Varmedja v Varmedja

For the reasons I have given above, in my opinion the submission should be rejected.

Ground 3 - The trial judge erred in accepting the respondent's evidence and entering a verdict in her favour 109 As I have already observed, the respondent occupied the witness box between 27 September and 5 October 2006 for approximately three and a half days. She was recalled on Day 7 (17 April 2007) when she was further examined and cross-examined. The appellant's evidence occupied approximately half of Day 5 (5 October 2006) and a portion of Day 6 (16 April 2007). He was also recalled on Day 7 when he was further examined and cross-examined. It is thus apparent, as the primary judge noted (at [69]), that he had had the benefit of observing the respondent over an extensive period and the appellant over a shorter period. 110 His Honour (at [69]) preferred and accepted the respondent's evidence where it differed from that of the appellant. He acknowledged however that trial counsel for the appellant had relied upon a number of apparent inconsistencies in the respondent's evidence in support of the submission that the respondent should not be accepted as a witness of truth. Having heard the appellant's submissions and paying regard to the evidence relied upon to support them, his Honour observed that: "the respondent had in some areas given evidence which was in some ways hard to follow". 111 After dealing with the various inconsistencies upon which the appellant relied, the primary judge's conclusion with respect to the credibility of the respondent was as follows: "90 It can be difficult for a trial judge to judge the credit of a witness from a different cultural background. The difficulty can be greater, as here, when one party gives her evidence through an interpreter. Nonetheless, I consider that the plaintiff was a most impressive, straightforward, compelling witness, who had to deal with difficult and sensitive topics with a male judge, male counsel and male solicitors, and who was subjected to a very lengthy cross-examination which was at times quite repetitious. Ultimately, answers which the plaintiff gave in cross-examination, I thought, spoke loudly about her as a witness. Counsel for the [appellant] at the end of his cross-examination put to the [respondent] a question to the effect that she had made up the whole of her case. This exchange occurred: 'Q. The other matters that have been alleged in this case against the defendant are not true, are they? A. Everything that I said was true or is true and is exactly how it happened, so if any of things did not happen I would have stayed with him. I would have lived with him. I wouldn't have left this man and gone to a refuge and I don't think you're aware what a refuge looks like. I went to sleep on a metal bed and that is a person who grew up in a very nice home and had a very nice background and I don't want offend anybody, but I had to stay at very refuges with drunk people [sic], with drunk women, and with all kinds of people. Not that I want to offend anyone.' 91. That response, which I found convincing and compelling, typified the [respondent's] dignified way of handling the cross-examiner's questions." 112 His Honour then turned to the evidence of Dr and Mrs Hodoba who he accepted (at [100]) as witnesses of truth and accuracy. However, he considered (at [101]) that there were "some areas of concern" with respect to the appellant's evidence. It is unnecessary to detail them for he concluded that he accepted the respondent and Dr and Mrs Hodoba and rejected the appellant where their evidence conflicted. He therefore found (at [107]]) that the appellant did assault the respondent, committed the batteries which she alleged and that they had the effect upon her set out in the psychiatric and psychological reports. 113 The appellant submitted that within the constraints marked out by the nature of the appellate process, an appellate court was obliged to conduct a real review of the trial and, where a judge sat alone, his reasons. We were reminded that appellate courts were not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions - always bearing in mind that the court had neither seen nor heard the witnesses in respect of which due allowance must be made: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-127 [25]. 114 The appellant further submitted, picking up a passage in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (at 129 [31]), that as judges become more aware of scientific research that has cast doubt on their ability to accurately tell truth from falsehood on the basis of the appearance of a witness, they have been encouraged both at trial and appellate level to limit their reliance on the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials and objectively established facts and the apparent logic of events. 115 However, in Fox v Percy their Honours also observed (at 127 [26]) (omitting footnotes): "After Warren v Coombes , a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde , Abalos v Australian Postal Commission and Devries v Australian National Railways Commission . This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges." 116 Although their Honours acknowledged (at 128 [28]) that the mere fact that a trial judge necessarily reaches a conclusion favouring the witnesses of one party over those of another, does not and cannot prevent the performance by an appellate court of the functions imposed upon it by statute, they then added (at 128) (omitting footnotes): "28. … In particular cases, incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. 