Wilden v Jennings [2021] NSWDC 705 | Case summary

District Court of NSW|2021-05-28|Before: Mr J

Introduction

These proceedings arise out of a personal relationship between the plaintiff (Ms Wilden) and the defendant (Mr Jennings) during the period of approximately 2010 and 2016.
The couple lived together from about October 2012 through until the time Ms Wilden left Mr Jennings in about May 2016. They married on 24 October 2015.
During the period of cohabitation Mr Jennings, it is alleged, would verbally abuse Ms Wilden.
Further, in the period October 2014 through May 2016, it is alleged that Mr Jennings engaged in forced sexual intercourse with Ms Wilden without her consent.
Ms Wilden claims damages from Mr Jennings.

The Pleadings

An Amended Statement of Claim was filed in Court with leave on 4 June 2021.
Ms Wilden was born on in 1989 and is currently 32 years of age. The period from when they met until when Ms Wilden moved out of the matrimonial home was referred to in the Amended Statement of Claim as 'the Relationship'.
Paragraphs 10, 11, 12 and 13 of the Amended Statement of Claim set out the allegations of a number of specific facts concerning Mr Jennings, as follows: [10] The defendant was and is at all material times, a high profile Rugby League Football player, currently contracted to the Parramatta Eels. [11] By reason of his employment, the defendant was and is at all material times, a person of athletic strength and power compared to the strength and power of the plaintiff. [12] By reason of his employment, the defendant has periodically and repeatedly suffered concussion as a football player. As the relationship progressed, it became increasingly difficult for the defendant to "string together" a sentence in conversation. [13] During the Relationship, the defendant would regularly drink alcohol excessively and gamble heavily. He also engaged in the recreational use of cocaine.
Paragraphs 14 and 15 of the Amended Statement of Claim set out the allegations concerning the verbal abuse by Mr Jennings on Ms Wilden. In the course of final addresses, senior counsel for the plaintiff abandoned a claim for damages based on verbal abuse. The reason for the abandonment was not because the alleged verbal abuse did not occur but, rather, that as a matter of policy, the law may not recognise such abuse as giving rise to an entitlement to damages.
In paragraph 16 of the Amended Statement of Claim it is alleged that Mr Jennings raped Ms Wilden on 5 to 6 occasions during the period October 2014 and May 2016 whilst affected by alcohol. Evidence was given of 4 episodes of rape and the claim proceeded on that basis.
Paragraph 16(b) stated: Because of a medical condition pleaded hereafter, the plaintiff will seek to provide further particulars of the assaults at a later time.
The medical condition referred to was the psychiatric conditions allegedly suffered by the plaintiff as a consequence of the sexual abuse. As will become clearer, it is the Ms Wilden's case that it took her several years to speak in any detail about what she said had occurred.
In paragraph 17 and 18 of the Amended Statement of Claim it is alleged that prior to the relationship with Mr Jennings, Ms Wilden enjoyed a healthy life, save for an anxiety condition. Her prior relationships were described as being normal and without difficulty concerning intimacy.
Paragraph 19 of the Amended Statement of Claim sets out the plaintiff's allegation of injury said to have been caused by the sexual assaults committed by Mr Jennings. With principal reliance upon a report by Dr John Roberts, dated 24 February 2020, the plaintiff claims to suffer Post-Traumatic Stress Disorder ('PTSD') as a result of the sexual assaults by Mr Jennings.
On 6 April 2019 Ms Wilden remarried, but ultimately had difficulty in conducting an intimate relationship with her second husband. It is alleged that the difficulties arose by reason of the sexual abuse of Ms Wilden by Mr Jennings. It was in this context and around this time that Ms Wilden began discussing more openly what she says occurred in her relationship with Mr Jennings.
In the Defence to the Amended Statement of Claim, Mr Jennings makes a number of inconsequential admissions concerning his relationship with Ms Wilden. He denied the sexual assaults and said that if Ms Wilden does suffer Post-Traumatic Stress Disorder it is not as a result of the conduct of Mr Jennings. A limitation defence is also pleaded.

Conduct of the Trial

On the day that the matter was listed for hearing, I was sitting as Civil List Judge and there were no judges available to take the matter. The parties were given the option of either commencing the matter before me (which necessarily involved a late start each day) or obtaining a fresh date in April 2022. The parties chose to proceed before me. My other commitments as List Judge caused some delay in the running of the hearing.
Even greater delay was caused by the fact that an issue arose between the parties as to text messages produced by the plaintiff to the defendant's legal representatives pursuant to subpoenas served not long before the hearing. As it transpired, several years before the hearing, Mr Jennings downloaded some 47,000 text messages between Ms Wilden and himself. A copy of those messages was provided to Mr Jennings' legal representatives but not served on the plaintiff. A considerable amount of hearing time was taken by cross-examination in respect of these text messages.
The hearing ran between 25 and 28 May 2021, and between 31 May and 4 June 2021. Addresses commenced on 14 July 2021, and were continued to conclusion on 30 August 2021.

Approach to Determination of the PROCEEDINGS

If the outcome of the proceedings was to be determined (and it will not be) on the basis of the impression created by Ms Wilden and Mr Jennings, then the plaintiff would succeed.
Ms Wilden impressed as an honest and reliable witness. She made every attempt to answer questions asked of her in a forthright manner, even where some of the questions were unclear and confusing. There was a consistency to her evidence which made it credible. Her evidence was, in some cases, also consistent with the text messages held by Mr Jennings, which had not been produced to Ms Wilden before she gave evidence. This bolstered her reliability.
Mr Jennings was entirely cooperative in the course of giving evidence. In fact, on many occasions, he was quite affable in engaging with senior counsel for the plaintiff. He would often smile or laugh in the course of giving evidence, which raised concerns as to the seriousness which he attached to the proceedings generally. Whilst those characteristics might be excused on the basis that he may well have been nervous, there were also inconsistencies in his evidence which caused doubts as to his reliability. He also gave evidence that he had a history of lying to Ms Wilden, mostly as to his social life. (445-446 and 527). This raised concerns regarding his honesty generally.
The difficulty is that Mr Jennings denied that he had sexual intercourse with Ms Wilden without her consent. The inconsistency between their accounts should not, unless necessary, be determined merely by having regard to whose evidence is to be preferred based on consistency, demeanour or reliability.
The Court must also look to objective facts and, where they exist, incontrovertible facts. Where they do not exist, questions should be asked as to whether the plaintiff's claims are "glaringly improbable" or contrary to compelling inferences. [1]
These are questions which, after consideration of the evidence, I will ask myself.

Standard of Proof

As these are civil proceedings, it is necessary for Ms Wilden to prove her case on the balance of probabilities. Subsection 140(2) of the Evidence Act provides as follows: (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account - (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
The allegations made by Ms Wilden against Mr Jennings are criminal acts. Section 61I of the Crimes Act 1900 (NSW) provides the offence provision: Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.
The allegations made by Ms Wilden against Mr Jennings are very serious. That is not to say that the standard of proof is elevated to the criminal standard of 'beyond a reasonable doubt'. It does, however, require a high level of satisfaction by the tribunal of fact as to the matters necessary to make out the cause of action.
In Briginshaw v Briginshaw [1938] HCA 34, Dixon J stated at p 362: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, the High Court revisited this concept in the context of an allegation of fraud at [2]: Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
These principles are now reflected by s 140(2).

Is Rape in Marriage Actionable?

Until relatively recent times, a husband was immune from allegations or claims of rape by his wife. The fact of marriage gave rise to an irrevocable consent for the husband to engage in sexual intercourse with his wife. In the 17th Century, the jurist Sir Matthew Hale stated: A husband cannot be guilty of rape upon his wife for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind to her husband which she cannot retract. [2]
This became known for centuries as the contractual consent theory or the marital rape exemption. It was only in 1991, that English Common Law acknowledged that non-consensual sex between husband and wife was rape (R v R [1991] UKHL 12).
In 1996 the NSW Parliament enacted the Married Persons (Equality of Status) Act 1996 (NSW), which provided: 4 Spouses have legal capacity as if they were not married (1) A married person: (a) has legal capacity for all purposes and in all respects as if that person were unmarried, and (b) has a legal personality that is independent, separate and distinct from that of the person's spouse.
Importantly, s 5 of the Act provides that spouses (including husband and wife) each have a right of action in tort against the other as if they were not married.
Rape is an intentional tort and by reason of the above can be alleged by parties to a marriage.
This action is excluded from the operation of the Civil Liability Act 2002 (NSW) by reason of s 3B(1)(a). If the claim is made out, damages will be determined according to common law principles.

