at Erskineville, the accused stated had been lifted on an earlier occasion. [1741] On the evidence of Senior Constable Watson, I am satisfied that it was not in place at the time of Count 24. 4. The accused was told in the interview by Senior Constable Watson that he was placed under arrest and located, hiding behind a tree somewhere in the backyard at the home in Carrington Circuit, Leumeah. He acknowledged that he was arrested at the address in the backyard but stated that he could not remember as there was no light. [1742] Constable Watson was not in attendance at the time of the accused's arrest. Certainly it was not put to him that he was crawling as asserted by Constable Evans or kneeling down as asserted by Constable Green. Nor was it put to him that he was attempting to conceal himself behind bushes and the matter was not further pursued. 5. I accept that the accused was aware that he could not see the complainant at hospital. There was evidence that the front door could not be unlocked from the front in his statement, as well as evidence from Constable Evans who had arrived earlier that they could not properly close the front door which she attempted to close but could not secure. The accused had no knowledge at the time what, if anything, the complainant may have said to the police. However, he was aware of what his neighbour had told him. 6. Whether or not the accused was aware of the police knocking on his door prior to him being found was not put to him in his interview and nor was it established. The matter is addressed by inference from the police presence and knocking loudly according to Constable Evans. Such evidence is not given by Constable Green but in any event neither gave evidence of disclosing that it was the police at that point. According to their evidence they did not announce their presence as police until they heard some rustling sound and then Constable Green used his flashlight towards the bushes. In the circumstances, for the reasons given earlier, no inference is to be drawn from the accused's declining to speak to police at the time of his arrest. 7. In all of the circumstances, I am not satisfied beyond reasonable doubt that any action the accused took late at night, in circumstances of darkness in his backyard with at that point unidentified persons was done in consciousness of guilt in relation to Count 24. FINDINGS on COUNT 24 on the INDICTMENT 1. The Crown case is that the action of the accused in chasing the complainant leading her to carport and trying to put his leg onto from the balcony to the carport stating: "Do it or if you don't do it I'll do it, just do it" [1743] caused the complainant to jump off and occasioned her injury. The nature of the injuries she sustained were earlier referred to in Exhibit L and it is not in issue that they constitute grievous bodily harm. 2. This event occurred in the accused's own home and a place which he no doubt is familiar with. It cannot be said that of the accused saw his wife on the top of a carport with a dirt surface underneath and told her to "do it" or he would, would not realise that grievous bodily harm may possibly be caused upon the complainant by his actions, yet he went ahead and acted as he did. 3. The accused's case is that he saw the complainant at the end of the balcony going onto the carport and told her: "Don't jump." The accused also stated that the complainant had a "habit of jumping from there," [1744] and jumped "without the shoes." [1745] The accused stated that he left the bedroom to go into the lounge room upstairs where there was another door, and he swung the door outside towards her. [1746] The accused saw the complainant and told her not to jump: "Don't jump." The accused repeated that the complainant had "done it a few times, she did it yesterday." [1747] 4. The accused's account would indicate that he had no role in the complainant jumping off other than to tell her not to. 5. In my view the accused's version is implausible and I do not accept his account to police as truthful. The complainant's account is consistent with the evidence of other witnesses and follows on from her experience on the evening in question. I am satisfied that it truly reflects what occurred. 6. I am satisfied that the elements of Count 24 have been proved beyond reasonable doubt and I find the accused guilty of Count 24. ORDERS 1. In respect of the indictment dated 20 March 2017, the accused is found:- 1. Guilty of Count 1; 2. Guilty of Count 2; 3. Guilty of Count 3; 4. Guilty of Count 4; 5. Not Guilty on Count 5; 6. Guilty of Count 6; 7. Guilty of Count 7; 8. Guilty of Count 8; 9. Guilty of Count 9; 10. Guilty of Count 10; 11. Guilty of Count 11; 12. Guilty of Count 12; 13. Guilty of Count 13; 14. Guilty of Count 14; 15. Guilty of Count 15; 16. Guilty of Count 16; 17. Guilty of Count 17; 18. Guilty of Count 18; 19. Guilty of Count 19; 20. Guilty of Count 20; 21. Guilty of Count 21; 22. Guilty of Count 22; 23. Guilty of Count 23; and 24. Guilty of Count 24. Endnotes 1. Hereinafter the "1986 Act" 2. (1990) 19 NSWLR 91, 99 3. (1991) 21 NSWLR 394, 399 4. T 1064.11 – .24 5. (2005) 80 ALJR 329; [2005] HCA 74 at [18] (Gleeson CJ and Heydon J) and at [38] – [40] (Gummow, Kirby and Callinan JJ) 6. T 5.13 – .11 7. These were also the subject of a certificate under s 166(1) of the 1986 Act 8. See R v DS judgment delivered on 13 March 2017 9. MFI 19 and 20 (which were updated schedules of MFI 17 and 18 respectively) 10. (1998) 197 CLR 250 11. (2015) 256 CLR 47; [2015] HCA 29 at [6]; and [52] 12. (2008) 232 CLR 438; [2008] HCA 8 at [85] 13. Hereinafter the "1900 Act" 14. 1900 Act s 61HA(7) 15. 1900 Act s 61HA(3)(d) 16. 1900 Act s 61HA(3)(b) 17. R v Lardner (unreported, NSW Court of Criminal Appeal, 10 September 1998) per Dunford J at [4] 18. R v Markuleski (2001) 52 NSWLR 82 19. Evidence Act 1995 (NSW) s 89(1) and see generally: Petty v The Queen (1991) 173 CLR 95; [1991] HCA 34 20. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 21. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 22. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 23. MFI 24 "Crown submissions on further questions for the parties" (in response to MFI 23 "Further questions for the parties") 24. T 944.40 – .49 25. T 943.5 – .14 26. T 945.11 – .16 27. T 945.1 – .9 28. Exhibit AN, Statutory declaration of the complainant sworn 7 October 1997 produced to the Department of Immigration & Ethnic Affairs at [5] 29. T 605.36 – .43 30. T 607.25 – .36 31. T 607.20 – .23 and T 607.38 – .41 32. Exhibit AN, Statutory declaration of the complainant sworn 7 October 1997 produced to the Department of Immigration & Ethnic Affairs at [24] 33. T 658.20 – .47 34. T 657.1 – 658.42 35. T 656.13 – .15 36. T 656.22 – .25 37. T 656.31 – .33 38. T 656.35 – .45 39. T 957.19 – .46 40. Exhibit 9, Statement of Detective Senior Constable Fiona Duncan dated 13 Mary 2015 at [14] 41. T 955.6 – 956.11 42. T 930.37 – .50 and T 931.2 – .4 43. T 931.6 – .11 44. T 956.18 – .49 45. T 1062.8 – .12 46. R v Jovanovic (1997) 98 A Crim 1 47. T 1061.15 – .19 48. T 1061.25 – .30 49. T 638.22 – .34 50. Exhibit AP, Affidavit drafted by AS for Federal Circuit Court of Australia proceedings, undated at [151] – [153] 51. T 646.22 – .39 52. T 646.41 – .49 53. T 639.4 – 640.14 54. T 642.27 – .35 55. T 642.37 – .42 56. Exhibit L, NSW Health South Western Sydney, Local Health District, Clinical Progress Notes for the complainant, entry dated 2 February 2015 57. 