29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must 'not shrink from giving effect to' its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process." 117 The point thus made is that in the absence of incontrovertible facts which are contrary to a trial judge's factual findings, it is only where those findings are "glaringly improbable" or "contrary to compelling inferences" that an appellate court is obliged to determine the facts for itself notwithstanding that the trial judge's findings have been expressly or implicitly influenced by his or her opinion as to the credibility of the relevant witnesses. In the present case, no incontrovertible facts were relied upon; nor in my opinion were facts referred to from which one would be compelled to infer that the respondent was lying; nor, in my view, was her evidence "glaringly improbable". 118 The difficulty confronting the appellant is that the primary judge was faced, essentially, with word against word. In the absence of any "incontrovertible facts" relevant to the issue, the primary judge was required to carefully consider the credibility of the parties from the advantage which he clearly had in observing them over a lengthy period of time. In other words, credibility was of particular importance in resolving the issue presented by the appellant's total denial that he had ever physically or sexually abused or threatened the respondent. 119 At the end of the day the appellant sought to undermine the primary judge's acceptance of the respondent's evidence in two ways. First, because she did not make any contemporaneous or early complaint about having been sexually assaulted and, second, because of some eight instances of an alleged inconsistency in her evidence either in chief or in cross-examination. 120 So far as the first of these matters is concerned, the respondent accepted that she did not complain about being sexually assaulted, as distinct from being physically abused, until she saw Ms Sarac, psychologist, on 24 January 2003 when she recounted being both physically and sexually assaulted on numerous occasions by the appellant. True it is that she had the opportunity to complain about being sexually abused to Ms Podhorecka, the counsellor with the Australian Centre for Languages. She conceded that although she informed Ms Podhorecka that there had been marital/domestic violence problems, she had not informed her that she had been sexually assaulted. She had informed her sister and mother in Serbia that she had been abused and that the abuse included sexual abuse but she had not included details. 121 A similar submission was advanced to the primary judge who (at [76]) rejected it on the basis that, other than when she saw Ms Podhorecka, at all times when she saw a medical practitioner she was accompanied by the appellant who acted as her interpreter. In these circumstances, his Honour did not find it at all surprising that she did not complain to those practitioners or (at [82]) that she did not mention to her relatives in Serbia "the precise type of sexual problems that she was experiencing with" the appellant. 122 When questioned in chief with respect to why she did not inform Ms Podhorecka that she was being sexually abused, the respondent replied that she did not dare inform the counsellor as the appellant had threatened that if she said anything to anyone, he would kill her, a threat which she said had been made on numerous (at least 60) occasions. She was not challenged on those answers. In my view the respondent's failure to complain about being sexually abused until after she separated from the appellant was adequately explained and, therefore, was not a fact which compelled the inference that the alleged assaults did not occur. 123 As I have indicated, the appellant relied on eight instances where, it was submitted, the respondent gave inconsistent evidence. The first related to the respondent's evidence as to how the appellant obtained the drug Viagra. She said that she first became aware of the appellant's use of the drug in April 2001 when he showed it to her. She was cross-examined to the effect that she had seen a whole box of the tablets at the farm in Orange and that on occasions she had seen the appellant visit Dr Hodoba's surgery in his absence, helping himself to the tablets which Dr Hodoba said had been given to him by the relevant drug company. She further said that she had seen him coming out of Dr Hodoba's storeroom with the tablets and putting them in a plastic bag. The following exchange then took place: "Q. And you certainly didn't see your husband buy Viagra, did you? A. No, I haven't seen him buy it. He could have had it before I came, I don't know. A. When you alleged to Mr Kecmanovic, quote, that one day your husband bought Viagra, that just wasn't' true, was it? A. Yes, actually it is correct. On one occasion only when we bought my medications he bought Viagra. That is correct. Q. Well you're changing your answer now, aren't you, because that's just not true? A. What I said was true. What I said to you is that I don't know whether he - I saw he had Viagra in Orange. I said I didn't know whether he bought it in Orange or what he did. But I saw him only once there buying it with me. Q. You told Mr Stanbouliah, you alleged that one day your husband bought Viagra? A. Yes, well I've just said it. I saw him one time buying it, yes. Q. And when you told Mr Stanbouliah that at that time you weren't aware that Viagra was a prescription drug, were you? A. No, he did not have a prescription, he bought Viagra." 