Chronology

The plaintiff prepared a chronology (MFI 1) and, at my request, the defendant supplemented MFI 1 with additional entries taken from evidence relied upon by the defendant (Defendant's Chronology - MFI 2). Omitting some of the detail and the source references for the events, the chronology, as supplemented by the defendant, is set out below. In some instances after reviewing the source documents, I have included some additional information. Date Event 20 April 1988 Mr Jennings born, now 33 years of age. 5 August 1989 Ms Wilden born, the eldest of 7 siblings. She is now 32 years of age. 2002 Ms Wilden attended Secondary College in Year 7. She was elected as representative on the Student Representative Council and enjoyed success in netball. Early 2002 Ms Wilden's parents separated. She was aged 13. The separation disrupted her life. The family spent a period of time homeless with Ms Wilden caring for her younger siblings. 6 November 2002 Police were called after Ms Wilden's father removed Ms Wilden and 2 of her siblings from school, and took them home. The victim, I assume to be the mother, told police that her husband had barricaded himself and the 3 children inside the house. Police spoke with the father who immediately allowed police entry to the house and stated to the police that the mother suffered from Bipolar Disorder and had been non-compliant with medication. DOCS held concerns for the children given the mental health condition of the mother, however stated that the children were not in immediate danger. 6 November 2002 DOCS were contacted by a person who reported concerns for Ms Wilden and her siblings arising from their mother's abuse of cannabis (Exhibit 26). There is reference to the mother's diagnosis of Bipolar Disorder. Police attended and were satisfied that all children were fine and healthy. There were no concerns for the welfare of any person in the premises and no offences had been committed. 6 November 2002 There was an allegation that Ms Wilden had been bashed by her mother, however police determined that she had been lawfully chastised and there were no signs of physical injury. November 2002 Documents produced by NSW Communities and Justice (Exhibit 26) reflect that during this period there were allegations made about Ms Wilden's mother, her behaviour towards Ms Wilden and her siblings, her use of marijuana and her psychiatric condition. A lot of the allegations referred to were investigated by police and were found to have been false. The documents produced are difficult to decipher, using abbreviations and referring to "contactors" and "callers" without identifying the person. 12 December 2002 Police attended an address at Bateau Bay following a call from Ms Wilden's father regarding an altercation or conflict between Ms Wilden and her mother. Police found that the mother had lawfully chastised Ms Wilden (Exhibit 26 page 1). 2003 - 2007 Ms Wilden attended High School from Year 8 - 12. She received a number of merit certificates, appreciation awards and sporting awards (including athletics and netball). She also performed in the school's productions, including the Rock Eisteddfod 2005. Mid 2003 Ms Wilden suffered panic attacks and self-harmed. The documents produced by Headspace (Exhibit A page 248 and following) referred to Ms Wilden suffering a stress attack in the context of looking after her younger brother. She also expressed concerns that she may inherit her mother's mental illness. In these notes, which appear to have been generated in 2009, Ms Wilden informed the interviewer that she would cut herself, and she did that for 8 months. She said "she felt embarrassed by this behaviour and stopped". Further, she indicated that when she is highly emotionally distressed she would scream and have panic attacks. She goes for walks and cries. She denied being suicidal or having suicidal ideations. 2005 Ms Wilden is confirmed in the Catholic church, aged 16 years. 2 April 2005 Ms Wilden completed a certified coaching course in netball. 13 September 2005 Ms Wilden received a certificate of appreciation from Public School for assisting with the K-2 dance group. 8 December 2005 Ms Wilden received her School Certificate. June 2009 Ms Wilden and her brother tried to cut the phone line as her grandmother was trying to call an ambulance. The grandmother was concerned that Ms Wilden's mother wanted to kill herself. 2006 - 2007 Ms Wilden moved away from her mother for 2 years whilst completing the HSC. 20 April 2006 Mr Jennings turned 18. 28 December 2006 Ms Wilden assisted her friends in stealing clothing from her employer. She made full disclosure to the police and received a formal caution. She was aged 17 years. 2007 Mr Jennings signed with the Penrith Panthers. 20 January 2007 Police record an incident when Ms Wilden was travelling as a passenger in her friend's vehicle and she (Ms Wilden) threw plastic bottles of water from the car at pedestrians. The police record (Exhibit 26 page 17) is a little unclear as to whether Ms Wilden was charged, however the police recorded that there were inconsistent statements from witnesses. 26 April 2007 Documents produced by the police (Exhibit 26 page 13 - 14) indicate that Ms Wilden felt intimidated and scared and was granted an AVO by Blacktown Local Court. 5 August 2007 Ms Wilden turned 18 years of age. 30 October 2007 Ms Wilden completed school. 2007 Ms Wilden commenced a relationship with Michael Brady (a pseudonym). It lasted for around 2 years, during which period she was 18 and 19 years old. "Relationship is respectful and includes an active sexual relationship" (MFI 1). Approximately 1 January 2008 Ms Wilden secured employment in real estate. She worked at Parramatta for about 4 and a half years, ceasing in April 2013. She also studied make-up. 1 May 2009 Ms Wilden commenced work doing make-up. 1 June 2009 Ms Wilden attended Headspace. The patient progress notes include "Kirra is a successful person with many resilient aspects and a good friendship group. She does however experience anxiety and depression and this has been the case for some time. She has concerns re inheriting her mother's bipolar disorder. Kirra has a history of past self-harming, which she has stopped for quite some time. She also experiences panic attacks with blackouts, OCD traits and dysthymia." (Exhibit A page 252) 18 June 2009 At the age of 19, Ms Wilden was involved in a motor vehicle accident and suffered minor injuries. 2009 - 2010 Ms Wilden engaged in a relationship with Joel Tuma for about a year. There were no intimacy problems. Approximately 1 April 2010 Ms Wilden and Mr Jennings met. 16 June 2010 State of Origin at Brisbane. They commenced an informal relationship and Mr Jennings invited Ms Wilden to Brisbane, where he asked her to be his girlfriend. Approximately 1 March 2011 Ms Wilden claims that Mr Jennings began verbally abusing her. 20 June 2011 Mr Jennings was fined $10,000 by the National Rugby League for drinking in Kings Cross whilst injured, contrary to specific instructions given to him (Exhibit A page 247). 12 August 2011 Mr Jennings was fined a further $20,000 for turning up to training "heavily intoxicated" (Exhibit A page 247). Ms Wilden commenced suffering from depression, aged 22 years. This continued to worsen into 2012 with a hospital admission on 27 February 2012. Approximately 1 September 2011 The Blacktown Hospital records reveal that Ms Wilden was admitted on 27 February and discharged on 28 February 2012. The triage presenting information stated "BIB threatening self-harm post-fight with boyfriend tonight." The triage presenting information - additional reads: "Told CTA she had been feeling sad for a long time. Given small dose of Valium by mother … O/E patient drowsy states not happy with life does not know why wants her life to end and currently stating she is tired and wants to go home". 20 February 2012 at 00:37am The note confirms that Ms Wilden had expressed thoughts of self-harm to her boyfriend. At that time, she had displayed features of depression and admitted to having plans of taking sleeping pills with the intent of self-harm. The defendant's chronology, MFI 2, refers to a police entry (Exhibit 26 page 18). The police were informed that Ms Wilden had recently become upset about life in general, and was telling people that she was going to end her life. Ms Wilden told the police that she was going to kill herself. Ms Wilden was described as being emotional but not aggressive, with no visible signs of self-harm. Ms Wilden went to hospital willingly. 28 February 2012 Ms Wilden had a fight with her boyfriend 2 days ago "then she decided to commit self-harm and wanted to end her life" (Exhibit A page 259). On examination there were no obvious marks of self-harm, Ms Wilden was alert and orientated and was not crying or did not appear agitated on arrival. The hospital notes for 28 February 2012 also record the following: "HPC - feeling very upset last night - feeling better now - under lots of stress with work - no thoughts of suicide - discussed follow-up options, meds, psychology" (Exhibit A page 261). Ms Wilden was discharged with a plan to follow up with her general practitioner and with a psychologist. The hospital note recorded "not mentally ill". 28 February 2012 Letter addressed "To whom it may concern" and "Dear Doctor", signed by Dr P Shrestha of the Blacktown Hospital: "She has been feeling depressed for 5 months, worsening over the last few weeks … she has been diagnosed with depression and offered medication which was declined. She was referred to her GP for follow-up". 2 March 2012 Blacktown Hospital Mental Health follow-up "boyfriend says 'I'm not with her anymore'" (Exhibit A page 269). 10 October 2012 Ms Wilden and Mr Jennings commence living together at The Ponds. October 2012 Fred, Mr Jennings' brother, also moved into the property at The Ponds, living with Mr Jennings and Ms Wilden. Fred's girlfriend Kim would stay some weekends until later in 2013 (see MFI 10 page 8). 2013 Mr Jennings transfers to the Sydney Roosters. 15 November 2013 Mr Jennings signs a 4 year contract with the Sydney Roosters after being released by the Panthers. 3 December 2013 Ms Wilden and Mr Jennings become engaged whilst holidaying in Paris. 14 February 2014 Mr Jennings and Ms Wilden move to Kensington. 5 October 2014 NRL Grand Final, end of season. 16 April 2014 Ms Wilden reprimanded for showing disrespect and inappropriate behaviour at work (MFI 10 page 9). 6 August 2014 Ms Wilden's performance discussed. Concerns raised regarding swearing and other unacceptable behaviour. 12 October 2014 Ms Wilden alleges that this is the date upon which she was first sexually assaulted by Mr Jennings, and that she was forced to engage in sexual intercourse without consent. 12 and 13 October 2014 Argument over Mr Jennings being out late, then going to the beach with another woman. 13 October 2014 Ms Wilden stayed in bed crying, stayed at mother's home overnight before returning to Kensington. 14 October 2014 Ms Wilden returns home. 23 October 2014 Text exchange with Ashleigh Sampson (Exhibit A pages 273 -274). "I haven't even told you the extent it's at". 25 October 2014 Text exchange between Ms Wilden and Elise Suprihat "I can't talk to anyone … I'm a mess I just cry everywhere I go whenever I talk about it … I'm not ready to talk about it" (Exhibit A page 275). Late 2014 Ms Wilden alleges that she was again sexually assaulted by Mr Jennings, in that she was forced to engage in sexual intercourse without consent. Early 2015 Ms Wilden and Mr Jennings move to Bella Vista. Early 2015 Ms Wilden's friend, Elie Ibrahim, moves into the Bella Vista residence. 2 March 2015 Ms Wilden commenced study to become a PE teacher. 4 June 2015 Three entries in bank statement reflecting purchases from Adairs, being $53.15 at Adairs Castle Hill, $854.04 at Adairs Homebush and $79.70 also at Adairs Homebush, said by Mr Jennings to be for the purchase of the quilt, the subject of evidence relating to the alleged third sexual assault. Winter 2015 Third sexual assault alleged to have occurred after Mr Jennings had been out drinking and returned to the Bella Vista residence and allegedly forced sexual intercourse upon Ms Wilden without her consent. At the same time "later, Kirra said to Michael 'I didn't want to have sex with you and you insisted on having sex with me'. He shrugged his shoulders and gave me a bland apology." (See MFI 1, plaintiff's chronology). 12 June 2015 Ms Wilden was celebrating her university results with friends. Mr Jennings was away in camp for the State of Origin, scheduled for 17 June 2015. Approximately 15 June 2015 Ms Wilden travelled to Melbourne to attend the State of Origin with Mr Jennings. Elie Ibrahim had moved out by the time that Mr Jennings returned from Melbourne. 13 June 2015 Ms Wilden sent Mr Jennings a text message saying that she was having a panic attack because he was not in the bed next to her (T173.10). 24 October 2015 Ms Wilden and Mr Jennings married at St Mary's Cathedral in Sydney. 2015 - 2016 Fourth sexual assault allegedly occurred whilst living at Bella Vista. 2016 Mr Jennings transferred to the Parramatta Eels, signing a 4 year contract. 20 February 2016 Ms Wilden and Mr Jennings moved to The Ponds. Early 2016 Ms Wilden's father moved into the residence at The Ponds, and remained there for about 2 weeks. March 2016 Relationship ended. 15 May 2016 Ms Wilden consults general practitioner with a history of "3 days' chesty, has presentation tomorrow, poor sleep due to cough at night, sore throat ++ feverish. Past history of laryngitis" (MFI 10 & Exhibit 26). 16 May 2016 Ms Wilden attended Auburn Hospital. The triage presenting information included references to complaining of cough and shortness of breath for the last few days (Exhibit 26). 17 May 2016 Ms Wilden and Mr Jennings separated. Her belongings were removed at a later date. She couch-surfed and stayed in her car (MFI 1, plaintiff's chronology). Mid 2016 Ms Wilden lived with Yusuf Ibrahim. Second half of 2016 Conversation between Yusuf Ibrahim and Ms Wilden, in which she disclosed the abuse to him (MFI 1, plaintiff's chronology). 15 October 2016 Ms Wilden attended a wedding with Mr Jennings (MFI 10, defendant's chronology). 2017 Ms Wilden maintained contact with Mr Jennings in person, by text and via Instagram (MFI 10, defendant's chronology). 24 February 2017 3 years prior to the filing of the Statement of Claim (MFI 1, plaintiff's chronology). June 2017 Ms Wilden and Mr Jennings met and engaged in consensual sexual intercourse. Ms Wilden consulted Dr Sakla, general practitioner. The reason for contact was given: • Anxiety/depression; • Insomnia - anxiety related; 11 September 2017 • Endometriosis; • Pap smear; • Vaginal candidiasis. Ms Wilden received lengthy counselling regarding her psychological issues. Ms Wilden consulted Dr Sakla, general practitioner. The reason for contact was given: • Anxiety/depression; 18 September 2017 • Long history, worse since recent divorce • Referral for counselling/CBT; • Mental health care plan. A letter was created referring Ms Wilden to Ms Nada Sakla, psychologist. 1 November 2017 Ms Wilden met Justin Maamary. Approximately 1 December 2017 Mr Maamary and Ms Wilden were looking for an apartment at Wentworth Point. Ms Wilden made a disclosure to Mr Maamary of the sexual abuse. She disclosed "my ex-husband used to force me to have sex with him" (T57.27). Mr Maamary recalled the conversation: "he used to force her into sex. She used to cry. He'd still try and have sex with her. She said that he slept with other girls. Said a - he had a drug, gambling problem" (T207.15). Text message from Ms Wilden to Mr Jennings, relied upon by the latter in MFI 10, including: ` "Nothing was fake you were just unfaithful, a liar and you can't keep your dick in your pants so if accusing me of what your (sic) doing helps you sleep at night then keep going because I did not leave you for any reason other than the fact that you're a liar and a cheat!!! I loved you and wanted to spend the rest of my life with you but you had to have the best of both worlds and if being with someone as disgusting as her is better then good for you! But I guarantee you, you will be sorry one day." "You even lied to Kristen. Does she know we slept together a few months ago?" (Exhibit 11). Late 2017 - early 2018 Ms Wilden moved to Wentworth Point. 7 February 2018 Letter from Garry Penhall, solicitor, to Mr Jennings asking that he refer the letter to his solicitor, as Ms Wilden "is hopeful that you both reach an amicable property settlement without the need for litigation" (Exhibit 26). Mid-April 2018 Mr Maamary moved into the Wentworth Point address with Ms Wilden. The relationship was good, including a normal sex life. 4 May 2018 Ms Wilden and Mr Maamary become engaged. 4 September 2018 Ms Wilden filed family law proceedings against Mr Jennings in the Federal Circuit Court. 22 October 2018 Ms Wilden consulted her general practitioner, Dr Sakla. The history provided was "divorced, problems with settlement, ++ anxiety/depression." The reason for contact was given as mental health care plan and a letter was created referring Ms Wilden to a psychologist (Exhibit A page 281 - 282). 22 November 2018 Ms Wilden consulted Dr Sakla, GP. Investigations were discussed with patient. "Primary infertility" referenced (Exhibit A page 282). 1 December 2018 Mr Jennings relies upon what appears to be a pathology referral, which includes a clinical note "1 yr infertility" (Exhibit 26). 1 February 2019 Ms Wilden commenced studying paramedicine at Western Sydney University. Studied up to 30-40 hours per week. February 2019 Mr Jennings made an offer to Ms Wilden in the property matter (this is referred to in MFI 10 but the source is not identified). 7 March 2019 Ms Wilden commenced work at Marrickville Metro. March 2019. Discussion between solicitors in property settlement matter. "First allegation of sexual assault and stand-down policy mentioned" (this is an entry in MFI 10, defendant's chronology. The source is not identified). April 2019 Special consideration given by university "for wedding and honeymoon" (Exhibit A). 6 April 2019 Ms Wilden marries Mr Maamary. 2019 Ms Wilden and Mr Maamary attend marriage counselling. May 2019 Ms Wilden referred by GP to Ms Nada Sakla, psychologist, "for counselling/CBT of psychological problems (from) failed marriage". Ms Wilden first consulted Ms Sakla, psychologist. Reference to symptoms of flashbacks associated with sexual abuse, low self-esteem and low confidence. 28 May 2019 Provisional diagnosis of depression with PTSD? "Reported being sexually abused by previous partner. Also subjected to regular verbal abuse and put-downs". Current difficulties included "Past Relationship/Sexual X, Verbal and Abuse and its effect on her current partner" (Exhibit A page 302 and following). 26 June 2019 Second consultation by Ms Wilden with Ms Sakla. Continuing low sex drive since the abuse recorded. "Her thought patterns are still defensive based on the emotional abuse and bullying". 9 July 2019 Third consultation by Ms Wilden with Ms Sakla. There was discussion of her feelings about the abuse, but ultimately was unable to discuss abuse further that day (Exhibit A page 310 - 311). November 2019 Application for special consideration from university to attend Oztag competition (see MFI 10, defendant's chronology and Exhibit 26). Late 2019 - early 2020 Sexual intercourse between Ms Wilden and Mr Maamary ceased. Early 2020 Ms Wilden and Mr Maamary separated. February 2020 Mr Jennings' solicitors filed an application for summary dismissal in the property settlement proceedings (see MFI 10, defendant's chronology, source not identified). 2020 Ms Wilden commenced receiving treatment from Dr Pignataro, psychologist. His notes commence at Exhibit A page 320. The notes are challenging to decipher, but clearly refer to Ms Wilden's first marriage and "verbal and sexual abuses". Ms Wilden also told Dr Pignataro that she has no contact with Mr Jennings now, but following the separation there was 12 months of contact (Exhibit A page 323). Fourth consultation by Ms Wilden with Ms Sakla: "is discussing opening up an assault case but feels still too anxious to discuss. Feels that she is unable to discuss as she was his wife and also that it brings back bad memories, she feels this interfering in her current marriage. Has been having problems with her current sexual relationship. 18 February 2020 Is presenting as uncomfortable and teary. Feels that as she was married and subjected to abuse, he regularly made her feel as if it was her fault. He regularly accused her of sleeping with others and she felt she had to put up in order to prove to him that he was wrong. Can see the difference in treatment from current husband to the abuse of the past. Discussed being verbally abused to the point where she would cry. He would then force himself on her as she was crying. Teary as discussing. Feels that she put up and not spoke up earlier. Feels she needed to stand up for herself before. Can see that she needs to discuss her feelings in order to progress. Is developing insight into her normal behaviour of covering up her feelings." There was a reference to discussing communication styles and also consideration of going to police (Exhibit A page 311 - 312). Ms Wilden consulted Dr Roberts, psychiatrist, in a meeting arranged without notice to Ms Wilden by Mr Penhall, solicitor. Dr Roberts provided a provisional diagnosis: 20 February 2020 "I consider the presence of anxiety, depression, her avoidance of discussion of events that are important for her to discuss, her avoidance of sexual activity post-ill treatment would be consistent with a diagnosis of post-traumatic stress disorder." (Exhibit A page 47). In MFI 10 of the defendant's chronology, criticism was made of a number of matters which Ms Wilden failed to disclose to Dr Roberts, including contact with Mr Jennings after their relationship ended and initially having no intimacy issues with her second husband (MFI 10 page 17). 24 February 2020 Proceedings commenced. March 2020 Mr Jennings complained to police about attempted extortion by Ms Wilden (MFI 10, defendant's chronology page 18, source of information not provided). 15 May 2020 Letter from Dr Pignataro "she has developed post-traumatic stress disorder. Functions associated with concentration, task completion, social and interpersonal functioning and travel have all been adversely impacted" (Exhibit A page 326). A report by Dr Pignataro, psychologist, to Mr Penhall, solicitor: 18 May 2020 "Thank you for the referral. It has been challenging to undertake treatment with Kirra. She has been reluctant to undertake intervention as she fears the process is too onerous and will come with adverse effects on her current mental state and functioning. She continues to lament of the incidents that transpired in her first marriage. She has resisted to disclose the extent of the sexual abuse endured. I am hoping that with ongoing contact she will feel more comfortable to do so. I do believe that she presents with a significant presentation of post-traumatic stress disorder in the context of a highly difficult first marriage. There was no pre-existing history of trauma, abuse and violence prior to the first marriage." In relation to her reluctance to accept treatment, Dr Pignataro stated "this does occur with individuals who have been significantly harmed, in that avoiding the past is a means to protect and manage a fragile mental state" (Exhibit A page 327). 16 June 2020 Consultation by Ms Wilden with Dr Pignataro. "Reluctant to discuss significant relationship experience with past partner … fearful to discuss concerns of previous (first marriage) …" (Exhibit A page 324). 8 July 2020 Ms Wilden again consulted Dr Pignataro. He recorded "anxious discussing past relationship … has difficulty talking about events …" (Exhibit A page 325). 21 May 2020 Ms Wilden received Special Consideration for her studies. The application was supported by a letter from Dr Pignataro dated 15 May 2020, indicating that Ms Wilden had "endured significant abuse. She has developed post-traumatic stress disorder" (Exhibit A page 329). Letter from Dr Pignataro to Mr Penhall: 3 August 2020 "Kirra remains highly compromised with symptoms and impairments associated with post-traumatic stress disorder (PTSD). Core features of her presentation include impaired concentration and task completion capacity, social avoidance and withdrawal and interpersonal avoidance. She has been unable to attend regular face to face sessions, preferring telephone contact instead on 3 occasions to date. As well, she has been unable to fulfil university study obligations and attend class. Kirra would benefit from a deferral of court proceedings by 4 months in order to establish a consistent treatment experience" (Exhibit A page 356). 26 August 2020 Ms Wilden applied for, and again received, Special Consideration for her university studies (Exhibit A page 357). 20 October 2020 Defence filed, in which Mr Jennings made some partial admissions as to uncontroversial matters but essentially denied the allegations in the statement of claim (Exhibit A page 35). 21 December 2020 Ms Wilden examined by Dr Samuell, psychiatrist, at the request of the defendant (report dated 4 January 2021 - Exhibit A page 67). "If one takes Ms Wilden's self-report at face value, she describes stressors that would fulfil the stressor criteria for a post-traumatic stress disorder. She said that she had been having nightmares in the 'last few weeks'. She described intrusive recollections of the alleged sexual assaults that satisfied the re-experiencing phenomena criteria for a post-traumatic stress disorder. Her difficulties with sexual functioning may also be a form of avoidance, satisfying that criteria for post-traumatic stress disorder, although I would respectfully recommend that an examination by an appropriately qualified gynaecologist be sought to help the court distinguish between potential physical and psychological contributions for that symptom. She describes long-term difficulties with her mood and claims social withdrawal" (Exhibit A page 85). 15 February 2021 Second consultation with Dr Roberts, psychiatrist, referred by solicitor (report dated 27 February 2021, Exhibit A page 56). "Ms Wilden has developed post-traumatic stress disorder characterised by preoccupation with past events, a continuing history consistent with flashbacks, heightened anxiety of inappropriate degree and ongoing feelings of revulsion in regard to sexual interaction, the revulsion and inability to engage in and enjoy sexual activity being the result, on reasonable psychiatric grounds, of the abuse, ill-treatment and rape as described by her" (Exhibit A page 64). 15 February 2021 The defendant's chronology (MFI 10) states that "plaintiff did not disclose current relationship but did disclose a sexual encounter" to Dr Roberts. The expert was not required for cross-examination. 8 April 2021 Supplementary report by Dr Samuell based on a review of documents without a further consultation with Ms Wilden. Joint report from psychiatric experts. Experts agreed: • that the plaintiff suffers from a post-traumatic stress disorder; 10 May 2021 • that it has impacted her capacity for intimacy; • that it is plausible that the post-traumatic stress disorder developed as she claimed; and • that she requires treatment. The experts did not agree as to the extent of her disability associated with her post-traumatic stress disorder. 25 May 2021 Hearing commenced. 1 March 2022 Estimated date for completion of degree in paramedicine.