1986 Act ss 294(2)(a) – (b) 58. T 1065.1 – .14 59. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q 59 – 60 60. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q124 61. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q115 - 116 62. See R v AH (1997) 42 NSWLR 702 and Wilson v The Queen (1970) 123 CLR 334, 344 (Menzies J). 63. See: R v AN (2000) 117 A Crim R 176 and R v Matthews (1990) 58 SASR 19 64. DVJ v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 at [28] and see also: KJS v R [2014] NSWCCA 27 at [34] and [38] (Hoeben CJ at CL with Adams and R A Hulme JJ agreeing) 65. T 10.36 – .44 66. T 11.1 – .20 67. T 12.3 – 13.26 68. 13.41 – 14.34 69. T 29.15 – .19 70. T 15.39 – .50 71. T 16.9 – .21 72. T 19.1 – .33 73. T 19.48 – 20.49 74. T 22.45 – 23.29 75. T 28.1 – .27 76. T 317.31 – .33 77. T 23.38 – 24.10 78. T 24.44 – .47 79. T 25.7 – .22 80. T 25.40 – .45 81. T 26.9 – .33 82. T 26.35 – .45 83. T 27.11 – .14 84. T 27.19 – .24 85. T 27.26 – .31 86. T 27.33 – .49 87. T 28.9 – .27 88. T 28.50 89. T 29.6 – .7 90. T 317.45 – .47 91. T 318.3 – .5 92. T 318.7 – .10 93. T 326.35 – .41 94. T 326.43 – .45 95. T 702.34 – .37 96. T 704.7 – .16 97. T 704.21 98. T 704.41 99. T 704.41 100. T 704.42 – .43 101. T 705.5 – .7 102. T 705.11 – .12 103. T 705.23 – .25 104. Exhibit D 105. T 706.42 – .45 106. T 707.3 107. T 707.9 108. T 707.28 – .30 109. T 707.32 – .33 110. T 707.38 – .40 111. T 707.42 – .43 112. T 707.46 – .48 113. T 708.7 – .9 114. T 708.20 – .21 115. T 707.27 – .29 116. T 708.40 – .41 117. T 708.48 – 709.2 118. T 709.5 – .10 119. T 709.18 – .20 120. T 711.38 – .41 121. T 711.43 – .44 122. T 711.50 – 712.2 123. T 712.36 – .39 124. T 712.47 – .48 125. T 712.50 – 713.17; and T 713.43 – .44 126. T 713.46 – .47 127. T 713.24 – .26 128. T 330.15 129. T 330.19 130. T 332.39 131. T 333.8. 132. T 333.48 133. T 334.18 134. T 335.48 135. T 337.21 136. T 337.25 137. T 339.17 138. T 339.19 – .39 139. T 339.43 140. T 344.40 – .43 141. T 344.47 142. T 345.25 – .29 143. T 346.11 144. T 346.25 – .28 145. T 347.23 – .29 146. T 349.1 – .4 147. T 349.16 – .18 148. T 349.30 – .32 149. T 349.34 – .36 150. T 349.38 – .41 151. T 350.4 – .6 152. T 350.30 – .31 153. T 351.33 154. T 352.3 – .4 155. T 352.20 – .21 156. T 352.23 – .26 157. T 27.19 – .21 158. Exhibit 3, New South Wales Police Force COPS Event Ref No: E 14089880, printed on 6 June 2016, p 2 159. Exhibit 3, New South Wales Police Force COPS Event Ref No: E 14089880, printed on 6 June 2016, p 2 160. Exhibit 3, New South Wales Police Force COPS Event Ref No: E 14089880, printed on 6 June 2016, p 2 161. Exhibit 4, New South Wales Police Force COPS Event Ref No: E 12107409, printed on 6 June 2016, p 1 162. T 30.36 163. T 30.39 – .40 164. T 30.48 – .50 165. T 31.2 – .5 166. T 31.29 – .30 167. T 31.32 – .36 168. T 31.44 – .48 169. T 32.4 170. T 32.10 – .15 171. T 32.26 – .29 172. T 32.48 – 33.1 173. T 33.6 – .7 174. T 359.9 – .12 175. T 359.21 – .23 176. T 360.9 – .17 177. T 360.46 – .48 178. T 361.18 – .23 179. T 361.25 – .28 180. T 362.1 – .3 181. T 362.14 – .16 182. T 362.18 – .19 183. T 363.43 – .46 184. T 372.5 – .11 185. T 372.25 – .27 186. Exhibit 2, New South Wales Police Force COPS Event Ref No: E 12443749, printed on 6 June 2016, p 2 187. Exhibit 2, New South Wales Police Force COPS Event Ref No: E 12443749, printed on 6 June 2016, pp 2 – 3 188. T 373.22 – .24 189. T 373.38 – .42 190. T 376.27 – .29 191. T 378.38 – .41 192. T 383.13 – .18 193. T 383.2 – .8 194. Exhibit R, Department of Immigration and Border Protection iAsk request for ES, undated 195. T 360.50 – 361.2 196. Exhibit S, Statement of Detective Senior Constable Brett Harris dated 8 September 2015 at [3] – [5] 197. Exhibit T, Interim Apprehended Violence Order for CASE No: 105638/01 for protected person AS against DS 198. Exhibit T, Interim Apprehended Violence Order for CASE No: 105638/01 for protected person AS against DS: "Circumstances of complaint" 199. T 33.31 – .35 200. T 33.15 – .19 201. T 33.45 – .50 202. T 34.12 – .14 203. T 34.16 – .20 204. T 370.11 – .14 205. T 370.16 – .18 206. T 370.20 – .22 207. T 370.23 – .29 208. T 377.46 – .48 209. T 378.38 – .41 210. T 379.10 – .23 211. Exhibit T, Interim Apprehended Violence Order for CASE No: 105638/01 for protected person AS against DS 212. T 36.34 – .38 213. T 37.1 – .4 214. T 37.12 – .17 215. T 37.22 – .24 216. T 37.26 – .28 217. T 37.30 – .31 218. T 37.34 – .36 219. T 37.39 – .44 220. T 37.47 – .50 221. T 38.7 – .8 222. T 38.17 – .23 223. T 38.25 – .27 224. T 38.29 – .32 225. T 38.37 – .38 226. T 39.8 – .11 227. T 39.22 – .26 228. T 39.36 – .46 229. T 39.48 – .49 230. T 40.5 – .7 231. T 40.9 – .14 232. T 40.16 – .24 233. T 40.26 – .28 234. T 40.30 – .32 235. T 40.48 – .49 236. T 40.42 – .46 237. T 388.15 – .17 238. T 388.19 – .32 239. T 388.11 – .12 and 390.41 – .43 240. T 395.41 – 396.3 241. Exhibit AL, Statement of Mrs Elmaza Youssef dated 2 September 2015 242. Exhibit AL, Statement of Mrs Elmaza Youssef dated 2 September 2015 at [4] – [9] 243. T 934.41 – 935.10 244. T 41.34 – .42 245. T 42.3 – .5 246. T 42.10 – .12 247. T 42.14 – .15 248. T 42.17 – .21 249. T 44.27 – .29 250. T 44.9 – .15 251. T 44.17 – .20 252. T 44.31 – .33 253. T 44.35 – .39 254. T 397.1 – .3 255. T 397.8 – .10 256. T 45.1 – .2 257. T 45.5 – .10 258. T 45.13 – .15 259. T 45.15 – .20 260. T 45.31 – .35 261. T 46.1 – .11 262. T 46.13 – .17 263. T 46.30 – .42 264. T 46.48 – 47.11 265. T 48.18 – .24 266. T 48.26 – .31 267. T 48.41 – .45 268. T 49.1 – .4 269. T 49.4 – .7 270. T 397.31 – .33 271. T 398.5 – .7 272. T 400.38 – .40 273. T 404.3 – .9 274. T 404.21 – .34 275. T 402.45 – 403.3 276. T 398.45 – .49 277. Exhibit J, Clinical Notes from the NSW Health Central Sydney Area Health Service, various dates 278. Exhibit J, Clinical Notes from the NSW Health Central Sydney Area Health Service, various dates, Report of Dr Jane Hollingsworth, undated 279. Exhibit J, Clinical Notes from the NSW Health Central Sydney Area Health Service, various dates, Report of Dr S Gaden printed on 30 August 2015 280. T 49.9 – .29; and T 56.45 – .50 281. T 56.16 – .19 282. T 56.22 – .28 283. T 56.30 – .36 284. T 57.31 – .36 285. T 58.4 – .9 286. T 58.15 – .21 287. T 406.34 – .36 288. T 406.38 – .40 289. T 407.17 – .19 290. T 408.1 – .20 291. T 405.10 – .12 292. T 407.30 – .32 293. T 417.35 – .42 294. T 417.44 – .50 295. T 59.48 – .50 296. T 59.44 – .46 297. T 58.25 – .43 298. T 59.31 – .35 299. T 59.41 – .42 300. T 59.37 – .39 301. T 60.1 – .2 302. T 60.6 – .7 303. T 60.8 – .10 304. T 60.12 – .27 305. T 60.32 – .35 306. T 61.11 – .14 307. T 63.9 – .20 308. T 63.9 – .14 309. T 63.26 – .34 310. T 63.36 – .42 311. T 64.4 – .37 312. T 421.21 – .23 313. T 422.13 – .17 314. T 422.35 315. T 423.7 – .10 and T 425.17 – .21 316. T 425.18 – .21 317. T 427.37 – .40 318. T 427.9 – .16 319. T 427.31 – .35 320. T 427.18 – .21 321. T 429.44 – .50 322. T 430.33 – .39 323. T 433.1 – .11 324. T 433.9 – .11 325. T 434.4 – .6 326. Exhibit K, Clinical Notes from NSW Health Sydney South West Area Health Service, various dates 327. Exhibit K, Clinical Notes from NSW Health Sydney South West Area Health Service, various dates, Ambulance Service of New South Wales, Patient Health Care Record for L614145 328. Exhibit K, Clinical Notes from NSW Health Sydney South West Area Health Service, various dates, Canterbury Hospital Phone Handover Form 329. Exhibit K, Clinical Notes from NSW Health Sydney South West Area Health Service, various dates, Emergency