R v ND

Before: Fitzsimmons SC DCJ

Decision: 249 Accordingly, I enter the following verdict:
(1) On count 1, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 I find the accused NOT GUILTY.

Catchwords: CRIME – Judge-alone trial – sexual intercourse without consent – charge alleged in the context of marriage – evidence of abusive text messages
CRIMINAL PROCEDURE – accused acquitted by jury on related counts – re-trial after hung jury on subject count
CRIME – Liberato direction – accused’s evidence not accepted – complainant found to be unreliable
CRIME – relationship evidence – context evidence – tendency evidence – tendency evidence partially established – good character – disputed admissions – silence as an admission

Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited: R v Lodhi [2006] NSWSC 648; (2006) 163 A Crim R 526
R v Plevac [1995] 84 A Crim R 570

Category: Principal judgment

Parties: Rex, ND

Representation: Counsel:
L-C Hutchinson (Defence)
G Tabuteau (Crown)
Solicitors:
Essere – The Defenders (Defence)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/00114265

Publication restriction: Nothing is to be published which identifies the complainant or is likely to lead to the identification of the complainant.

JUDGMENT

1. The accused ND is charged with one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900.

2. On 28 October 2025, the accused was arraigned before me with respect to the offence and the accused pleaded not guilty.

3. The accused was originally arraigned on 17 February 2023 on an indictment containing three charges of sexual intercourse without consent which allegedly occurred in February 2021, December 2021 and March 2022 respectively. The trial is a re-trial on a single count (count 2 on the original judgment) for which the jury were unable to reach a verdict, in circumstances where the jury found the accused not guilty on the other two counts. The accused made an application to the Court for this trial to proceed by judge alone on the grounds that:

4. there was a forensic disadvantage to ND of being unable to adduce evidence adverse to the complainant’s credibility before a jury in a retrial as doing so would be to reintroduce evidence of counts subject of acquittals, and

5. there was reduced cost to the applicant of a retrial by judge-alone compared with a jury.

6. His Honour Judge Mahony SC granted the accused’s application on 17 October 2025.

D****irections

5. In reaching my verdict, I have given myself all appropriate directions for a Judge-alone trial of this nature in accordance with Annexure A.

Elements of the offence

6. The elements of the offence are contained in Annexure B.

The complainant’s evidence

7. The complainant JY’s evidence was presented by way of replaying the audio visual recording from the first trial.

8. The complainant gave evidence-in-chief that she met the accused towards the end of 2019, although clearly this is incorrect in that there is no issue the couple met in November 2018. Whilst it was the complainant’s evidence that they commenced living together in a unit in Summer Hill in February 2020, this again was incorrect. As ultimately conceded by the complainant, the couple began living together in February 2019.

9. The couple were initially unsuccessful in conceiving and accordingly the complainant commenced IVF treatment which involved injecting herself with hormones at night which she found painful and unpleasant, resulting in difficulties in the relationship. However, she fell pregnant quite quickly and their son was born in September 2020.

10. In the meantime, the complainant and the accused married in January 2020. The complainant gave evidence that around this time the accused would make statements to the effect that as a wife she was obligated to have sexual intercourse with him. It was the complainant's evidence that he repeated these sentiments up to 10 to 20 times in the period 2019-2020. At times she would respond, disagreeing with the statements with observations that it was a free country, and she had her own thoughts. Despite this the accused allegedly continued to reiterate her obligation to have sex with him whenever he desired.

11. In February 2020 the accused moved to Perth for work and the complainant moved to Canberra to potentially pursue study. Coincidently, the COVID-19 pandemic meant that the complainant and the accused were effectively separated for a period of approximately six months. Towards the middle of 2020, the accused moved and commenced working in Canberra. This coincided with the complainant moving to Lidcombe and several months thereafter their son, HD, was born (September 2020).

12. It was the complainant's evidence that following the accused's return from Perth, being the last six months of 2020, the relationship was not good in that the accused would send abusive messages to the complainant via WhatsApp or an SMS such as “go and fucking die", telling her she was “a piece of trash" and that she didn't deserve to live. This was also happening in oral conversations. The complainant alleges that these messages were occurring frequently, almost daily. In response, at times, the complainant would tell the accused to stop sending such messages.

13. At the beginning of 2021, the accused moved from Canberra to an apartment in St Leonards. The complainant would sleep overnight at the St Leonards address several days per week but was otherwise staying with her mother. The complainant's evidence was somewhat confusing and inconsistent as to the sleeping arrangements at the St Leonards unit during this time, with her evidence variously being the accused would sleep in the master bedroom or the lounge room. The complainant would generally sleep in the second smaller bedroom.

14. The complainant gave evidence of an incident in February 2021, being count 1 on the original indictment for which the accused was found not guilty by the jury. The complainant alleged this incident occurred in the master bedroom of the St Leonards unit when the accused produced two sets of handcuffs and suggested they use them in the course of intercourse. The complainant gave evidence that she told the accused that she did not want to whilst the accused insisted they do so.

15. The complainant's evidence was that the accused walked out of the bedroom for approximately five minutes before returning with a bottle of lubricant which he applied to the complainant’s vagina, having removed her clothes. She gave evidence that the accused applied the cuffs to her wrists and ankles which significantly restricted her movement of both body parts. The complainant gave evidence that she told the accused she felt uncomfortable and did not want to do it, in response to which the accused laughed. He also used a clip to join the hand and ankle cuffs together.

16. The complainant gave evidence that the accused applied lubricant to her vagina and inserted his erect penis. She described the offender using both hands to push down on either side of her neck as a result of which she experienced pain in her thighs and back. The complainant told the offender to stop in circumstances where he had been having intercourse for three to four minutes before undoing the “shackles". The complainant stated, however, that the accused did not respond to her saying “stop”, “get off” or that he was hurting her. Her evidence was that she said each of these things up to 10 times. He only stopped after ejaculating. It was the complainant’s evidence that after this intercourse she said to the accused that he didn't stop when she asked him to. In response he giggled. When it was suggested to him by the complainant that it was not right, he replied “I’ll compensate".

17. The complainant stated that she did not report this incident to police in circumstances where the accused told her that she would not be believed. He referred to his experience partaking in court proceedings as a specialist consultant, saying that nobody would believe the complainant and nobody would care.

18. After being in the St Leonard's unit for approximately six months, the accused purchased a unit in Ashfield and moved towards the middle of 2021. This was similarly a two-bedroom unit where the complainant was physically involved in renovating the kitchen and bathroom. During this period the accused was working in Newcastle although he would spend several nights on some weekends at the Ashfield unit.

19. The complainant gave evidence of the alleged incident in the Ashfield unit on 30 December 2021, being the allegation subject of the single count for which the accused is on trial. It was only the accused and the complainant at the unit in circumstances where their child was with the complainant's mother.

20. It was the complainant's evidence that at around 9:00pm, the accused said to the complainant “let's have intimacy". Apparently, this was a common phrase used by the accused to indicate he wished to have sexual intercourse. In response, the complainant told the accused that she did not feel like it and did not want to. In this context, the complainant stated that the accused again referred to the fact that as his wife she was obligated to have sex with him. In response, the complainant made statements to the effect that the accused had no feelings, that he was selfish, asking why he expected her to be someone she did not want to be. The complainant stated that in response to the accused’s proposition of having “intimacy", she gave no consent.

21. The accused also suggested to the complainant that she should be wearing a skirt in circumstances where at the time, she was wearing jeans and a t-shirt. Further, the accused told the complainant that she should not be taking her antidepressant medication in circumstances where it reduced her sexual desires. The complainant says that the accused was also swearing, including calling her a whore. The accused removed the complainant's clothes before retiring to the bathroom for approximately five minutes. He returned with an erect penis and in possession of lubricant.

22. Whilst the complainant was lying on her back on the bed the accused applied lubricant to her vagina following which he engaged in penile vagina intercourse. It was the complainant's evidence that the intercourse was quite rough and that she was experiencing pain in her vagina. She said that she told the accused more than 10 times that it really hurt and asked him to stop. The complainant stated that the accused’s only response was essentially to say “yeah, yeah", and she felt that he was “looking down on” her. She tried unsuccessfully to push the accused off in circumstances where he was applying downward pressure. He continued to engage in intercourse with the complainant for approximately 10 minutes after she had asked him to stop. The intercourse only ceased after ejaculation. He then gave the complainant some tissue and told her to wipe herself. When the complainant suggested to the accused that he should apply the lubricant to himself, he again simply responded with “yeah, whatever".

23. It was the complainant's evidence that, after the intercourse, she again told the accused that she had told him to stop, and he refused to do so and that he was hurting her. That when she tells him to stop, he should stop. The complainant stated in response the accused said he was sorry, but then started laughing and said that no one would believe her when she accused him of rape and indicated that she wanted to call the police. She suggested that she might make a recording and ultimately provide it to police. The complainant stated that despite threatening to call the police she did not do so. This was in the context that she was “afraid of things". When again she stated that she was in a lot of pain the accused asked if she wished to see a doctor.

24. Towards the end of 2021 the accused returned from Newcastle and was residing in the Ashfield unit thereafter. The complainant was predominantly living at her mother's place.

25. In March 2022, the complainant was living at her mother’s whilst the accused was living in the Ashfield unit. Around this time the accused allegedly told the complainant that he had found a lawyer. He was sending “strange messages" and saying things, including that he would take their son to Singapore, and she would never see him again. Further, he was accusing her of being violent and that she should not be with her son.

26. The complainant attended the Ashfield unit on an afternoon in March to retrieve some of her and HD’s clothes. The accused was not at the unit when she arrived though he returned before she was due to depart. The accused and the complainant engaged in conversation during which the complainant challenged the accused as to why he was sending strange messages. The accused suggested to the complainant that she was a bad mother in the context of not having their son’s hearing tested. He also made an unusual allegation that she had brought ants into the unit and further that she should “kneel down and kiss [her] mother’s foot.” The conversation went for around two hours and the complainant stated that she was becoming increasingly uncomfortable and so, to distract the accused, suggested that he ring her mother. The complainant stated that the accused did call the complainant’s mother and then attempted to take the complainant’s phone away.

27. As she was attempting to leave the smaller bedroom she told the accused to “back away”, or “move away”. Instead, the accused pushed the complainant. She attempted unsuccessfully to leave the room multiple times. The accused put the complainant face down on the bed before removing her clothing. In the absence of any conversation, the accused thereafter brought the lubricant which he applied to her vagina before inserting his penis. The accused then engaged in intercourse with the complainant for around 10 to 15 minutes and only stopped with the accused ejaculating in her vagina. The complainant says that at no time did she consent to the accused engaging in intercourse with her (original count 3 – not guilty verdict).

28. The complainant thereafter ordered takeaway food. The accused spoke about working between Canberra and Sydney in the context of an issue with a colleague who the accused had reported for having dementia. He then suggested to the complainant that he was considering having her locked up in a mental hospital. He had said this several times before. The complainant ran out of the unit into her car with the accused following behind, getting into the rear seat. After further discussion the accused then returned to the unit. The complainant states that she was not reporting these incidences to police in circumstances where she was afraid the accused would take her son away to Singapore.

29. However, on 23 March 2022 she returned to the unit to retrieve some belongings and ended up sleeping there having taken a sleeping tablet. The complainant missed a therapist’s appointment the following morning and she woke to her mother at the front door attempting to rouse her. Shortly thereafter, police attended including Detective Senior Constable Asher Daly. In the course of a conversation with the police, the complainant mentioned domestic violence and that she had been the victim of sexual assault. Police asked the complainant to show them her messages with the accused. The police offered to obtain a statement from her, although having had no previous contact with police, she was unsure. She obtained a call from a junior police officer the next day suggesting that she may have been in a “cycle" of domestic violence. Ultimately the police obtained access to her phone and downloaded the various messages exchanged with the accused.

30. In cross-examination, the complainant conceded that she arrived in Australia at the age of 14 and completed her schooling in Sydney. She successfully completed a Bachelor of Design/Architecture and subsequently worked in the construction industry. She also worked as an English teacher.

31. She met the accused in 2018 at which time she was working as a freelance designer/web-developer. At the time of meeting the accused in November 2018, she was in her late thirties. They initially met at a café and by early 2019 she accepted that they were, in effect, a couple. While she accepted it was a Korean custom that a male would propose to a female after 100 days of dating, she could not recall speaking to the accused about this. From early 2019, she would stay a few days per week with the accused at Summer Hill. She had no recollection of the accused asking her to read a book called “His Needs, Her Needs".

32. She recalled in early 2019 looking at a second-hand ring in a retail shop with the accused which she found a little strange, believing it would have been nice to have received a new ring. When it was suggested to the complainant that she was not surprised when the accused ultimately proposed to her, I found the complainant's responses to be evasive and non-responsive to the direct propositions that were being put. I also considered the complainant's evidence as to whether there was a discussion about marriage prior to the engagement as being similarly non-responsive. Further, when it was suggested to the complainant that within days of the marriage proposal she moved into Summer Hill, the complainant was unprepared to answer the cross-examiner's questions directly.

33. The complainant accepted that whilst the accused paid the rent on the Summer Hill premises, she contributed to the living expenses for things such as groceries. At the time she was working part-time in a retail pharmacy role. She was hopeful of undertaking some studies. It was suggested to the complainant that around the time of their engagement, and when she began staying at Summer Hill, she reported for the first time to the accused experiencing pain during intercourse. The complainant again provided non-responsive answers to the cross-examiner's questions which were clear and unequivocal. While she repeatedly conceded that she was experiencing pain during this time, she did not answer the question put which was whether she informed the accused of her pain. Her apparent inability to respond directly to questions asked on this issue did not reflect well on her. Similarly, when directly asked whether the accused had paid for flights and trip expenses when the couple travelled to Penang and Singapore, the complainant provided non-responsive answers before ultimately conceding that she was unable to recall.

34. The complainant agreed that upon their return they attended a general practitioner known to her to discuss fertility issues. Ultimately, the accused was diagnosed with oligospermia. The couple thereafter saw several gynaecologists in the context of a suspected diagnosis of endometriosis. She denied being upset as to the first gynaecologist’s provisional diagnosis of endometriosis. She had no specific recollection of agitating the accused to make a complaint against the first gynaecologist. The complainant maintained that the accused did blame her for his diagnosis of oligospermia.

35. In December 2019, the complainant travelled to Korea with her mother, visiting family. Upon her return she decided to change her Christian name.

36. In 2019, she commenced a diploma in public health at a time when the accused was completing his training requirements for psychiatry. She denied asking the accused for help with her studies. The complainant agreed that she told the accused she wanted to go to Canberra to study a Masters in Pharmacy in circumstances where she could thereafter obtain after-hours work whilst caring for their child. The complainant had asked the accused for assistance with her pharmaceutical studies.