The Four Alleged Sexual Assaults

Although in the statement of claim it was alleged that Ms Wilden was assaulted five to six times by Mr Jennings, that was limited to four occasions in the course of the hearing (T545.33).

Evidence of Ms Wilden

Ms Wilden thought that this occurred in about October 2014. Mr Jennings had come home late at night after Ms Wilden had gone to bed. She heard banging at the door. She opened the door and Mr Jennings was on his hands and knees. He crawled through the front door, laughing. Ms Wilden went back to bed. She estimated that the time was between 2:00am and 4:00am, but was not 100% sure. She described what occurred as follows at T27.41 through T28.7: He reached over and he touched my genitals. When I pushed him away he then started to tell me that I was sleeping with other people, that was why I don't want to have sex with him and that I was a slut and I have all these guys that I'm sleeping with. I - he then reached over and touched me again with a bit of a laugh and I pushed him away. He then rolled over on top of me and tried to touch me again. I was pushing him away and he was trying to kiss me when I turned my head away from him. He then attempted to pull down my underwear. He smelt of alcohol, cigarettes. I was telling him, "No," that I don't want to have sex with him. He said, "Why? Because you're sleeping with other people? With other guys?" His words. He then pulled down my, my underwear and I tried to pull them back up and then he laid on top of me and he had his body weight pressing down on the top of my body. He pulled my underwear down and then he spat on his hand and them put it on himself and then began having sex with me and I just laid there, looking away and crying. And then when he finished, I just went and took a shower. I sat in the shower.
Ms Wilden went on to describe how she sat in the shower feeling violated and disgusting. I note that during the course of giving this evidence, Ms Wilden was emotional and short breaks were required from time to time.
After a short break, Ms Wilden gave further evidence about this first encounter. She said the he pressed down on her chest with his in order to hold her down while he pulled her pants down. He used his legs to push her legs apart before having sex with her. This lasted for 10 minutes or so before Ms Wilden went to the shower, where she sat crying and washing herself. She showered for about 20 minutes. When she came out of the bathroom, he was sleeping and she went back to bed.
The next day she told him that she did not want to have sex with him the night before and that he forced her to do it. In response, he said nothing but "just shrugged his shoulders".

