Criminal Law - Particular offences - Offences against the person - Miscellaneous offences - Other miscellaneous offences and matters - Persistent family violence - Findings of fact.

Judgment Number: [2023] TASSC 5

1. The accused has pleaded guilty to a charge of persistent family violence, contrary to s 170A(2) of the Criminal Code. The particulars of the charge allege that he committed persistent family violence against his former wife between about 2004 and 2018. For sentencing purposes it became necessary for me to make findings of fact. On 16 March 2023 I made findings that were, generally speaking, adverse to the accused. These are my reasons for my findings. The findings are set out at the end of these reasons.
2. By virtue of s 170A(3) of the Criminal Code, an accused person is guilty of the crime of persistent family violence if he or she commits an unlawful family violence act in relation to his or her spouse or partner on at least three occasions. The Crown asserted that the accused committed the crime charged by committing 24 crimes against the complainant during the relevant period. At a directions hearing on 26 May 2022 the accused, through his counsel, admitted that he committed eight of the alleged crimes, but denied committing the other sixteen. In relation to some of the admitted crimes, the particulars were disputed in part. The admissions related to some of the less serious crimes alleged by the Crown, comprising injuries to property and some minor assaults. The disputed allegations included nine allegations of rape, one of attempted rape, one of assaulting a pregnant woman, and one of assault.
3. On 26 May 2022 the Crown delivered particulars of the 24 alleged unlawful family violence acts, numbered from 1 to 24. I will refer to those allegations by those numbers. I conducted a hearing relating to the factual disputes. At the conclusion of that hearing, counsel for the Crown conceded that the evidence did not support allegation 16, which was an allegation of injury to property.
4. When disputes of fact arise in sentencing proceedings, the Crown bears the onus of proving facts adverse to the interests of the accused beyond reasonable doubt, whereas the accused bears the onus of proving mitigating facts on the balance of probabilities: R v Olbrich [1999] HCA 54, 199 CLR 270. For the reasons which follow, I am satisfied beyond reasonable doubt that the accused committed nearly all of the acts alleged by the Crown.

1. The accused and the complainant commenced cohabitation in 2004. They were married in May 2006. There are four children of their relationship. They were born during the years from 2004 to 2011. There was some temporary separations when the complainant left the accused, taking the children with her. They finally separated on 11 March 2017 when the complainant again left the accused, taking the children with her.
2. The complainant spoke to police officers about the accused's conduct in March 2014, and made a statutory declaration in relation to his behaviour. However she did not make any allegations of rape or sexual violence at that time. She spoke to police officers again nearly three years after the final separation. On 6 January 2020 she took part in a video-recorded interview with police officers. Later in January 2020 she made another statutory declaration that was prepared by police officers. A recording of the interview and a copy of the statutory declaration were relied on at the hearing before me as part of the complainant's evidence-in-chief. Statutory declarations by three of the couple's children were tendered by consent. The complainant and a number of other witnesses gave oral evidence. The accused did not give or adduce evidence. He has not participated in a police interview.
3. I will set out each of the Crown's 24 allegations, as contained in the particulars of 26 May 2022, and outline the evidence relating to each of them, and make some comments in relation to some of them.

1. The Crown alleged that between about 1 October 2004 and 31 October 2004, at the couple's then home, the accused had vaginal sexual intercourse with the complainant without her consent. This allegation was denied.
2. The complainant gave evidence to the following effect. She was about seven months pregnant with her first child. She was really sick during that pregnancy. She and the accused had not had sex for possibly a few weeks. It was night time. She and the accused were going to bed. The curtains were closed. She had a bucket beside the bed because she would be sick when she woke up. After getting into bed she lent over and vomited into the bucket. While she was trying to vomit the accused took off her clothes and raped her from behind. He had vaginal intercourse with her. This was the first time he raped her. He rolled over and went to sleep. She lay awake and mulled it over in her head.

1. The particulars alleged that between about 1 January 2005 and 31 December 2005, at the couple's then home, the accused injured the property of the complainant by damaging windows at that property.
2. Counsel for the accused told me in May 2022 that he admitted committing that crime, but that he conceded damaging only one window.
3. It seems likely that the complainant and the accused were co-owners of the property to which this allegation relates. If so, their co-ownership would not provide the accused with a defence. That is because s 267(2) of the Criminal Code provides that, "No person is justified in causing any injury to property by the fact that he has a partial interest therein."
4. During the police interview the complainant gave an account of the relevant events to the following effect. She and the accused were visiting her niece. It was her niece's birthday. The accused had a lot to drink and was speaking unpleasantly to other people. She took drinks from his Eski and threw them out of his reach. He got into their car and drove off doing burnouts. She was worried that he would hurt himself. Her sister went to their house, returned, and said that three to five windows had been smashed there, and that the accused had thrown things of the complainant's outside and burnt them. The complainant went home the next day.
5. Under cross-examination the complainant said that the accused had damaged walls and windows at that time. She said that there was a different occasion when the accused had thrown a beer bottle through the front window. She denied that there was only one such occasion and that he only damaged one window.
6. The complainant's sister was not called as a witness. The allegation related only to windows and not other possessions of the complainant. For sentencing purposes the dispute as to the number of broken windows is insignificant. I need not make a finding as to whether the accused broke one window or more than one window on this occasion. I will sentence him on the basis that he broke only one.