37. It was in this context that ultimately the couple agreed to move to Canberra. The complainant was then cross-examined on the circumstances in which the accused moved to Perth to obtain locum work, the couple having relocated to Canberra. The complainant claimed to have no specific recollection of discussions with the accused as to the fact that he would need to wait for his credentials to be acknowledged in Canberra and in those circumstances, he would be seeking work in Perth. In my view, the complainant was somewhat evasive, suggesting she could not recall the “details" of any such discussion. It is difficult to accept the complainant's evidence in this respect, given the discussions centred upon the circumstances in which the accused would need to travel to Perth despite having relocated to Canberra. It was also put to the complainant that the accused suggested that she could travel to Perth with him. The complainant’s answers were somewhat evasive and ultimately she claimed to have no recollection of such a discussion taking place.

38. The couple married in January 2020, and a 12-month lease was signed on a property in Braddon. She had no recollection of insisting she get established in Braddon before the accused's arrival despite his wishes that as a newly married couple they should settle into the home together. The complainant claimed to have no understanding of the context in which the accused needed to travel to Perth for work. Again, it is difficult to accept that the complainant either had no recollection of any discussion or was unaware as to the reasons why he needed to seek work in Perth. She had no recollection of asking the accused for assistance with her pharmacy studies, nor of the accused making a tongue-in-cheek suggestion that if he assisted her with her studies she would owe him “lots of hot sex".

39. The complainant denied that she demanded the accused forward all of his pay to her in Canberra or that there were further negotiations. However, she accepted it was ultimately agreed that he would pay 40% of his pay, after-tax, to her. It was repeatedly suggested to the complainant that she was resentful for the accused going to Perth and leaving her in Canberra whilst pregnant. The complainant’s answers to this repeated suggestion were non-responsive although ultimately, whilst acknowledging she was having a hard time, she said she was not seeking to blame anyone for the COVID-19 lockdown conditions. The complainant appeared reluctant to accept the relatively straightforward proposition that whilst the accused was in Perth he was paying the entirety of the rent on the Braddon property.

40. The complainant was thereafter asked a series of questions as to whether there was a progressive decrease in sexual activity between them following the accused's diagnosis of oligospermia. She denied there was no sexual intercourse for a period of six weeks after the birth of their son. Indeed, the complainant insisted that the accused wanted to have sex within two weeks of the birth. She accepted that she would tell the accused if she did not want to have sex. There were occasions in the relationship where, despite her disinclination for sex, the accused would try and persuade her following which she would again say that she was not interested. The complainant could not specifically recall the accused using the expression “shall we?" when interested in sex although, accepted he would say things like “I am ready". She denied that she would “talk dirty" to him when interested in sexual intercourse. She accepted that either by words or actions she would at times demonstrate that she was enjoying the sex.

41. The complainant accepted that at later stages in the relationship the couple used artificial lubrication, although in the early stages it was unnecessary. The complainant accepted that she would drink the Korean spirit soju in the relationship. The complainant denied that at the commencement of the relationship, they would have intercourse for up to 30 minutes before he ejaculated, contending that it was no more than 1 to 2 minutes.

42. She agreed that the accused told her that he had a debt of around $100,000 for his university education and that he had saved the money to repay the debt to a family member. The complainant was non-responsive when it was suggested that the accused told her, having paid his debt, that he had effectively no savings. The complainant did not accept that they spoke daily whilst he was in Perth although there were regular discussions which at times involved arguments. Upon his return from Perth, they attended several gynaecologists in Sydney and the complainant accepted that she may have gone to a second gynaecologist in the context of not being comfortable with the first.

43. The complainant was directed to an earlier statement provided to police in which she had said that between February 2020 and February 2021 she had a place in Canberra. Between February 2020 and July 2020, the accused was in Perth and was unable to visit due to lockdown. Further, that from July 2020 to February 2021, the accused stayed in Canberra and that she moved out of Canberra when the accused moved in, staying in Lidcombe. She would attend Canberra once or twice per week.

44. It was suggested to the complainant that she made no mention of being motivated to return to Sydney on account of the accused's anger which was her evidence in Court. She denied making up that evidence to obtain the sympathy of the jury. However, she indicated that she was significantly depressed during her period in Canberra.

45. It was accepted that the complainant purchased an apartment in Lidcombe in her name only in July 2020, and that the accused was a guarantor. She denied that it was at her insistence that the property was in her name only. When it was suggested to the complainant that she told the accused her parents were paying rent whilst they lived in the Lidcombe unit, the complainant’s answers were non-responsive and, in many respects, evasive. There was a clear reluctance on the part of the complainant to accept that she had told the accused that her parents were paying rent. The complainant was similarly non-responsive when it was suggested to her that it was out of necessity the complainant was to remain in Canberra to complete his training requirements. The complainant insisted on moving to Sydney rather than remaining in Canberra. Instead she would commute between Sydney and Canberra with their newborn.

46. The complainant accepted that the accused moved to St Leonards following the completion of his contract in Canberra and that she assisted with finding a unit and relocating. Further, the complainant accepted that she set up a room in the St Leonards unit with some of her belongings and had key access to that unit. It was accepted that the master bedroom had a double bed whereas the smaller room had temporary sleeping arrangements. Whilst the complainant accepted that the accused would give up the master bedroom when she stayed, it was her evidence that this only occurred approximately 50% of the time.

47. The complainant was asked questions as to the alleged circumstances of the first incident at the St Leonards unit constituting count 1 in the first trial. When pressed as to the circumstances in which the accused unclipped the handcuffs whilst penetrating her vagina the complainant stated that she was “not one hundred percent clear" on the exact details. It was the complainant's evidence that the wrist-cuffs were still connected with her hands positioned just under her chin when the accused engaged in penile-vaginal intercourse.

48. The complainant's evidence was somewhat confusing as to the circumstances in which the “shackles" were initially clipped and then subsequently undone. It was the complainant's evidence that the ankle shackles were untied “in the beginning", that is, before penetration commenced. The complainant maintained that the wrist-cuffs were bound to her ankle-cuffs before being unclipped. The complainant was taken to her statements dated 1 April 2022, 22 December 2022 and 12 September 2024. The complainant agreed that in each of those statements she did not tell police that the accused had unclipped the handcuffs on her wrists at any point in time. Further, in none of the four statements provided to police relating to the St Leonards incident did she tell the police that the accused had pushed her around her chest and neck area. Further, the complainant did not tell the police in any of the four statements that she tried to push the accused back but was unable to do so.

49. The complainant accepted that it was only on one occasion that she had sex with the accused whilst using sex toy handcuffs. The complainant insisted that this occurred in February 2021 around Valentine's Day. The complainant was then shown a record of the accused's online order confirmation for the handcuffs dated 21 May 2021 (Exhibit 12). It was then suggested to the complainant that the picture contained in the order form was the precise item that the accused used on the single and only time during the sexual encounter. In response, the complainant gave evidence that she was unable to recall the “exact details" of what they looked like, whilst insisting it still occurred in February. The complainant was not prepared to comment on whether the handcuffs depicted in the order form were those used in the one and only encounter.

50. It is difficult to accept that the complainant was unable to recall the nature of the handcuffs used in the one encounter and, more specifically, was unable to confirm or deny that the cuffs depicted in the order form were those used in that single encounter. If the complainant is to be accepted that this one encounter using handcuffs was significantly traumatic, one would think that the complainant would be able to recall the nature of the apparatus used which bound her wrists and ankles.

51. The complainant accepted that during the relationship there were discussions as to the accused taking the precaution of washing his penis immediately prior to intercourse in order to minimise the risk of a urinary tract infection. However, the complainant was not prepared to accept that, on the occasion where the handcuffs were used, he attended the bathroom for this purpose. There was a distinct reluctance on the part of the complainant to accept that she enabled the cuffs to be applied by holding her wrists and ankles together. She maintained the ankle and wrist-cuffs were shackled together despite it being suggested this never occurred. The complainant accepted it wasn't until her fifth statement to police (12 September 2024) that she first indicated the wrist and ankle cuffs were shackled together. She maintained that the sexual encounter was not consensual when the contrary proposition was put.

52. The complainant accepted that from May 2021, she attended outings with the accused and their son such as a swimming group, restaurant meals and socialising with a colleague of the accused from Canberra, Dr Denise Riordan. The complainant also agreed that there was an occasion where she met Dr Riordan in the city.

53. Between May and September 2021, the complainant accepted that sexual intercourse was usually initiated by the accused and denied that it was ever initiated by herself. Following the purchase of the Ashfield unit by the accused, the complainant accepted that she did have belongings left at that unit whilst at the same time she maintained her Lidcombe unit. The complainant accepted that whilst initially the accused had keys to her Lidcombe unit, there was a point where he no longer had possession of them.

54. The complainant was reminded of her evidence of an alleged sexual assault which occurred in August 2021. She accepted that no reference was made to this alleged assault in her first four statements to police. The complainant accepted that the first occasion she mentioned this alleged sexual assault was after being shown messages downloaded from her phone from 27 August 2021. The complainant denied that she had told the accused, shortly before this message was sent, that she was on her period. She could not recall telling the accused on 1 September 2021 that she still had her period. The complainant denied that the sexual intercourse in which they engaged at the time the message was sent on 27 August 2021 was consensual. The complainant denied that the message sent at 7:18pm on 27 August 2021 was deliberately and knowingly false and was sent in the context of a mutual fight or argument. The complainant denied that the message was sent with a view to having the accused seem guilty over something he did not do. She denied that it was an attempt to create false evidence for use later.

55. The complainant accepted that between August and December 2021, they were exploring IVF options for a second child. They initially consulted a specialist together. The complainant was again asked questions about the specialist having a preliminary view that the complainant may have endometriosis and that the complainant was resistant to either a formal diagnosis or testing. She denied that she pressed the accused to make a complaint to AHPRA with respect to one of the specialists they consulted.

56. The complainant was asked questions about arrangements for their son's first birthday in the context of her evidence-in-chief that she had asked the accused to attend the birthday and that he didn't do so. When it was suggested to the complainant that the accused had discussed bringing their son to Newcastle given he would be working, the complainant's answers were non-responsive and created the clear impression that the complainant did not wish to concede this occurred. Ultimately, when pressed, the complainant, almost reluctantly, conceded that it “could have been mentioned", although she couldn't remember. She denied refusing the accused’s requests to bring their son to Newcastle.

57. The complainant could not recall the accused asking her to have sex on 29 December 2021, being the day before the incident the subject of the trial. When it was directly suggested to the complainant that the two engaged in consensual sex on 30 December the complainant's answers were non-responsive: –

Q. You came to the Ashfield unit from somewhere else - that is, you drove there - on 30 December?

A. I cannot remember that I - yeah, I cannot remember.

Q. I suggest that you and ND began consensual sex on that date.

A. So there - there was an argument prior.

Q. You commenced having consensual penile-vaginal intercourse is what I'm suggesting to you.

A. We were having a lot of arguments then - back then, so we - we had - we had arguments just prior to that happening, so I can definitely say that I was not feeling comfortable.

58. Given the central issue in the trial is one of consent relating to the sexual intercourse on 30 December, the complainant's inability to respond directly to the proposition that intercourse was consensual reflects poorly on the complainant's reliability and credibility.

59. The complainant denied that during penile-vaginal intercourse, the accused inadvertently hit her labia when attempting to re-enter her vagina. The complainant denied that she winced in pain in response and that the sex stopped immediately following which they rested and cuddled for about two minutes. The complainant denied that she agreed to resume intercourse and that shortly thereafter the accused ejaculated before his flaccid penis slipped from her vagina. She denied screaming and shouting in pain before demanding that the accused leave the room. She maintained that the accused did push her around the chest or neck area during intercourse. She denied that it was whilst sitting in pain in the hallway that the accused said “sorry”. She denied saying to the accused that she could go to the police and he lose his job and “everything". It was suggested to the complainant that she was able to walk without difficulty and indeed was carrying her son the very next day.

60. It was then suggested to the complainant that in the months after this alleged offence (January and February 2022), she continued to interact with the accused. Again, the complainant's answers were evasive and non-responsive to the propositions directly put. While she was prepared to concede there were “some interactions", she was unable to remember the dates and reluctantly conceded that these interactions may have included some dinners. She accepted that she freely and willingly engaged in renovations at the Ashfield unit in circumstances where the accused had offered to have qualified tradespeople undertake the work. There was some reticence in the complainant accepting that in February 2022 she visited and stayed with the accused in Canberra.

61. The complainant was then asked questions as to the circumstances in which she attended the Ashfield unit on 13 March 2022, being the occasion when the offence constituting the former count 3 was committed. The complainant's evidence in cross-examination as to the circumstances of the visit were entirely inconsistent with her evidence-in-chief. In short, the complainant had initially given evidence that she attended the unit about 3:00pm with the sole purpose of retrieving her and HD’s clothes before returning to her Lidcombe unit. The complainant claimed that she was about to leave, having been present for approximately 10 minutes, when the accused coincidentally arrived. The complainant alleged that she was trying to leave when the accused confronted her and they engaged in a heated discussion on various topics.

62. By way of contrast, the complainant conceded in cross-examination that on that day she had been in communication with the accused with the arrangement that they would meet at the Ashfield apartment later that day. In this context the accused had sent to the complainant a picture of flowers which he had purchased and were in situ at the Ashfield apartment. The complainant admitted that she had driven to the unit knowing that the accused would be there. The complainant accepted that an argument culminated in calling the complainant's mother. However, the complainant was unable to recall that her mother told the two of them to stop being childish and start acting like a couple. The complainant denied that the two of them saw some humour in what had occurred and thereafter commenced consensual sexual intercourse. The complainant denied that there was any foreplay or that it was consensual. She denied that the accused lightly touched her leg or shin to change position. When it was suggested to the complainant, contrary to her evidence-in-chief, that the accused said nothing at the time about not being believed if she went to the police or Court, there was a very long pause prompting counsel to further press the question. The complainant ultimately conceded that she did not think the accused made such a statement, contrary to her evidence-in-chief.

63. The complainant agreed that after 13 March, the couple continued to communicate, and indeed the following day the accused attended the complainant's unit in Lidcombe, indicating that he wished to spend some time with their son. The complainant denied seeing the accused on that day, although she did recall there was a day where there was some discussion between the two. She recalled on that day the accused took their son for a walk although she denied coming out of her room when he attended. The complainant was reluctant to accept that after the alleged sexual assault on 13 March they went to lunch in Burwood with their son and the complainant's mother.

64. The complainant agreed that on 23 March, when the police attended the unit in Ashfield, that she had overslept, having taken a sleeping tablet. Her mother was concerned as to her welfare resulting in the police being called. She admitted that when attending police asked her if she feared the accused, she responded “I don't know, I'm just concerned about him, I think he needs help, his behaviour is unusual." The complainant was not prepared to accept that the police asked her if she was worried about her safety or whether it was a mental-health related concern. She reluctantly, and with some qualification, accepted that she told police she was unsure and did not want to commit to anything. The complainant admitted that she had only told police about two alleged sexual assaults, one that occurred three months prior and the other one year prior to their attendance. She accepted that she said nothing of an alleged sexual assault which had allegedly occurred only 10 days earlier (13 March 2022), although she did refer to a “domestic incident" having occurred at that time. She accepted that she told police that she wanted more time before committing to a version of events.