Department Case History Notes printed on 25 September 2010 330. Exhibit K, Clinical Notes from NSW Health Sydney South West Area Health Service, various dates, Emergency Department Case History Notes printed on 25 September 2010 331. T 425.33 – .48 332. T 427.31 – .35 333. T 64.50 – 65.7 334. T 66.27 – .34 335. T 66.10 – .15 336. T 439.46 – .50 337. T 72.16 – .23 338. T 72.24 – .29 339. T 72.30 340. T 72.32 341. T 72.33 – .39 342. T 72.40 – .43 343. T 72.44 – .45 344. T 74.14 – .17 345. T 74.17 – .19 346. T 74.21 – .22 347. T 438.5 – .7 348. T 438.18 – .20 349. T 437.47 – .49 350. T 437.18 – .20 351. T 438.26 – .29 352. T 449.44 – .48 353. T 450.2 – .5 354. T 450.7 – .10 355. T 442.6 – .8 356. T 439.46 – .50 357. T 440.42 – .45 358. T 441.31 – .32 359. T 441.9 – .11 360. T 441.48 – .50 361. Exhibit 1, New South Wales Police Force COPS Event Ref No: E 92920701, printed on 6 June 2016 362. Exhibit 1, New South Wales Police Force COPS Event Ref No: E 92920701, printed on 6 June 2016, pp 6 - 7 363. T 445.48 – .49 364. T 450.14 – .18 365. T 452.10 – .13; T 453.50 – 454.2 366. T 469.35 – .41 367. T 470.1 – .2 368. T 470.21 – .23 369. T 470.29 – .31 370. T 441.34 – .37 371. T 451.28 – .32 372. T 453.15 – .21 373. Exhibit U, Statement of Senior Constable Tracey Evry dated 4 June 2015 374. Exhibit U, Statement of Senior Constable Tracey Evry dated 4 June 2015 at [3] – [7] 375. T 74.32 – .43 376. T 74.47 – 75.1 377. T 94.44 – .50 378. T 75.4 – .7 379. T 93.37 – .40; T 94.26 – .30 380. T 480.1 – .3 381. T 480.5 – .6 382. T 480.11 – 19 and T 489.20 – .24 383. T 484.50 – 485.2 384. T 485.17 – .20 385. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 386. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q658 – 680 387. T 83.7 – .12 388. See T 481.13 – 482.45 389. T 84.4 – .14 390. T 84.14 – .17 391. T 84.17 – .24 392. T 84.29 – .43 393. T 84.45 – .49 394. T 85.6 – .8 395. T 85.10 – .12 396. T 87.44 – 88.1 397. T 88.2 – .4 398. T 88.29 – .32 399. T 87.32 – .33 400. T 87.33 – .35 401. T 87.36 – .39 402. T 89.39 – .43 403. T 471.30 – .32 404. T 472.15 – .17 405. T 472.37 – .39 406. T 472.41 – .42 407. T 476.28 – .32 408. T 477.8 – .11 409. T 477.35 – .40 410. T 478.33 – .38 411. T 478.40 – .42 412. T 479.27 – .39 413. T 95.45 414. T 95.46 – .47 415. T 95.40 – 96.2 416. T 96.4 – .9 417. T 93.4 – .6 418. T 94.1 – .6 419. T 94.10 – .15 420. T 490.35 – .37 421. T 490.37 422. See T 491.8 – .26. In examination-in-chief, it was sequenced between JS' birthday party which was on 31 August 2014 (T 98.19 – .23) and the complainant's birthday being on 8 October 2014 (T 102.21 – .25) 423. T 491.8 – .18 424. T 101.5 – .12 425. T 491.21 – .23 426. T 101.6 – .27 427. T 101.35 – .38 428. T 101.43 – .46 429. T 491.8 – .42 430. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q158 – 161 431. T 89.26 – .37 432. T 492.6 – .22 433. T 493.16 – .28 434. T 494.13 – .21 435. T 494.27 – .28 436. T 494.35 – .37 437. T 494.43 – .46 438. T 495.1 – .4 439. T 495.38 – .40 440. T 495.42 – .44 441. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q498 – 501 442. T 97.10 – .21 443. T 99.15 – .17 444. T 99.44 – 100.1 445. T 99.22 – .35 446. T 99.37 – .39 447. T 106.30 – .37 448. T 106.42 – 107.5 449. T 580.43 – .46 450. T 164.3 – .15 451. T 164.17 – .19 452. T 581.3 – .6 453. T 107.40 – .41 454. T 107.41 – .42 455. T 163.49 – 164.1 456. T 107.48 – .49 457. T 108.2 – .12 458. T 108.21 – .24 459. T 108.25 – .34 460. T 109.43 – 110.10 461. T 110.12 – .17 462. T 110.19 – .26 463. T 110.28 – .30 464. T 110.32 – .36 465. T 110.35 – .38 466. T 110.45 – .50 467. T 111.22 – .27 468. T 111.37 – .38 469. T 111.49 – .50 470. T 112.4 – .8 471. T 113.26 472. T 113.30 – .32 473. T 113.39 – .42 474. T 113.45 – .46 475. T 113.48 – 114.2 476. T 114.33 – .46 477. Exhibit G, NSW Police Force Expert Certificate for Dr Qingzhan Zhang dated 12 June 2015 478. Exhibit G, NSW Police Force Expert Certificate for Dr Qingzhan Zhang dated 12 June 2015 at [5] 479. T 117.18 – .20 480. T 117.32 – .47 481. T 117.49 – 118.7 482. T 118.10 – .13 483. T 118.17 – .19 484. T 118.33 – .34 485. T 118.39 – .49 486. T 119.9 – .14 487. T 119.36 – .44 488. T 120.21 – .25 489. T 120.41 – .45 490. T 123.21 – .29 491. T 123.31 – .33 492. T 498.12 – .15 493. T 499.11 – .18 494. T 497.26 – .39 495. T 499.20 – .24 496. T 498.28 – .30 497. T 498.31 – .37 498. T 498.43 – .45 499. T 498.47 – 499.2 500. T 508.20 – .27 501. T 508.37 – .39 502. T 508.41 – 44 503. T 508.46 – .49 504. T 513.17 – .23 505. T 507.38 – .39 506. T 507.41 – .43 507. T 513.38 – 514.11 508. T 515.23 – .27 509. T 514.13 – .17 510. T 514.24 – .26 511. T 514.28 – .31 512. T 516.4 – .9 513. T 518.14 – .17 514. T 518.36 – .42 515. T 518.44 – .46 516. T 519.12 – .14 517. T 519.8 – .10 518. T 505.13 – .21 519. T 505.23 – .25 520. T 523.49 – 524.5 521. T 524.17 – .21 522. T 524.42 – .46 523. T 524.50 – 525.6 524. T 533.48 – .1 525. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q1 526. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q41 – 42 527. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q180 – 181 528. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q182 529. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q99 530. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q100 531. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q103 532. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q203 533. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q208 534. T 812.19 – .35 535. T 813.11 – .20 536. T 813.25 – .29 537. T 813.31 – .48 538. T 813.50 – 814.1 539. T 814.43 – .47 540. T 814.49 – .50 541. T 815.1 – .2 542. T 815.8 – .19 543. T 816.43 – .45 544. T 817.3 – .10 545. T 817.49 – 818.36 546. T 818.9 – .10 547. T 828.36 – .44 548. T 833.24 – .27 549. T 833.35 – .38 550. T 833.40 – .42 551. T 833.47 – 834.1 552. T 834.22 – .23 553. T 834.25 – .26 554. T 870.35 – .36 555. T 870.38 – .42 556. T 871.8 – .14 557. T 871.40 – .42 558. T 872.3 – .8 559. T 872.34 – .42 560. T 873.14 – .17 561. T 876.24 – .32 562. T 877.1 – .7 563. T 877.9 – 32 564. T 877.43 – .45 565. T 878.40 – .48 566. T 879.11 – .12 567. T 879.15 – .17 568. T 499.11 – .18 569. T 736.46 – 737.5 570. T 737.16 – .23 571. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q152 572. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q148 573. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q150 574. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q151 575. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q153 – 156 576. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q83 577. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q86 – 87 578. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q88 579. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q49 580. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q53 581. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q54 582. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q57 583. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q58 584. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q59 585. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q126 – 128 586. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q131 – 135 587. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q136 588. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q137 589. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q139 590. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q68 591. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q69 - 71 592. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q72 – 73 593. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q124 594. Exhibit V, Statement of Sergeant Rod Hyslop dated 16 December 2014 595. Exhibit V, Statement of Sergeant Rod Hyslop dated 16 December 2014 at [4] – [5] 596. Exhibit V, Statement of Sergeant Rod Hyslop dated 16 December 2014 at [6] 597. Exhibit V, Statement of Sergeant Rod Hyslop dated 16 December 2014 at [6] 598. Exhibit V, Statement of Sergeant Rod Hyslop dated 16 December 2014 at [7] – [9] 599. Exhibit 6, Signed statement contained in Official Police Notebook No. F566646 pp.67 – 72 on 15/12/2014 at [3] – [8] 600. T 123.45 – .48 601. T 123.50 – 124.6 602. T 124.8 – .10 603. T 124.36 – 125.8 604. T 125.4 – .8 605. T 127.49 – 129.17 606. T 125.10 – .15 607. T 125.23 – .27 608. T 128.39 – .41 609. T 128.41 – .42 610. T 128.44 – .49 611. T 129.15 – .17 612. T 946.28 – .40 613. T 130.11 – .14 614. T 130.18 – .19 615. T 130.21 – .33 616. T 130.35 – .37 617. T 130.43 – .45 618. T 131.3 – .7 619. T 131.9 – .10 620. T 137.18 – .29 621. T 138.20 – .28 622. T 138.47 – .49 623. T 139.14 – .28 624. T 139.6 – .9 625. T 140.37 – .44; Ms Ahluwalia lived at 20 Carrington Circuit, Leumeah: T 731.5 – .9 626. T 141.29 – .41 627. T 141.43 – .48 628. T 142.11 – .12 629. T 142.14 – .17 630. T 142.19 – .21 631. T 142.24 – .29 632. T 142.34 – .39 633. T 142.41 – .42 634. T 142.44 – .48 635. T 143.10 – .15 636. T 143.24 – .28 637. T 143.30 – .31 638. T 143.43 – .46 639. T 143.48 – 144.2 640. T 144.32 – .35 641. T 144.41 – .49 642. T 145.5 – .7 643. T 145.18 – .19 644. T 145.44 – 146.2 645. T 146.5 – .8 646. T 146.15 – .23 (although the complainant states that she "can't remember" the year) 647. Exhibit P, "Employee Punches and Exceptions" for the time period: 1/1/2014 to 27/4/2015 for the accused DS 648. T 535.47 – .49 649. T 529.36 – .44 650. T 529.46 – 530.1 651. T 529.30 – .34 652. T 526.32 – . 43 653. T 528.42 – .44 654. T 530.29 – .33 655. T 532.21 – .23 656. T 537.18 – .24 657. T 537.35 – .38 658. T 537.40 – .46 659. T 536.1 – .15 660. T 536.17 – .19 661. T 536.23 – .26 662. T 536.28 – .30 663. T 528.46 – .48 664. T 529.15 – .16 665. T 533.48 – 534.1 666. Exhibit AP, Affidavit drafted by AS for Federal Circuit Court of Australia proceedings, undated at [110] – [114]; see also: T 542.11 – .23 667. T 543.8 – .10 668. T 543.16 – .22 669. T 543.28 – .31 670. T 543.38 – .40 671. Exhibit AA1, Statement of Senior Constable Carlie Evans dated 13 February 2015 at [9] 672. T 529.18 – .20 673. T 533.12 – .14 674. T 531.19 – .21 675. T 531.23 – .26 676. T 531.33 – .35 677. T 531.37 – .39 678. T 534.3 – .17 679. T 539.16 – .28 680. T 861.42 – .46 681. T 861.39 – .40 682. T 861.29 – .31 683. T 865.40 – .42 684. T 865.44 – .47 685. T 865.49 – .50 686. T 866.2 – .4 687. T 866.6 – .10 688. T 731.5 – 732.1 689. T 732.9 – .10 690. T 732.12 – .17 691. T 732.19 – .26 692. T 732.30 – .45 693. T 732.47 – 733.3 694. T 733.15 – .16 695. T 733.31 – .33 696. T 733.35 – .36 697. T 733.45 – .46 698. T 733.19 – .22 699. T 734.42 – .46 700. T 734.48 – .50 701. T 735.2 – .12 702. T 735.14 – .22 703. T 735.27 – .29 704. T 736.11 – .16 705. T 738.41 – .46 706. T 739.8 – .19 707. T 739.32 – .38 708. T 739.48 – 740.5 709. T 740.10 – .11 710. T 740.12 – .15 711. T 740.17 – .36 712. T 741.8 – .10 713. T 742.3 – .4 714. T 742.44 - .50 715. T 744.3 – .9 716. T 744.38 – .45 717. T 745.1 – .17; and T 745.24 – 746.5 718. T 746.7 – .22 719. T 746.39 – .43; and T 747.23 – .32 720. T 746.48 – 747.21 721. T 747.34 – .36 722. T 748.25 – .31 723. T 749.3 – .9 724. T 749.10 – .11 725. T 749.13 – .21 726. T 750.14 – .15 727. T 750.45 – 751.4 728. T 751.9 – .12 729. T 751.17 – .19 730. T 751.31 – .39 731. T 752.9 – .15 732. T 752.20 – .24 733. T 752.28 – .29 734. T 752.34 – 753.6 735. T 753.23 – .27 736. T 753.29 – .32 737. T 753.45 – .48 738. T 754.14 – .37 739. T 754.41 – 755.2 740. T 755.4 – .12 741. T 758.19 – .29 742. T 758.44 – .49 743. T 759.13 – .25 744. T 763.14 – .18 745. T 764.17 – .21 746. T 767.49 – 768.9 747. T 768.11 – .24 748. T 768.31 – .47 749. T 769.35 – .41 750. T 769.27 – .30 751. T 770.1 – .5 752. T 772.24 – .48 753. T 775.4 – .7 754. T 775.16 – .21 755. T 775.23 – .28 756. T 775.45 – 776.1 757. T 776.3 – .5 758. T 776.44 – 777.2 759. T 777.9 – .16 760. T 777.40 – 778.16 761. T 779.17 – 780.12 762. T 780.23 – .49 763. T 786.6 – .10 764. T 786.12 – .14 765. T 781.8 – .9 766. T 781.17 – .19 767. T 782.6 – .19 768. T 782.34 – .36 769. T 782.44 – .50 770. T 783.1 – .34 771. T 783.39 – .741.1 772. T 784.3 – .7 773. T 784.9 – .13 774. T 784.27 – .28 775. T 785.3 – .8 776. T 785.26 – .42 777. T 788.5 – .7 778. T 789.28 – .30 779. T 789.32 – .33 780. T 790.8 – .10 781. T 790.20 – .28 782. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q43 783. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q45 – 49 784. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q52 – 53 785. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q54 – 55 786. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q57 – 63. At Q57, the ERISP refers to "Bawana." 787. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q64 – 65 788. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q66 – 67 789. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q103 – 105 790. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q100 – 102 791. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q107 792. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q108 – Q 111 793. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q112 794. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q 116 – 118 795. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q116 – 119 796. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q123 – 126 797. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q126 – 128 798. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q131 – 134 799. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q135 – 136 800. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q138 – 139 801. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q141 – 147 802. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q148 – 167 803. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q170 – 172 804. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q174 805. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q175 – 178 806. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q179 807. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q180 808. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q186 809. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q192 – 193 810. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q194 811. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q208 – 215 812. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q216 – 221 813. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q224 – 228 814. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q248 – 253 815. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q293 - 294 816. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q316 - 318 817. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q321 - 324 818. T 590.1 – .12 819. T 164.11 – .15 820. T 148.25 – .29 821. T 148.46 – .49 822. T 149.1 – .3 823. T 149.5 – .18 824. T 149.27 – .47 825. T 150.34 – .37 826. T 557.21 – .24 827. T 563.32 – .34 828. T 563.43 – .47 829. T 562.34 – .39 830. T 564.27 – .34 831. T 560.42 – 561.2 832. T 567.46 – 568.3 833. T 568.50 – 569.2 834. T 569.4 – .10 835. T 569.12 – .15 836. T 151.5 – .14 837. T 151.16 – .23 838. T 151.25 – .33 839. T 151.35 – .38 840. T 151.39 – .44 841. T 151.46 – .50 842. T 152.7 – .9 843. T 152.11 – .16 844. T 152.18 – .27 845. T 152.33 – .38 846. T 152.40 – .47 847. T 153.28 – .31 848. T 153.33 – .36 849. T 153.43 – .44 850. T 154.1 – .3 851. T 154.5 – .7 852. T 545.42 – .45 853. T 546.37 – .39 and T 548.1 – .3 854. T 548.5 – .7 855. T 548.9 – .12 856. T 548.14 – .16 857. T 548.38 – .44 858. T 807.12 – .15 859. T 795.41 – .47 860. T 796.31 – .34 861. T 797.35 – .42 862. T 797.47 – 798.4 863. T 799.3 – .9 864. T 801.13 – .18 865. T 809.1 – .9 866. T 946.6 – .23 867. T 154.9 – .21 868. T 155.38 – .42 869. T 156.41 – .46 870. T 156.18 – .23 871. T 160.48 – 161.9 872. T 161.11 – .19 873. T 161.26 – .30 874. T 161.32 – .34 875. T 161.32 – .39 876. T 161.45 – .48 877. T 161.50 – 162.11 878. T 162.13 – .17 879. T 162.19 – .25 880. T 162.27 – .33 881. T 162.35 – .37 882. T 162.39 – .41 883. T 162.44 – .48 884. T 163.2 – .5 885. T 580.43 – .46 886. T 590.9 – .12 887. T 586.27 – .38 888. T 586.24 – .27 889. T 586.29 – .31 890. T 586.48 – .50 891. T 587.1 – .7 892. T 587.40 – .42 893. T 588.18 – .20 894. T 644.26 – .35 895. Exhibit 8, Statement of Account EXPRESS FREEDOM for DS, Statement No 1, for 17/12/2014 to 29/4/2015 896. Exhibit 8, Statement of Account EXPRESS FREEDOM for AS, Statement No 86 – 87, various dates 897. T 626.9 – .16 898. T 685.39 – .41 899. T 614.50 – 616.21 900. T 608.26 – .38 901. T 608.40 – .42 902. T 608.48 – 609.1 903. T 611.4 – .8 904. T 609.3 – .5 905. T 618.7 – .18 906. T 618.3 – .5 907. T 629.4 – .6 908. T 632.8 – .15 909. T 623.22 – .30 910. T 627.7 – .10 911. T 622.39 – .49 912. T 589.45 – .49 913. T 616.43 – 617.4 914. T 632.19 – .37 915. T 632.42 – .45 916. T 164.21 – .23 917. T 164.39 – .43 918. T 164.45 – .47 919. T 164.49 – .50 920. T 165.4 – .12 921. T 165.24 – .37 922. T 165.39 – .42 923. T 165.47 – 166.2 924. T 166.4 – .5; T 166.35 – .37 925. T 166.39 – .48 926. T 167.15 – .19 927. T 167.15 – .36 928. T 167.44 – 168.4 929. T 168.9 – .11 930. T 168.13 – .18 931. T 575.28 – .50 932. T 576.1 – .3 933. T 577.1 – .3 934. T 667.29 – .31 935. T 576.48 – .50 936. T 577.13 – .15 937. T 577.17 – .19; and T 577.25 – .27 938. T 583.28 – .31 939. T 583.37 – .46 940. T 584.32 – .38 941. T 584.40 – .585.6 942. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q624 943. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q632 944. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q633 – 638 945. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q641 946. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 Q627 947. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 Q630 – 632 948. T 168.28 – .31 949. T 168.37 – .38 950. T 168.43 – .44 951. T 169.4 – .7 952. T 169.9 – .11 953. T 169.13 – .15 954. T 169.21 – .24 955. T 169.48 – .49 956. T 170.1 – .3 957. T 170.16 – .18 958. T 171.16 – .22 959. T 171.24 – .28 960. T 171.30 – .34 961. T 171.35 – .40 962. T 171.42 – .44 963. T 171.46 – .47 964. T 171.49 – 172. 2 965. T 172.4 – .11 966. T 581.31 – .44 967. T 20.14 – 15 968. T 11.44 – .45 969. Exhibit Q, Department of Immigration and Border Protection iAsk request for AS, undated and T 12.3 – .8 970. T 357.1 – .10 971. T 29.18 – .19 972. Exhibit 2, New South Wales Police Force COPS Event Ref No: E 12443749, printed on 6 June 2016, p 2 973. Exhibit J, Clinical Notes from the NSW Health Central Sydney Area Health Service, various dates, Report of Dr Jane Hollingsworth, undated 974. T 442.14 – .18 975. Exhibit 1, New South Wales Police Force COPS Event Ref No: E 92920701, printed on 6 June 2016, pp 6 - 7 976. T 487.15 – .17 977. T 1034.30 – .40 978. T 1034.47 – 1035.1 979. T 476.49 – 477.2 980. T 477.4 – .11 981. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q212 – 213 982. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q137 983. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q88 984. Exhibit AG, ERISP between DS and Senior Constable Eleanor Jenkins and Leading Senior Constable David Young dated 15 December 2014 at Q57 – 59 985. Exhibit AA1, Statement of Senior Constable Carlie Evans dated 13 February 2015 at [11] 986. Exhibit AA1, Statement of Senior Constable Carlie Evans dated 13 February 2015 at [12] 987. Exhibit AK, Document entitled "411-EVEL SHUNT – EVELEIGH SHUNTERS" printed on 30 April 2015 988. Exhibit AH, ERISP between DS and Senior Constable Evans dated 31 December 2014 at Q91 989. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q604 – 612 990. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q 635 – 638 991. T 28.49 – .50 992. T 618.29 – 619.19 993. T 618.41 – .43 994. T 684.18 – .34 995. T 1033.15 – .16 996. T 534.7 – .17 997. T 1032,1 – .13 998. T 539.16 – .28 999. T 1032.15 – .27 1000. T 643.27 – 644.24 1001. T 698.28 – .43 1002. T 699.5 – .20 1003. T 1032.41 – .44 1004. T 1032.46 – .50 1005. T 608.12 – .20 1006. T 1033.11 – .13 1007. T 172.16 – .19 1008. T 177.29 – .32 1009. T 172.21 – .23 and T 172.32 – .37 1010. T 178.15 – .20 1011. T 172.21 – .27 1012. T 172.29 – .30 1013. T 177.34 – .42 1014. T 178.22 – .26 1015. T 178.28 – .32 1016. T 177.44 – .49 1017. T 178.5 – .10 1018. T 622.25 – .37 1019. T 663.5 – .7 1020. T 663.28 – .30 1021. T 663.32 – .34 1022. T 663.36 – .37 1023. T 663.39 – .43 1024. T 663.45 – .47 1025. T 664.11 – .14 1026. T 664.16 – .23 1027. T 664.25 – .27 1028. T 665.35 – .47 1029. T 666.8 – .12 1030. T 666.14 – .15 1031. T 667.25 – .27 1032. T 667.33 – .39 1033. T 178.35 – .39 1034. T 180.22 – .33 1035. T 180.39 – .43 1036. T 180.45 – .46 1037. T 180.48 – 181.5 1038. T 592.30 – .32 1039. T 592.39 – .43 1040. T 592.50 – 593.5 1041. T 593.12 – .21 1042. T 593.23 – .26 1043. T 594.7 – .15 1044. T 594.20 – .22 1045. T 193.8 – .16 1046. T 193.23 – .25 1047. Exhibit F, ERISP between JS and Belinda Atherton dated 29 May 2015 at Q613 – 619 1048. T 199.26 – .30 1049. T 178.41 – 179.2 1050. T 179.19 – .21 1051. T 179.27 – .31 1052. T 179.33 – .37 1053. T 179.39 – .47 1054. T 179.49 – 180.4 1055. T 180.14 – .20 1056. T 668.8 – .24 1057. T 668.29 – .32 1058. T 181.20 – .45 1059. T 181.47 – .50 1060. T 182.1 – .12 1061. T 182.14 – .26 1062. T 182.28 – .31 1063. T 182.33 – .39 1064. T 182.41 – .46 1065. T 183.4 – .9 1066. T 183.11 – .22 1067. T 183.34 – .41 1068. T 598.36 – 599.1 1069. T 599.16 – .26 1070. T 599.8 – .10 1071. T 601.25 – .28 1072. T 605.6 – .9 1073. T 184.12 – .21 1074. T 185.4 – .9 1075. T 185.41 – .47 1076. T 186.9 – .12 1077. T 186.21 – .26 1078. T 186.28 – .40 1079. T 186.42 – 187.3 1080. T 668.34 – .41 1081. T 668.43 – .50 1082. T 669.1 – .12 1083. T 669.20 – .24 1084. T 187.8 – .10 1085. T 187.15 – .22 1086. T 187.25 – .27 1087. T 187.29 – .34 1088. T 187.49 – 188.4 1089. T 188.14 – .18 1090. T 191.45 – 192.6 1091. T 548.31 – .36 1092. T 188.40 – .49 1093. T 189.4 – .12 1094. T 189.14 – .16 1095. T 189.18 – .25 1096. T 190.29 – 191.1 1097. T 191.3 – .12 1098. T 191.17 – .19 1099. T 192.13 – .17 1100. T 192.19 – .37 1101. T 195.24 – 196.5 1102. T 196.6 – .14 1103. T 196.27 – .34 1104. T 203.15 – .19 1105. T 204.44 – .49 1106. T 204.37 – .38 and T 205.8 – .9 1107. T 205.11 – .23 1108. T 203.25 – .26 1109. T 203.28 – .50 1110. T 205.47 – .48 1111. T 205.41 – .45 1112. T 206.3 – .7 1113. T 217.21 – .25 1114. T 217.34 – .36 1115. T 206.9 – .19 1116. T 206.21 – .26 1117. T 206.31 – .32 1118. T 207.13 – .15 1119. T 218.23 – .25 1120. T 207.17 – .19 