1. In the particulars the Crown alleged that between about 1 January 2005 and 31 March 2005, the accused had vaginal sexual intercourse with the complainant at South Hobart without her consent. This allegation was denied.
2. During her police interview the complainant gave a description of events to the following effect. The accused booked a holiday for a couple of days. He and she went without the children to a hotel with a pool. She was menstruating. He made it clear that he wanted to have sex. She indicated that that was not what they were there to do. He kept persisting and forcing himself on her. He took off her clothes completely and raped her vaginally on the bed at the hotel. She was crying the whole way through. As soon as he finished he said that he would run her a bath. He ran her a bath and she got into it. He came in and said that he was sorry and that he wanted to marry her.
3. Under cross-examination the complainant explained that the accused indicated that he wanted to have sex by trying to grope her and pull her towards the bed, not by asking. It was put to her that she was not crying the whole time, and she responded that she did not remember in relation to that occasion.

1. The Crown alleged in the particulars that between about 1 January 2004 and 11 March 2017 at the couple's home, the accused had vaginal sexual intercourse with the complainant without her consent. This allegation was denied.
2. In the police interview the complainant gave an account to the following effect. They had both gone to bed at their home. They had been asleep for about an hour. Then she felt the accused try to touch her. She was exhausted. She was angry, but does not remember what she was angry about. She decided that she was going to fight him off. She thought that he got her top off. She remembered crying and screaming at him to stop. He somehow tore her "undies" off, and that hurt. They would not tear, but he tore them off. She fought as much as she could. He still raped her. She remembered being in the middle of the bed on her knees trying to stop him from taking her clothes off when he grabbed her undies on the side and ripped with one hand. It sort of really dug into her. He kept going with both hands until he tore them off completely. He pushed her straight down onto her back. By that stage she had no energy. He grabbed her by the wrists and raped her vaginally.
3. The complainant was cross-examined about this allegation. She adhered to the version of events that she gave to the police.

1. The Crown alleged that between about 1 January 2007 and 14 June 2007 at the couple's then home, the accused unlawfully assaulted the complainant without her consent "by throwing paint at her, pushing her up against a wall, by throwing her onto a bed, by sitting on her and by holding her hands down". All of those allegations were denied. The accused accepted that there had been an incident on the occasion in question, but denied all allegations of assault.
2. In her police interview the complainant gave an account of events to the following effect. She was pregnant with her second child. She and the accused had been renovating their bathroom. He was painting it, but was doing a slap-happy job. He had been drinking. She offered to finish the painting. He got angry. He tossed the paint. It flew all over the bathroom, "all over absolutely everything". He held her up against the wall outside the bathroom. He was really angry. Then he threw her onto the bed and sat on her. He held her hands down. Then he got up and left in his car.
3. Under cross-examination it was put to her that there was an argument about the way the painting was being done, but no assault. The complainant did not agree with that.
4. Under s 184A of the Criminal Code, the crime of "Assault on pregnant woman" is committed when a person unlawfully assaults a woman, knowing that woman to be pregnant. Whilst there is evidence before me of the complainant being pregnant at the time of this incident, there is no evidence that the accused then knew she was pregnant. That is to say, there is no evidence that the pregnancy was obvious or that the complainant had told the accused about it. It is open to me to make a finding that he assaulted the complainant in the respects alleged on this occasion, and to make a finding that she was pregnant at the time, but in the circumstances it is not open to me to make a finding that the accused knew that she was pregnant.

1. The Crown alleged in the particulars that on a date in 2007 at the couple's home, the accused had vaginal sexual intercourse with the complainant without her consent. This allegation was denied.
2. In her police interview the complainant gave an account of events to the following effect. On the day that she came home from hospital after the birth of her second child she was in a lot of pain and feeling really lethargic. There was a mattress on the floor in the lounge room next to the baby's bassinette. The complainant lay on the mattress. The accused said, "I haven't had it in a while." The complainant told him that she had just had a baby, that she had stitches, and that she was bleeding. She asked, "How can you do that?" He ignored her and raped her vaginally on the mattress.
3. Under cross-examination, counsel for the accused put to the complainant that his client had asked her if she wanted to have intercourse on this occasion, and that she agreed. She denied agreeing and denied that he asked. The question asked by counsel contained a concession that the accused did have sexual intercourse with the complainant on that occasion. It seems highly unlikely that any woman would agree to have sexual intercourse in the circumstances that the complainant described.
4. The complainant's present husband gave evidence of the complainant giving him an account of this incident to the following effect. The complainant had a mattress on the floor. The accused had sex with her on the mattress on the floor in the lounge room. She did not want it because she was still recovering from giving birth to her second child. It was not long after she gave birth.

1. The Crown alleged that between about 16 June 2007 and 31 July 2007 at the couple's home, the accused had anal sexual intercourse with the complainant without her consent. This allegation was denied.
2. The complainant told the police that there were times when the accused raped her anally. In her interview she gave an account of one such time, to the following effect. On one of the occasions that she was anally raped, she got haemorrhoids. She was in a lot of pain and could not sit down for a week or two. She went to a doctor, but did not tell the doctor what had happened.

1. The particulars alleged that between about 1 January 2008 and 31 December 2008 at the couple's home, the accused injured the property of the complainant by throwing a beer bottle through a window, smashing the window. The allegation is denied.
2. During the police interview the complainant gave an account of events to the following effect. The accused had got angry with her. She did not remember why. She was sitting on a couch with one of her children watching television. The accused came in. He was drinking. He threw a beer bottle. It flew past the faces of the child and herself and went straight through the front window of the house, smashing it. The accused turned around, walked out, got into his car, and left.