65. The complainant recalled speaking to Detective Senior Constable Daly at Ashfield Police Station on 25 March 2022. She could not recall telling police that the accused was aware she had moved out and had given no trouble or grief about it. When it was suggested to the complainant that she had told Detective Senior Constable Daly that the accused had never physically harmed HD, the complainant provided non-responsive answers. The general impression was that the complainant was not prepared to admit any statements made to police which cast the accused in anything but a poor light. She accepted, in the context of a statement to police, that the accused had never physically assaulted her. The following is a further example of the complainant's inability to respond directly to propositions put: –

Q. Did Detective Daly advise you to block ND on the phone?

A. Blocked I'm not sure, but I remember sending ND the text message saying this is it.

Q. Did you tell Detective Daly that save but for one occasion you had never said "no" or "stop" during any of what you alleged were sexual assaults upon you?

A. I did explain that there was no consent. I did say at that point that I said no.

Q. I'm putting to you as a positive proposition, JY, that what you told Detective Daly on that day was, "I never said 'no' or 'stop' during any of the alleged sexual assaults other than one."

A. I did mention about these incidents.

66. The complainant had no recollection telling Detective Senior Constable Daly that she had never tried to physically remove the accused from her during their sexual encounters. She denied telling Detective Senior Constable Daly that she was not prepared to provide a statement as she did not want to get the father of her child in trouble or for him potentially to go to prison.

67. The complainant agreed that at some stage in either 2021 or 2022 she was working with New South Wales Health as a cultural support worker, although she had earlier done work in a COVID clinic. She accepted that through this period she interacted with other members of New South Wales Health including nurses.

68. She maintained, despite being challenged, that the accused did tell her that as a wife she was obligated to have sex whenever he wanted. She maintained that the accused had told her to abort the baby, and denied that the accused, alternatively, stated that he should never have done IVF with her. The complainant denied deliberately exaggerating the frequency of the accused telling her to go and die. She maintained that the accused had discouraged her from taking the antidepressant Effexor in 2021. She denied that the accused became upset with finding Effexor in her bedroom in circumstances where no mention had been made of that medication when further consulting an IVF specialist. She accepted that she was diagnosed with depression during her pregnancy, although had no recall as to whether she discussed the matter with investigating police. The complainant denied that it was she who first raised the prospects of being admitted to a mental health facility, it having been flagged by the psychiatrist Dr Pistilli. When pressed on this issue, the complainant's evidence was non-responsive, and it was apparent that the complainant was reluctant to accept that it was she who had raised the prospect of private hospitalisation in a mental health facility. The complainant maintained that it was more than once that the accused mentioned taking their son to Singapore.

69. With respect to her attendance at the Ashfield unit on 13 March 2022, contrary to her evidence-in-chief, the complainant conceded that she was aware the accused would be at Ashfield at the time of her attendance. She was not prepared to concede that her voluntary attendance at the unit was inconsistent with any concerns arising from her previous abuse at the hands of the accused. She maintained the accused engaged in nonconsensual sexual intercourse with her. She did not accept that she could have fled the unit when the accused left to go to the bathroom or for that matter when the Uber delivery driver arrived with food. The complainant was cross-examined on the security arrangements at the unit, no doubt to establish that she had the opportunity to leave when receiving the Uber order. The complainant's evidence in this respect was unsatisfactory, in that she claimed a poor recollection of the security arrangements at the entry to the unit complex, in circumstances where she regularly attended. An example of the complainant's unresponsive answers on this issue is the following:

Q. But they couldn't simply open it themselves unless someone from a unit allowed them in. Is that what you're saying?

A. I believe there was an intercom. Was the door locked? I'm not sure.

Q. I'll just ask one more time. Are you really unable to say whether or not a person who was not a resident at that unit could simply walk through and open the building door without some form of key?

A. People can still come in, but - was it locked or - there was a door there, yeah.

70. The complainant was taken to the statement she provided to police on 1 April 2022, which demonstrated an inconsistency as to whether she walked or ran to the car having left the unit.

71. The complainant was then cross-examined on her knowledge or capacity to report a crime in 2021. I find the complainant's evidence on this issue to be implausible. Despite living in Australia from the age of 14, completing her high school and university education, the complainant claimed that she had no knowledge as to the telephone number to contact police if she wished to make a report. The following evidence of the complainant is difficult to accept as plausible or credible: –

Q. Putting aside the making of phone calls, you also knew as at February 2021 that another way that you could report a crime to the police was by going to a police station in person, didn't you?

A. The police officer told me that I could walk in and report - report these things, yes.

Q. Are you referring to the police on 23 March 2022?

A. Yes.

Q. You knew prior to them telling you that you could go to the station that that was open to you, though, didn't you?

A. No, I didn't - no, I didn't know. Like, I mean, I haven't really been to these kind of things, so-

Q. You didn't think that if you knew about a crime that you wouldn't be permitted to walk into a police station and tell the police about it in 2021?

A. Like, I'm not - like, I'm not used to going to these kind of places, so I was not really familiar.

Q. JY, are you deliberately overstating your ignorance about the process of making a police report in order to explain why you didn't complain earlier?

A. I really didn't know the steps.

72. The complainant did not accept that by taking a sleeping pill and staying at the Ashfield apartment, she was leaving herself vulnerable to a further attack from the accused, given she believed the accused was still in Canberra and unlikely to return.

73. The complainant conceded that on 5 April 2022, she made a phone call to the accused’s workplace in Canberra asking to speak to Dr Denise Riordan. The complainant agreed that she spoke to someone other than Dr Riordan however did not recall saying to this person that Dr Riordan was aware of her claim that she was a victim of domestic violence perpetrated by the accused. The complainant conceded that the WhatsApp message download was provided to investigating police at their request. The complainant was asked about the meaning of various emojis in the messages.

74. In re-examination the complainant clarified her statement to police that she had never been physically assaulted by the accused meaning a “physical attack" as opposed to a sexual assault.

MY

75. MY is the complainant's mother. She recalled the marriage of her daughter and the accused at the beginning of 2020 and thereafter she generally communicated with the accused in short sentences in English (MY gave evidence through an interpreter). They also communicated using a mobile to send messages, the messages sometimes being in English and other times being translated to Korean.

76. During 2020 she was living in Granville. She assisted her daughter to purchase a property in August 2020. She also recalled visiting the accused in Canberra with her daughter and visiting them at their unit in St Leonards. She recalled the accused and the complainant thereafter moving to a unit in Ashfield. She provided considerable assistance to her daughter with the care of her son, HD.

77. She recalled an occasion where she witnessed the accused tell the complainant that she should kill herself. He did so with a “scary face". There were many occasions when this occurred. She recalled an occasion in February or March 2022 when he spoke to the complainant with this tone and at the same time pointing downwards towards her with his index finger. He had also called the complainant “crazy” and told her “kill yourself" and “burn".

78. MY gave evidence of attending the Ashfield unit on about 23 March 2022 in circumstances where she was concerned about her daughter's welfare. She understood that the complainant had attended the Ashfield unit to pack things. The complainant had missed a medical appointment the following day and she made unsuccessful attempts to contact her. She attended the unit and ultimately, she was able to get the complainant's attention, with the neighbours’ assistance. Five to six police subsequently attended.

79. In cross-examination, MY accepted she had visited the accused in Canberra with her daughter and grandson and stayed overnight. The complainant had earlier visited the accused in Canberra whilst pregnant. MY agreed that when her daughter purchased the Lidcombe unit she moved into it, having assisted the complainant in the purchase.

80. She gave evidence that between 2020 and 2022, she enjoyed a close relationship with the complainant and they would be in regular communication, even during the period she was in Korea. She trusted the complainant and there were significant periods where she was looking after HD with her daughter. There were occasions when she would look after HD alone at Lidcombe whilst the complainant was staying at the Ashfield property with the accused. There were up to ten occasions where MY stayed at the Ashfield property with the complainant and the accused.

81. She denied being involved in an argument with the accused as to how many days he would work per week during which she swept things off the table and tipped it over. She maintained that the accused did tell the complainant to kill herself.

82. MY thought the complainant may have told her that she was visiting the accused at Ashfield on 13 March 2022. She had no recollection of telling the complainant and the accused on the phone that they needed to start behaving like a couple.

83. MY accepted that in a statement to police she made no reference to the accused telling the complainant about the accused saying “Table burn. House burn". She further accepted that she had not told police in her statement that the complainant was going to the Ashfield property to pack her luggage.

84. She accepted that on 23 March 2022 she contacted the accused in Canberra, expressing her concern that she was unable to reach the complainant. She denied telling the complainant that the accused was prepared to come home early from work if necessary. MY was not prepared to admit that she discouraged her daughter from an ambulance being called for her. When shown the body worn footage of the police attendance and asked if the footage depicted her saying “No no” to the officer’s suggestion that an ambulance be called, MY said that she could not remember. However, she accepted in the recording that she had indicated that if an ambulance attended that things could get “complicated”, and that the recording depicts her saying in Korean “Ambulance shouldn’t come”. She further accepted that in the body worn video, she is heard telling the complainant that the accused might come home early and that he would finish work in 30 minutes.

85. In re-examination MY indicated that she was discouraging the attendance of an ambulance in circumstances where it could take some time and it would be easier, if necessary, for MY to take her daughter to the hospital.

The Police evidence

86. Evidence was given by general duties police who attended on the accused’s unit at Ashfield on 23 March 2022 following the attendance of the complainant's mother. Evidence was also given by detectives who were alerted to the complainant's allegations that she had been sexually assaulted by the accused. The police evidence was supported by a COPS report. The police involvement in the matter is largely uncontroversial.

87. On the afternoon of 23 March 2022, general duties police attended the unit at Liverpool Road, Ashfield following a report of a witness screaming and yelling outside the building. By the time of the police arrival, they were informed that this person (the complainant's mother) had entered the unit of interest. Police subsequently knocked on the door where they were met by the complainant and her mother at which time they were advised that the complainant's mother was concerned for the complainant's welfare as she had not been answering her phone.

88. Whilst the complainant was spoken to outside the premises, she informed police that she had had a domestic “incident" with the accused two weeks prior where he had “touched her on the foot and told her to remain inside a bedroom". It was apparent that the complainant was not well, further demonstrated on body worn footage tendered in evidence. When police attempted to ascertain whether the complainant held any immediate fears for her safety or her child, she said she just didn't know but was rather concerned about the accused and his “unusual" behaviour. Further, there had been alleged threats over text messages including encouraging the complainant to kill herself.

89. The complainant also referred to a possible sexual assault committed upon her by the accused. As a result, detectives were called. Detective Senior Constable Coughlin attended with other detectives. The complainant advised them that the most recent incident had occurred three months prior inside the unit at Ashfield and a further incident at St Leonards approximately 12 months prior.

90. Given the complainant's state at the time, it was determined that it was not appropriate that statements be obtained, rather it should be followed up later that day. Consistent with this position, the police followed up with the complainant later that afternoon at which time she advised that she wanted more time to think before committing to a version of events. Police advised the complainant to contact them as soon as possible upon deciding whether to proceed.

91. On the afternoon of 25 March 2022, the complainant attended Ashfield Police Station where she spoke to Detective Senior Constable Daly. The complainant told Detective Senior Constable Daly that her main concern with the accused was his strange and unpredictable behaviour, although she was unable to provide any definitive answer of what she meant by that. The complainant confirmed that the accused had never physically hurt her or her son, and she never expressed any genuine fear for their safety.

92. Having reviewed the text messages provided by the complainant, Detective Senior Constable Daly determined that there were no direct threats of physical harm made by the accused towards the complainant or her son and accordingly no offence had been committed.

93. In relation to the sexual assaults the complainant told Detective Senior Constable Daly that she had not said “no” or “stop” to the accused, nor tried to physically remove him from her during the sexual encounters. Detective Senior Constable Daly advised the complainant that according to law there had been no sexual assaults. The complainant stated she understood what was explained to her. In relation to one occasion where the complainant had told the accused to stop and he had not, Detective Senior Constable Daly advised that it could be investigated after she provided a statement. When the process of investigation was explained to the complainant, she indicated that she was not prepared to give a statement as she did not want to get the father of her child in trouble or for him to potentially go to jail. When the complainant asked what she should do next, Detective Daly advised that having removed herself from the residence it may be appropriate to block the accused from all means of contact.

94. On the afternoon of 28 March 2022, police attended the complainant's address at Lidcombe at which time the complainant reiterated her reluctance to provide further detail and/or a statement regarding the domestic violence incident that occurred two weeks prior.

95. On 29 March 2022, Detective Senior Constable Coughlin was advised by a constable from Burwood police station that the complainant had attended the station to seek advice. Detective Senior Constable Coughlin then spoke to the complainant by phone advising that she did not have any new incidences to report and was instructed to attend Ashfield Police Station the following day to provide a statement. The complainant attended Ashfield Police Station the following day and spoke with Detective Senior Constable Coughlin but was unsuccessful in commencing a statement due to the complainant's emotional state. On 1 April 2022, the complainant attended Ashfield police station, providing her first statement. Successive statements were thereafter provided by the complainant in December 2022, August 2024 and September 2024.

The accused’s evidence

96. The accused was born and completed his schooling in Singapore. He arrived in Australia in 2007 and completed his medical training at Queensland University, commencing working as a psychiatric registrar in 2013, and working in various hospitals including Brisbane, Tweed Heads and Sydney. In November 2019, he transitioned from a psychiatric registrar to a consultant psychiatrist. He had been involved in one previous relationship of 7 to 8 months in 2014 during which he was intimate but engaged in no sexual intercourse.

97. The accused met the complainant in late 2018 whilst living at Baulkham Hills and undertaking work at Blacktown Hospital. By their second date they were intimate and first had sexual intercourse at Christmas time. Thereafter the complainant stayed several times at his home in Baulkham Hills. At the time, his landlord provided the complainant with a book which she considered “beneficial reading", titled “His needs, Her needs". There was a particular chapter speaking of “His needs" in the sexual context. The accused stated that he “cheekily" shared the book with the complainant, emphasising the particular chapter. The accused's reference to "cheeky" in his communication with the complainant would become a common theme throughout his evidence, for example:

Q. I will come to these messages, but for at around about this period, what did you understand that JY had a duty to do as it related to sexual intercourse with you?

A. No, I, I, I - by this time, I did not - by, by October 2021 I didn't, I didn't expect any, any - I, I didn't think she - any, any party owed any party sex. If, if it happened it was, it was great, and, and you know if we had times of intimacy that, that would be great. It would, I would look forward to it but I didn't expect or demand anything.

Q. If that is the case, why did you use the word duty?

A. That's just cheeky bedroom talk.

…

Q. Why would you use the language of duty and obligation if in your mind it was confined to willing, voluntary, pleasurable sex?