Evidence of Mr Jennings

Mr Jennings denies that he had sex with Ms Wilden at all on this occasion (T521 and following).
An issue also arose as to whether or not Mr Jennings was even at home at the time Ms Wilden claimed the sexual assaults occurred. Her evidence was that it was "early hours of the morning, maybe 2, 3am, maybe 4, I'm not 100% sure" (T27).
The evidence in chief of Mr Jennings was as follows: Q. The night of the wedding, while you were out, were there any issues between you and Kirra? A. Yes. I went to the casino after the wedding and Kirra was upset about that and she was - yeah, upset that I was staying out late past - yeah, it was past 3 o'clock.
And at T288: Q. Why don't you just tell us what happened? A. Okay. Yeah so I've gone out to the wedding then after the wedding I've gone to the casino, come home at around six or seven in the morning. Q. Six or seven? A. Six or seven in the morning if I can remember and I - well, I had to use my key to get into the house, I've gone to the lounge room and I've text from the lounge room to Kirra. I can't remember exactly what the text messages were but I slept on the lounge room at that point in time because she told me to sleep in the lounge room when I got home so as soon as I got home I just went to the lounge room.
Mr Jennings said that he slept in the lounge room because Ms Wilden told him to do so. He said that he did not know whether she was awake or asleep, but assumed that she was asleep (T288.39).
The evidence of Mr Jennings in cross-examination was not entirely consistent with his evidence in-chief relating to the first sexual assault.
The cross-examination of Mr Jennings of events leading up to the alleged sexual assault on 12 October 2014 commenced at T446.36. The text messaging between the parties initially indicated that he did not intend to stay at the wedding until the end, and that he was planning on having a few beers only. The church where the wedding ceremony was held was located at Coogee, and the reception was held at Luna Park, commencing at 5:30pm. He said that he would attend the reception and have a few beers before coming home (T448.1).
By text message, Mr Jennings indicated to Ms Wilden that he was intending to leave their Kensington apartment at 5pm (T448.45). Mr Jennings was challenged as to that on the basis that at 16:31.17 he was already at the races with friends. He was not sure what he was doing at that time.
At 18:45.30 Ms Wilden texted Mr Jennings "how's the wedding?", and replied "yeah, it's nice".
At 20:27.28 he told her that he was still at the wedding. He could not recall whether there was a Snapchat conversation which Ms Wilden had accessed at home, indicating that Mr Jennings had made plans to go to the casino after the wedding. Mr Jennings accepted that plans were made to go to the casino, but could not recall how they were made.
The cross-examiner then returned to the earlier messaging regarding being at the races, and Mr Jennings accepted that Ms Wilden saw photographs of him at the races surrounded by girls (T450.30). Further texting occurred at 23:35pm, when Mr Jennings thought that he was still at the wedding.
The text messages in respect of this night and the next day are best presented in Exhibit M, a document created by Mr Jennings well in advance of the hearing and provided to his solicitors. It was not made available to Ms Wilden's legal team until after she had given evidence.
In a text sent at 23:08.52, Mr Jennings admitted that he had been to the races before going to the wedding. He initially said that he was there for an hour, and later for 30 minutes.
At 01:28.11, on 12 October 2014, Ms Wilden messaged Mr Jennings asking "where the hell are you". Between 01:30.56 and 01:37.52, Ms Wilden tried to call Mr Jennings on 8 occasions. The calls were not answered.
At 01:38.56 she sent a text message stating "see what I mean, your a fucking arsehole! I knew you were (sic) coming home after the wedding you liar!!! I knew listening to you last week and giving you another chance was a mistake!".
Between 01:40.28 and 01:47.55 a further 7 telephone calls were placed by Ms Wilden to Mr Jennings and were not answered.
At 01:48.22, Mr Jennings sent a text to Ms Wilden stating "I'm at Cas. I'm coming home y pissed me off I'm sorry".
Between 01:54.51 and 02:04.01, a further 4 telephone calls were placed by Ms Wilden to Mr Jennings and again were not answered.
Between 02:09.13 and 02:15.33, 3 text messages were sent by Mr Jennings to Ms Wilden saying that he had gone to the casino, accusing her of having a fight over nothing and claiming that all night he was trying to text her and she did not reply. He said that he felt "repelled" and stayed out at the casino by himself drinking like an idiot.
At 02:16.44, Ms Wilden replied "good I hope it was worth it". At 02:18.29 and 02:18.43 Mr Jennings replied with 2 text messages complaining that Ms Wilden was giving him "shit" over nothing, and that he was texting her all night but he did not reply. He ended the second text message by saying I'm going to "fkn" stay out then.
Ms Wilden then complained in text messages about Mr Jennings' behaviour that night. He responded at 02:22.26 saying that he was on his way home after the wedding but she was brushing him off so he got angry and assertive. She replied that she was asleep. There were then further accusations by Ms Wilden about him "riding" (sic) himself off every weekend, and that she heard girls in the background when he did answer her calls. That last text message was sent by Ms Wilden at 02:35.47.
It was not until 07:47.41 that Mr Jennings replied "girls r u serious Kirra. I was at the casino n fkn came home when I seen your calls fk u r so insecure". The next message was sent by Mr Jennings to Ms Wilden at 11:55.07: "I was at casino for less than an hour then I came home I could have got carried away but I didn't ok I was texting you that night farr I'm sorry ok let's go get some lunch at the beach or something".
The effect of the latter text exchanges is that, according to Mr Jennings, he left the casino to come home when he had seen that Ms Wilden had called. According to Exhibit M, the last unanswered call was placed at 02:04.01. If he had seen that missed call at or about that time, then it is more probable that he arrived home around the time said by Ms Wilden, being the "early hours of the morning, maybe 2, 3am, maybe 4, I'm not 100% sure", rather than at 6-7am as stated in the evidence-in-chief of Mr Jennings (T287).
Elsewhere in his evidence, Mr Jennings claimed that his phone was dead before he came home (T470.22). This is also inconsistent with his evidence-in-chief that, upon arriving home, he sent a text message to Ms Wilden.
In further cross-examination, Mr Jennings recalled that he also attended at least 2 clubs, as well as the casino, after the wedding (T455). He had no recollection as to how he got from the wedding to the clubs, or who he was with at the clubs. He claimed that he went to the casino after the 2 clubs and, again, could not recall how he got to the casino (T460.14).
When asked how long he was at the casino, he replied: "not sure, two to three hours" (T460), and he could not recall who he was with at the casino, but accepted that he may have been there by himself (T460).
Mr Jennings accepted that he did not mention in his evidence-in-chief attending The Club and the Red Room (T472). He denied that he did not mention it in his evidence-in-chief because it did not happen, and denied that he made up a story that he returned home at about 6 or 7am to discredit Ms Wilden's account that the assault occurred sometime between 2:30am and 3:30am (T474.25).
Further, in relation to his phone, Mr Jennings said that his phone died and was not turned on again until it was plugged in to recharge, some 10 to 15 minutes before 7:47am that morning (T511). He denied leaving the casino at around 2:30am when his phone went dead (T512.9).
He said that he was told to sleep on the lounge when he returned home that night "in their arguments during that night", although he admitted that this was not mentioned in his evidence-in-chief and did not appear in text messages (T477).
The evidence of Mr Jennings was that he "had a little nap" on the couch when he got home at 6:00am (T481), but could not remember how long he slept for. This does not comfortably sit with his evidence that he charged his phone for 10-15 minutes before sending the text message at 07:47am.
Upon arriving home, he had some recollection of opening the front door, but no recollection of getting out of a taxi, walking to the front door, nor what he was wearing (T484). He could not recall walking up the stairs to the apartment, but maintained that he had a recollection of arriving at his unit and holding his keys. He denied that he was on his hands and knees, being unable to open the door and banging on the door (T516). Overall, his recollection as to any significant matter was poor. His evidence was that he had "got memory of some days" in October 2014 such as the wedding but otherwise "nothing that (he) can recall" (T453.4)

Evidence of Ms Wilden

The second assault allegedly occurred when they were still living at the same residence in Kensington. At T30.41 through T31.6 she described the rape as follows: So, Michael had been out drinking. He came home early hours of the morning, roughly maybe 3am, 4am. I was in bed. He came into the room and he stripped down and got into bed. He smelt like he had been drinking, he smelt like alcohol or cigarettes. He then again touched - tried to touch my genitals. I pushed him away. Then he started to call me a slut and told me that I had been sleeping with everyone else and he said, "Is that why you don't want to sleep with me because you're sleeping with other guys". He told me that I was a joke and that I never want to have sex with him. At this point, I was crying. We had been arguing previously about him being out, so I was quite angry, quite upset. He kept me calling me a slut, kept telling me that I was sleeping with other guys and I lay there crying and he kept saying things like this at which point I slapped him across the face. I was quite shocked that I actually did that. I've never struck anybody before in my life. I don't think it really even affected him at all. He then again reached over, touched my genitals with a snickering laugh, like he was trying to lighten the situation. I told him to stop. I said, "It's not going to happen".
He then pulled Ms Wilden's pants down, and she rolled over to go to sleep. He then forced her to roll back and again touched her genitals "quite rough" (T31.17). She continued: I told him to stop and he then had half his body on one half of mine, trying to pull my pants down when - and I was trying to pull them back up. I was crying, I told him, "No" and then he eventually laid on top of me, pulled my pants down and he began having sex with me. During this, I kind of just turned my head to the side, I was crying. I told him that it was hurting me and he kept going. He - and finished and I got up and went into the bathroom to have a shower. (T31.17 - 23)
Again, Ms Wilden told the Court that she sat in the shower washing herself and crying.
When asked how she felt after the second rape, Ms Wilden stated: I felt disgusting. I felt humiliated, ashamed of what happened because he was my partner and I thought that he loved me. I didn't, I didn't think that - at the time that it was assault because I thought it was my duty to have sex with him. I knew it was wrong because I didn't want it to happen, but I just - I don't know, I just - I felt violated. I felt betrayed. (T32.22 - 26)

Evidence of Mr Jennings

In his evidence-in-chief, Mr Jennings denied that the second sexual assault occurred (T291.21).
In cross-examination, Ms Wilden's account was put to Mr Jennings. The effect of his evidence was that he denied that the second sexual assault occurred, stating that he "wouldn't try and force myself onto her" (see generally T530 - T534).

Evidence of Ms Wilden

According to the plaintiff this occurred in the winter months of 2015 at a new residence at Bella Vista. She estimated the time by reference to the fact that she had just purchased a new quilt. Mr Jennings had been out drinking and partying. He returned home. It was dark. Ms Wilden was unsure as to the time. Mr Jennings was quite loud coming inside, his speech was slurred and he did not really make sense. He then got into bed and attempted to take her pants off. She pushed him off and tried to roll over and pretend that she was asleep. Her evidence continued: He then rolled me back towards him. I told him, "No." I said, "Stop" and he again started with the calling me names, calling me a slut, calling me - telling me that I had all these guys. He, he rolled on top of me and attempted to pull my pants down again. I tried to keep them on and then he held my legs open with his legs and pulled my pants down as far as he could and then he began to have sex with me. I, I just remember laying there and feeling, like, dead. I didn't feel it. I just, no feeling but blank. Like I was actually dead. Like my soul had left my body. (T34.31 - 38)
Her next recollection is being in the shower, where she sat and washed herself. She stated: I just remember feeling dirty, feeling disgusting and like I had to just wash it off. And the following morning, I woke up and he had wet the bed from being so drunk. (T35.12)
She woke him and told him that he had wet the bed, and he told her to get out of the room. There was no discussion about the rape.

Evidence of Mr Jennings

Mr Jennings had a recollection of purchasing a quilt "sometime around June … 4 June" (T292). Exhibit 7 showed the purchase of items from Adairs on 4 June 2015. By this time, the couple had relocated to Bella Vista. Mr Jennings denied ever forcing Ms Wilden to have sex at Bella Vista (or anywhere else) (T293.31, T295.5). Mr Jennings maintained that denial in cross-examination (T596).
The third alleged assault was also associated with an incident, wherein Mr Jennings wet the bed. Mr Jennings accepted that he wet the bed on a night around the time of the purchase of the Adairs blanket "because I remember that blanket was brand new" (T295.20).
The wetting of the bed was connected in time with the purchase of the quilt and, on Ms Wilden's case, the third assault. Mr Jennings maintained that he has only wet the bed on one occasion (T581.30).
In a text message from Mr Jennings to Ms Wilden on 17 May 2015 at 11:44.28, he said "you telling everyone that I pissed the bed huh" (Exhibit S). The other messages in Exhibit S also demonstrate that Mr Jennings was out on the night of 16 - 17 May 2015. It is apparent that Ms Wilden was unhappy with Mr Jennings being out so late again, as at 00:40.19 on 17 May 2015 she messaged him: "I knew you couldn't do it lol". Over the course of the next 20 or so minutes, Ms Wilden attempted to contact Mr Jennings by telephone, however he did not answer the calls. She sent a further message at 00:58.53 stating "answer your phone". There was initially no reply and 2 further unanswered calls were placed by Ms Wilden before she sent a further text at around 01:15.35 stating "your really going to do this again? You told me you weren't going out and now you're out at a club getting carried away. I actually can't believe you're doing this again. Bye Michael."
A phone call from Mr Jennings about 8 minutes later went unanswered, and at 03:28.10 Mr Jennings sent a message stating "I'm. coming holme babe I'm not wasted (sic)". It is apparent from that last message that Mr Jennings arrived home after 3:30am on 17 May 2015.
The next string of text messages commenced at 11:07.28, when Mr Jennings said "I swear to fkn god it's not mine that invoice wasn't mine I swear on evrything babe. Why are you finding reasons to fight I can swear on evrything the cab costed me 130 Kirra that wasn't my receipt I picked that up off the floor of the cab Kirra plz answer your phone or reply".
There were then a series of follow-up text messages from Mr Jennings, which were not responded to until 11:20.26.
These exchanges were put to Mr Jennings commencing at T582. He could not recall which club he had been at, the conversation had with Ms Wilden by text, or the fact that they had a falling out as a result. He did however agree with the following proposition put at T584.1: Q. There was a blazing row between the two of you because in fact you had again breached another agreement to come home early and not to drink. Do you agree with that? A. Yes.
There was a dispute in the text messages concerning the origin of a receipt which Ms Wilden found, suggesting that Mr Jennings had been buying drinks at a club. Mr Jennings agreed that Ms Wilden found an invoice in his pocket which revealed that fact (T584.9). He denied that the receipt was his and said that he picked it up off the floor of the cab, however, when asked whether he had any recollection at the time of giving evidence as to whether he picked the invoice up from the floor, he said that he did not (T585.1). The following exchange then occurred: Q. You might have picked it up off the floor, right, or you might have been telling lies to your wife? A. I don't recall.
There was a further receipt which apparently demonstrated that Mr Jennings caught a taxi from Epping to their house. He was unable to assist as to whether that was true, as "I can't recall this night" (T585.39).
Mr Jennings did agree, however, that if the text is accurate then it suggests that there is a receipt from some place in Epping to his home. He was unable to say whether the receipt belonged to him.
Mr Jennings denied that the occasion upon which he wet the bed was the morning of 17 May 2015, and that it was on that occasion that he forced himself on Ms Wilden for the third time. How he can positively deny any events on that occasion is undermined by his evidence that he could not recall that night.