1. This allegation relates to the same incident as allegation 8. The Crown alleged in the particulars that the accused unlawfully assaulted the complainant by throwing a beer bottle in front of her and through a window. The assault was denied.
2. The evidence is consistent with the accused committing the crime of assault by throwing the beer bottle, either on the basis that he was attempting to strike the complainant with it, or on the basis that the throwing amounted to a threatening gesture.

1. The Crown alleged in the particulars that between about 1 January 2005 and 31 December 2017 the accused injured the property of the complainant by throwing a beer bottle at a wall. The allegation was denied.
2. During the police interview the complainant gave an account of events to the following effect. She had arranged to host a girl's 18th birthday party at their home. The accused came home. He walked through the door with a beer in his hand. She was arranging food on plates. The accused started messing up what she had done. She got a bit upset, offered him some food, and said that he did not need to mess up what she had done. He threw his beer against the wall. Beer went everywhere. He picked the beer bottle up and shook it over things on a table, called her names, walked out the door, and left.

1. It was alleged in the particulars that between 1 January 2004 and 31 December 2017, the accused injured the property of the complainant "by throwing her mobile phone at her and causing it to smash on the concrete". This allegation was admitted.
2. In her police interview the accused gave a description of events to the following effect. They were at home. The accused got angry about something. He grabbed her phone from her and threw it. It flew past her head, and out their back window, and smashed on the concrete outside. That account was not disputed.

1. This allegation relates to the same incident as allegation 11. The particulars alleged that the accused assaulted the complainant "by throwing her mobile phone at her". His counsel conceded that he committed the crime of assault on that occasion, but only on the basis that he committed that crime by making a threatening gesture. In other words, the accused denied that he intended the mobile phone to strike the complainant, but conceded that he was guilty on the basis that, by the gesture of throwing the phone, he threatened to apply force to the complainant's body.
2. For sentencing purposes I do not need to make a finding as to whether the accused intended the phone to strike the complainant. Such a finding would not make any difference to the sentence that I will impose. I will sentence him on the basis that he assaulted the complainant on this occasion by making a threatening gesture.

1. The Crown alleged in the particulars that between about 1 January 2011 and 31 December 2017 at the couple's home, the accused unlawfully assaulted the complainant "by grabbing her mobile phone from her hands, throwing it at the television and then punching the television a number of times". Counsel for the accused told me on 26 May 2022 that he admitted assaulting the complainant by grabbing her mobile phone from her hands, but that he denied the rest of the allegation.
2. In her police interview the complainant gave an account of events to the following effect. She was sitting on the couch in the lounge room with all her children looking at a video on Facebook on her mobile phone. The accused got angry. He came over and tried to get the phone out of her hand. She tried to prevent him from taking it, but eventually he pried it out of her hands and threw it. It smashed the television set, which his mother had given them. He went over to the television set and punched his fist into it four or five times. He then walked out the door.
3. For sentencing purposes, I accept that the assault ended once the accused had removed the phone from the complainant's hands.

1. This allegation relates to the same incident as allegation 13. The particulars allege that the accused injured the property of the complainant by throwing her mobile phone at the television set and then punching it a number of times. That allegation was not disputed.

1. The particulars alleged that between about 1 January 2011 and 31 December 2017 the accused injured the property of the complainant "by throwing her mobile phone against the wall, causing it to smash". The allegation was admitted.
2. The couple's third child said the following in a statutory declaration:

"When Mum and Dad were living together I remember them fighting. I remember smashing Mum's phone. Dad threw Mum's phone against the wall ...".

1. Nothing was said by the complainant in her police interview to support this allegation. However the complainant said during her cross-examination that there was one occasion when the accused smashed a mobile phone of hers by throwing it against a wall.
2. Another of the children gave an account of the accused smashing the complainant's phone against a wall on the occasion that he smashed the television set. The accused has not contended that allegation 14 and allegation 15 relate to the same occasion, or that they might. I was told that each allegation was admitted. I will therefore sentence on the basis that the two allegations relate to separate occasions.

1. The Crown conceded that there was no evidence to support this allegation. The particulars asserted that between about 1 January 2011 and 31 December 2017 at the couple's home, the accused injured the property of the complainant by throwing her mobile phone across the kitchen. The allegation was denied. There was no evidence of a phone throwing incident that was distinct from those that were the subject of allegations 11, 14, and 15.

1. It was alleged in the particulars that on or about a date in 2013 at the couple's home, the accused had vaginal sexual intercourse with the complainant without her consent. The allegation was denied.
2. During her police interview the complainant gave an account of events to the following effect. She was separated from the complainant in 2013. She went back to their house to get some things. The accused held her over the side of the bed. She was on her back. Her legs were lying across the bed. Her back was bent, with her head near the floor. The accused raped her vaginally. It was painful. After he finished, she stood up and her back was really sore. She went to see a chiropractor because of her sore back. The chiropractor whom she saw was not her usual chiropractor.
3. The complainant gave the police the name of the chiropractor in question. They obtained his records. They show that she saw him on 18 March 2013 and gave a history of an onset of back pain two days previously. She did not tell him that she had been raped. It appears from his notes that she gave a history of experiencing pain when she got out of bed. The chiropractor's records are hard evidence of the date of this rape, if it occurred.