A. It's just cheeky language I use. Maybe - maybe I had past times in the military myself and it's just language I use, it's not taken - to be taken in any literal sense.

…

Q. Then what did you mean over the page when you simply say strip?

A. That's - that's - that's me being, being cheeky and - and I - I - I - I didn't think, I - I knew it was not going to happen. It's just me expressing a fantasy there. Maybe.

…

Q. If you look at page 49 in response to that message of yours, JY again sends a question mark, then says, "Tomorrow PM free times, why"?

A. Yes.

Q. What did you understand that to mean?

A. That's her saying we can have sex tomorrow afternoon.

Q. You then say, "Early morning," and she sends two question marks and then say, "And PM"?

A. Yeah, that's just me being cheeky and saying - because she didn’t give me an answer about the, the morning. That’s me trying to be cheeky and say maybe we can have sex twice, morning and afternoon then.

…

Q. And you reminded JY from time to time of what you described as that duty or obligation?

A. Maybe in a cheeky way as to try to coax or cajole her, yes.

Q. I suggest to you that you also reminded her of that not in a cheeky or cajoling way but in a more serious way?

A. No.

…

Q. That was you saying, you don't want to go out, you want to stay indoors for her to agree to have sex with you?

A. That's - that may be just that the messages were being sent a bit quickly and I was just being cheeky there. "No thanks, indoors, please." I'm saying--

Q. But the "no, thanks" was--

A. "Let's not have sex when we go out." I was being cheeky about it.

98. By January 2019, the accused and complainant were seeing each other regularly and they would engage in sexual intercourse on most occasions. The accused stated initially he would last somewhere between 10 to 30 minutes during sexual intercourse before ejaculating, dependent upon his “level of energy". At the time, sex was predominantly initiated by the accused using expressions such as “ready" or "shall we". There may also have been non-verbal communication such as raising an eyebrow. The complainant would indicate her agreement to engage in sexual intercourse with kissing or at times undressing. However, there were occasions when the complainant would indicate that she was not interested in sex by saying such things as "tired", or “not now". There were occasions where the accused would try to coax the complainant into engaging in sexual intercourse in any event which sometimes was met with a positive response.

99. In early 2019, the accused moved to Summer Hill, and the complainant would stay overnight at that address. Whilst at Summer Hill, the complainant reported that she would sometimes experience pain during intercourse, particularly whilst in the “doggy" position. On those occasions they would change position and continue to engage in intercourse. The complainant also reported experiencing urinary tract infections which she suggested was caused by the accused. To minimise the risk, the accused had a practice, shortly before starting penetration, to “make a quick detour" to the bathroom where he would wash his penis with warm water. In early 2019 it was the accused’s evidence that the complainant told her that a Korean custom was that on the hundredth day of dating the male would propose to the female.

100. There was talk of marriage in the first half of 2019 including attending a jewellery shop to look at rings.

101. The accused proposed to the complainant by March 2019 and thereafter the complainant moved into the accused’s Summer Hill residence. Not long thereafter, the accused tended to sleep on either a couch or second mattress in circumstances where the complainant was reporting the accused snoring excessively. The complainant was working limited but variable hours at the time with New South Wales Health. The couple continued to enjoy frequent sexual intercourse.

102. In late August, early September, the couple took a two-week trip to Penang, Malaysia and Singapore which included meeting the accused's relatives. It was during this trip the discussion arose as to contraception and pregnancy in the context of engaging in unprotected sex. This discussion led to an arrangement to see the complainant’s general practitioner (Dr Bains) upon their return which revealed, following testing, that the accused suffered from oligospermia, a permanent condition meaning that the accused had a low sperm count. The accused admitted that this diagnosis had a “terrible” impact on him personally and that it reflected a “terrible blow” to his confidence and ego, having previously felt “potent”. The accused stated that their sex life was impacted by the diagnosis, with the sexual encounters not lasting as long and being less frequent.

103. Dr Bains referred the accused and the complainant to Dr Gayer, a gynaecologist and obstetrician. Dr Gayer surmised that the complainant may have endometriosis and advised that it might be suitable for the complainant to undertake long-cycle IVF. The accused described the complainant as being “incensed and displeased” at Dr Gayer’s recommendation and suggested the accused email the clinic complaining, which the accused did, despite not personally having an issue with Dr Gayer’s care.

104. The accused and complainant proceeded with IVF treatment in November 2019, with such treatment involving the complainant receiving daily injections and a cycle of hormonal treatment. The complainant told the accused that all she was going through was because of the accused; he was responsible for her suffering, and he “owed her as a result”.

105. In January 2020, the complainant advised the accused that she wished to study a Masters of Pharmacy in Canberra. Accordingly, the accused began searching for work in Canberra. While applying for work, the accused was connected with Dr Denise Riordan of Canberra Hospital, who informed the accused that she would have a job available for him. However, there would be a waiting period of a few months while the hospital completed credentialing and that he should seek out other work in the interim.

106. The accused found work in Perth for this period and invited the complainant to come to Perth with him, but she insisted on staying in Canberra instead, having moved there in January 2020. The couple married on 16 January 2020. The accused went to Canberra for three days before moving to Perth, at which point the complainant advised the accused that she was pregnant. Whilst in Perth the accused and the complainant were communicating most days using WhatsApp, video calls and text messages.

107. While the accused was in Perth and the complainant was completing her study, the complainant requested that the accused help her with some of her assignments. The accused did not want to, but after the complainant continued begging he told her he would do it but “you will owe me a lot of hot sex”. When questioned on this, the accused gave evidence that he did not believe the complainant would actually owe him sex regardless of her willingness.

108. In February or March 2020, while the complainant was still living in Canberra, she asked the accused to transfer his entire pay to her. After the accused declined, she asked for 70% of his pay. Ultimately, it was agreed that the accused would provide the complainant with 40% of his pay, transferred on a weekly basis. The accused was also paying the complainant’s rent in Canberra. At this stage, the complainant was still working infrequently for New South Wales Health as well as doing translation work and work as a cultural service worker.

109. The accused relocated to Canberra and began work at Canberra Hospital on 4 May 2020. Whist in Canberra the complainant consulted a gynaecologist with whom she was not happy and wished to see an alternative specialist. Intercourse was rare (once or twice) during the term of the pregnancy.

110. Later that month, the complainant was diagnosed with antenatal depression and expressed her desire to move back to Sydney. After some discussion, it was decided that the complainant would go back to Sydney once she found a new place in Sydney and the accused would go back to Sydney in January or February 2021. The accused gave evidence that he was surprised and puzzled she was so keen to return to Sydney although he was unsuccessful in encouraging her to stay.

111. The complainant insisted on looking for a property to buy in Sydney that would be in her name only. She ultimately found a townhouse in Lidcombe, and at the complainant's request, the accused was a guarantor on the loan. She was assisted in finding the purchase by her mother and had some money saved from transfers made by the accused whilst in Perth. She thereafter "shuttled" between Sydney and Canberra.

112. The accused and the complainant’s son HD was born in September 2020. The accused and the complainant did not have sex for 6-7 weeks after HD’s birth due to health advice.

113. The accused completed his work in Canberra and moved to Sydney in January/February 2021. He moved into a unit at St Leonards, the property having been located by the complainant who assisted with the move. The complainant moved into the St Leonards property with her clothes and had key/security access. Despite this, the complainant continued to live between Lidcombe and St Leonards which again was a source of some puzzlement to the accused.

114. It was the accused’s evidence that he felt pressured to purchase a property, leading to the acquisition of the Ashfield unit which settled in August 2021. The complainant moved to the Ashfield unit to which she had her own keys. Shortly thereafter, the accused began working as a visiting medical officer at a hospital in Newcastle and would work there on weekdays and commuted to Sydney for the weekends. On Saturdays, he would work at a private practice in Sydney.

115. In the meantime, the complainant began seeing a psychiatrist Dr Pistilli with respect to her diagnosis and treatment of attention deficit hyperactivity disorder (ADHD). This was in part where the complainant was allegedly exhibiting symptoms of being “impressively disorganised" and easily overwhelmed. The accused expressed some concern to the complainant with her apparent high dosage of Ritalin prescribed by Dr Pistilli. There was a brief discussion as to the impact such medication might have on her sexual interest or libido in that it “could go up or down, either way".

116. He recalled an "unusual" sexual encounter with the complainant in about August 2021 which occurred whilst the complainant was menstruating.

117. Around September 2021 there were discussions around IVF in the context of having a second child. An appointment was initially arranged with an IVF specialist who advised, following review of testing, that there was a possibility the complainant suffered from endometriosis and further that she had a condition known as unicornuate uterus. The complainant was apparently upset at this advice and unhappy with the suggestion that she proceed with a laparoscopy. She wished a complaint be made with respect to the doctor, resulting in a difference of opinion with the accused.

118. It was the accused's evidence that despite his wishes to celebrate their son's first birthday together, the complainant was actively discouraging it. He stated it was only after service of the brief of evidence that he came to learn that on the night of his son’s birthday, the complainant had arranged a “little celebration” in his absence.

119. The accused denied having any concern that the complainant's ADHD medication may have impacted her sex drive or libido and further denied discouraging her from taking it.

120. The accused gave evidence of sexual intercourse with the complainant in late December 2021 at the Ashfield unit being the event the subject of count 1. HD was not at the unit. The accused does not remember what time the intercourse took place but recalls that it wasn’t dark at the time. The complainant and the accused engaged in foreplay, including French kissing and the accused touching the complainant’s breasts and vagina. The complainant removed her jeans. The accused was erect, and he went to the bathroom to wash his penis before coming back to the room naked. The complainant was naked on the bed when the accused returned and, after some foreplay, the two began having penile-vaginal sex with the complainant on her back and the accused on top of her.

121. After approximately two minutes, the accused’s penis came out from the complainant’s vagina and as he was thrusting back in his penis struck the complainant’s labia causing her to wince and say “ow”. The accused stopped the sexual intercourse immediately and asked the complainant if she was okay. The accused then lay down next to complainant in a “spoon sex position”, touching and squeezing the complainant’s bottom, vagina and abdomen which he understood that the complainant enjoyed. After a few minutes, the accused asked the complainant if she was okay and when she said she was, he got on top of her. The accused said, “shall we?” and the complainant nodded. The sexual intercourse continued for two or three minutes, with the complainant maintaining eye contact, moaning in pleasure and having orgasms.

122. The accused ejaculated and continued to thrust for a few more seconds at a slower pace until his penis slipped out.

123. After the sexual intercourse ended, the complainant sat up on the bed and shouted “get out, get out” to him. The accused went into the room next door, where he could hear the complainant. Some minutes later, he walked out of his room and saw the complainant in the hall with her back against the wall with her legs outstretched and her hands covering her vagina. The complainant was making “loud wailing noises” and “thumping” her legs. The accused suggested they go to the GP, as he was worried about her pain.

124. It was the accused’s evidence that he felt “very ashamed, very puzzled" to see the complainant in that state. He wondered if he did something to cause his wife to be in a state of “seeming to be an incredible distress pain [SIC]”; he was “very worried for her" in circumstances where she was “seemingly in a lot of pain, distress".

125. At some point, the complainant told the accused: “I can go to the police, you know, you can lose everything, you know.” The accused responded to her “Why on earth would you do this? This is a domestic issue.”

126. The accused gave evidence as to the state of their marriage in the weeks and months following 30 December 2021.

127. In February 2022, the accused was working between Canberra and Sydney, and the complainant visited the accused in Canberra on 9 February 2022 and 20 February 2022. On both occasions, the complainant visited the accused with their son and her mother. On the second visit, an argument occurred between the complainant and the accused culminating in the complainant returning to Sydney with her mother.

128. On 4 March 2022, the accused met with a family lawyer about the state of his marriage and left with the resolve to make the marriage work. The complainant was angry at finding out the accused had had this meeting.

129. The accused also gave evidence that he had gone out for dinner with the complainant, HD and MY, on two occasions in March 2022.

130. The last time the complainant and the accused were together in person at the Lidcombe apartment was 14 March 2022. Near the letterboxes adjacent to the apartment, the complainant told the accused that she had enrolled to do a Master of Teaching, which gave rise to an argument.

131. The accused saw the complainant at their Ashfield apartment on 20 March 2022 for around an hour with HD, before the accused then travelled to Canberra by bus.

132. On the morning of 23 March 2022, the accused was working in Canberra when MY, the complainant’s mother, contacted the accused seeking HD’s Medicare card and noted that she couldn’t get in touch with the complainant. The accused attempted to get in contact with the complainant without success. This was the date on which police attended the Ashfield unit and spoke with the complainant.

133. In March 2022, the accused ceased sending the complainant 40% of his income in circumstances where he believed he and the complainant “were not really together anymore”. The accused’s understanding that they were no longer together was grounded in things “getting so strained and puzzling” and the accused “hearing so many endless messages and accusations from JY […] that I’m extremely violent, dangerous. She has to keep HD safe.”

134. The accused learnt that the complainant had reported him to police on 25 March 2022. When questioned, the accused stated that the complainant first made accusations to him of this nature in August or September of 2021, or “maybe even possibly earlier”. He would challenge her in the face of these allegations, verbally and by text, although he did not always challenge her in WhatsApp messages as sometimes the disagreement would end if he apologised.

135. It was the evidence of the accused that he challenged the complainant with respect to these allegations, alleging they were “fabrications". The accused first recalled the complainant making allegations of being violent as early as August or September or “even possibly earlier". The accused claimed that he would challenge the complainant when she made these allegations either verbally or in messages in reply. The accused did review the full content of messages provided by the complainant to police. Due to a factory reset on his phone, the accused did not have messages available earlier than March 2022. The accused did not have an independent recollection of either sending or receiving any of the relevant messages.

136. The accused was then progressively led through the messages including additional messages beyond those in the Crown exhibits (Exhibit 17). He referred to the complainant wanting to make complaints about a pharmacist and various specialists. There was a reference to the complainant threatening to report the accused following an incident in which HD had fallen from a sofa bed whilst in the accused's care.

137. There were discussions in mid-2021 around the accused setting up his own practice with the complainant working as his practice manager. The accused referred to messages arising, on his evidence, from a “playful pillow fight" in which the complainant was suggesting she had been hurt. Reference was made to a message in which the complainant referred to her ADHD and seeking “constant thrill and enjoyment". The accused said this was consistent with his own observations of the complainant needing more stimulation, with examples of commencing and not completing courses. There was a reference to threats of the complainant reporting the accused to her psychiatrist, Dr Pistilli. There were suggestions from the complainant that the content of the text messages had been shown to others for their comment.

138. The accused's attention was drawn to a circumstance where he had apologised following an argument, claiming that he did so “to keep the peace and to appease her". In somewhat contradictory evidence, the accused suggested that his apology was “genuine", although that was not to say he was in the wrong. When it was suggested that a genuine apology is normally one where there is an acceptance of being in the wrong, the accused claimed it was only to “keep the peace" even if he didn't think he was in the wrong.