124 As I understand the appellant's submission, there was an inconsistency between the respondent's evidence that the appellant had on the one hand obtained Viagra from Dr Hodoba's surgery and on the other that she had informed Mr Stambouliah (a psychologist consulted by the respondent in June 2006) that she had actually observed the appellant purchase Viagra. Given the exchange set out above, in my view no relevant inconsistency in the respondent's evidence is apparent. 125 The second alleged inconsistency was that the respondent gave inconsistent evidence as to whether the appellant between April and June 2001 had "asked" her for oral and anal sex. In chief she said that he first asked her for anal sex in April 2001, which she "was strongly against". Later in chief she agreed that anal sex first took place in June 2001. Later again in her evidence in chief she stated that between May and June 2001 the appellant had never asked her to engage in anal or oral sex. The following exchange was then relied upon: "Q. During that period between May and June, when anal and oral sex first took place, did he ever ask you prior to anal or oral sex first happening to have that sort of sex? A. He was forcing me - he never asked me what I wished - whether I wished or not. Q. What I'm asking you is about the period before anal or oral sex ever took place? In other words was he making requests for oral or anal sex before that sort of sex actually took place? A. " (*not through an interpreter) 126 The inconsistency alleged is that initially the respondent had said that the appellant had first asked her for anal sex in April 2001 whereas in the above exchange, she had agreed that he had not made requests for either oral or anal sex between May and June 2001. The difficulty with the appellant's submission is that first, the appellant was consistent in her evidence that oral and anal sex first took place in June 2001. Second, the appellant first asked her for anal sex in April 2001 and, third, that he did not request oral or anal sex from her between May and June 2001. In my view the respondent's evidence that the appellant first asked her to engage in anal sex in April 2001 is perfectly consistent, given her stated reaction to the "request", that he did not repeat those requests between May and June. No inconsistency is apparent. 127 The third alleged inconsistency was that when asked whether an incident in August 2001 when anal and oral sex took place was the first occasion that the appellant had engaged in anal sex with her, she replied in the affirmative. In subsequent evidence she said that anal sex first occurred in June 2001 - hence the alleged inconsistency. The primary judge (at [74]) considered that the respondent's evidence with respect to this was somewhat confusing and that there were apparent ambiguities. He referred to those parts of the transcript upon which the appellant now relies. Nevertheless, on a number of occasions during the course of her evidence she firmly asserted that anal sex first occurred in June 2001. On only one occasion did she say that she first had anal sex with the appellant in August 2001. The inconsistency is apparent but, in my view, in context hardly impacted adversely upon his Honour's finding as to the respondent's general credibility. 128 The fourth alleged inconsistency was said to relate to the appellant's improper use of a gun which he owned. Relevantly it related to whether the appellant had hit the respondent with the gun butt or the gun barrel. His Honour (at [75]) did not regard the alleged discrepancy as highly significant. Nor do I. 129 Nevertheless, in my view none of the evidence upon which the submission is based tends to reveal any such discrepancy. In her evidence in chief the respondent said in respect of an incident that occurred in June 2001, that the appellant had hit her with the wooden part of the gun. Later she said that the barrel of the gun had come into contact with her body. She also gave evidence of having been struck a number of times with part of a gun. Further, she said that she had been struck on various parts of her body. The inconsistency relied upon was that later in her evidence when asked: "Are you able to say how many occasions the gun was pointed in your direction or came into contact with your body between May 01 and June 01?". She responded: "Probably five to six times". However, in her evidence in chief she was asked how many incidents of uses of the gun on her person by the appellant occurred after they returned to Orange from Newtown in January 2002. She responded: "A lot of times". When pressed for further detail, she responded: "Let's say around 30 times". When asked whether each of these occasions involved the gun or part of the gun coming into contact with her body, she responded in the affirmative. 130 The difficulty with the respondent's submission is that the appellant's answer that the gun was pointed in her direction or came into contact with her body "Probably five to six times" was confined by the questioner to the period between May and June 2001. On the other hand, her response that she had been struck by the gun around 30 times was related to a different period, namely, after the parties returned to Orange from Newtown in January 2003. In these circumstances, the alleged inconsistency resolves itself. 