1. It was alleged in the particulars that between about 1 January 2011 and 31 December 2017 the accused assaulted the complainant by "punching the windscreen on the driver's window of a vehicle, while she was seated in the driver's seat". This allegation was admitted.
2. The only evidence of this assault is to be found in statutory declarations made by two of the couple's children. Their second child said this:

"I remember the next morning Mum got all the kids into her car which was a little white car. Mum had packed all our luggage into the back of the car. Mum was in the driver's seat trying to drive away and Dad put his foot under the wheel so she couldn't drive away. Dad was standing at the front of the car on the driver's side and put his foot under the front wheel. Mum kept yelling at him to move and he wouldn't move. Then Dad punched the driver's side window but it didn't break. Dad then moved out of the way and we left."

1. The couple's third child said this in her statutory declaration:

"One time when we were leaving we were all in the car and Dad came up and punched the car window. I was sitting in the back seat and I could see Dad hitting the window of Mum's door. I can't remember what Dad was saying but he was yelling something."

1. The couple's first child also gave an account of this incident in his statutory declaration, but he did not mention the fact that his father punched the window.

1. The particulars alleged that on a date in 2017, at the couple's home, the accused had vaginal sexual intercourse with the complainant without her consent. The allegation was denied.
2. In her police interview the complainant gave an account of events to the following effect. There was a night when she visited one of her best friends, and that friend died in front of her. She did not sleep that night. She did not have any energy. The accused raped her on the bed in their bedroom. He pulled down her pants and raped her on the bed.
3. Under cross-examination it was put to the complainant that there was no intercourse that night, but she rejected that assertion.

1. It was alleged in the particulars that on or about a date in March 2017 at the couple's home, the accused assaulted the complainant "by picking her up around her knees, dropping her from a height and dragging her by her arms down the hallway". This allegation was admitted.
2. One of the couple's children gave the following description of this incident in a statutory declaration that was tendered by consent:

"I remember one night ... I could hear Dad dragging Mum down the hallway to their bedroom. There was no door on our bedroom and I could see Dad dragging Mum. Dad was holding Mum under the arms. Mum was facing away from Dad as he dragged her. Mum was telling Dad to stop. Dad took Mum into the bedroom and I could hear Mum saying '... Stop'. I don't think Mum and Dad saw me but when Dad was dragging her past my room I got up and stood in the doorway. I wanted to say something but I was too scared to say anything."

1. During the police interview the complainant gave an account of the relevant events to the following effect. The accused was very drunk. She was planning to leave him. She was planning to sleep in the lounge room. He refused to let her do that. He tried to drag her down the hallway into the bedroom. She refused and fought her way back into the lounge room. She knew one of the children was still awake. The accused picked her up "sort of around my knee area", swore at her and then completely let go of her. She fell backwards onto the floor, rolled over, and landed on the carpet near the tiles of the fireplace. Then the accused pulled her into the bedroom and onto the bed. She tried to fight him off. One of the children was calling out asking if she was all right. The accused kept saying that she was fine, and to go to sleep. Eventually he passed out.

1. This allegation relates to the same incident as allegation 20. It is alleged that the accused attempted to have vaginal sexual intercourse with the complainant without her consent. This allegation was denied.
2. The evidence relied upon in relation to this allegation is to be found only in the police interview. The complainant did not assert that the accused had attempted penetration, or that he had undressed her to any extent. Her account related to him pulling her into the bedroom and onto the bed, in spite of her resistance. She said that there was "still like half an hour in bed before he passed out". She said that she thought that if she could resist long enough, because he was so drunk, he would surely just pass out.
3. That evidence, if accepted, is sufficient to lead to findings that the accused intended to have sexual intercourse with the complainant, that she was not consenting, that he knew she was not consenting, and that there was sufficient proximity between the accused's acts and the intended intercourse for them to constitute an attempt to commit the crime of rape, as distinct from acts of preparation. See Nicholson v The Queen (1994) 14 Tas R 351.

1. The particulars alleged that on or about 3 and 4 April 2017, in the car park at a place where the complainant was working, the accused had vaginal sexual intercourse with her without her consent. This allegation was denied.
2. During the police interview the complainant gave an account of the relevant events to the following effect. She had finished her shift. She said goodnight to a colleague, walked outside, and saw the complainant's vehicle in the car park. He got out of his vehicle. She went towards her car and told the complainant not to come near her. He said that he just wanted to talk to her. He grabbed her hand and pulled her towards his vehicle. He stood with his back to his vehicle, holding her in front of him by her wrists. Her work colleague came outside and asked if she was all right. She told her colleague that she was fine. She was "sort of frozen". The accused dragged her into his vehicle. He had a mattress on the back floor. He pulled her clothes off, except for her bra. He pulled her undies off. He laid her on the mattress, held her down, and raped her in the back of the vehicle. Once he had finished she pushed him off as quickly as she could, put her trousers and top back on, jumped into the driver's seat, opened the door, ran to her car, got in, locked the doors, and drove away. She subsequently told a worker from Rural Alive & Well what had happened.
3. Some records kept by that organisation were tendered as an exhibit. They show that on 8 May 2017 the complainant told that worker that the accused "had arrived at her workplace the week before and had sexually assaulted her". That worker gave evidence, but not about the complainant's disclosure of that incident.
4. The complainant's work colleague gave evidence. She said that the accused was at their workplace one night when they were finishing up; that she saw him in the car park with a vehicle; that she did not speak to him; and that she asked the complainant if she was okay and if she wanted to go with her. She also said that the complainant had previously told her that the accused was sexually abusing her, but that she did not go into any more detail. Under cross-examination she said that she phoned the complainant after leaving the workplace, that the complainant did not answer the phone, and that she later sent a message saying that she was okay.