139. The accused denied that he ever told the complainant to abort the baby despite her allegation contained in the messages. The accused was taken to messages in August 2021 in which the complainant alleged that he engaged in nonconsensual sexual intercourse as a result of which she was bleeding for days. It was the accused’s evidence that prior to that message being sent, the complainant had never previously made an allegation of sexual intercourse which he had interpreted as an allegation of rape.

140. There were further messages as to the accused setting up a private practice and likely administrative arrangements. The accused claimed the messages referring to the accused as weird or crazy were not isolated. He gave evidence that emojis sent by the complainant depicted the accused sitting at his laptop, and a nose with dark skin which he understood was intended to tease him.

141. The accused was taken to messages on 16 October 2021 referring to the complainant fulfilling her obligations and her duty to have sex with him. The accused claimed that this was nothing other than “cheeky bedroom talk". It may have in fact been a reference to the accused never “claiming" on a promise that the complainant would have hot sex with him if he assisted with her studies whilst in Perth. He claimed that these statements should not be taken in a “literal sense" but rather was a form of “cheeky language". Similarly, references to not arguing with him or expecting her to be dressed in certain clothing was similarly playful. In a similar vein, references to “come here to me now" and "strip" again were more “being cheeky" and engaging in “dirty talk" or “expressing a fantasy", as opposed to in any way pressuring the complainant to “strip".

142. The accused in some messages expressed concern about the complainant being prescribed too higher a dose of Ritalin. In reference to a message on 4 November 2021 to the complainant having “stamina" and “sexy undies", so that the complainant will be “instantly simulated", "insert immediately and deeply", the messages were not meant to be literal but rather “dirty talk".

143. Reference was made to messages of a potential complaint about Dr Li in circumstances where the complainant was very upset and displeased with him. In the context of a message sent on 22 December 2021, the accused denied that he ever told the complainant to burn the house, although he may have referred to his frustration relating to a table which was purchased and delivered at the time of nasal surgery and getting rid of it by burning it. He denied, despite the messages, ever seeking to kick the complainant out of any residence.

144. The accused commented on a series of messages, exchanged on the evening of 29 December 2021, relating to sexual intercourse on that evening or the next day. The tenor of the messages was such that the complainant was clearly pushing back against the accused’s overtures for sexual intercourse. In response to the complainant suggesting free time the next day, the accused responded “unacceptable" and “tonight". The complainant referred to having a lot of work to do in response to which the accused was suggesting “early morning". The accused in his evidence suggested that he was just being “cheeky".

145. The accused was then asked specific questions relating to messages from the complainant on the evening of the alleged events constituting count 1. The complainant sent a series of messages in quick succession, which stated:

146. forced sex is not love;

147. nonconsensual sex is rape whether within a marriage or any other relationship;

148. she was humiliated and couldn't even walk;

149. the accused had raped her, and her genital area hurts so much.

150. One message also made reference to the plight of marital rape victims generally. Other messages read “want to cry again” and “so traumatic”.

151. When asked why he did not respond to these messages, but rather responded to messages about a completely different topic, the accused said the following:

“Yeah, she - because, because I just didn't want to get into an argument with her about, about these bizarre accusations she's making here. There was - this, this, that, that evening there were just so many bizarre things. She, she told me to - she kicked me out of the room. Suddenly told me to, when sex ended, she suddenly told me - sprung up, told me get out of the room. And then she's against the wall, and then these messages and, and I just didn't want to get into these arguments. Didn't want to get into the circular argument with her and, and—"

148. The accused’s attention was drawn to further messages on the afternoon of the following day, in which the complainant referred to:

149. her vagina hurting so much;

150. the accused making a living hell for the complainant;

151. the complainant having to have sex with the accused whenever he wanted;

152. the complainant telling the accused to “stop” 20 times;

153. the complainant being in pain;

154. the complainant being tired of the accused assaulting her;

155. the complainant intending to report the rape to the police.

156. The accused gave the following further explanation as to why he responded by reference to an entirely different topic as follows: –

“Because we were talking about an entirely different topic and then she suddenly, abruptly, bizarrely brings up these baseless allegations, wild accusations about a non-event and then, I just didn't want to entertain it or get into - sucked into this argument with her especially when things just blow over quickly when, when we argue and that, that was all, that was all that there was to, to it.”

150. It was the evidence of the accused that she never repeated any allegation of a rape on 30 December 2021.

151. Messages on 3 January related to renovation works being carried out on the Ashfield property. On 6 January 2022, there was an exchange of messages relating to lubricant and change of lubricant used in sexual intercourse. On 10 January 2022, messages were exchanged with respect to medication for further IVF treatment at that time. On 10 January 2022 there is again references to renovation of the Ashfield property. Messages on 19 January 2022 included the accused telling the complainant “need to respect hubby and give in to his needs". The complainant responds with “go away" and "busy", with the accused again saying “NEEDS” and that there was no fun in the bedroom “these days" and it was like “going through motion". The accused acknowledged that reference to needing “more frequency" during these messages referred to frequency of sexual intercourse. On 22 January 2022, the accused propositioned the complainant for “hot sex", being "ready to insert and have a long session today". The complainant responds with “NTY" (no thank you).

152. The accused gave evidence that whilst the messaging reflected him believing there was an insufficient quantity or frequency of sexual intercourse, he did not blame the complainant for that. Messaging on 3 February 2022 referred to an additional transfer of funds for the renovation works. The accused was taken to messaging on 18 February 2022 in which the complainant was wanting to lodge a complaint to the residents’ committee about the vehicle of a gardener attending the unit. On 22 February 2022, there were discussions about possibly purchasing a larger home involving an upgrade from the smaller Ashfield unit. This included references to attending with a banker to obtain a preapproval for a property purchase.

153. The accused gave evidence of having met his supervisor Dr Denise Riordan as a couple in Canberra and in Sydney. The accused's evidence-in-chief concluded with several corrections to a chronology as to the relationship (MFI 2). The accused contended that the relationship commenced in December 2018 with their engagement occurring on 4 March 2019. Further, the couple moved to Canberra in early February 2020. The accused worked in Perth between February and May 2020. The complainant purchased the property at Lidcombe in July 2020. The purchase of the Ashfield unit completed in August 2021.

154. In cross-examination, the accused accepted that his diagnosis of oligospermia was upsetting, impacted upon his self-esteem and to an extent affected the sexual relationship with the complainant. He accepted that the IVF treatment involved the complainant being subjected to daily injections which she generally administered to herself and which the complainant described as “painful". There was a commensurate loss of interest in sex by the complainant whilst undergoing this treatment. He acknowledged that the sexual relationship came under strain during the IVF treatment and there was some associated tension with the complainant blaming the accused for having to undergo the treatment.

155. He denied having specific discussions with the complainant prior to marriage as to his “expectations" regarding sexual relations. The accused accepted that he gave the complainant a book provided by his landlord and referred to a particular chapter which he “cheekily" wanted the complainant to read. The accused gave evidence that he did not believe the complainant read the chapter, in circumstances where she was unable to sustain her attention, would get bored with things such as reading books and that it was just not for her. However, having been reminded that the complainant had successfully completed two university degrees, he agreed that the complainant did indeed have the capacity to read the relevant chapter, in circumstances where it was not a substantial book in any event. He denied, when providing the book, having a discussion with the complainant about his own sexual expectations in the marriage. However, he accepted that there were discussions about marital duties which included sexual duties. He accepted that he may well have used the word “duty" which he agreed carried with it an obligation to discharge a duty.

156. He accepted that there were occasions where, despite his desire to engage in sexual intercourse, the complainant was unwilling to do so. Whilst he accepted that from time to time he reminded the complainant of her duty or obligation relating to sexual intercourse, it was his evidence that it was in a “cheeky way as to try to coax or cajole her". He denied that it was expressed in a more serious way. Whilst accepting that he predominantly was the one who initiated sex in the relationship, he denied that as the relationship evolved following marriage, he was more often initiating sex. However, he did accept that the “huge majority if not almost all of the time", it was his attempts to initiate sexual intercourse. He accepted that there were occasions when he would receive “pushback" from the complainant, telling him that as a wife she could do what she wanted, and she had her own rights. He denied that this “pushback" became a source of tension or that he would use the opportunity to attempt to bring the complainant around to the view that they should have sex even when she did not feel like it. He denied believing a woman should engage in sex even though she did not wish to. He denied otherwise there was a “duty" on the complainant to engage in sexual intercourse even when she did not want to. The accused denied that this was the context in which he would refer to the complainant's duty or marital obligations.

157. He accepted there was tension with the complainant surrounding her decision to remain in Canberra to study rather than travel to Perth. The accused accepted that the complainant experienced prenatal depression whilst in Canberra and that she experienced some loneliness, exacerbated by the COVID-19 lockdowns. Further, that shortly after his return from Perth, the complainant wished to move to Sydney and that he did, to an extent, resent the role of the complainant's mother in the relationship. He denied resenting the complainant choosing to change medical practitioners from time to time although it was a source of contention. The complainant’s return to Sydney from Canberra was a source of some difficulty in their relationship.

158. The accused accepted that he initiated the discussion relating to the prospect of the complainant suffering ADHD. He denied any active involvement in the consultations or treatment of the complainant for her ADHD from Dr Pistilli. He had no particular views as to whether the complainant should be taking prescription medication for the condition. Sources of disputation between the two included her view of Dr Li as well as the provision of funds for the complainant whilst he was residing in Perth. The accused accepted that he had alleged the complainant was a “thief" in the context of providing significant funds to undertake renovations on her Lidcombe property as well as providing funds for their son to have his hearing checked which allegedly never happened.

159. The accused accepted that by the middle of 2021, there had been several areas of disagreement between the two of them which at times became bitter. It was not uncommon for those arguments to be ventilated in WhatsApp messages. The accused denied that things were “very rocky" between the two of them by the middle of June 2021. He accepted that there were, on occasions, bitter arguments and talk of divorce, although they would make up shortly thereafter. The accused accepted that many of the remarks contained in the messages were intended to demean the complainant and that they were invariably not in gest or playfully expressed but rather intended to convey that he meant them. He denied they were becoming progressively bitter and angry as 2021 progressed. Whilst he accepted there were on occasions “intense arguments" with bad language, he denied that the relationship was poor in any enduring way.

160. Whilst he accepted that throughout 2021 he had wanted more sex, he denied that this reflected the complainant failing in her marital duties. The accused accepted that discussions about the likely sharing of custody of their son in the event of divorce were occurring since late 2021. He accepted that the name-calling and abuse to which he subjected the complainant were done in a deliberate way with the intention of hurting her feelings. The references in the messages to the complainant getting a job, the accused agreed, were with the intent of belittling her. With respect to another series of demeaning and belittling messages in July 2021, the accused agreed that they were insulting and incredibly demeaning and humiliating. The accused agreed that as a psychiatrist he would have a considerable insight into the impact such messages would have upon the recipient, and even more so on his own wife, despite his claim that he cared for her. The accused accepted that the remarks would have been destructive of the accused's self-esteem as well as being emotionally and psychologically damaging.

161. The accused denied that during the period from July to December 2022, leading to the two-year anniversary of the relationship, the relationship was in its “dying days”. The accused referred to their ongoing attempts at IVF in January 2022 as inconsistent with this proposition. When it was suggested to the accused that in the context of IVF his interests were more in his son and another child rather than the complainant the accused replied: –

Q. Was your interest more in HD and another baby rather than JY?

A. No, no, no. I, I - no, that's somewhat saying I'm just seeing [the complainant] as the, the producer of baby status. Not, not at all. I value [the complainant] herself.

162. He further denied that the acrimony and bitterness between them was not abating through the second half of 2021. Instead, it was the accused’s evidence that their relationship would be punctuated by intense arguments however the general relationship on a day-to-day basis was “good." The accused referred to a physical conflict in late July 2021 in which the complainant had “hurled" a half full bottle of shampoo which smashed on him. It was in this context that his language “was just next level nasty."

163. The accused conceded that in the messages he had told the complainant on more than one occasion to just go and die. He agreed that expressions such as “black selfish worthless nothingness”, “worthless at your core”, failure at everything”, “fail as a wife”, “a liar”, “I hate you bitch” and “just die” reflected intensely expressed feelings of his dislike for the complainant. He further agreed that he was expressing things which were deeply and/or strongly felt at the time. He accepted that speaking in such terms was unlikely to make the complainant receptive to his overtures for intimacy.

164. The accused denied engaging in nonconsensual sexual intercourse as alleged in the complainant's messages from August 2021 and further denied that he had ever previously engaged in nonconsensual sexual intercourse with her. The accused acknowledged, consistent with messages in September 2021, that he had been volatile in the previous few months. There were further abusive messages in late September 2021 including referring to the complainant as “filthy to the core”, “a bitch”, “a failure in life”, “garbage”, “worthless”, “most uses useless wife on earth” and “pest”. Despite the barrage of messages at this time, the accused denied having deep feelings of enmity towards the complainant.

165. The accused was then cross-examined on messages sent by him on 15 October 2021 in which he referred to the complainant having to fulfil her duty and her obligations in the context of his desire for sexual intercourse. The accused suggested that rather than these expressions being in any way directive, they were said in a “playful" context with the things being said in a “silly" or “cheeky" way. His directives were simply his attempts to “persuade" the complainant to have sexual intercourse with him. The accused denied that the sentiments of these messages were that the complainant was saying “no” to his overtures for sexual intercourse. The abusive messages were still evident in November 2021, including telling the complainant she was a “disappointment”, “incompetent” and “a horrible person who he wished would die”.

166. Referring to messages from the complainant on 22 and 23 December 2021 that she was hurt, tired and worn out, it was suggested to the accused that by the end of 2021 the complainant was indeed feeling psychologically and emotionally tired and worn out. The accused denied that he had subjected the complainant to abuse “over and over again for years", as the complainant was suggesting. The accused denied that he was angry all the time. When it was suggested to the accused that the messages were inconsistent with his evidence that he was not angry towards his wife towards the end of 2021, his evidence was that the messages indicated anger “in the moment" and not “as an enduring general matter"; that they represented no more than a “five-minute exchange".

167. Twice during messages on 23 December 2021, the accused apologised. Whilst the accused suggested that he did genuinely mean he was sorry, he denied that this was an acknowledgement of the complaints made by the complainant for which he was apologising.

168. The messaging from the accused continued on 27 December 2021, telling the complainant that:

169. they were not compatible;

170. he did not wish to be with her and really wanted a divorce;

171. he did not love her at all and in fact had “so much loathing" towards her for how “mean and mistrustful" she was;

172. he could not see any future for them;

173. he could not put up with her lies;

174. there were so many faults with her that he really wanted to be “out from you".

175. The accused agreed that the messages over a protracted period were very demeaning and hurtful and that they may well have had a cumulative impact on the complainant. Despite this, he denied that the complainant would be unreceptive to his approaches of intimacy. He denied that the complainant would not be in any mood to have sexual intercourse with him. He denied, despite these messages, that the complainant would be unwilling to give herself sexually to him.