Evidence of Ms Wilden

This is alleged to have occurred at their residence at The Ponds. Ms Wilden was uncertain as to the day on which it occurred. She recalled Mr Jennings touching her and she refused by saying "no, I don't want to have sex". Sexual intercourse then took place and she lay there crying.

Evidence of Mr Jennings

In answers to a series of questions (at T587), Mr Jennings denied that he sexually assaulted Ms Wilden as she claimed on the fourth occasion.

Disclosures by Ms Wilden

At the time these sexual assaults occurred, Ms Wilden did not tell anybody. She did, however, speak to her friends about other unsatisfactory aspects of the relationship. One example of this is the text message exchange with Ashleigh Sansome, which occurred on 23 October 2014, a few weeks after the first alleged rape. In that exchange, Ms Wilden told her friend that she was "not coping very well", and was "an absolute mess". When asked by Ms Sansome whether she had "been updating the girls" Ms Wilden replied "no I haven't told them. Please don't I just don't want to tell anyone until I can't physically talk about it without crying" (Exhibit A page 273). Ms Wilden said to Ms Sansome "I haven't even told you the extent it's at".
It is plain from that evidence and the plaintiff's evidence in the course of the hearing that she was initially not prepared to discuss the rapes.
Although this is a civil case, the law recognises that in some cases a victim's recollection of sexual offending may be imperfect. For example, by s 293A of the Criminal Procedure Act 1986 (NSW), a judge may direct a jury that experience shows: 1. people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time; and 2. trauma may affect people differently, including affecting how they recall events; and 3. it is common for there to be differences in accounts of a sexual offence; and 4. both truthful and untruthful accounts of a sexual offence may contain differences.
Further, and perhaps more relevantly, a delay in disclosure or complaint does not mean that the offending did not take place (see s 294 of the Criminal Procedure Act 1986). A judge must warn the jury that an absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and must inform the jury that there may be good reasons why the victim of a sexual assault may hesitate in making or may refrain from making a complaint about the assault.
I am not relying upon these principles which exist in the criminal law to fill any lacuna in the evidence in this case any delay or avoidance in disclosing the rapes is entirely consistent with the diagnosis of PTSD and aspects of the plaintiff's evidence that she did not want to complain as she was in love with Mr Jennings. That is reflected by the fact that even after they broke up in 2016 they continued, from time to time to reconcile for more than a year.

Yusuf Ibrahim

About four to six months after leaving the matrimonial home in 2016, Ms Wilden lived with her friend, Yussuf Ibrahim. They had known each other for about five years, having met through Oztag. Whilst she was living with him, Mr Ibrahim asked why she was "always so depressed, why I would have panic attacks, what the reasons were" (T48.26). The plaintiff told Mr Ibrahim about the assaults. She said "I told him that he would verbally abuse me, he would force himself onto me and force me to have sex with him" (T48.32). Mr Ibrahim told her to get legal advice, but she did not at that time (T192.5).
Mr Ibrahim gave evidence at T488. He stated: She had told me that she had been sexually abused, and then I asked her, like, "What do you mean?" And she said that Michael sexually abused her. I'm like, "What do you mean? That's like rape, then". I go - she goes, "Yeah, he was force" - he was forcing himself upon her. I'm like, "Why didn't you just say, like, 'Stop', and, like, 'Don't'?" And then she told me that she did say that. And then I go, "Yeah, and then what happened?" And she was sort of saying, "Then he just - he just kept on trying. I kept on saying 'No', and then it just sort of happened" … And then I asked her, "Well, you've got to tell someone. Like, you've got to go speak to someone about this. Like, you've got to report this". And then she was, like - she was, like, afraid of what might happen if she told someone, cause obviously he plays football and is going to be in the media. And she was not the type of person that wants all the attention, so she didn't want everyone knowing her business because it'd get out there. It'd be in the papers and stuff like that. So she was very reluctant to go and talk to someone. But I kept on telling her to go and talk to someone about it.
Mr Ibrahim described the plaintiff's appearance as follows: She was very upset, very distraught. You know, she didn't - like, it was hard for - it seemed like it was very hard for her to talk about it. But obviously I tried to push for more information, obviously, and, like, to find out, like, what, what happened and then later on she - I kept on asking her, like, "Why don't you just, like - you - why didn't you just go?" She goes, "I couldn't go". She goes, "I kept on saying 'Stop' and then, like, it just sort of happened" … I could see that her - like, after she told me, like, there, there was numerous times after where things wouldn't be going right and then, like, she'd - I was scared that she's going to kill herself, you know, and, like, do, do things like that. Because she was - she was very upset after. On numerous times. Like, not just sort of on the one day, but, like, a couple - a week or two just after she'd be upset again. Like, it would come up again. And then every time there would be, like, banter about, like, sex and stuff like that, like, she wouldn't - she would turn off. Like, she would be a different person. Like, she would move away or, yeah, not be a part of the conversation. (T489.3-20)
Mr Ibrahim was not cross-examined as to the content of the conversations about which he gave evidence. Similarly, Ms Wilden was not cross-examined on her disclosures made to Mr Ibrahim, other than for it to be suggested to her that she did not seek legal advice at that time (T192).
Mr Ibrahim was an impressive witness whose evidence I accept. In cross-examination he said that he had a clear recollection of what was said by Ms Wilden to him in that short period after she left the matrimonial home.

Dr Sakla, General Practitioner

Ms Wilden gave evidence that "straight after the separation" (T47.36) she sought help from her general practitioner in relation to her worsening anxiety and depression associated with her recent divorce, and was referred to Ms Sakla psychologist. In Dr Sakla's clinical notes for 11 September 2017, under the heading "Management", it is recorded "counselled lengthily regarding her psychological issues (sic)". A letter was printed in relation to her mental health. She was referred for counselling but did not pursue it as "I couldn't talk about it. It was just too hard" (T47.41).

Justin Maamary

By November 2017, Ms Wilden had commenced seeing Justin Maamary. In December 2017, at Wentworth Park, Ms Wilden made a disclosure to Mr Maamary of the sexual abuse. She disclosed "that my ex-husband used to force me to have sex with him" (for plaintiff's evidence see T57.27, for Mr Maamary's evidence see T207.25). Mr Maamary also said that he did not understand it as rape, but he was shocked and knew that it was wrong. He did not tell her to seek advice or assistance (T203.7).
The evidence of Mr Maamary as to the complaint made by the plaintiff was unchallenged in cross-examination. I consider him to be a reliable witness, whose evidence I accept.
Similarly, it was not put to Ms Wilden that her evidence of complaint to Mr Ibrahim was a fabrication or in any way untrue.
By about May 2018 Ms Wilden and Mr Maamary were planning a more permanent relationship. Ms Wilden was encouraged by him to proceed with a divorce from Mr Jennings. It was in those circumstances that Ms Wilden first consulted Mr Penhall, in about mid-2018.
The relationship between Ms Wilden and Mr Maamary did not last. It started strong, but deteriorated. She began to experience issues in their relationship and became "shut off", reluctant to have sex, and began to experience panic attacks during sexual intercourse. Mr Maamary's best recollection was that this occurred about 10 months into the relationship, in about August 2018 (T202).
Mr Maamary gave evidence which was consistent with that of Ms Wilden as to the progress and ultimate failure of the relationship. There was an inability to engage in a normal sexual relationship, which ultimately ended in the relationship failing. Once Ms Wilden began to face the past, in the context initially of divorce proceedings, her attitude changed and her relationship with Mr Maamary suffered. She began to make excuses for not engaging in sexual interactions, and when they did have sex she would become visibly upset (Exhibit B para 10).
There were occasions when Ms Wilden would tell Mr Maamary to stop halfway through sexual intercourse (T200.39). By the end of their relationship, sex slowed to once a month, then three times in the last six months (Exhibit B paragraph 11).
They separated in early 2020. It was not put to either Ms Wilden or Mr Maamary that their evidence concerning their relationship was fabricated or otherwise false, or indeed that they separated for any reason other than their unsatisfactory sexual relationship.

Gary Penhall

Whilst the plaintiff complained to Mr Penhall of both verbal and physical abuse, he had difficulties obtaining instructions from her, as she was reluctant to discuss the subject (T255.16 - T259.17).
Gary Penhall is a solicitor of some 55 years' experience. Ms Wilden retained him to act in her interests following the matrimonial breakdown. During a consultation on 30 August 2018, Mr Penhall noticed something about Ms Wilden's affect. He stated that her appearance was "always flat and somewhat unresponsive and frustrating, difficult to obtain information, particularly in relation to matters of domestic violence". There was not the same problem of obtaining information in respect of other matters (T255.21).
Mr Penhall recalled that Ms Wilden was called "words like 'slut' and things of that nature, I think on a fairly regular basis" (T255.29).
In evidence, Mr Penhall stated "She indicated to me that there's been physical abuse, but I, "But I don't want to talk about it, I find it painful to talk about" (T255.43).
The plaintiff gave evidence that she recalled telling Mr Penhall that "Michael used to force himself onto me" (T51.10).
This was challenged by senior counsel for Mr Jennings, however Ms Wilden maintained that she did tell Mr Penhall of the assaults (T197.11).

Ms Nada Sakla

The plaintiff returned to Dr Ashraf Sakla, general practitioner, on 22 October 2018. The clinical notes record the following entry: Divorced, problems with settlement, + + anxiety/depression. (Exhibit A page 282)
A letter was created for a referral to a psychologist.
A further consultation with Dr Sakla, general practitioner, occurred on 2 May 2019, at which time Ms Wilden was again referred to Ms Nada Sakla, psychologist: Thank you for seeing Kirra Wilden, date of birth x/x/89, for counselling/CBT of her psychological problems due to failed marriage. (Exhibit A page 294).
On 28 May 2019 Ms Wilden saw Ms Sakla, psychologist. She complained of "panic attack (uni), depressed mood, overwhelming insomnia, flashbacks (associated with sexual abuse), low self-esteem, low confidence". Ms Sakla's clinical notes are at page 297 of Exhibit A. Doing the best I can to interpret the handwritten note at 297, in respect of the question "Relationship with partner", the following appears: Relationship good with current partner. She believes him to be a great guy. She believes she is being affected by memories of past relationships, especially sexually. Reported being sexually abused by previous partner. Also subjected to regular verbal abuse and put-downs.
Under the heading "Current difficulties" the psychologist appears to have written "PAST RELATIONSHIP/sexual, verbal abuse and its effect on her current … ".
Under the hearing "Effects of these disabilities" the psychologist wrote: Difficulty trusting; sexual difficulty; management of flashbacks.
Following that consultation with the psychologist, Ms Sakla wrote to the GP indicating that Ms Wilden had presented with the following conditions: 1. depression; 2. anxiety; 3. low energy and motivation; 4. hopelessness; 5. flat and guarded; and 6. evidence of trauma.
The psychologist made a number of recommendations for treatment.
In a typewritten note following an appointment on 26 June 2019, Ms Sakla, psychologist, recorded, amongst other things: Her divorce has started to progress. Continues to experience minimal sex drive, "I don't ever feel like having sex in general since the abuse" … unable to discuss abuse today due to exam this afternoon.
In respect of a further consultation on 9 July 2019, Ms Sakla made the following typewritten notation: Discussed her feelings about the abuse. She has been abused about five to six times. It occurred in the 3 years of. (sic) Believed she had no rights and could not deal with it. It also triggered memories of a past unsuccessful attack. Was teary and upset. Believes that she had been let down by most people she has trusted. Is unable to discuss abuse further today.
The plaintiff consulted Ms Sakla again on 18 February 2020. She spoke of her relationship with Mr Jennings, including: Feels that she gave up everything for seven years. This includes regularly moving, worked only according to his needs, started to study as future for both of them. She also feels that she put up with his behaviours for seven years. Is discussing open up an assault case but feels still too anxious to discuss. Feels that she is unable to discuss s (sic). She was his wife and also brings back bad memories, she feels this interfering in her current marriage. Has been having problems with her current sexual relationship.
Ms Wilden went on to say that she did not want her family to know what had happened with Mr Jennings as she did not want to put them through the pain.
And later: discussed being verbally abused to the point where she would cry. He would then force himself on her as she was crying. Teary as discussing. Feels that she put up and not spoke up earlier. Feels she needed to stand up for herself before.
There is then reference to consideration being given to reporting the abuse to the police.