1. The particulars alleged that between about 1 October 2017 and 31 March 2018, at a particular road, the accused had vaginal sexual intercourse with the complainant without her consent. This allegation was denied.
2. This allegation relates to an incident that the complainant described during her police interview which she said occurred at a time when she and the accused were separated. Her description of events was to the following effect. The accused was having the children every second weekend. She and the children had moved to an address that had recently been vacated by tenants. She and the children had been sleeping on the floor in the lounge room. She had a mattress on the floor in that room. She was asleep on that mattress at night during a weekend when the accused had the children. She heard a car pull up in the driveway. The accused came straight through the door, into the lounge room where she was lying on the floor. He lay down beside her and raped her. He did not take off any clothes or anything like that. He left when he finished. Her vagina hurt. She phoned a friend and said that the accused had been there and that he had hurt her.
3. A witness, whom I will refer to by the initials MLE, gave evidence that the complainant told her of an occasion when the children were not at home and the accused pushed his way into the house and made her have sex with him. The witness described the condition of the complainant at that time, saying "It's probably one of the lowest times I had seen her. She was a shell of a person."

1. The particulars allege that between about 11 March 2017 and 1 January 2020, in the town where the couple lived, the accused assaulted the complainant "by grabbing her by her hair and dragging her while pulling onto her hair". The allegation was denied.
2. The evidence in relation to this allegation came only from the complainant's mother. She lived with the couple and their children for an extended period. Her evidence was to the following effect. There was a day when she heard a commotion, and the complainant told her the next day what had happened. The commotion was either at the couple's home or at the home of another family member in the same town. The complainant told her that she had "got dragged out of the door by her hair and it nearly pulled her hair out by the roots". She said that the accused had done that to her.

1. Section 2A of the Criminal Code contains provisions as to the meaning of "consent". That section has been in its present form since 17 December 2004. The relevant provisions in that section read as follows:

"(1) In the Code, unless the contrary intention appears, 'consent' means free agreement.

(2) Without limiting the meaning of 'free agreement', and without limiting what may constitute 'free agreement' or 'not free agreement', a person does not freely agree to an act if the person -

(a) does not say or do anything to communicate consent; or

(b) agrees or submits because of force, or a reasonable fear of force, to him or her or to another person; or

(e) agrees or submits because he or she is overborne by the nature or position of another person ...".

1. That definition is relevant to the rapes alleged in allegations 3, 6, 7, 17, 19, 22 and 23. It is relevant to the attempted rape alleged in allegation 21. It is not relevant to the rape alleged in allegation 1 since that allegation relates to a time prior to 17 December 2004. The rape alleged in allegation 4, if it occurred, may have occurred before or after that date.
2. At all material times prior to 17 December 2004, s 2A relevantly provided as follows:

"(1) In the Code, unless the contrary intention appears, a reference to consent means a reference to a consent which is freely given by a rational and sober person so situated as to be able to form a rational opinion upon the matter to which the consent is given.

(2) Without limiting the meaning that may otherwise be attributable to the expression 'freely given', a consent is freely given where -

(a) it is not procured by force, fraud, or threats of any kind;

(b) it is not procured by reason of the person being overborne by the nature or position of another person ...".

1. The complainant said on a number of occasions that the accused never asked for sex before having intercourse with her or words to that effect. Her descriptions of each alleged act of rape and the alleged act of attempted rape all involve her not saying or doing anything to communicate consent, submitting because she was overborne by the forceful, demanding and insistent nature of the accused, and submitting because of his use of force. She has described nine rapes and one attempted rape.

1. The police interview and the evidence presented at the trial included a lot of evidence about the relationship between the complainant and the accused. That evidence is relevant and important because it places the evidence as to disputed allegations in context. There is a substantial body of evidence from the complainant to the effect that the accused routinely and repeatedly raped her from 2004 until the end of their relationship, sometimes every day or every second day, and sometimes more than once in a day. The complainant gave accounts of manipulative and controlling behaviour on the part of the accused. She described him requiring her to wear sexy clothes, inappropriately touching her in public and in front of their children, ignoring her complaints about sexual demands or sexual violence, criticising her clothing, hiding underwear, and taking naked photos of her without her permission. She said she would lock herself in the bathroom, but that he would unlock the bathroom door with a knife. She said that he would become violent and angry if she refused his sexual advances.

1. A number of witnesses gave evidence that tended to corroborate the complainant's accounts of events, mostly in minor respects. The most powerful corroborative evidence was evidence of text messages exchanged between the complainant and the accused on their mobile phones.
2. On 16 March 2017, some days after the couple finally separated, they exchanged a series of text messages that included the following:

Accused: What u wanted since u move back in n it was an excuse to leave again

Complainant: So I caused you to rape and bully me and drop me on the ground the other night?

Accused: U no for a fact that I was getting better n not attacking u as much

With the fridge u don't cum n get it urself u don't get it

1. Another series of text messages on 31 March 2017 included the following:

Accused: I have been trying I hardly ever attack u any more n don't rape u any where as much as before

Next the complainant sent images depicting bruises to her left buttock and both legs.

I'm telling you it's been horrible and you don't care you just keep telling me that you think you have been better I don't agree

Accused: I'll leave the ute down there bout 11ish if that suits u. If u leave some thing on the mirror thank u if not a cuddle from u would be much appreciated.

1. Another exchange of messages on 9 April 2017 included the following:

Accused: U used to Neil on the bed naked n rub n play with ur self to help me cum. It was amazing. I never raped u when u helped like that n then u stopped. Please help tonight.