131 The fifth alleged inconsistency related to the respondent's evidence with respect to the frequency of the appellant's demands for sex, and the frequency of sexual encounters between April and June 2001. The respondent gave evidence that between those dates the appellant made a number of demands for sex which she had refused. When asked how many times had those demands been made, she responded: "Twice a month". It was submitted that she subsequently gave evidence of having refused to engage in sex with the appellant after April 2001. When asked as to the number of occasions between April and June 2001 that she refused to have sex of any description, she responded: "Every second day, every second day, normal sex". When asked whether there was ever any occasion prior to June 2001 that the appellant had sexual intercourse with her without her consent, she responded in the affirmative. When asked on how many occasions that occurred, she said that it was on numerous occasions, she was not counting. On the same page of the transcript the appellant gave evidence of having non-consensual "normal" sex with the appellant between May and June 2001 on three to four occasions a week. 132 The first exchange relied upon by the appellant when the respondent said that the appellant made a number of demands for sex which she refused and that those demands were made twice a month, was in the context of his demand for oral sex. The second exchange, when she said that every second day she refused to have sex of any description between April and June 2001, was in the context of any sort of sex including vaginal sex. If this be correct, there is no inconsistency. As to the third and fourth exchanges, there is in my view no apparent inconsistency. Upon the basis that the questioner was, as appears to be the case, seeking a response as to the number of occasions prior to June 2001 that the appellant had sexual intercourse with her without consent, the respondent's responses of "on numerous occasions, I wasn't counting" and "three to four times a week" or "a few times a week", are not, in my view, inconsistent. In both exchanges the reference is clearly to vaginal intercourse without consent. I accept that there may have been some lack of communication between counsel and the respondent as to the precise form of sex to which some of the questions related. If so, that does not lead to inconsistencies which reflect adversely upon her credit. 133 The sixth alleged inconsistency relates to the respondent's evidence concerning the parties' engagement in "vaginal sex" or "normal sex" between April and June 2001. The respondent gave evidence that she was not happy to have normal sex with the respondent up until June 2001 (being a reference to vaginal sex) as a consequence of the appellant's use of Viagra and its effect upon him. Later she gave evidence that she did not have "normal" sex with the appellant between "May and June 2001" - the particular exchange relied upon is as follows: "Q. After May 2001, did you have normal sexual intercourse with him between then [and] June 2001? A. Q. Did he ask you to have normal sexual intercourse with him between then and June 2001? A. Q. Did he ask to have normal sex with you between May 2001 and June 2001? A. ." (*not through an interpreter) 134 The inconsistent evidence was said to be the following: "Q. On how many occasions did normal sex occur between May and June 2001 without your consent? A. Numerous occasions. Q. Are you about to do any better than numerous? For example, was it something like a thousand or more like 10 or what's an approximately figure, please? A. Three to four times per week." 135 The difficulty with these two exchanges is that there was some confusion in the questions, particularly as to what the respondent understood at the time the questions were asked as to what was "normal sexual intercourse". Between those two exchanges she said that before the appellant commenced taking Viagra in April "we were having normal sex". A reading of the whole of this part of the transcript indicates the confusion to which his Honour seems to be referring (at [74]) in terms of the respondent's understanding of the particular type of sex that was the subject of the relevant questions. Although I would be prepared to accept that there may well be some inconsistency in her answers, in context they hardly reflect upon her credibility. The primary judge was of that view, with which I respectfully agree. 136 The seventh alleged inconsistency was said to relate to the respondent's evidence as to the frequency of sexual acts whilst she and the appellant were residing at Dr Hodoba's apartment above his surgery at Newtown. She gave evidence that whilst the parties were at Newtown oral sex occurred infrequently and that the same applied to anal sex during that period. The inconsistency alleged is that when asked as to approximately how many occasions did "sexual intercourse of any description take place in Newtown", she responded: "Let's say two or three times a week roughly". The inconsistency alleged simply does not exist. The first set of questions related to the frequency of oral and anal sex whilst the parties were residing at Newtown whereas the alleged inconsistent responses relate to "sexual intercourse of any description" which would clearly include vaginal intercourse. The inconsistency, if