Talitha Spinos

Talitha Spinos is Ms Wilden's cousin. She gave evidence about her observations of their relationship and complaints made by Ms Wilden to her about Mr Jennings' conduct during the relationship, focussed particularly on his socialisation. It was only after Ms Wilden and Mr Jennings were no longer together that Ms Wilden confided in her cousin about what else had occurred. She said that she was told by Mr Wilden that Mr Jennings "would force himself onto me and have sex with me when I didn't want to" (T216.20).
Ms Spinos also gave that as a reason why Ms Wilden later had problems in other relationships.
Ms Spinos was cross-examined. She thought that conversation took place in 2019, but was certain that it took place after they had separated. She was not challenged as to the complaint made by the plaintiff.

Michael Brady

Ms Wilden confided in Michael Brady about the intimacy issues that she was having with Mr Maamary, and said that they were because Mr Jennings had forced himself on her during their relationship (T310).
Ms Spinos was an impressive witness whose evidence I accept.
Mr Brady was a careful witness. At T310.45 he stated: She had some intimacy issues and - I just want to be careful about my words here because in her previous relationship Michael had forced - being forced during sex or forced himself upon her.
The evidence given by Mr Brady was not challenged by counsel for the defendant. I found Mr Brady to be a reliable witness, and I accept his evidence.

Dr Pignatoro, Psychologist

There are some notes created by Dr Pignataro in Exhibit A (see pp 313, 316, 320, 326 and 356). Again, the Doctor's handwritten notes are difficult to decipher, but there is clear reference to abuse in her marriage with Mr Jennings. She stated "the abuse would happen after drinking - he was going out with friends every weekend and coming home the next weekend" (page 313).
There are further handwritten notes from Dr Pignataro commencing at page 320. At page 320 there is reference to "verbal and sexual abuses". There is also reference to "5-6 incidents of forced sexual interactions" (page 323).
On 15 May 2020, Dr Pignataro, psychologist, issued a certificate which stated: Kirra is under treatment and has been so since February 2020. She has endured significant abuse. She has developed post-traumatic stress disorder. Functions associated with concentration, task completion, social and interpersonal functioning and travel have all been adversely impacted. Any consideration that the university can provide for study and test allowances is much appreciated.
Further insight into Ms Wilden's thought process was exposed by a letter from Dr Pignataro to Mr Penhall, solicitor, dated 18 May 2020, which in part reads: It has been challenging to undertake treatment with Kirra. She has been reluctant to undertake intervention as she fears the process is too onerous and will come with adverse effects on her current mental state and functioning. She continues to lament of the incidents that transpired in her first marriage. She has resisted to disclose the extent of the sexual abuse endured. I am hoping that with ongoing contact she will feel more comfortable to do so. I do believe that she presents with a significant presentation of post-traumatic stress disorder in the context of a highly difficult first marriage. (Page 327)
Dr Pignataro's history taking and opinion were not challenged.

Dr Roberts

In February 2020 Mr Penhall decided that the only way to obtain instructions from Ms Wilden about the sexual assaults was to arrange for her to consult with Dr Roberts, psychiatrist.
Dr Roberts prepared a report dated 21 February 2020 following a consultation with Ms Wilden the previous day. Ms Wilden told Dr Roberts that her relationship with Mr Jennings was "characterised by both physical and sexual assaults" (Exhibit A page 46). She told him that Mr Jennings had forced himself on her sexually on five to six occasions.
Dr Roberts diagnosed a Panic Disorder, Post-Traumatic Stress Disorder, Generalised Anxiety Disorder and Acute Stress Disorder, which he attributed to the abuse Ms Wilden suffered at the hands of Mr Jennings. She complained of experiencing flashbacks and sadness, and would avoid sexual intercourse.
Dr Roberts was not required for cross-examination. His opinion was not challenged and largely supported by the psychiatrist retained by Mr Jennings - Dr Samuell.

Adl Hage

Mr Hage gave evidence during the course of the hearing. He met Ms Wilden through Oztag in 2012, trained with her that year, and also again in 2013 and 2015. Mr Hage gave the following evidence in respect of a conversation which he had with Ms Wilden sometime around March or April 2020: Basically it was, it was about, it was about her current relationship, the one that she was in and or she was going through was the topic of discussion and then it was about current intimacy issues she was having with her present husband, if you can call him that. And the fact that the reasons for that were prior situations where she was sexually assaulted by her previous partner is what she said to me. (T273.32)
Although Mr Hage was cross-examined but he was not challenged as to the complaint made by the plaintiff. I accept his evidence.

Submissions

The submissions in this matter were extensive. The written submissions exceed 200 pages. The oral submissions occupied the best part of 2 days of court time. Whilst I have had regard to all submissions made, I only intend to refer to those which bear upon any relevant fact in issue.

Plaintiff's Submissions on Liability (MFI 15)