Accused: Givn me a fat just thinking of u helping

Accused: Yes but once ever month or to is better than every day like I used to. U can't tell me I was not getting better on the raping thing. Treating u better was getting there as well except for a few slip ups

1. A number of witnesses gave evidence of information provided to them by the complainant about her relationship with the accused and his conduct. It is clear that she said very little to any of them about the conduct that is the subject of the 24 allegations in this case.
2. The first of those witnesses, Mr H, was a rural outreach health worker for Rural Alive & Well. He met the complainant and the accused at their home. He conducted a counselling session with them one night. He gave evidence that they both said that they had communication problems, and that their relationship was not as good as they would like it to have been. He subsequently scheduled some meetings with the accused, but for various reasons they were cancelled. He said that he visited the complainant at her home at a later date and that, to the best of his knowledge, she said that the accused "was being rough in the bedroom". He told her that she should talk to someone about that.
3. The next witness was the complainant's niece. She gave evidence that she often used to stay with the complainant, the accused and their four children at their home. She said that the accused would sometimes touch the complainant in inappropriate places after she had repeatedly asked him not to. She spoke of the accused slapping the complainant's bottom and touching her breasts in front of family members. She said that the complainant would ask him not to, or tell him that his conduct was not appropriate, but that "it would still continue to happen". She said that her visits to the couple took place in approximately 2015 to 2016. When asked if she recalled any particular instances, she described an incident at a family shack when the complainant bent over to get a saucepan from a cupboard and the accused slapped her on the bottom in front of her and the couple's eldest child. She said the complainant told the accused to "get out of it" and said, "That's inappropriate", but that the accused then grabbed her breasts.
4. The next witness was a woman who worked as an outreach worker for Rural Alive & Well. She took over from the male outreach worker from that organisation, Mr H. She gave evidence that she had about two or three interactions with the complainant and that she only spoke about her relationship with the accused on one of those occasions. She said that the complainant said that the accused "could be a bit forceful with her". The witness said that the complainant went on to say that "three of her four children weren't consensual". The witness did not keep a written record of that information, though she did record that information about a sexual assault at the complainant's workplace that I have mentioned in relation to allegation 22.
5. The next witness was the colleague from that workplace. I have already referred to her evidence as to allegation 22, which related to a rape in the car park at the workplace. The complainant evidently did not tell her that she was raped that night. However this witness gave evidence that the complainant told her that her relationship with the accused had broken up because he was sexually abusing her, without going into any more detail.
6. The next witness was MLE. I have mentioned her evidence relating to allegation 23. She was the wife of a pastor. She and her husband met the complainant through their church. She gave evidence to the following effect. She and her husband provided informal counselling to the complainant and the accused in, she thought, 2012. In 2013 and 2014 the complainant gave her information about occurrences at the couple's house, including mobile phones getting smashed, the complainant being picked up like a plank and dropped, and the accused trying to be controlling of money, time and activities. In 2017 and 2018 she and the complainant were working together. During that time the complainant was separated from the accused. The complainant during that time showed her text messages from him, including images of women in lingerie.
7. The next witness was Mr E, the husband of MLE. He gave evidence that he took up a position as a pastor in 2009 and met the complainant a few years later when she started attending his church. He said that he spoke to her about her relationship with the accused after a number of conversations with his wife about that relationship. He said that he told the complainant that he was aware of possible sexual violence, but that she did not tell him that sexual violence was occurring. He remembered being told that the accused had got angry and thrown a phone at her.
8. The next witness was the complainant's mother. I have already outlined her evidence in relation to allegation 24. She also gave evidence that the complainant told her that she woke up one night with a conviction that she wanted to be a Christian, that she told the accused of her decision, and that he "went around the house smashing windows and punching holes in the wall". She apparently was unaware of any other violence during the period that she lived in the couple's home.
9. The final witness was the complainant's present husband. I have already referred to his evidence relating to allegation 6. They have been together since 2018. He gave evidence to the effect that the complainant had told him the following things. The accused was demanding in relation to sexual and property matters. The complainant had to go to doctors at times because of the accused's physical nature and sexual behaviour. Under cross-examination this witness gave evidence to the effect that the complainant told him in 2018 that she had been raped many times by the accused.
10. When dealing with some allegations, I have referred to accounts of relevant events given by some of the couple's children in statutory declarations. In addition to the evidence that I have already referred to, the statutory declaration of the eldest child contained evidence of the following:
    • An incident when the accused picked the complainant up by wrapping his arms around the back of her legs and lifting her, carried her to the family car, and put her in the front passenger seat.
    • An occasion when the accused picked the complainant up from a couch in the lounge room of the family home, and she tried to push him away, saying, "No, stop, I don't want to go to bed yet", after which the accused carried her down the hallway towards their bedroom.
    • A morning when the complainant came into the lounge room wearing pyjama shorts and a singlet top, with bruises on both thighs and another bruise lower down on one of her legs.
    • Two or three occasions when the accused smashed the complainant's phone, including one when he threw it at a television set, smashing both items.
11. The third child's statutory declaration contained evidence of the following:
    • The accused throwing the complainant's phone out of a window.
    • An incident at an aunt's house when the accused was touching the complainant's "butt and her chest" and she was telling him to stop it.
    • An occasion when the accused pushed the complainant into a pool and she hurt her foot.

1. Counsel for the accused stressed that this was a case in which the evidence against his client was based almost exclusively on the evidence of the complainant. He referred me to R v Murray (1987) 11 NSWLR 12 in which Lee J, with whom Maxwell and Yeldham JJ agreed, said, at 19:

"In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable."