1121. T 962.20 – .42 and T 963.42 – .46 1122. T 963.36 – .40 1123. T 218.30 – .31 1124. T 223.10 – .12 1125. T 219.16 – .18 1126. T 219.28 – .30 1127. T 218.27 – .28 1128. T 217.32 – .33 1129. T 218.33 – .38 1130. T 218.44 – 219.2 1131. T 219.11 – .18 1132. T 219.40 – .43 1133. T 219.45 – .49 1134. Contrary to MFI 19 no evidence was presented in relation to incident 29 in MFI 20 1135. T 207.32 – .37 1136. T 197.6 – .15 1137. T 197.18 – .24 1138. T 207.25 – .30 1139. T 207.32 – .37 1140. T 207.42 – .45 1141. T 197.26 – .45; and T 198.1 – .5 1142. T 198.10 – .14 1143. T 198.25 – .27 1144. T 198.32 – .33 1145. T 198.46 – 199.3 1146. T 199.5 – .12 1147. T 199.23 – .31 1148. T 671.40 – .50 1149. T 671.30 – .32 and see also: T 1061.46 – 1062.1 1150. T 199.36 – .39 1151. T 200.4 – .13 1152. T 200.15 – .21 1153. T 200.31 – .32 1154. T 200.23 – .38 1155. T 201.43 – 202.39 1156. T 200.23 – .32 and T 202.20 – .22 1157. T 202.1 – .5 1158. T 202.41 – .43 1159. MFI 1 1160. T 671.21 – .50 1161. T 983.31 – .37 1162. T 202.36 – .40 1163. T 202.48 – .50 1164. T 203.50 – .5 1165. T 203.7 – .13 1166. T 208.43 – 209.12 1167. T 223.20 – .25 1168. T 210.5 – .9 1169. T 209.14- 211.37 1170. T 211.39 – .45 1171. T 212.11 – .16 1172. T 212.7 – .16 1173. T 223.27 – .38 1174. T 223.40 – .43 1175. T 223.45 – .50 1176. T 224.2 – .10 1177. T 224.13 – .17 1178. T 224.32 – .36 1179. T 209.17 – .26 1180. T 225.3 – .4; and T 225.37 – .39 1181. T 225.15 – .19 1182. T 225.25 – .27 1183. T 225.29 – .31 1184. T 225.47 – 226.1 1185. T 226.3 – .8 1186. T 226.10 – .13 1187. T 226.33 – .35 1188. T 226.37 – .41 1189. T 226.24 – .35 1190. T 226.37 – .38 1191. T 226.43 – .50 1192. T 226.43 – .50 1193. T 227.2 – .10 1194. This was conceded in the Crown's further submissions. See: MFI 24 "Crown submissions on further questions for the parties" (in response to MFI 23 "Further questions for the parties") 1195. T 223.34 – .38 1196. T 227.46 – .48 1197. T 228.7 – .12 1198. T 212-.47 – 213.1 1199. T 213.3 – .9 1200. T 213.10 – .16 1201. T 875.40 – 876.11 1202. T 214.4 – .8 1203. T 214.10 – .14 1204. T 214.23 – .27 1205. T 685.19 – .20 1206. T 697.37 – .39 1207. T 624.25 – .27 1208. T 229.45 – 230.12 1209. T 230.34 – .42 1210. T 231.5 – .22 1211. T 231.26 – .28 1212. T 223.32 – .41 1213. T 233.46 – 234.1 1214. T 234.17 – .21; see also: T 209.31 – 210.22 1215. T 233 23 – .30 1216. T 208.23 – .26 1217. T 233.46 – 234.1 1218. T 235.21 – .30 1219. T 235.35 – .40 1220. T 235.42 – .50 1221. T 236.2 – .6 1222. T 236.2 – .6 1223. T 237.37 – .41 1224. T 237.41 – .45 1225. T 237.50 – 238.3 1226. The Crown conceded that incident 34 related to count 12 (see: T 14.5 – .25 (17 July 2017)) and there was no evidence as to incident 35: (see T 13.40 – .47 (17 July 2017)) 1227. T 240.11 – .35 1228. T 239.41 – .4 1229. T 244.37 – .39 1230. T 239.41 – 240.11 1231. T 240.13 – .25 1232. T 241.1 – .2 1233. T 241.16 – .19 1234. T 241.21 – .22 1235. T 241.24 – .29 1236. T 241.35 – .47 1237. T 241.49 – 242.3 1238. T 242.18 – .23 1239. T 242.25 – .32 1240. T 242.34 – .35 1241. T 242.37 – .39 1242. T 242.41 – .42 1243. T 242.44 – .47 1244. T 242.49 – 243.1 1245. T 243.3 – .17 1246. T 245.10 – .14 1247. T 245.16 – .20 1248. T 245.38 – .49 1249. T 246.9 – .24 1250. T 246.32 – .38 1251. T 247.15 – .17 1252. T 247.19 – .25 1253. T 247.31 – .33 1254. T 249.50 – 250.4 1255. T 250.6 – .11 1256. T 250.13 – .20 1257. T 250.9 – .11 1258. T 250.24 – .26 1259. T 246.38 – .41 1260. T 252.27 – .37 1261. T 252.50 – 253.1 1262. T 253.6 – .9 1263. T 253.11 – .39 1264. T 253.41 – 254.1 1265. T 254.3 – .4 1266. T 254.12 – .19 1267. T 254.29 – .31 1268. T 254.48 – 255.13 1269. T 255.20 – .29 1270. T 256.20 – .22 1271. T 256.24 – .25 1272. T 256.27 – .30 1273. T 256.30 – .33 1274. T 256.36 – .39 1275. T 257.3 – .10 1276. T 257.41 – .44 1277. T 257.46 – .48 1278. T 258.4 – .15 1279. T 258.17 – .23 1280. T 258.45 – 259.4; and T 259.47 – .48 1281. T 258.26 – .33 1282. T 258.35 – .40 1283. T 258.42 – .43 1284. T 260.16 – .22 1285. T 260.26 – .38 1286. T 260.32 – .38 1287. T 263.26 – .30 1288. T 261.42 – 262.4 1289. T 261.20 – .25 1290. T 261.34 – .40 1291. T 261.42 – 262.4 1292. T 262.11 – .15 1293. T 262.15 – .17 1294. T 262.19 – .20 1295. T 262.35 – .40 1296. T 262.46 – 263.2 1297. T 263.4 – .11 1298. T 263.37 – .45 1299. T 263.20 – .30 1300. T 263.47 – 264.1 1301. T 264.3 – .10 1302. T 264.12 – .14 1303. T 264.16 – .17 1304. T 264.23 – .27 1305. T 264.37 – .43 1306. T 264.45 – .49 1307. T 264.50 – 265.3 1308. T 265.8 – .12 1309. T 265.14 – .18 1310. T 265.23 – .26 1311. T 265.28 – .38 1312. T 265.40 – .42 1313. T 265.44 – .48 1314. T 265.50 – 266.10 1315. T 267.10 – .15 1316. T 267.17 – .50 1317. T 268.1 – .3 1318. T 268.5 – .7 1319. T 268.19 – .23 1320. T 268.25 – .31 1321. T 268.32 – .39 1322. T 268.41 – .43 1323. T 268.45 – .50 1324. T 269.1 – .3 1325. T 269.5 – .10 1326. T 269.12 – .19 1327. T 269.21 – .23 1328. T 269.25 – .47 1329. T 271.1 – .8 1330. T 272.38 – .48 1331. T 271.20 – .24 1332. T 271.35 – .49 1333. T 273.10 – .32 1334. T 274.50 – 275.9 1335. T 274.18 – .24 1336. T 274.26 – .30 1337. T 274.32 – .34 1338. T 274.42 – .44 1339. T 274.46 – .49 1340. T 275.1 – .2 1341. T 275.11 – .19 1342. T 275.49 – 276.2 1343. T 276.7 – .8 1344. T 276.10 – .12 1345. T 276.17 – .25 1346. T 276.46 – .49 1347. T 277.1 – .5 1348. T 276.27 – .31 1349. T 281.38 – .40 1350. T 281.42 – .47 1351. T 281.49 – 282.4 1352. T 282.6 – .10 1353. T 282.12 – .16 1354. T 282.18 – .20 1355. T 282.29 – .33 1356. T 282.41 – 283.11 1357. T 283.13 – .20 1358. T 283.22 – .27 1359. T 283.29 – .31 1360. T 283.39 – .44 1361. T 283.44 – .47 1362. T 283.48 – .50 1363. T 283.43 – .45 1364. T 284.1 – .20 1365. T 284.1 – .5 1366. T 284.21 – .25 1367. T 284.39 – .43 1368. T 284.43 – .46 1369. T 284.48 – 285.1 1370. T 285.3 – .8 1371. T 285.13 – .19 1372. T 285.30 – .32 1373. T 285.38 – .41 1374. T 286.9 – .18 1375. T 286.20 – .30 1376. T 286.39 – .41 1377. T 286.43 – .45 1378. T 287.1 – .8 1379. T 287.10 – .13 1380. T 287.25 – .29 1381. T 287.34 – .40 1382. T 287.42 – .43 1383. T 287.48 – 288.3 1384. T 288.5 – 288.13 1385. T 306.30 – .33 1386. T 306.35 – .36 1387. T 306.13 – .14 1388. T 306.20 – .24 1389. T 306.45 – 307.37 1390. T 288.20 – .23 1391. T 288.25 – .39 1392. T 289.49 – 290.8 1393. T 290.45 – 291.11 1394. T 291.11 – .15 1395. T 291.15 – .23 1396. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q203 1397. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q204 1398. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q205 and 211 1399. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q230 1400. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q232 – 234 1401. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q235 1402. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q237 – 238 1403. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q243 1404. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q263 1405. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q264 – 265 1406. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q266 1407. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q268 1408. T 291.37 – .44 1409. T 291.46 – .47 1410. T 292.4 – .9 1411. T 292.14 – .17 1412. T 293.18 – .19 1413. T 293.21 – .26 1414. T 293.40 – .46 1415. T 293.48 – 294.5 1416. T 294.16 – .22 1417. T 294.24 – .30 1418. T 294.35 – .48 1419. T 294.50 – 295.4 1420. T 295.15 – .18 1421. T 295.26 – .36 1422. T 295.38 – .49 1423. T 673.21 – .47 1424. T 674.13 – .23 1425. T 674.29 – .33 1426. T 674.43 – .47 1427. T 669.50 – 670.9 1428. T 647.19 – .23 1429. T 647.30 – .33 1430. T 649.36 – .42 1431. T 650.12 – .14 1432. T 652.4 – .22 1433. T 652.43 – .46 1434. T 653.22 – .28 1435. Exhibit L, NSW Health South Western Sydney, Local Health District, ED Case History Notes, printed on 8 May 2015 at p1 1436. Exhibit H, NSW Police Force Expert Certificate of Dr David Cottle, dated 10 November 2015 at [9] 1437. Exhibit L, NSW Health South Western Sydney, Local Health District, Discharge Referral Powernote printed on 8 May 2015 at 8:20, p 1 1438. Exhibit X, Statement of Sergeant Linda Smith dated 16 February 2015 at [4] 1439. Exhibit X, Statement of Sergeant Linda Smith dated 16 February 2015 at [5] 1440. Exhibit X, Statement of Sergeant Linda Smith dated 16 February 2015 at [6] 1441. Exhibit X, Statement of Sergeant Linda Smith dated 16 February 2015 at [7] 1442. Exhibit X, Statement of Sergeant Linda Smith dated 16 February 2015 at [9] 1443. Exhibit X, Statement of Sergeant Linda Smith dated 16 February 2015 at [10] 1444. Exhibit AB, Statement of Plain Clothes Senior Constable Dean Stanley dated 19 December 2016 at [4] 1445. Exhibit AB, Statement of Plain Clothes Senior Constable Dean Stanley dated 19 December 2016 at [7] 1446. Exhibit AC, Statement of Detective Senior Constable Harvey Cole, dated 19 December 2016 at [7] 1447. Exhibit AC, Statement of Detective Senior Constable Harvey Cole, dated 19 December 2016 at [8] 1448. Exhibit AC, Statement of Detective Senior Constable Harvey Cole, dated 19 December 2016 at [9] 1449. Exhibit AC, Statement of Detective Senior Constable Harvey Cole, dated 19 December 2016 at [14] 1450. Exhibit AQ, Interview with AS and Detective Cole dated 1 February 2015 at Campbelltown Hospital at Q36 – Q43 1451. Exhibit AO, New South Wales Police FACTS SHEET, printed on 2 February 2015 at 8:27 am 1452. T 297.21 – .26 1453. T 297.28 – .35 1454. T 297.37 – .43 1455. T 654.13 – .35 1456. Exhibit AP, Affidavit drafted by AS for Federal Circuit Court of Australia proceedings, undated 1457. Exhibit AP, Affidavit drafted by Mrs AS for Federal Circuit Court of Australia proceedings, undated at [1] – [5]; and [132] – [135] 1458. T 673.4 – .15 1459. T 673.17 – .23 1460. T 673.43 – .47 1461. T 674.3 – .19 1462. T 674.29 – .33 1463. T 674.35 – .39 1464. T 674.25 – .27 1465. T 854.5 – .37 1466. T 854.42 – .44 1467. T 855.1 – .14 1468. T 855.15 – .17 1469. T 855.27 – .28 1470. T 855.30 – .40 1471. Exhibit L, NSW Health South Western Sydney, Local Health District, Clinical Progress Notes for the complainant, entry dated 2 February 2015 1472. T 857.8 – .11 1473. Exhibit L, NSW Health South Western Sydney, Local Health District, Clinical Progress Notes for the complainant, entry dated 4 February 2015 1474. T 857.21 – .23 1475. T 858.14 – .20 1476. T 858.22 – .24 1477. T 858.32 – .34 1478. T 858.40 – .50 1479. T 859.1 – .25 1480. T 860.21 – .30 1481. Exhibit L, NSW Health South Western Sydney, Local Health District, Clinical Progress Notes for the complainant, entry dated 9 February 2015 1482. Exhibit L, NSW Health South Western Sydney, Local Health District, Clinical Progress Notes for the complainant, entry dated 10 February 2015 1483. T 718.42 – .45 1484. T 719.29 – .49 1485. T 720.30 – .32 1486. T 720.34 – .48 1487. T 721.31 – .38 1488. T 722.3 – .5 1489. T 722.15 – .24 1490. T 722.25 – .27 1491. T 722.35 – .39 1492. T 723.12 – .18 1493. T 726.39 – 727.2 1494. T 727.14 – .19 1495. T 926.34 – .38 1496. T 929.14 – .20 1497. T 929.26 – .35 1498. T 929.37 – .44 1499. T 929.46 – 930.1 1500. T 930.3 – .5 1501. T 930.17 – .23 1502. See R v DS judgment delivered on 17 July 2017 1503. T 953.4 – .5 1504. Exhibit 9, Statement of Detective Senior Constable Fiona Duncan dated 13 Mary 2015 and T 953.37 – 953.2 1505. Exhibit 9, Statement of Detective Senior Constable Fiona Duncan dated 13 Mary 2015 at [3] 1506. T 953.38 – 954.2 1507. T 635.13 – .16 1508. T 635.31 – .41 1509. T 635.43 – .49 1510. T 861.5 – .46 1511. T 862.21 – .33 1512. T 862.35 – .37 1513. T 862.39 – .42 1514. T 862.50 – 863.7 1515. T 863.20 – .22 1516. T 863.24 – .30 1517. T 863.32 – .33 1518. T 863.35 – .37 1519. T 863.49 – 864.1 1520. T 864.3 – .4 1521. T 864.6 – .21 1522. T 864.30 – .32 1523. T 866.2 – .4 1524. T 866.33 – .39 1525. T 866.41 – .47 1526. T 867.27 – .29 1527. T 869.6 – .9 1528. T 869.11 – .19 1529. T 869.23 – .24 1530. T 896.48 – .50 1531. T 897.16 – .24 1532. T 898.10 – .14 1533. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q64 – Q65 1534. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q66 1535. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q67 1536. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q68 1537. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q69 1538. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q70 – 72 1539. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q73 1540. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q75 – 77 1541. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q86 – 89 1542. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q90 1543. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q91 – 93 1544. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q94 1545. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q95 – 103 1546. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q104 – 105 1547. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q120 – 122 1548. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q125 1549. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q126 1550. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q133 1551. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q134 – 136 and 138 1552. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q128 1553. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q130 1554. T 726.39 – .48 1555. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q75 – 77 1556. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q104 – 105 1557. Exhibit E, ERISP between JS and Detective Harvey Cole dated 25 February 2015 at Q94 – 100 1558. T 837.30 – .39 1559. T 837.41 – .49 1560. T 848.28 – .30 1561. T 848.14 – .22 1562. T 838.11 – .13 1563. T 838.19 – .49 1564. T 839.1 – .6; and T 839.50 – 840.2 1565. T 840.19 – .20 1566. T 840.22 – .25 1567. T 840.30 – .38 1568. T 840.43 – .48 1569. T 841.9 – .15 1570. T 841.17 – .23 1571. T 841.25 – .33 1572. T 841.35 – .46 1573. T 841.48 – .50 1574. T 842.17 – .19 1575. T 842.21 – .24 1576. T 842.26 – .37 1577. T 842.39 – .44 1578. T 842.46 – 843.2 1579. T 843.4 – .5 1580. T 843.7 – .9 1581. T 843.18 – .21 1582. T 843.46 – 844.3 1583. T 844.5 – .25 1584. T 844.27 – .28 1585. T 844.46 – 845.3 1586. T 845.5 – .7 1587. T 845.9 – .11 1588. T 845.13 – .15 1589. T 845.17 – .19 1590. T 845.44 – .49 1591. T 846.1 – .8 1592. T 846.13 – .19 1593. T 846.21 – .29 1594. T 846.36 – .41 1595. T 846.43 – .46 1596. T 848.44 – .46 1597. T 849.45 – .49 1598. T 850.12 – .21 1599. T 849.48 – .50 1600. T 850.1 – .3 1601. T 852.27 – .29 1602. T 852.23 – .25 1603. T 851.4 – .11 1604. T 851.13 – .16 1605. T 851.43 – 852.14 1606. T 642.22 – .25 1607. T 931.6 – .49 1608. T 947.9 – .15 1609. T 947.17 – .22 1610. T 947.32 – .34 1611. T 935.15 – 936.11 1612. T 932.26 – .28 1613. T 932.30 – .31 1614. T 932.33 – .35 1615. T 932.37 – .39 1616. T 932.41 – .43 1617. T 932.1 – .16 1618. T 933.8 – .12 and T 933.47 – 934.6 1619. T 936.36 – .41 1620. T 936.43 – 937.12 1621. T 958.34 – .37 1622. T 961.20 – .22 1623. T 1054.36 – 1056.11 1624. T 293.21 – .26; and T 990.45 – .50 1625. Exhibit Z, Statement of Constable Scott Green dated 19 June 2015 at [4] 1626. Exhibit Z, Statement of Constable Scott Green dated 19 June 2015 at [5] 1627. Exhibit Z, Statement of Constable Scott Green dated 19 June 2015 at [6] 1628. Exhibit Z, Statement of Constable Scott Green dated 19 June 2015 at [7] 1629. Exhibit Z, Statement of Constable Scott Green dated 19 June 2015 at [8] 1630. Exhibit Z, Statement of Constable Scott Green dated 19 June 2015 at [9] – [10] 1631. Exhibit AA1, Statement of Senior Constable Carlie Evans dated 13 February 2015 1632. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [5] 1633. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [6] 1634. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [7] 1635. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [8] 1636. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [9] 1637. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [10] 1638. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [11] 1639. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [12] 1640. Exhibit AA2, Statement of Senior Constable Carlie Evans dated 13 June 2015 at [12] – [13] 1641. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [3] – [4] 1642. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [11] 1643. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [13] – [15] 1644. Exhibit Y, Statement of Constable Jack Mitchell dated 9 June 2015 at [16] 1645. T 914.6 – 915.8 1646. T 915.22 – .50 1647. T 916.5 – .10 1648. T 916.15 – .17 1649. T 917.10 – .17 1650. T 917.42 – .45 1651. T 918.13 – .15 1652. T 918.21 – .22 1653. T 918.28 – 919.12 1654. T 919.33 – .36 1655. T 919.44 – .46 1656. T 922.10 – .24 1657. T 922.29 – .35 1658. T 922.39 – .44 1659. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q43 – 45 1660. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q61 – 66 1661. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q62 1662. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q63 1663. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q70 – 71 1664. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q72 – 76 1665. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q77 1666. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q78 – 79 1667. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q81 1668. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q93 – 96 1669. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q97 – 100 1670. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q101 – 102 1671. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q103 – 105 1672. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q107 1673. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q108 1674. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q109 – 111 1675. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q114 1676. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q117 1677. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q124 – 125 1678. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q135 – 136 1679. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q143 1680. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q145 1681. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q146 1682. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q147 1683. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q149 1684. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q150 – 152 1685. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q153 1686. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q164 – 165 1687. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q166 1688. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q168 – 169 1689. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q172 1690. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q173 1691. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q174 – 179 1692. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q180 – 184 1693. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q186 1694. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q187 1695. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q188 – 191 1696. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q198 and Q200 – 202 1697. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q205 and 211 1698. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q230 1699. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q232 – 234 1700. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q235 1701. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q237 – 238 1702. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q243 1703. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q273 1704. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q275 1705. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q277 1706. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q284 1707. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q287 1708. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q289 1709. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q295 – 296 1710. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q298 1711. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q302 1712. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q303 – 311 1713. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q315 1714. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q318 1715. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q325 1716. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q329 – 330 1717. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q335 – 340 1718. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q343 1719. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q344 and 348 1720. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q350 – 351 1721. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q354 1722. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q356 1723. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q359 1724. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q361 1725. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q362 1726. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q363 1727. T 946.42 – .49 1728. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q372 1729. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q373 1730. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q377 – 382 1731. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q388 – 392 1732. T 675.9 – .11 1733. T 675.26 – .37 1734. T 675.39 – .46 1735. T 676.18 – .21 1736. T 676.31 – .33 1737. T 1015.34 – 1018.5 1738. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q124 – 126 and Q305 – 306 and T 1050.29 – .34 1739. T 1050.16 – .34 1740. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q13 1741. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q61 – 83 1742. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q43 – 45 1743. T 293.48 – 294.5 1744. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q107 1745. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q108 1746. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q109 – 111 1747. Exhibit AJ, ERISP between the accused and Leading Senior Constable Paul Watson dated 1 February 2015 at Q113 Amendments 15 August 2017 - Corrected dates on cover sheet 04 September 2017 - [605] "28 March 2018" amended to "28 March 2017" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2017