any, is more apparent than real. 137 The eighth and final instance of alleged inconsistency relates to an incident at Newtown which occurred in August 2001 involving the use by the appellant of a curtain rod. The respondent gave evidence that the appellant hit her on the leg in the area of her crotch with a curtain rod. In cross-examination she said that the curtain rod actually broke into pieces on her back. Dr Hodoba gave evidence that he observed a circular bruise about the size of a 10 cent coin on the inside of the respondent's upper groin. Mrs Hodoba gave evidence that at no time did any of the curtain rods in the flat need replacing. To my mind the inconsistency alleged is somewhat ethereal. There was no suggestion that the respondent was not struck by the appellant with the rod. The only possible inconsistency appears to be the respondent's evidence that the rod broke and Mrs Hodoba's evidence that no curtain rod needed replacement after the parties left Newtown. I do not regard this as a matter of any moment. 138 In the event the respondent's evidence was that the rod broke into two pieces. Mrs Hodoba's evidence was that the curtain rod did not need to be replaced. That does not mean it was not repaired by whomever. Again, the inconsistency is more apparent than real. 139 The appellant also asserted that the respondent had given an inaccurate history to Mr Stambouliah, during her consultation with him on 14 June 2006. It was submitted that she had given inconsistent evidence about what had been raised during that consultation. It was submitted that the respondent had initially agreed that she had advised Mr Stambouliah that the first time she had consulted a general practitioner was when she consulted Dr Hodoba. When it was put to her that she had "made no reference to having earlier attended any doctors in Orange?", she responded: "Well, he [Mr Stambouliah] never asked me". It was submitted that her credibility suffered when she attempted to later explain why she had advised Mr Stambouliah that the first medical practitioner she had consulted was Dr Hodoba. A reading of the parts of the transcript relied upon makes it clear that the respondent understood Mr Stambouliah to be asking her whether she had been able to see a doctor in order to complain about the appellant's abuse of her. The only such doctor that she had in fact complained to was Dr Hodoba in relation to the incident relating to the curtain rod. When one regards this evidence in context, the submission that the respondent's credibility suffered as a consequence is unsustainable. 140 It follows from the foregoing that none of the matters relied upon, whether taken singly or together, are capable of establishing facts which compel the inference that his Honour's acceptance of the respondent's evidence was misplaced. Even if the alleged inconsistencies in her evidence are accepted, they are not in my opinion of such weight in the overall context of that evidence as to justify a finding that her assertions with respect to the appellant's physical and sexual abuse of her were glaringly improbable. 141 The appellant's ultimate written submission was as follows: "Having regard to the unreliable and inconsistent evidence given by the respondent, the seriousness of the allegations, the lack of complaint evidence, the almost complete lack of contemporaneous medical evidence concerning physical injury and the complete absence of any contemporaneous medical evidence concerning sexual assault, it is submitted that the trial judge's findings of fact concerning the respondent's credit and the allegations of battery and sexual assault cannot stand. It is submitted that the evidence was not capable of establishing to the required standard the precise facts as found by his Honour in paragraph 105 of the judgment. …" 142 At [104] his Honour made the following findings: "I shall turn to consider the factual basis for the individual torts. I am satisfied, and I find, that in about May 2001, the [respondent] observed the [appellant] begin to take Viagra and that his erections thereafter were much larger and that she now found vaginal intercourse painful and suffered bleeding after vaginal intercourse. Further, I find that when he began to take Viagra the defendant took much longer to reach a climax. Accordingly vaginal intercourse took a lot longer than it had before. I find that she then told him that it was painful and that he hurt her and caused bleeding and asked him not to have intercourse with her again of a vaginal kind. However, he overrode her wishes and continued to have vaginal intercourse. I find that at about the same time, viz in May-June 2001 he asked her for anal and oral sex and that she said that she did not want those forms of sex, but he proceeded to make a series of threats, such that she did succumb, and had both anal and oral sex with him at his request, although she did not want to, and did not consent to it. I find she did not consent to vaginal intercourse either, after he first began using Viagra." 143 At [105] his Honour identified the torts alleged which he considered were required to be identified and proved individually on the balance of probabilities. He then identified some 18 such torts. He concluded that he found that there were: "… altogether twenty-five acts each of anal and of oral intercourse without consent, and two hundred acts of vaginal intercourse without consent, between 1 May 2001 and 21 September 2002."