1. That comment was made not long after legislation had been introduced to remove the requirement of corroboration of the evidence of complainants in sexual cases. As Lee J observed, at 19, the new legislation "brought about the result that women are no longer, in the eyes of the law, to be put before juries as persons whose evidence requires corroboration before it is safe to act upon it". However, to a very large extent, it is clear that the Crown's case in relation to the disputed allegations requires me to consider whether the complainant is both an honest witness and a reliable one.
2. Counsel for the accused submitted that the complainant was not a credible witness. He submitted that the complainant's assertions in relation to particular events lacked detail, and lacked evidence of background context, to such an extent that her accounts were unreliable. He argued that if all that the complainant said was true, there was no reasonable explanation for her tolerating the accused's conduct for so long, returning to him after separating, or not reporting matters to the police until 2020.
3. In support of those submissions, counsel for the accused relied on various aspects of the evidence, as follows:
   • Mr E discussed sexual violence with the complainant in 2011, but she did not report any sexual violence to the police until 2020.
   • Counsel argued that, on the Crown case, the escalation in hostilities that led to the separation in or about 2013 was the throwing of something at the complainant. Mr E gave evidence that at that time the complainant told him after a church service that she wanted to leave the relationship and said words like, "We had an argument again last night, but this time he threw a phone at me. I feel scared. Can you help me?"
   • When the complainant spoke to police officers in 2014 and made a statutory declaration resulting in the making of a police family violence order, she did not mention that she was being raped. She said in evidence that she remained afraid, but it was submitted that that was not a sufficient explanation for not reporting rapes at that time.
   • The complainant's mother did not witness any violence during the long period that she lived in the couple's home. The mother estimated that she lived with them for two to three years. Her observations went no further than her observing occasional passionate embraces and the complainant then appearing to be uncomfortable.
   • Counsel argued that there was a degree of inconsistency between the evidence of the complainant's niece and the evidence of her mother. The niece gave evidence of seeing a lot of inappropriate touching by the accused at the couple's home. According to the mother's evidence, she did not see anything like that, even though she lived there. She did however say that sometimes the accused would take the complainant in a passionate embrace; that it was not like he would just come home and give her a peck on the cheek; and that she would then just go to her room because she always wanted the couple to "have their time". She said, "I sensed that my daughter was not comfortable with that." Both of these witnesses gave evidence about unwelcome passionate touching. If the mother saw much less of it than the niece, that may be the result of her practice of going to her room. It may also be that the accused exercised a degree of self-control in her presence.
   • When MLE spoke to the police, she was unable to tell them of any report of sexual violence being made to her by the complainant prior to 2017.
   • The complainant's current husband accepted that it could not have been earlier than January 2018 that she had told him that the accused had repeatedly raped her during the relationship. There is no suggestion that the complainant asserted to anyone before then that the accused had repeatedly raped her.
4. Counsel for the accused submitted that the complainant's attempts to explain why she did not report multiple rapes earlier was bizarre.
5. The complainant was cross-examined as to when she first regarded what the accused was doing as being rape. She said this:

"In the beginning, I didn't know that somebody who was your partner could rape you. I didn't understand because I'd been made to feel like I have been doing something wrong to be raped. I couldn't call it rape. So in the beginning I used to say that you took it or that - so that was what it was called until I came to realise what it actually was."

1. A little later, counsel asked the complainant, "When did you discover that what you say was occurring was rape?" She replied as follows:

"I couldn't say there's an actual day or a time, but I can just say as I went along, there was more information that I got around cycles of domestic violence and things like that. The more information I got, the more I became aware that your partner can actually rape you. That that is actually a thing and it's not just because you're a wife and you have to - like even if you don't give consent, that's still not okay for someone to take it from you even if they're your husband or partner."

1. Until 1987, if a man had sexual intercourse with his wife in this State without her consent, that did not constitute the crime of rape. Although the husband could not commit the crime of rape against his wife, the continuation of intercourse without consent after the moment of penetration constituted the crime of indecent assault: Bellchambers v The Queen [1982] Tas R (NC) 25 (Court of Criminal Appeal, A94/1982). Section 185 of the Criminal Code was amended by the Criminal Code Amendment (Sexual Offences) Act 1987 to re-define the crime of rape so as to exclude rape within marriage. For years prior to 1987 a large section of the community had regarded the immunity of husbands from being charged with rape as unjustifiable and as something that warranted reform.
2. The complainant was 20 years old when she commenced to live with the accused in 2004. I was very surprised by her evidence as to when she first regarded what the accused was doing as amounting to rape. I cannot rule out the possibility that the complainant did not learn until well after the commencement of the relationship that non-consensual sexual intercourse with a spouse or domestic partner amounted to the crime of rape. However I think it far more likely that the complainant did not acknowledge that such conduct amounted to rape in her case because of an unwillingness to acknowledge to herself that that was the situation, rather than because of ignorance or naïvete.
3. It is now well realised that victims of domestic violence, including sexual, physical and emotional abuse, often do not react in ways that were once generally expected of them. Victims of sexual, physical and/or emotional abuse often refrain from reporting it, delay in reporting it, or make incomplete reports. Traumatisation can also result in different events being remembered at different times. The recognition of these phenomena has led to the enactment of s 371A of the Criminal Code, which provides as follows:

"Where, during the trial of a person accused of a crime under chapters XIV or XX , there is evidence which tends to suggest an absence of complaint by the person upon whom the crime is alleged to have been committed or which tends to suggest delay by that person in making a complaint, the judge shall -

(a) give a warning to the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the crime was committed is false; and

(b) inform the jury that there may be good reasons why such a person may hesitate in making, or may refrain from making, a complaint."