176. The accused denied that on the evening of 30 December 2021 the complainant rebuffed his overtures for sexual intercourse, including telling her that as a wife she was obligated to have sex with him. He denied an ongoing conversation that as a wife she was obligated to have sex with him. He had no recollection of criticising the complainant for wearing jeans. He denied telling the complainant that her medication was reducing her desire for sexual intercourse and that she should not be on it. He denied removing the complainant's clothing before leaving and returning at which time she complained about the use of lubricant on her vagina. He denied engaging in penile-vaginal intercourse without her consent or using any force when she told him to stop. He denied the complainant repeatedly told him to stop and that her attempts to push him away were unsuccessful. The accused denied that he continued to have sexual intercourse despite the complainant clearly crying and being upset. He denied after ejaculating telling the complainant to use tissues.

177. The accused denied any discussion thereafter in which she told him that when she said “stop” that he should stop and that he was hurting her. He denied telling the complainant that if she called the police, no one would believe her.

178. The accused accepted that the messages exchanged from 10:11pm that evening occurred after sexual intercourse, although he was unable to recall when the sexual intercourse had occurred. The accused denied, despite the allegations contained in the messages, that the complainant had told him repeatedly to “stop” after sexual intercourse had commenced. Whilst he accepted that the complainant was sitting outside the room with her hands covering her vagina and her legs outstretched in a distressed state, he denied the complainant was barely able to walk.

179. The accused did not accept that he had nonconsensual intercourse on the expectation that she had a duty to submit to him in the bedroom. The accused denied the assertions contained in the messages from the complainant at 2:04pm the following day that her vagina continued to hurt so much in circumstances where the accused alleged that the complainant was “up and about" within a relatively short timeframe after the sexual intercourse. The accused accepted however that the messages were consistent with the complainant being deeply upset at the time the messages were sent.

180. Ultimately, the accused maintained that on his evidence on the night in question he and the complainant engaged in foreplay including intimate acts following which they engaged in consensual sexual intercourse, and that an incident occurred where he tried to insert his penis causing the complainant to wince in pain and they paused for a period.

181. His evidence was to the effect that:

182. they continued to engage in intercourse during which the complainant was moaning in pleasure, there was eye contact, and the complainant had multiple orgasms;

183. that for reasons he cannot explain the complainant then went from having engaged in intimate and consensual intercourse to springing up to the sitting position and demanding that he leave the room;

184. that she later sat in the corridor naked, covering her vagina in a distressed state;

185. that had she never previously “just snapped”, having just engaged in intimate and consensual sexual intercourse during which they both climaxed.

186. The accused, however, accepted that despite the consensual intercourse, the complainant was subsequently sitting naked in the hallway covering her vagina, seemingly in incredible distress and pain.

187. In re-examination, in the context of it being suggested that the complainant would not have been receptive to sexual intercourse by the end of December 2021, the accused stated that at no time did the complainant state that she was no longer interested in having sex with him.

Dr Denise Riordan

177. Dr Riordan is a consultant psychiatrist and the Director of Clinical Services in the Australian Capital Territory. She first had contact with the accused in 2019 by way of a referral from a New South Wales psychiatrist. The accused applied for a role as a consultant psychiatrist in the ACT. Dr Riordan was on the interview panel. He subsequently accepted a position and worked in Canberra between May 2020 in February 2021. Dr Riordan had ongoing contact with the accused in the context of supervising the accused’s completion of his psychiatric certification. She was also involved in observing the accused interact with patients and was also the recipient of any feedback on his performance in the workplace.

178. In general terms Dr Riordan spoke highly of the accused in that he was likeable, respectable, confident, competent and reliable. He accepted critique relating to time management in a constructive way. Based upon her own experience and feedback, the accused was seen as respectful and likeable, particularly with his attitude towards women. There were no complaints from young people or families with whom the accused interacted as a child and adolescent psychiatrist. She was not aware of any concerns regarding the accused’s behaviour either clinically or more generally.

179. Dr Riordan had also engaged with the accused on a social level involving social events within the Child and Adolescent Psychiatry group as well as the occasional coffee in and around the hospital. In total, Dr Riordan interacted with the accused in professional social engagements on between four and five occasions. Dr Riordan also met the complainant in Canberra shortly after the birth of their son and later in Sydney. Dr Riordan's observations were that they were “very comfortable" with each other. This included a social catch-up at Easter in 2021.

180. Dr Riordan then referred to an occasion in November 2021 when she had arranged to meet the accused and the complainant in Sydney. Again, the accused and the complainant appeared very comfortable with each other, and indeed the complainant seemed to be “chattier". There was a further catch up due in December 2021, where the accused arrived alone in the context of having had an argument with the complainant earlier that morning. The accused appeared agitated. During the catch up, the complainant rang the accused and after a short period it was agreed that they would connect in Dr Riordan's Sydney apartment. Again, her recollection was that they all seemed “very comfortable" with each other.

181. There was no further contact until March 2022, when the accused reached out in an extremely agitated and distressed state. They met in person during which he advised that there were marital difficulties and that allegations had been made against him which were untrue.

182. Dr Riordan gave evidence of the complainant contacting her personal assistant, Jasmeet Smagh, in April 2022, wanting to find out where the accused was in circumstances where the police were looking for him and worried about his safety. Jasmeet subsequently contacted the complainant, Dr Riordan having been satisfied as to the accused's whereabouts and his safety. During this call the complainant told Ms Smagh that Dr Riordan was aware of the domestic violence issues between the complainant and the accused. Dr Riordan was emphatic that there was no truth in this allegation and that at no time had the complainant spoken to Dr Riordan privately about any aspects of her relationship with the accused.

183. Dr Riordan's observation of the accused’s interaction with his son was one of being attentive, calm and respectful to his son's needs.

184. The accused continued to be a highly regarded psychiatrist working in the private sector in the ACT. Dr Riordan was the accused's supervisor following the imposition of AHPRA conditions after charges were laid in 2022. Dr Riordan continued to speak highly of the accused in his professional capacity, including a recent period during which he had been the subject of her supervision.

185. In cross-examination, Dr Riordan stated that on the occasions she witnessed the accused and complainant interacting, at no time did the accused ever use offensive or demeaning terms towards the complainant of the type recorded in the messages otherwise in evidence. The Crown placed before Dr Riordan the extensive list of uncontroversially abusive and demeaning messages sent by the accused to the complainant. When asked whether such messaging affected her evidence about the accused’s character, Dr Riordan indicated it did not affect her evidence of what she knew of him. Asked if such messages would be of concern to her, Dr Riordan indicated that if there was no impact on his clinical work then there would be no concern, although her advice to the accused would be that he should seek appropriate counselling and support. Unless it was something that impacted upon the workplace, it would not be something in which she would be involved. However, Dr Riordan acknowledged that if she had seen the content of such messages, it would raise a concern.

186. Dr Riordan acknowledged that her characterisation of the accused as being respectful, likeable and easy to get on with were in the context of the accused's professional life. It also extended to those occasions where she arranged to meet the accused and the complainant on the five occasions which were identified. She accepted that the accused’s communication in the WhatsApp messages was a very different character to the sort of person about which she testified with respect to relations with his wife. Her descriptions of the accused’s character in his private life, as opposed to his professional life, were limited to those contacts with the accused in the company of the complainant about which she had spoken.

Jasmeet Smagh

187. Ms Smagh gave evidence that in April 2022, whilst was working as a personal assistant to Dr Riordan, she received a call from the complainant. The complainant was inquiring as to the accused’s whereabouts in the context of being concerned for his safety and the fact that the police were looking for him. The complainant also told Ms Smagh that Dr Riordan knew all about the history of domestic violence. The complainant was also inquiring as to the accused’s shifts and his working arrangements.

Sajni Bulchand

188. Ms Bulchand is a 62-year-old living in Malaysia and is the maternal aunt of the accused. Her ex-husband was a senior member of the medical profession. She separated from him in the context of him being physically abusive towards her. There was a particularly brutal instance of violence in which her ex-husband hit her head against a cupboard. Coincidently, the accused was visiting Penang shortly thereafter with respect to his impending medical studies. Ms Bulchand told the accused that her ex-husband was responsible for the injuries which were evident. He encouraged Ms Bulchand to attend police to report the domestic violence.

189. The accused had been involved in some research with her ex-husband and she had also assisted. The accused became aware that her ex-husband was not prepared to acknowledge her efforts in the published research. The accused insisted that she be acknowledged in the published work given the time she had spent on the research paper. Ultimately the accused withdrew from any future medical research with her ex-husband.

Consideration

190. The accused has given evidence in the trial. Whilst in no way seeking to reverse the onus of proof, acknowledging that it is for the Crown at all times to prove the elements of the offence beyond reasonable doubt, I intend to firstly deal with the accused’s evidence in circumstances where, consistent with the Liberato direction, if I accept his evidence or find difficulty accepting his evidence but think it might be true, then he must be acquitted.

191. However, prior to dealing with his evidence, it is appropriate to consider the character evidence called in the accused's case. As noted in the evidence summary, Dr Riordan gave evidence in support of the accused. The evidence was based upon her considerable contact with the accused in the professional setting, including being involved in his initial certification, being privy to any critique or feedback from work colleagues, patients and their families, and supervisor during periods of restricted practice. I accept the evidence of Dr Riordan that in the professional context, the accused is highly regarded and respected, is diligent and dedicated to providing the highest quality of psychiatric treatment and advice.

192. Dr Riordan also spoke to the accused's character in the context of his relationship with the complainant and their son. However, that contact was relatively limited to several social catchups in public and private settings.

193. I accept Dr Riordan's evidence that on those social occasions the accused and the complainant appeared comfortable with each other and there was no display by the accused of any inappropriate communication or dealings with the complainant. However, Dr Riordan's experiences of the accused's interactions with the complainant stand in stark contrast to the content and tone of communications between the two demonstrated in the written messages. It is unsurprising in these circumstances that when the content of those messages was put to Dr Riordan, she not only disavowed any knowledge of such communication, but did so in a manner which reflected her surprise and, in some ways, disbelief.

194. I am comfortably satisfied that the persona presented by the accused in his working environment is very different to that in his personal life, but more particularly, in his relations with the complainant. In the circumstances, whilst I am entitled to take evidence of the accused's good character into account, including the evidence of Dr Riordan, its probative value in considering the likelihood of the accused having committed the offence alleged or otherwise supporting his credibility is limited.

195. Similarly, the evidence of Sajni Bulchand is of limited significance on the same issue in circumstances where her experiences of the accused in a particular setting were somewhat historical and involved the accused's response to Ms Bulchand’s personal circumstances.

196. For the following reasons, not only do I find the accused's account as to what occurred on the evening of 30 December 2021 implausible, I find there are substantial aspects of his evidence that lack credibility, are implausible and difficult to accept.

197. The accused gave evidence that the complainant was inclined to make allegations that the accused was extremely violent and dangerous, consistent with the messaging. When asked when he recalled the complainant first accusing the accused of this type of behaviour, he believed it could have been in August or September 2021 or even possibly earlier. The accused gave evidence that he would challenge the complainant when these allegations first surfaced including in text messages where he would suggest the allegations were “insane”, “crazy" or being fabricated. However, it is apparent that such allegations were being made by the complainant as early as August 2021 (Exhibit D, messages 805 and 813). The accused did not seek to challenge these allegations at the time in the text messages, inconsistent with the accused’s evidence.

198. The accused gave evidence that on several occasions he apologised to the complainant to, in effect, keep the peace. The accused asserted that this still amounted to a genuine apology although it was not to say that he was in the wrong. There is some difficulty in the accused failing to accept that he was apologising as an acknowledgement that he was somehow in the wrong in his dealings with the complainant. The accused’s evidence that the apology was “genuine", without accepting he was in the wrong, does not reflect well upon him.

199. The accused was asked a series of questions in his evidence-in-chief and in cross-examination relating to his use of expressions in the messages as to the complainant fulfilling her marital duties or obligations relating to sexual intercourse in the context of marriage. The accused repeatedly suggested that the use of such expressions was light-hearted, “cheeky" and “playful". That rather than being a serious form of directive to the complainant it was more “silly language".

200. I do not accept the accused's portrayal or characterisation of the messages this way. It does not reflect the general tone of the messages and is inconsistent with the accused's behaviour in the early stages of the relationship. It was the complainant's evidence that the accused would mention to her that as a wife she was obligated to have sexual intercourse with him. There is no issue from the accused’s perspective that early in the relationship the accused provided to the complainant a book relating to the respective needs of partners in a marriage. He accepted that when providing the book to the complainant, he referred her to a particular chapter which he claimed he “cheekily” wanted the complainant to read. He ultimately accepted in cross-examination that there were discussions about marital duties including sexual duties, and he may well have used the word “duty” which carried with it an obligation to discharge a duty.

201. The messages in this context were clear, unambiguous and emphatic. Examples include: –

“tomorrow you will fulfil your dirty [duty]”

“dirty duty tomorrow”

“tonight you will fulfil your obligations”

“don't argue with me”

“this was already agreed upon”

“do a strip show for me first then we go”

“come here to me now”

202. These messages cannot be looked at in isolation but must be considered in context. They were sent in circumstances where the complainant was clearly rebuffing the accused's overtures for sexual intercourse. Further, only a matter of weeks earlier the accused was sending the complainant abusive and demeaning messages.

203. As previously noted, the accused repeatedly sought to dismiss or downplay such messaging, and other methods of seeking to persuade the complainant to engage in sexual intercourse with him, as being cheeky or playful. Given the overall tone of the messages, I do not accept the accused’s evidence. Rather, I find that the accused's repeated reference to the complainant’s duty and obligation to engage in sexual intercourse within the marital context as serious and literal, reflecting a core belief that the complainant did indeed have such obligations or duties.

204. As previously noted, the accused did not believe the complainant read the particular chapter of the book provided to her. I find that the accused attempted to gratuitously disparage the complainant, suggesting that she was unlikely to read the chapter in circumstances where she had an inability to sustain attention and would get bored with things such as reading books. As the accused ultimately acknowledged, such an aspersion was inconsistent with the complainant's capacity to complete two university degrees.

205. When it was suggested to the accused that as 2021 progressed, he came to the view that the complainant was failing in her marital duties as far as his sexual needs were concerned, the accused denied this was the case. Relevantly, he did not see that the complainant “had failed in that duty", rather it was simply a case that he hoped for more sexual activity. I do not accept this evidence. It is inconsistent with my earlier findings that the accused indeed had a core belief that the complainant had clear marital obligations and duties to engage in sexual intercourse with him.

206. When it was suggested to the accused that the engagement in further IVF in early 2020 was no more than an interest in his son and a further baby with the complainant, the accused said: –

"Not, not at all. I value JY herself"

207. I do not accept this evidence as credible. The accused’s suggestion that he valued the complainant, whether in the context of the IVF treatment or generally, is wholly inconsistent with the demeaning and abusive messages sent by the accused to the complainant over a protracted period. Contrary to the accused’s evidence that he valued the complainant herself, the clear tenor of those messages was contrary to such an assertion.