Submissions were made concerning the childhood of Ms Wilden. Plainly, as the chronology demonstrates, it was at times challenging. Although police investigations failed to identify any concern for the welfare of the children in the family, the home environment was stressful. Ms Wilden suffered anxiety, which is not surprising, given the at times tumultuous environment in which she was living. There was a short period of self-harming in Year 8, which spontaneously resolved.
It is submitted for Ms Wilden that her childhood experiences do not contribute to her current diagnosis of PTSD. It is clear from the opinions of both Dr Roberts and Dr Samuell that the PTSD condition relates to the alleged abuse of Ms Wilden by Mr Jennings. The flashbacks and avoidance behaviours demonstrated by her condition relate only to that abuse. I accept the submission for Ms Wilden that her childhood experiences have no connection to the diagnosis of PTSD. If Mr Jennings had wished to challenge that finding then, at the very least, he ought to have required Dr Roberts for cross-examination.
I am further supported in that finding by the opinion of Dr Samuell. Although his opinion is conditional upon the acceptance of Ms Wilden as a truthful witness, his diagnosis is entirely consistent with the finding that Ms Wilden suffers PTSD as a consequence of the abuse. Given that I accept M Wilden, Dr Samuell's opinion stands. His report was tendered in the defendant's case, presumably because he relies upon it.
I do not intend to go into any detail about the schooling or recreational activities of Ms Wilden, save to observe that she appeared to have performed well and engaged in a variety of extra-curricular activities successfully.
There were two incidents in Ms Wilden's adolescent years, which Mr Jennings relies upon to discredit her. The first was the incident where she was said to have been convicted of assault for throwing water bottles at another teenager from a car driven by a friend. Although as noted elsewhere it is unclear to me that police took any action. The second was facilitating the theft of clothing from the store where she worked.
Both of these incidents occurred when she was a minor (17 years old). Neither showed any high degree of planning, nor suggest that Ms Wilden was a frequent criminal offender. In fact, her response to being told of the police being involved in the thefts from the store sheds some light on her character. She voluntarily attended the police station, where she was arrested and interviewed. In the interview, Ms Wilden made full and frank confessions, resulting in her receiving a caution. Within a couple of days, she visited her local priest, undertook a confession and received Holy Communion. It was submitted that "this was a turning point for her". I accept that submission. She has not come to the attention of police since that occasion, and not as an adult.
Otherwise, in terms of her employment, Ms Wilden has shown great motivation in securing and holding down employment in various forms, as demonstrated in the chronology. She has even maintained employment whilst studying full-time.
Her relationships with other men prior to Mr Jennings appear to have been unremarkable. Mr Brady described her as a confident, happy young woman, with dreams for a family. They shared a happy and functional relationship for 2 years, between 2008 and 2009. There were no issues with sexual intimacy in that relationship.
Ms Wilden had a relationship with Joel Tuma in the period 2009 - 2010 for about 9 months. Again, there was no problem with intimacy or sex in that relationship.
The relationship with Mr Jennings commenced in 2010 and initially progressed satisfactorily, without any problems with intimacy. They were both athletic people engaged in sport.
Although the relationship continued to 2016, it was extremely volatile. The many text messages tendered in the proceedings show that the couple regularly argued, most commonly about suspicions regarding Mr Jennings' relationships with other women and his excessive drinking, leading to Mr Jennings socialising mostly outside of the relationship and for lengthy periods.
In 2011 he received 2 official sanctions for drinking. On 8 March 2011 he was fined $10,000 for drinking, contrary to specific instructions. On 12 August 2011 he was fined $20,000, and dropped from the Panthers team to reserve grade for attending training under the influence of alcohol. This evidence entirely corroborates Ms Wilden's description of the conflicts which arose with Mr Jennings concerning his drinking.
In Ms Wilden's submissions, commencing at [45], extracts of text messaging between the parties have been reproduced. Those messages occurred late on the night of 12 October 2013, and continued into the next day. That messaging showed that: 1. Mr Jennings would go out without Ms Wilden and get extremely intoxicated; 2. Ms Wilden would complain to him of his behaviour; 3. her complaints to him would be the source of frustration, causing him to lash out; 4. he called Ms Wilden offensive names, such as "dirty slut"; and 5. Mr Jennings admitted that he gets angry when he drinks.
Commencing at [50] of Ms Wilden's submissions (MFI 15) there is a further series of text messages between the couple. It is apparent from those text messages that: 1. Mr Jennings called Ms Wilden a cunt; 2. Mr Jennings did not recall saying that; 3. on the previous evening Mr Jennings was "acting crazy, punching the car and burning (his) left hair off"; 4. Mr Jennings acknowledged that he has problems when drunk; 5. Ms Wilden started driving the car and Mr Jennings was punching the car and calling her a cunt; 6. Mr Jennings acknowledged that he would get angry when drunk, but would attribute that anger to the behaviour of Ms Wilden; and 7. Mr Jennings failed to retain a recollection of events that had occurred the previous night, including in this instance punching the car and burning hair.
At [52] of MFI 15, it is submitted for the plaintiff that: [52] The court should make findings that by 2014 at least, while Mr Jennings may not have drunk alcohol every day, when he did drink: A. it would often be to the point of heavy intoxication; B. he would often be amnesic of certain events the following day; C. he could get aggressive and angry if and when he drank heavily; D. his intoxication became a point of conflict between the two of them.
Having carefully reviewed the text messages set out in MFI 15, I have no hesitation in making the findings contended for. The additional finding I make, however, is that in virtually every instance where the pair argued as a result of Mr Jennings being drunk, he would blame Ms Wilden for causing him to become angry and abusive.
Extensive submissions were made about the 4 alleged sexual assaults of Ms Wilden by Mr Jennings. I have read those submissions and will have regard to them in making factual findings below.
Commencing at [142], submissions are made as to an incident on 9 November 2016 which it is submitted reflects poorly upon the reliability or credibility of Mr Jennings. Cocaine was detected following a random urine check. The use of illicit drugs could give rise to a 4 year ban if drugs were used during the playing season.
Documents were produced by the NRL which revealed that an interview took place between Mr Jennings and the club's officials in respect of the detection of cocaine. It was recorded as his first contravention. The circumstances were described by Mr Jennings to the officials as follows: Post-round 26 - Mad Monday celebrations [Monday]. Was with other players at a restaurant/club in Parramatta [? Name]. He purchased and used cocaine [without any other players being present]. He had been consuming a significant amount of alcohol. Was tested 3 days later [Friday - I used this to discuss the risks of getting a positive in competition test and 4 year ban if using in season].
It is plain from the document (Exhibit V) that Mr Jennings was asked about prior use and said that "last time was under similar circumstances at Mad Monday 2015".
Mr Jennings was asked whether he feared getting caught through drug testing, and his answer was to the effect that he did not due to his mindset "alcohol +++". This again illustrates the problems which Mr Jennings had with alcohol.
The notes of the interview with NRL club officials on 9 November 2016 reflects very poorly upon the credibility of Mr Jennings. He said that he was aware that he was required to be truthful and frank in providing information in the course of that interview, given the seriousness with which drug abuse was considered by the club (T506.15). Notwithstanding, what he said to the club officials was contradicted by his evidence-in-chief in these proceedings.
After being provided with a certificate pursuant to s128 of the Evidence Act, Mr Jennings gave evidence about his use of illicit drugs. The effect of the certificate was to explained to him at T320: HIS HONOUR Q. Although I'm giving you a certificate which will prevent you being incriminated in relation to the evidence you give concerning the use of drugs, you're still bound by the oath to tell the truth and the certificate will not prevent you from being prosecuted in the event that you give evidence which is false. Do you understand? A. Yes. Q. I'll repeat that in another way just so you do understand. You're still bound to give truthful evidence. If it's established that the evidence you give is untruthful you may be prosecuted for perjury but you will not be prosecuted in respect of the use of illicit drugs. A. Yes I understand your Honour.
Mr Jennings was then asked by his counsel when he consumed drugs and in what circumstances. He replied: Yes. Four occasions during our relationship was around 2013, 2014, 2015 and 2016 and under those circumstances I was - it was the last game of the season and it was on a mad Monday celebration of the end of the season. (T320.42 - 46)
His counsel asked him for further information about that drug use, including how he came to be in possession of drugs. He stated "I guess it was just at the party that we were celebrating at. It would be one of my mate's friends".
He went on to state that the drugs were provided to him, and that in the course of his relationship with Ms Wilden he never had a little plastic bag or satchel which would carry drugs.
The stark inconsistencies in his sworn evidence and what he said in the interview with club officials are: 1. that he told club officials that he had used drugs on just 2 occasions (2015 and 2016). His evidence under oath was that he had used drugs on 4 occasions during his relationship with Ms Wilden (2013 - 2016); and 2. he told club officials that he purchased and used cocaine without any other players being present, whereas his evidence to the Court was that the drugs were provided to him by other people.
These inconsistencies cannot be reconciled other than by finding that Mr Jennings lied to the NRL officials, or lied under oath.
Further, in his sworn evidence, Mr Jennings said that he could not recall if he had ever purchased cocaine (T504.19). He told the NRL officials that he had "purchased" the drug.
In respect of these inconsistencies, it was submitted for Ms Wilden that both assertions cannot be correct. "Either what he told the judge was false, or what he told the NRL committee was false. It does not much matter, except it shows a general willingness to say whatever he thinks will best suit his purposes" [146]. I accept that submission.
This was not a topic about there was any equivocation or claimed memory loss by Mr Wilden. It cannot be said that he was honestly mistaken. The only available finding was that he was untruthful.
Ms Wilden also relies upon her evidence that she would sometimes find small satchels with white powder residue in his washing. One of the text messages between them in October 2013 included a statement by Ms Wilden stating "um were you taking drugs this week?" (Exhibit N). I accept the evidence of Ms Wilden that Mr Jennings used cocaine on occasions during their relationship, and that she would find plastic drug bags in his laundry. It follows that I do not accept the evidence of Mr Jennings regarding his use of cocaine.
Ms Wilden's submissions then turned specifically to consideration of the credibility of the witnesses, in particular Ms Wilden and Mr Jennings.
It was submitted for Ms Wilden that the Court would find that she was a careful and reliable historian. I accept that submission and make that finding. I accept that she gave her evidence with clarity, although at times was visibly upset.
Submissions were made concerning the access which Ms Wilden's legal representatives had to the text messages provided by Mr Jennings. The management of this evidence by Mr Jennings and his legal representative, was clumsy and unacceptable.
It seems common ground that until the morning of Friday 28 May 2021, Ms Wilden's legal representatives had not been given access to the 47,000 text messages, notwithstanding that they had been downloaded by Mr Jennings for some time before the hearing and provided to his own legal representatives on 22 December 2020.
The text messages retained by Mr Jennings were far more voluminous than those to which Ms Wilden had access. In fact, as will be discussed later, she had enormous difficulty accessing and providing her text messages to her lawyers when they were requested by Mr Jennings' lawyers by subpoena filed 28 April 2021, just prior to the hearing. The subpoena served on Ms Wilden required production of all text messages for the period 1 January 2010 to 30 March 2016. The subpoena required production of those records by 12 May 2021.
Despite the fact that Ms Wilden did not have access to Mr Jennings' 47,000 text messages before giving evidence, as noted elsewhere aspects of her evidence were corroborated by those contemporaneous records. It is submitted on behalf of Ms Wilden that the text messages of Mr Jennings demonstrated in a number of respects that Ms Wilden had a clear, accurate and consistent memory of certain matters, including the following: 1. verbal abuse recorded in contemporaneous texts and abuse by text, including being called a 'slut' and a 'dirty slut'; 2. that Mr Jennings wet the bed; 3. that the third sexual assault occurred during the winter months, most probably around late May (by reference to the text message about Mr Jennings wetting the bed); and 4. that Ms Wilden would find little plastic bags with white powder residue, which made her think that Mr Jennings was using drugs.
I accept the submission that, despite the fact that Ms Wilden did not have access to Mr Jennings' contemporaneous records, her evidence was remarkably consistent with them. That fact demonstrates the accuracy of recollection, reliability, honesty and her lack of embellishment.
Further, it was submitted that Ms Wilden is supported by recent complaint evidence, contrary to any suggestion of fabrication for the purposes of financial gain. I accept that the disclosures to various people referred to in this judgment were in fact made. In most cases, Ms Wilden and the person to whom the disclosure was made were not challenged about that fact.
I find Ms Wilden's accounts of what occurred to be entirely persuasive and reliable. In my opinion, they are neither "glaringly improbable" or "inherently unlikely".
In stark contrast, it was submitted for Ms Wilden that Mr Jennings was, at the very least, unreliable.
Counsel for Ms Wilden submitted that concerns about the reliability of Mr Jennings would arise from the following: 1. he was an admitted liar. He admitted that he would tell his wife lies in order to prevent her from finding out that he was seeing or communicating with other women and to protect himself from criticism, or to avoid confrontation; 2. Mr Jennings lied to Ms Wilden about the incident with Monique on the morning after the first alleged sexual assault, 12 October 2014 (Exhibit M); 3. Mr Jennings would give evidence to suit his objectives, referencing the inconsistencies referred to above about the use of cocaine; 4. his evidence was inconsistent in substantial respects with contemporaneous documentation. Some examples include going to the races on the day of the wedding, the length of time he was at the casino, and the probable time at which he came home that morning; 5. despite the fact that Mr Jennings, at all relevant times, had access to his text messages, the instructions he gave his legal representatives (that is, that he denied using the terms "slut" and other abusive language) were plainly inconsistent with a number of text messages in which such language was used by him and directed to Ms Wilden; 6. the difference between the contemporaneous record, namely the text messages that Mr Jennings had read through over a 3 and a half year period (T350) and the instructions provided to his counsel, which formed the basis of the cross-examination of Ms Wilden, were in glaring conflict. This is troubling. Although this may possibly have been through oversight by senior counsel, Mr Jennings was in Court and listened to the cross-examination and ought to have corrected his instructions to counsel; 7. his recollection and, therefore, the reliability of his evidence was affected by the fact that most of the contentious events took place when he was intoxicated, and he conceded that there would be occasions in those circumstances when he did not recall events; 8. Mr Jennings denied that he had been violent or aggressive towards Ms Wilden. The text messages reveal that he was extremely aggressive in the language he used via text when communicating with Ms Wilden.
In MFI 15, from [200] - [206], further submissions were advanced on behalf of Ms Wilden as to the unreliability of Mr Jennings. One example that stands out is the contemporaneous exchanges concerning his attendance at the casino on 12 October 2014. The statement that he had been at the casino for less than an hour (Exhibit M 12 October 2014, 11:55.07) is inconsistent with the earlier message at 02:15.33: "all night I was texting you fkn brushed me over nothing again I was coming home then u didn't reply so I fkn repelled n fkn stayed out at the casino by my fkn self drinking like a fkn idiot". The message that he was at the casino for less than an hour is also contrary to his sworn evidence that he was there for 2 to 3 hours (T460.25).
Further doubts as to the reliability of Mr Jennings' evidence arise from the fact that he told the Court under oath that: 1. his phone was dead before he arrived home and was not sure when it died (T512.1); 2. that he left the casino after seeing the missed calls from Ms Wilden; 3. that, notwithstanding his phone was dead, he sent her a text message when he arrived home; 4. that he arrived home at 6am and he had a nap (T481); and 5. that he charged his phone for between 10 and 20 minutes before texting Ms Wilden at 7:47am.
In my opinion, this evidence is internally inconsistent and should be rejected.
Also relevant to his frankness as to his behaviour on that night in question, it was only in cross-examination that he revealed that he had been to at least 2 nightclubs in addition to the casino after leaving the wedding.
It was submitted for Ms Wilden that unless there is clear and cogent contemporaneous records that corroborate the evidence of Mr Jennings then Ms Wilden's evidence should be preferred. I accept that submission as, in the examples referred to, the oral evidence of Mr Jennings was shown to be contradicted by the contemporaneous record. In addition, the manner in which he gave evidence was unimpressive. He was reluctant to accept a number of propositions until they were demonstrated by the contemporaneous records to be correct.
The submissions on liability for Ms Wilden then turned to legal principles regarding claims for sexual assault and battery. The elements of assault were identified as: 1. a direct and intentional threat by Mr Jennings; 2. that put Ms Wilden in reasonable apprehension of an imminent physical contact.
The elements of battery were identified as: 1. a voluntary and positive act; 2. done with the intention of causing contact with another; 3. that directly causes physical contact.
I find that Mr Jennings raped Ms Wilden on at least 4 occasions satisfying the legal meaning of the intentional torts of assault and battery.
I consider that Mr Jennings denial of the allegations was either due to his memory impairment by intoxication or giving evidence which was not truthful.

Defendant's Submissions on Liability (MFI 17)

Mr Jennings' submissions commenced with the issue of the limitation period. I will consider that separately.
It is submitted by Mr Jennings that his relationship with Ms Wilden was dysfunctional, but that there is insufficient evidence to support Ms Wilden's allegations that Mr Jennings sexually assaulted her or verbally abused her. I disagree. In respect of the latter, despite it being put to Ms Wilden that Mr Jennings did not make the derogatory statements at para 14 of the statement of claim, when it came to further cross-examination by junior counsel for Mr Jennings, the opposite was put. That is, it was put to the plaintiff that "most of those things in the statement of claim were said to you" (T235.23).
Ms Campbell confirmed that senior counsel had cross-examined on "the information at the time", but that their instructions "had changed" following reference to the contemporaneous text messages. That is, the instructions given by Mr Jennings to his legal representatives were "wrong" (T236.1). Why this occurred when Mr Jennings and his lawyer had been in possession of the text messages is troubling.
It follows that, so far as the verbal abuse was concerned, Mr Jennings was untruthful with his own lawyers or the lawyers did not take the time to read the text messages.
At [53] of MFI 17 the evidence of Mr Jennings concerning the sexual assaults is set out.
At [55] Mr Jennings is critical of Ms Wilden as being "vague about the details of the allegations". I reject that submission. I considered her evidence to be precise and attended with sufficient detail. The criticism is that in identifying when the first alleged assault took place, the plaintiff merely referred to around October 2014, rather than specifically stating 12 October 2014. I do not consider the plaintiff's evidence in that respect to be vague, or justify the criticism made on behalf of the defendant.
Further, at [57] it was submitted for the defendant that "his evidence should be preferred over that of the plaintiff" as to how he entered the building on the night of the first alleged assault. I reject that submission. Ms Wilden's evidence was quite clear and based on a recollection. She was sober he was intoxicated, most probably substantially. Mr Jennings could not recall getting out of the taxi or walking up the stairs to the apartment (T514.22), but maintains that he can recall arriving at his unit with his keys in hand. Mr Jennings' claimed recollection in this respect is selective, and raises doubts as to his reliability.
After lengthy written submissions and oral addresses, the defendant's case that the rapes did not occur was ultimately distilled down to the following propositions: 1. Ms Wilden did not refer to the sexual assaults in any of the text messages between herself and Mr Jennings; 2. the text messages proximate to the times that the sexual assaults took place were of a nature which one would not expect if Mr Jennings had sexually assault Ms Wilden; 3. that Ms Wilden deliberately deleted text messages and lied to the court about that matter; and 4. that Ms Wilden was not frank in her disclosures to the medical experts; 5. a medical condition prevented Ms Wilder having sex with Mr Jennings.
I will consider each of these submissions in turn.

No Complaint by Text

It was submitted on behalf of Mr Jennings that if he had sexually assaulted Ms Wilden then there would have been some text exchange about that matter and, therefore, given the absence of any such messages the sexual assaults did not occur.
The difficulty with this submission is that in order for it to attract sufficient weight to have the effect contended for, it proceeds on an unsafe assumption that communication by text messages was the only, or at least, the dominant form of communication between the couple. Whilst the parties engaged frequently in exchanging messages by text, there is no evidence which would support the proposition that this was the only or dominant form of communication. In fact, it would defy common experience and common sense to proceed on the basis that this was so.
Most of the text messages in evidence relate to communications between the parties when Ms Wilden was at home and Mr Jennings was out socialising and drinking.
The evidence of Ms Wilden, which I accept, was that the only time she complained to Mr Jennings of a sexual assault was following the first sexual assault in October 2014, and his response was that he said nothing but "just shrugged his shoulders".
After the first assault, Ms Wilden did not complain to Mr Jennings of the subsequent assaults.
The question of the absence of complaints concerning the sexual assaults must also be understood in the context within which they occurred. The couple were in a relationship and for part of it engaged and, later, married. It is apparent from their mutual conduct, both during the course of their relationship and even after they separated in 2016, that they wanted to make the relationship work. Following the second sexual assault, Ms Wilden did not consider it to be assault or rape "because I thought it was my duty to have sex with him" (T32).
Ms Wilden also felt ashamed and said that she would have been embarrassed if her family had found out about the fact that she was being sexually assaulted by Mr Jennings.
That is the context within which the defendant's submission must be viewed. Having regard to those matters, I reject the submission that the absence of complaint by text message means that the sexual assaults did not occur.