1. Persistent family violence is not a crime under chapter XIV or chapter XX of the Criminal Code, and the hearing that I conducted was a disputed facts hearing rather than a trial, but it is appropriate that I take into account the well-recognised facts about absence of complaint and delay in complaining.
2. It is also now well-recognised that victims of sexual, physical and/or emotional abuse who separate from abusive partners will often return to live with them, often separating and returning two or more times.
3. In relation to allegations 22 and 23, which are both allegations of rape, there is evidence of the complainant telling others about what had happened when the relevant events were still fresh in her memory. In relation to allegation 23, she told MLE that the accused had pushed his way into the house and made her have sex with him. In relation to allegation 22, there is evidence that the complainant told a female worker from Rural Alive & Well what had happened, and that the worker made a record that the accused "had sexually assaulted her". Obviously the evidence relating to allegation 22 is vague but that relating to allegation 23 is not.
4. Section 66 of the Evidence Act 2001 contains the following relevant provisions:

"(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.

(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the previous representation that is given by -

(b) a person who saw, heard or otherwise perceived the representation being made -

if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.

(2A) In determining whether the occurrence of the asserted fact was fresh in the memory of a person, the court may take into account all matters that it considers are relevant to the question, including -

(c) the period of time between the occurrence of the asserted fact and the making of the representation."

1. I accept that the representations made by the complainant in relation to rapes to which allegations 22 and 23 relate were made when the occurrence of the asserted facts were fresh in her memory. The evidence of her representations is therefore evidence of the truth of what she said to the two witnesses in question.
2. There was nothing about the complainant's demeanour or the way she answered questions during the police interview or the disputed facts hearing to suggest that any of her assertions were dishonest, inaccurate or unreliable. I am satisfied that for some 14 years the complainant was in a relationship with the accused that was characterised by intimidation, controlling behaviour, and persistent unwanted sexual advances. Having regard to the length of the relationship and the delay before reporting matters to the police, I do not think that the complainant's accounts of specific incidents were lacking in detail to such an extent as to suggest unreliability. Indeed her accounts in relation to the rape when she was seven months pregnant and vomiting, and the rape when she had just come home from hospital after giving birth to her second child, for example, were very detailed. Having regard to the evidence of intimidation and controlling behaviour, I do not accept that the complainant's delays in reporting matters are indicative of unreliability.
3. It is clear that the complainant, until 2020, said almost nothing to anybody about the accused's sexual violence. She did not want her children or her relatives to know anything about his sexual violence, and she said very little about it to friends or acquaintances. I infer that she was too embarrassed to say more than she did. I infer that she was unable to admit to herself the extreme seriousness of the situation in which she was living. I infer that she lacked the courage to stand up for herself and the fact of the accused's intimidation and violence, to such an extent that she did not adhere to decisions to live separately until the final separation in 2017.
4. There was evidence that she regarded the accused as a good father, and did not want to do anything to interfere with the children's relationship with him, even after the final separation.
5. In her descriptions of events, the complainant was an impressive witness. The accused's text messages provide strong corroboration for her evidence of repeated rapes. After considering all the evidence, I concluded that she was an honest and reliable witness and that, subject to the minor qualifications that I have referred to, the disputed allegations had been proven beyond reasonable doubt.

1. For these reasons I made findings on 16 March 2023 in relation to the 24 allegations as follows:
   • Allegation 1 (Rape) - I found this proven.
   • Allegation 2 (Unlawfully injuring property) - I found this proven in relation to the breaking of one window.
   • Allegation 3 (Rape) - I found this proven.
   • Allegation 4 (Rape) - I found this proven.
   • Allegation 5 (Assault on pregnant woman) - I was satisfied beyond reasonable doubt that the accused was guilty of the crime of assault, and that the complainant was pregnant at the time, but not satisfied that he committed the crime of assaulting a pregnant woman because there was no evidence of his knowledge of the pregnancy.
   • Allegation 6 (Rape) - I found this proven.
   • Allegation 7 (Rape) - I found this proven.
   • Allegation 8 (Unlawfully injuring property) - I found this proven.
   • Allegation 9 (Assault) - I found this proven to the extent that I was satisfied beyond reasonable doubt that the accused had committed the crime by making a threatening gesture.
   • Allegation 10 (Unlawfully injuring property) - I found this proven.
   • Allegation 11 (Unlawfully injuring property) - I found this proven.
   • Allegation 12 (Assault) - I found this proven, on the basis that I was satisfied beyond reasonable doubt that the accused had committed the crime by making a threatening gesture.
   • Allegation 13 (Assault) - I found this proven, on the basis that I was satisfied beyond reasonable doubt that the accused had committed the crime by grabbing a mobile phone from the complainant's hands.
   • Allegation 14 (Unlawfully injuring property) - I found this proven.
   • Allegation 15 (Unlawfully injuring property) - I found this proven.
   • Allegation 16 (Unlawfully injuring property) - This allegation was abandoned.
   • Allegation 17 (Rape) - I found this proven.
   • Allegation 18 (Assault) - I found this proven.
   • Allegation 19 (Rape) - I found this proven.
   • Allegation 20 (Assault) - I found this proven.
   • Allegation 21 (Attempted rape) - I found this proven.
   • Allegation 22 (Rape) - I found this proven.
   • Allegation 23 (Rape) - I found this proven.
   • Allegation 24 (Assault) - I found this proven.