208. The accused denied that the messages he sent to the complainant, particularly as 2021 drew to a close, reflected an enduring sense of anger towards the complainant. Rather, he suggested that they represented no more than at times a “five-minute exchange” but did not reflect an “enduring" attitude. Whilst I accept the messages cannot be looked at in isolation but must be considered in the context of a larger volume of messages as contained in Exhibit 17, the repeated bitterness and, as suggested to the accused by the Crown, deep feelings of enmity towards the complainant are not isolated. There were undoubtedly periods during which the accused and the complainant engaged in more civil communication relating to their circumstances subsisting at any one time. However, ultimately the messages sent by the accused universally returned to the theme of deeply felt hate, spite and bitterness. I do not accept the accused's attempts to downplay the long-term significance of these messages as no more than short exchanges in the midst of an otherwise good relationship.

209. Turning to the accused's evidence as to the events on 30 December 2021, the effect of his evidence was that the complainant freely engaged in consensual intercourse with him, commencing with considerable foreplay. This is difficult to accept given the content of messages exchanged between the accused and the complainant in the week before. Only seven days prior to the events on 30 December the complainant was telling the accused that she was tired, worn out and extremely hurt from the accused's abuse “over and over again for years", that a “normal person" would not be able to handle that level of violence for so long, that she was scared of the accused and his endless threats and that she felt mistreated from his “endless abusive behaviour"

210. The ill-feeling between the two was not isolated to the complainant. The accused told her only a matter of days prior to 30 December (27 December): –

"You and I are not compatible with one another. I do not want to be with you. I really want a divorce.”

“I do not love you at all now. I have so much loathing towards you for how mean and mistrustful you are”

“You agreed today, and a number of times before, that we will divorce. It just has to happen now. I can't see any other future for us”

“I can't put up with your lies anymore. They are lies. And I will not allow you to claim they aren’t because they're so blatant.”

“There are just so many other faults I find with you. I really want out from you"

211. It is difficult to accept in the context of this messaging that somehow the two freely engaged in intimate sexual intercourse on 30 December.

212. Further, it was the accused’s evidence that having engaged in consensual intercourse the complainant suddenly and without warning effectively turned on the accused, demanding he leave the room and that the complainant, within a short period thereafter, was presenting as incredibly distressed, sitting in the hallway of the unit naked whilst covering her vagina.

213. The accused was unable to provide an explanation for the complainant's apparent bizarre behaviour in the context of what he claimed was consensual and intimate sexual intercourse other than to suggest that she was seeking to concoct or fabricate an alleged circumstance of sexual abuse within the marriage. I do not accept this explanation. The accused himself accepts that the complainant presented in an incredibly distressed state. It is implausible that the complainant would go to such lengths in order to fabricate a claim of marital rape. The accused's account of the events of 30 December, culminating in the complainant sending the messages she did to the accused, I find is implausible.

214. In the circumstances, I do not accept the accused’s account as given in his evidence and accordingly I put it to one side.

215. Nevertheless, the question remains as to whether the Crown, on the basis of the evidence I do accept, has proven the accused’s guilt beyond reasonable doubt.

216. Consistent with the “Ewan” direction outlined in Annexure A, it is necessary to carefully consider the complainant’s evidence and be satisfied that she is an honest and reliable witness whose evidence is accurate in vital respects. I cannot find the accused guilty of the offence unless satisfied beyond reasonable doubt that the complainant is an honest and reliable witness. However, in so doing, I should consider whether there is other evidence to support her evidence generally.

217. Consistent with the summary of the complainant's evidence recorded above, her evidence has been carefully examined, not only as to its content, but also as to the way the evidence was given, including responses to questions asked by the Crown and counsel for the accused.

218. The evidence summary identifies repeated occasions where the complainant's responses to questions were evasive, non-responsive or demonstrated an unpreparedness to answer direct and unambiguous questions posed to her. The summary further identifies those parts of the evidence where the complainant professed to have little or no recollection of matters discussed with the accused on subjects where one would have expected at least some memory. The subject matters about which the complainant was non-responsive, evasive or professed to have little or no recollection were generally matters which had the potential to impact on the reliability of her evidence or undermine her claims of being poorly treated by the accused.

219. There were clear inconsistencies in the complainant's account of the circumstances surrounding the sexual encounter constituting the former count 1. It was the complainant’s evidence that this incident involved the use of wrist and ankle restraints. The complainant was adamant that this incident occurred around February 2021 in the context of Valentines Day. The complainant conceded that there was only one sexual encounter with the accused where such restraints were used. The evidence established that the accused purchased such restraints on 12 May 2021 (Exhibit 12), being a date after this offence is alleged to have occurred. The complainant's claim in her evidence that the accused was pushing down on her thighs and collarbone during this encounter was absent from the first four statements provided to police. Similarly, in the first four statements, the complainant had not suggested to police that she pushed the accused away during the sexual interaction. In none of the previous police statements had the complainant suggested that the accused had unclipped the cuffs during sexual intercourse.

220. The complainant’s evidence that she was the subject of a sexual assault in August 2021 was not the subject of any complaint to police in her first four statements. The first occasion this was identified was following the police highlighting messages from 27 August 2021. Given the nature of this alleged assault, detailed in the complainant's evidence, it is difficult to accept that she would not have reported this incident to police when providing detailed statements of alleged nonconsensual sexual intercourse in which the accused engaged.

221. Similarly, the complainant gave inconsistent evidence as to the circumstances in which the alleged offence of the former count 3 was committed as identified in the evidence summary. In short, it was the complainant's evidence-in-chief that she had attended the Ashfield unit for about ten minutes to collect belongings, and she unexpectedly encountered the accused as she was leaving. However, the complainant conceded in cross-examination, consistent with contemporaneous messaging, that arrangements had in fact been made for her to meet the accused at the Ashfield unit.

222. The effect of the accused’s evidence, and the Crown case, with respect to the single count on the indictment was that the complainant did not consent to the accused engaging in sexual intercourse with her from the commencement of the sexual encounter. Indeed, it was the Crown's contention that, given the significant deterioration in the relationship in the second half of 2021, the complainant would not have been receptive to any sexual encounter with the accused. Despite this the complainant was, at best, equivocal when it was suggested that the couple commenced engaging in consensual penile-vaginal intercourse.

223. If the complainant's evidence is to be accepted, she had been subjected to at least four incidences in which the accused had engaged in penile-vaginal intercourse against her will. There were at least an additional 10 other unspecified occasions where the accused had similarly engaged in nonconsensual sexual intercourse. In other words, by the time she first spoke to police about the accused's behaviour, she had been subjected to at least 14 incidences of nonconsensual intercourse at the hands of the accused, the most recent of which had only occurred a matter of weeks before. Despite this, when the complainant first spoke to police, she “didn't know" if she held any immediate fears for her safety. Rather, she was concerned about the accused and his “unusual behaviour". In the days thereafter the complainant, on a visit to Ashfield Police Station, told Detective Senior Constable Daly that her main concern was the accused's strange and unpredictable behaviour, although she was unable to provide any definitive answer of what she meant by that. Further, contrary to her evidence as to what occurred during several of the alleged nonconsensual sexual acts, she had not said “no" or “stop" to the accused, nor tried to physically remove him during sexual encounters. Having been advised that the sexual encounters did not constitute sexual assaults, the complainant identified only one occasion where she had allegedly told the accused to stop.

224. When questioned as to her interaction with Detective Senior Constable Daly and as to what police were told, the complainant demonstrated an inability to answer these questions directly or in a manner appropriately responsive to the propositions being put.

225. When pressed as to her knowledge or capacity to report a crime in 2021, as noted in the summary of the complainant's evidence, the complainant's answers were implausible and/or difficult to accept in circumstances where she had been living in Australia since her teenage years, had successfully completed university level tertiary education and clearly had access to the Internet. Her responses were also inconsistent with her threats to the accused that she could report him to police for his alleged misbehaviour.

226. When spoken to by police on their attendance at Ashfield in March 2022 the complainant referred to a “domestic incident" having occurred only a matter of weeks earlier, although there was no suggestion that the accused had engaged in nonconsensual sexual intercourse on that occasion. This was in the context of the complainant reporting to police that there had been two alleged sexual assaults that occurred three months and one year earlier. However, the complainant did not report to police that the accused had committed a sexual assault upon her only a matter of weeks earlier, contrary to the complainant's evidence that the accused had indeed engaged in nonconsensual sexual intercourse with her at the Ashfield unit.

227. It is also troubling that the complainant told Ms Smagh in April 2022 that Dr Riordan “knows about all the history about domestic violence” involving the accused. I accept the evidence of Dr Riordan that she was unaware of any such domestic violence and indeed, her experience of the couple, albeit limited, was to the contrary. The fact that the complainant was prepared to make such a claim, contrary to the true position, does not reflect well on her honesty and reliability.

228. In considering the reliability and truthfulness of the complainant as a witness I am cognisant of the fact that trauma may affect people differently (s 292D of the Criminal Procedure Act 1986). I accept that people may not show signs of emotional distress when giving evidence about an alleged sexual offence. I accept that the absence of emotional distress does not necessarily mean that they are not telling the truth about an alleged sexual offence. Whilst I carefully considered the complainant's demeanour and general presentation whilst giving evidence, I have not drawn any adverse inference from the fact that generally she did not show obvious signs of emotional distress, although there were some occasions where emotional distress was evident. In considering the inconsistencies to which reference has been made, I do so whilst acknowledging that there may be differences in accounts of sexual offences and that both truthful and untruthful accounts may contain differences (s 293A of the Criminal Procedure Act 1986).

229. I do not draw any adverse inference from any apparent delay in the complainant making a report to police (s 294 of the Criminal Procedure Act 1986). However, there is some force in the accused's submission that despite the apparent closeness in the relationship between the complainant and her mother, and the regularity of their contact during the period of the alleged offending, the complainant at no time reported to her mother that the accused had engaged in nonconsensual sexual intercourse with her. I have also taken account of the fact that nonconsensual sexual activity may occur in different circumstances including between people who are married to one another (s 292A of the Criminal Procedure Act 1986).

230. It is necessary, in determining whether the complainant is an honest and reliable witness, to consider whether there is other evidence to support her evidence generally.

231. The Crown relies upon tendency evidence. In particular, the Crown contends that the accused had a tendency to have a particular state of mind, namely that the complainant as his wife had a duty and obligation to engage in penile-vaginal intercourse with him even when she did not consent or had not consented to such intercourse. I am satisfied, given the nature of the written communications between the accused and the complainant, that the accused did believe that the complainant had a duty and an obligation to engage in penile-vaginal intercourse with him as his wife.

232. Whilst the tenor of the messages does lead to the suspicion that the accused may well have had a belief that the complainant had such a duty or obligation, even when she did not consent or had not consented to penile-vaginal intercourse, I am not satisfied that any belief was acted upon in that the accused engaged in penile-vaginal intercourse even where the complainant did not consent. I am not so satisfied given this is largely dependent upon accepting the complainant as a reliable and honest witness.

233. The Crown relies on relationship and context evidence to establish that the marital relationship between the complainant and the accused was subject to significant ongoing strain, frequent arguments and anger on the part of the accused. The Crown says that the alleged offending occurred in the context of a dysfunctional relationship which was breaking down, and that this context and relationship evidence would indicate that the accused knew or must have known that the complainant would be unreceptive to intimacy from him, unwilling to give herself sexually to him, in no mood to have sex with him, and would in all probability refuse consent to any sexual intercourse with him.

234. The evidence of both the complainant and the accused, on which the Crown relies as relationship and context evidence, illustrates a consistent pattern of bitter disagreement and disdain. This included the complainant and accused blaming one another for their fertility issues and need to undergo IVF, disagreement as to sexual obligations and entitlements within a marriage, and towards the end of this period, persistent indications from the accused that he had “no love” for the complainant and wanted to divorce. The Crown also relied on the evidence of MY in which she stated that she had witnessed on several occasions between 2021-2022 the accused telling the complainant “kill yourself”.

235. The evidence given in Court was supported by the text messages contained in Exhibits A and D. As outlined in the Crown’s closing submissions, the text messages contained in Exhibits A and D contain scores of derogative terms and abusive statements, some of which are used repeatedly, such as:

236. “Bitch”, appearing in 8 messages.

237. “Die – just die”, appearing in 7 messages.

238. “Divorce”, appearing in 13 messages.

239. Variations of “Fail” and “Failure”, appearing in 9 messages.

240. “Liar”, appearing in 3 messages.

241. “Loser”, appearing in 9 messages.

242. Variations of “Manipulator” and “Manipulative”, appearing in 5 messages.

243. Variations of “Narcissist” and “Narcissistic”, appearing in 5 messages.

244. Variations of “Nothing”, appearing in 8 messages.

245. “Pathetic”, appearing in 4 messages.

246. Variations of “Worthless”, appearing in 14 messages.

247. I accept that from at least 2019 (at which time the accused was diagnosed with oligospermia and the couple began IVF treatment), and through to the date of the alleged offence, the relationship was characterised by dysfunction and vitriol. There is no doubt that the relationship was tempestuous for significant periods they were together. It must be acknowledged that interspersed in their periods of bitter conflict and abuse were likely periods of relative calm, demonstrated by the additional messages contained in Exhibit 17. Notwithstanding this, the incident of sexual intercourse without consent is alleged to have occurred in the context of a relationship in which the complainant was subject to persistent abusive language by text message, repeated threats of divorce and a general environment of hostility, particularly in the months leading to the alleged offending.

248. It is in these circumstances that the Crown says I would be satisfied the accused knew that the complainant would be unwilling to have sex with him on 30 December 2021.

249. In accordance with my direction on context and relationship evidence, I consider this evidence only to put the complainant’s evidence into the context of her relationship with the accused, and do not use this evidence to establish a tendency on the part of the accused to commit offences of the type charged nor to reason that the accused must have committed the offence because of the manner in which he acted on other occasions.

250. I accept that this evidence does provide some context to the circumstances in which the offence is alleged to have occurred, and that it is not isolated. It is noted by the accused that the complainant did not give evidence of any occasion where she consented to the sexual encounter because she felt worthless or lacked the autonomy or capacity to say “no”, either by reason of verbal abuse or for any reason. Indeed, it is the Crown case that on the occasion comprising the count on the indictment, the complainant’s lack of consent was communicated by her saying “stop” and “it really hurts” more than ten times, and forcefully trying to push the accused away.

251. Whilst I accept that the relationship evidence reflects poorly, particularly on the accused, I am not satisfied that it is of sufficient probity to impact, in a way favourable to the Crown case, on my findings as to the reliability and truthfulness of the complainant's account, critical to the Crown establishing the offence beyond reasonable doubt.

252. The Crown contends that the accused's failure to respond to, or deny, the complainant's messages alleging marital rape on 30 and 31 December 2021, and the accused’s reactions to the complainant’s accusations in person on 30 December 2021, amount to admissions to count 1 on the indictment.

253. Counsel for the accused contended that the Court would not be persuaded by the purported admissions for two reasons. First, the Court could not be satisfied that the omissions were actually made on the basis that the evidence did not establish the WhatsApp record of messages provided to police was an accurate reflection of the data on the WhatsApp application. The accused relies upon police evidence that the text file provided by the complainant to police was capable of being edited, and in particular, a relevant row of the messages could be deleted.

254. Whilst the complainant was cross-examined on the provision of this material to police, it was never suggested to her that the messages provided to police were anything other than a complete record of the download from her phone. It was not suggested to the complainant that she had deleted messages, and more particularly, that she deleted any replies made by the accused to her messages on 30 and 31 December 2021.

255. Further, the accused did not assert that he had replied to these messages. Indeed, when questioned as to the lack of any reply, the accused did not assert that he had replied, and therefore the document produced to police was an incomplete record of the messages. To the contrary, the accused sought to justify his failure to specifically reply at the time.

256. Accordingly, I am satisfied that the accused did not respond in terms to the complainant's allegations variously made on 30 and 31 December 2021 that the accused had engaged in nonconsensual sexual intercourse at the time alleged in the indictment.

257. As counsel for the accused contended, and consistent with the direction contained in Annexure A, it is necessary as the tribunal of fact to determine whether the admissions were in fact made: R v Lodhi [2006] NSWSC 648; (2006) 163 A Crim R 526 at [22]-[23]. Further it is necessary as the tribunal of fact to determine whether the particular representations were capable of constituting admissions: R v Plevac [1995] 84 A Crim R 570 at [579]-[580].

258. The Crown contends that the accused's failure to respond to the messages constitutes an admission. Inherent in such a contention is an acceptance that the complainant's assertions in the various WhatsApp messages are truthful such that the accused's failure to reply constitutes an admission as to the factual allegations contained in the messages. For the reasons given, I do not find the complainant to be a reliable and honest witness, such that I cannot be satisfied beyond reasonable doubt that the accused did engage in nonconsensual sexual intercourse with the complainant on the date alleged in the indictment, being the underlying factual premise of the allegations contained in the messages. In the circumstances, I am not satisfied that the accused's failure to respond to the allegations contained in the messages constitute an admission.

259. Having carefully considered the complainant's evidence, including any other evidence that may support her evidence generally, I am not satisfied beyond reasonable doubt that the complainant is an honest and reliable witness such that I could be satisfied beyond reasonable doubt that the accused is guilty of the offence as alleged on the single count on the indictment.

260. Accordingly, I enter the following verdict:

261. On count 1, sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 I find the accused NOT GUILTY.

ANNEXURE A

General directions

250. In compliance with s 133(2) and (3) of the C**riminal P**rocedure Act, and as required by the decision of the High Court in Fleming v R (1998) 197 CLR 250, I remind myself of the following principles of law.

251. It is my duty and responsibility to consider whether the accused is “guilty” or “not guilty” of the charge and return my verdict according to the evidence. I have taken into account the submissions on behalf of the Crown and counsel for the accused. However, I note that in no sense are those submissions evidence in the trial.

252. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case – important not only to the accused but also to the whole community. I must, as the judge of the facts, act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgement. As the sole judge of the facts, I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial.

253. I note that in relation to accepting the evidence of any witness I am not obliged to accept the whole of the evidence of any such witness. I may, if I think fit, accept part or reject part of the evidence of a witness. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such an inference is the only reasonable inference that can properly be drawn from the proven facts.

Onus of proof

254. I must direct myself on the onus of proof. This is a criminal trial of the most serious nature and the burden of proof of guilt of the accused is placed on the Crown. The onus rests upon the Crown in respect of every element of the charge. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I remind myself that suspicion is not a substitute for proof beyond reasonable doubt.

255. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt, the accused must be found not guilty.

256. The words “beyond reasonable doubt” are ordinary everyday words and that is how I understand them. If, at the end of my deliberations, after considering the evidence and submissions for the Crown and counsel for the accused, I am not satisfied that the Crown has established any one of the essential ingredients or elements beyond reasonable doubt then it is my duty to return a verdict of “not guilty”, because the Crown will have failed to do what the law requires it to do.

257. I remind myself that it is vitally important that I clearly understand that the accused must be found “not guilty” if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential ingredient or element, even though I feel that he may be guilty, the accused is entitled to the benefit of any reasonable doubt, and I must find him not guilty. However, I also remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus, which rests upon the Crown, is to prove the elements of the charge.

Ewan direction

258. The Crown case is based largely on the evidence of JY. In the circumstances it is necessary for me to carefully assess JY’s evidence. I must carefully examine her evidence and be satisfied that she is an honest and reliable witness whose evidence is accurate in vital respects. This direction follows from the fact that I cannot find the accused guilty of the offence unless I am satisfied beyond reasonable doubt that the complainant is an honest and reliable witness.

259. However, in so doing I should consider whether there is other evidence to support her evidence generally.

Circumstances in which non-consensual activity occurs – s 292A

260. I must bear in mind that non-consensual sexual activity can occur in many different circumstances and between different kinds of people including people who are married to one another.

Response to giving evidence – s 292D

261. I must bear in mind that trauma may affect people differently, which means some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence, but others may not. The absence of emotion or distress does not necessarily mean a person is not telling the truth about an alleged sexual offence, any more than the presence of emotion or distress means they are telling the truth about it.

Difference in complainant’s account – s 293A

262. The defence case is that JY was not telling the truth and that there were differences and inconsistencies between the witness’s accounts.

263. Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is my job as the judge of the facts to decide whether or not any differences in the complainant's account are important in assessing their truthfulness and reliability.

Delay in, or absence of, complaint – s 294

264. The complainant did not make any complaint to police about what she claims the accused did to her until 23 March 2022, being approximately 12 weeks after the alleged incident. This was in circumstances where the complainant herself did not call police or attend a police station, but rather police attended the complainant’s unit in Ashfield having been called in relation to the complainant’s mother.

265. The delay in making a complaint to police about the alleged conduct of the accused does not necessarily indicate the allegation the offence was committed is false. There may be good reasons why a victim of sexual assault may hesitate in making, or may refrain from making, a complaint about such an assault.

Tendency direction

266. Part of the Crown case is that the accused had a tendency to have a particular state of mind, namely, that JY as his wife had a duty and obligation to engage in penile/vaginal intercourse with him even when she did not consent or had not consented to penile/vaginal intercourse with him.

267. Further the Crown contends that the accused has a tendency to act in particular way, namely to engage in penile/vaginal intercourse with her even when she did not consent or had not consented to the penile/vaginal intercourse.

268. In establishing the tendency, the Crown relies on the WhatsApp messages contained in Exhibit A, which include instructions that the complainant “fulfil” her “duty” and “obligations”, that she “now come here” and “be ready”, and further instructions on what she wears, as well as messages from the complainant expressing that she does not want to engage in sexual activity..

269. The Crown also relies on the complainant’s evidence in Court in establishing this tendency. In particular, the Crown referred to evidence the complainant gave that 10-20 times between 2019-2020, the accused told the complainant that as a wife she was “obligated to have sex with him” and on some days she would respond (e.g by saying “I can do what I want”) while on other days she would just ignore him, when he was “angry and upset”..

270. The Crown says that, based on the evidence traversed above, I would be satisfied that the accused had this tendency.

271. I will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so, I am not to consider each of the acts in isolation, but instead should consider all the evidence and decide what conduct I am satisfied occurred.

272. If I decide that all, or at least some, of the conduct occurred, I then need to consider whether it enables the inference to be drawn that the accused had the tendency to have a state of mind that JY as his wife had a duty and obligation to engage in penile/vaginal intercourse with him even when she did not consent or had not consented to penile/vaginal intercourse with him, and to act in a particularly way, namely to engage in penile/vaginal intercourse with the complainant even when she did not consent or had not consented to the penile/vaginal intercourse.

273. Care needs to be applied to the drawing of inferences. I must consider whether there might be alternative explanations for the evidence. I should not draw an inference from the direct evidence unless it is a rational inference in the circumstances.

274. If I am not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred. In those circumstances, I would put the whole issue of tendency to one side and confine my consideration to the other parts of the Crown’s case.

275. If I find the accused did have this tendency, then I can use that in considering whether it is more likely he committed the specific offence with which he is charged. However, it is essential I consider whether the accused acted in accordance with this tendency and in the manner alleged on the specific occasion identified on the indictment.

276. Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offences, but it is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasion that is the subject of the charge. That is the only way the accused’s tendency may be used.

277. Ultimately, I must decide whether the specific offence with which the accused has been charged has been proved. That decision must be based upon the evidence relevant to the charge. This includes the evidence of the complainant about what the accused did. It will include the tendency alleged by the Crown, provided I am satisfied it has been established.

278. When considering whether a charge has been proved, I will have to decide whether the Crown has proved the essential elements of that charge.

Relationship / context direction

279. Before the accused can be convicted, I must be satisfied beyond reasonable doubt that the particular allegation occurred. That is, the Crown must prove the particular act to which the charge relates as alleged by the complainant.

280. In addition to the evidence led by the Crown specifically on the count in the indictment, the Crown has led evidence of other behaviour of the accused and state of the relationship in the months leading up to and at the time of the incident alleged on the indictment.

281. The evidence upon which the Crown relies to establish context and the state of the relationship is traversed in paragraphs 2-32 and paragraph 53 of the Crown’s closing submissions dated 10 November 2025. This evidence comprises of messages contained in Exhibits A and D, and evidence given in Court by the complainant, the accused and MY regarding the couple’s period living apart, their fertility issues, the volume and intensity of the abusive messages sent by the accused to the complainant including messages wherein the accused stated he wanted to divorce the complainant, occasions where MY observed the accused telling the complainant “kill yourself”, and allegations by the complainant that there were other occasions beyond the incident charged on the indictment in which the complainant did not consent to sexual intercourse with the accused.

282. This evidence was admitted solely for the purpose of placing the complainant’s evidence into what the Crown says is a realistic and intelligible context, being the state of their relationship in the lead up to and at the time of the alleged incident, and the history of the conduct by the accused toward the complainant as she alleges it took place.

283. The Crown submits that the relationship and context evidence establishes that the complainant would have been unreceptive to intimacy at the time of the alleged incident and that the accused knew or must have known this to be the case.

284. The Crown says that without evidence of these acts, the Court would wonder about the likelihood of apparently isolated acts occurring within a marriage suddenly, and seemingly without reason. If the evidence of other acts had not been considered, the complainant’s evidence might appear less credible because it was less understandable. The evidence is placed before the Court only to answer questions that might otherwise arise about the particular allegation on the indictment.

285. If, for example, the particular act charged is placed in a wider context, that is, the context of a dysfunctional relationship breaking down and characterised by significant and ongoing strain, disagreements, and anger on the part of the accused, then what might appear to be a curious feature of the complainant’s evidence — that the complainant was uninclined to engage in sexual activity with the accused, who is her husband, and that the accused would proceed to have sexual intercourse with the complainant anyway — would disappear. The complainant’s account of her relationship with the accused allows her to more naturally and intelligibly explain her account of what allegedly took place.

286. The Crown can therefore lead evidence of other acts between the accused and the complainant to place the particular charge into the context of the complainant’s account of the whole of the accused’s alleged conduct.

287. In considering this evidence I remind myself of certain warnings with regard to its use.

288. I must not use this evidence 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 offence charged because the complainant made other allegations against him. This is not the reason the Crown placed the evidence before the Court. The evidence has a very limited purpose, and it cannot be used for any other purpose or as evidence that the particular allegation has been proved beyond reasonable doubt.

289. I must not reason that, just because the accused may have done something wrong to the complainant on some occasion, he must have done so on the occasion alleged on the indictment. The accused cannot be punished for other acts attributed to him by finding him guilty of the charge on the indictment. Such a line of reasoning would amount to a misuse of the evidence and not be in accordance with the law.

Character direction (general good character)

290. The accused has called evidence to establish that he is a person of good character. The accused has never been charged with or convicted of any offence. That evidence has not been challenged by the Crown. Therefore, I should accept the fact that the accused is a person of good character. The accused also relies upon good character evidence from Dr Denise Riordan and Sajni Bulchand.

291. The law provides that the judge of fact is entitled to take evidence of an accused’s good character into account in favour of him on the question of whether the Crown has proved the accused’s guilt beyond reasonable doubt. The fact that the accused is a person of good character is relevant to the likelihood of his having committed the offence alleged. I may take into account the accused’s good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown.

292. Further, I may use the fact that the accused is a person of good character to support his credibility. I may reason that a person of good character is less likely to lie or give a false account either in giving evidence or in giving an account of the events in answer to questions asked by the police.

293. None of this means, of course, that good character provides the accused with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of the guilt of the accused.

Motive to lie

294. The accused has alleged that the complainant has lied. The Crown bears the onus of proof in respect to each of the elements of the offence beyond reasonable doubt. The accused bears no onus to prove a motive by any of the witnesses to lie. If I were to reject any motive asserted by the accused, this does not necessarily justify a conclusion that the evidence of the witness is truthful. Further it would be wrong to conclude that if the complainant had no motive to lie then they are, by that reason alone, telling the truth.

Disputed admissions

295. Part of the Crown case is that the accused’s failure to respond to the complainant’s WhatsApp messages on 30 December and 31 December in which she alleged the offence amount to an admission to the subject charge (Exhibit A, messages 109 – 138).

296. It was the evidence of the complainant that after the incident, she said to the accused “this is rape, I want to call the police”. The complainant stated that the accused said sorry a few times, and then said “Yeah, call the police, if you’re that confident” and “No one will believe you.” In cross-examination, the accused denied this interaction occurred.

297. Before I can rely on the accused’s alleged admissions in person on 30 December 2021, his failure to acknowledge the accusations by the complainant on 30 December 2021 in person and on Whatsapp, and failure to acknowledge the accusations by the complainant on 31 December 2021 on Whatsapp, I must first be satisfied that admissions were made, and that such admissions were truthful.

Liberato direction

298. The accused relies on his denials and the evidence he gave in Court.

299. The accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and he is entitled to the benefit of any reasonable doubt I may have.

300. It follows from this that:

301. First, if I believe the accused’s version of events as given to police, obviously I must acquit.

302. Second, if I find difficulty in accepting the accused’s version provided to police, but think it might be true, then I must acquit.

303. Third, if I do not believe the accused’s account provided to police, then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt

304. It is important to note the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have.

305. This account is another piece of evidence in the trial. I am entitled to take this evidence into account in determining whether the accused’s guilt has been proven by the Crown beyond reasonable doubt.

Accused’s acquittal

303. In this trial, the complainant’s evidence as to what were counts 1 and 3 at the previous trial, which were subject of acquittals, was admitted for the limited purpose of assessing the complainant’s credibility and reliability.

304. To give full effect to the acquittals at the previous trial, I direct myself as a matter of law that I am not permitted to reason in a way which is inconsistent with the accused’s acquittals.