The Nature of Text Messages

It was submitted on behalf of Mr Jennings that the nature of the messaging between the couple after the sexual assaults occurred would suggest that it was improbable that the assaults did in fact occur.
In relation to the first sexual assault, it was the references to going out for lunch or attending a wildlife park which the defendant relies upon as being inconsistent with the allegation that he had raped Ms Wilden earlier that day.
Again, the context must be understood. On 12 October 2014, the day of the sexual assault which occurred most likely around 2:30am to 3:30am, Mr Jennings texted Ms Wilden at 11:55.07 stating "I was at casino for less than an hour then I came home I could have got carried away but I didn't ok I was texting you that night farr I'm sorry let's go get some lunch at the beach or something".
At 12:27.28 Ms Wilden replied "why do you never take me to that wildlife place!! All the other boys take the girls there".
At 12:28.21 Ms Wilden sent a message "oh that's right you'd rather go to the casino".
Then followed messages about the wildlife park, and at 12:36.00 Ms Wilden sent a message to Mr Jennings stating "yeah I'm moving out it's gone on to (sic)" and "it's not right and how a relationship should be".
It is apparent from the messages that followed that Ms Wilden commenced packing and Mr Jennings went to the beach with a woman, Monique. Later she accused him of going to the beach with Monique, he denied it, but she seemingly confirmed it by making a telephone call. Far from undermining the reliability of Mr Jennings, it raises further doubt about the honesty of Mr Jennings.
The messaging between the couple during the course of the day following the first alleged sexual assault was abusive and threatening. I do not accept the submission that the messages exchanged between the parties on the day of 12 October 2014, or indeed into 13 October 2014, was so clearly not of a nature that you would expect if the sexual assault had not occurred. They again displayed the extremely volatile nature of their relationship, with Ms Wilden moving out of their home, an act consistent with the fact that she was sexually assaulted the night before.
Turning to the second alleged assault. It occurred when they were still living at Kensington, which means that it most likely occurred before the end of 2014, as in early 2015 they moved to Bella Vista.
The message relied upon by the defendant in suggesting that the second sexual assault did not occur or, more particularly, that such a message would not have been sent had it occurred, was the text message from Ms Wilden to Mr Jennings on 7 January 2015 at 8:01.26 (Exhibit 6), which simply stated "shower sex?".
As I understand the submission, it is that if Mr Jennings had sexually assaulted Ms Wilden between October 2014 and the end of 2014, then on 7 January 2015 she would not have sent such a message to Mr Jennings.
Ms Wilden was cross-examined on this message, commencing at T164. Ms Wilden confirmed that they may well have had consensual sex in the shower in January 2015. The cross-examiner failed to put to Ms Wilden that this was inconsistent with her allegations concerning the sexual assaults.
Given the lack of clear temporal connection between the second assault and the subject text message, I decline to find that the text message establishes that the second sexual assault did not occur. Again, in making this finding, I take into account the context within which the allegation of sexual assault is made. That is, between a couple in a relationship, one which despite its instability, both parties were wanting to continue and even revisited after the 2016 break-up.
In relation to the third alleged sexual assault, the text messaging relied upon by Mr Jennings as suggesting that it was improbable that the assault occurred is in Exhibit S. The text messaging which followed the alleged incident can be tied to the incident only on the basis that it involved Mr Jennings wetting the bed. On 17 May 2015 at 11:44.28 Mr Jennings sent a message to Ms Wilden: "you telling everyone that I pissed the bed huh". Earlier that day Mr Jennings sent a text message to Ms Wilden at 3:28.10, stating "I'm. coming home babe I'm not wasted". The next message was sent by Mr Jennings at 11:07.28, in which he denies that an invoice was his, stating that he picked it up off the floor in the cab.
Should this be the date upon which the third sexual assault occurred then it happened after 3:28.10. It is also apparent from the message at 11:07.28 that there had been a face-to-face conversation between Mr Jennings and Ms Wilden about some invoices or receipts.
What followed in the course of 17 May 2015 was an argument about receipts, Mr Jennings catching a taxi and Ms Wilden telling everyone that Mr Jennings had "pissed the bed".
Ms Wilden left the house at about 15:40.10, causing Mr Jennings to send a text message at that time "where r u going". Ms Wilden replied that she was going to get food and Mr Jennings complained that she should have asked him because he was also hungry. She responded by saying "why should I ask you. I don't have to do anything for you".
Contrary to the submission made on behalf of Mr Jennings, the communications, so far as they can be discerned from the text messages between the couple on the day most probably the day of the third sexual assault, were far from harmonious.
I reject the submission that the text messages at or around that time are necessarily inconsistent with the sexual assault having taken place.
In relation to the fourth sexual assault, this occurred when they were living at The Ponds, which places it after 20 February 2016.
Counsel for Mr Jennings referred to text messaging on 15 February 2016 (Exhibit T). This may have been prior to moving into the residence at The Ponds. Exhibit T relevantly commenced at 00:13.58 on 15 February 2016 with Mr Jennings sending a message to Ms Wilden stating "oh yeah I don't know can't believe your stuff anymore n don't trust you every time you're doing your Oztag shit". Then followed multiple texts concerning whether Mr Jennings could trust Ms Wilden to be faithful. Counsel then referred to Exhibit 24, being messages exchanged on 10 March 2016 after Ms Wilden arrived at the Oztag meeting. The exchanges on this occasion were quite amicable, with Ms Wilden being in bed at the Oztag camp and Mr Jennings watching a movie at the cinema.
Mr Jennings relies upon those messages between 22:32.15 on 10 March 2016 and 22:21.02 on 11 March 2016 in support of a submission that, had Mr Jennings sexually assaulted Ms Wilden on the fourth occasion, as alleged, then the messaging would not have been of that nature.
The difficulty with that submission is that the sexual assault allegedly occurred in February and the messaging relied upon is a month later in March. It lacks the temporal connection which would permit a finding consistent with the defendant's submission. I am unable to conclude that the messaging on 10 and 11 March 2016 makes it improbable that the fourth sexual assault occurred.

Text Messages Were Deleted by Ms Wilden

This is the next submission made on behalf of the defendant.
The defendant issued a subpoena for text messages between the couple in the possession of Ms Wilden between 10:03 and 10:05am on Saturday 22 May 2021. Ms Wilden, it would appear in the presence of her solicitor, took screenshots of photographs of text messages. Those photographs were emailed to the plaintiff's legal representatives at 10:13am that day (see Exhibit 2).
Ms Wilden said in her evidence that was one of 4 or 5 bundles of text messages which she screenshotted and forwarded to junior counsel and her solicitor (T243.20).
Ms Wilden gave evidence that she had difficulty obtaining the screenshots of text messages. That evidence was given when questioned in cross-examination, but also in re-examination. At T244.21 she stated: I would scroll to a certain point in my phone and it would glitch and take me back to the home screen and then I'd have to start again but it wouldn't let me go past a certain point and yeah, it kept glitching.
The plaintiff's solicitor advised her to get a professional to retrieve the messages, which Ms Wilden did, at the cost of several thousand dollars.
On 24 May 2021, the day before the hearing, Ms Wilden handed her phone over to Clinton Towers of Access Forensics (see report - Exhibit 1C). Mr Towers is an expert in recovering and interpreting electronic records from a variety of electronic devices, including mobile phones. Between 2002 and 2006 he was a federal agent deployed to the Australian Federal Police Computer Forensic Team. He was able to locate and screenshot many more messages than Ms Wilden was able to do. The screenshots of those text messages form part of his report (Exhibit 1C).
The text messages which Ms Wilden was able to access herself on Saturday 22 May 2021 were sent to her lawyers by 2 emails. The first, at 10:13am (Exhibit 2), and the second at 11:44am (Exhibit 1A).
In re-examination Ms Wilden told the court that further screenshots of text messages had been generated by her on Monday 24 May 2021. Those screenshots were held up in Ms Wilden's outbox as the documents were too large to be transmitted.
Ms Wilden became aware of that problem on Monday 24 May 2021, at which time 2 further emails with screenshot text messages were sent to her legal representatives (Exhibit C and D). It became apparent in re-examination that some of the text messages which Ms Wilden had been accused in cross-examination of deleting had in fact been produced, but their receipt was delayed due to the size of the files.
In cross-examination, Ms Wilden was shown 2 bundles of text messages. The first was that which she sent to her lawyers on 22 May at 11:44am (Exhibit 1A). The second were text messages compiled by access to Mr Jennings' phone (Exhibit 1B).
In Exhibit 1B the defendant sought to highlight 2 categories of text messages. Highlighted in yellow were the text messages not provided by Ms Wilden to her lawyers on Saturday 22 May 2021 (in other words, not contained in Exhibit 1A). Highlighted in purple were other messages which had not been produced by Ms Wilden to her lawyers, and had not been retrieved by Mr Towers. The messages highlighted in purple appear at pages 5, 6, 7 and 9 of Exhibit 1B.
The defendant's case was that those messages were deliberately deleted by Ms Wilden because she thought "they would hurt her case" (T242.18). Ms Wilden repeatedly denied that she deleted the text messages and, further, that she was being untruthful when telling the court that she did not delete those messages (T242.47).
In re-examination, Ms Wilden was unable to explain why the purple text messages did not appear in the screenshots provided to her lawyers. She was unsure as to when they may have been deleted, or how it was that they had gone missing. Ms Wilden was cross-examined by Mr Thangaraj SC about the text messages which she produced. She said that she tried to capture every text message between herself and Mr Jennings. She said if there were any messages left out, it could have been "by accident … when scrolling through, because there were so many" (T71.15). It was put to her (T71.30) that before she sat down with the expert she deleted messages from her phone. That was denied. The basis upon which an allegation of such gravity could have been positively put to Ms Wilden is not apparent. At best, it may arise as a matter of inference, but only assuming that the cross-examiner had a complete set of the text messages, which he clearly did not, as further messages were produced in re-examination. The following exchange then occurred, commencing at T71.40: Q. We're going to issue a subpoena of the metadata of your text messages, do you understand what that means? A. No. Q. It means we're looking for when messages that were there are no longer there. A. Okay. Q. Between 22 May when you sent screenshots to your solicitors and 24 May when you sat down with the expert, you deleted messages, didn't you? A. I don't recall deleting messages, no. Q. So you now say that you may have deleted messages between 22 May and 24 May. A. I do not recall deleting messages. Q. You're leaving open the possibility now, are you? A. I said before that I do not recall deleting messages between the-- Q. You're saying that you don't recall whether or not you deleted messages between you and Mr Jennings four days ago. A. No. Q. So you may have. A. I don't think I did. I - going through messages, there's also - I, I'm having troubles with my phone and it doesn't download all messages at the same time, and then I scroll back another day and it downloads them. Q. These are messages from October 2014. A. Yeah, I'm happy to show you what, what my phone does. Q. They're not being downloaded, they're already there in your phone. A. No, they, they load as you scroll up, and once you get to a certain point, sometimes it logs you out.
Leaving to one side whether aspects of that cross-examination were unfair, it is plain that Ms Wilden was having problems with her phone, and offered to demonstrate those problems to Mr Thangaraj SC. Senior counsel did not take up that offer. It is extremely unlikely that the offer would have been made by Ms Wilden if her evidence about the problems with her phone was untrue.
My impression of Ms Wilden when being questioned about text messages was that she was being truthful. The fact is that, following a late subpoena for production from Mr Jennings, Ms Wilden first attended with her solicitor in conference in an effort to screenshot the messages and email them to her lawyers. Only some of the emails were processed by her outbox on the day they were sent, resulting in incomplete production by the plaintiff's solicitor to the defendant's solicitor.
Then, on the advice of her solicitor, Ms Wilden surrendered her phone to an expert to examine the phone for all messages between the parties.
Further, she has maintained that she had trouble accessing text messages on her phone, and even offered to demonstrate the problem she was experiencing to the court in the course of being cross-examined. That offer was not taken up by Mr Thangaraj SC.
I do not accept the submission that Ms Wilden deliberately deleted text messages from her phone in order to improve her prospects in these proceedings. Whilst I accept that the messages highlighted in purple in Exhibit 1B remain on the defendant's phone but were not discoverable on Ms Wilden's phone, I am not satisfied to the requisite degree that she deliberately deleted those messages to destroy evidence, so as to improve her case.
Like the onus which Ms Wilden bears in her claims against Mr Jennings, he bears a similarly high onus to prove that she deliberately destroyed evidence to improve her prospects of success in the case. The gravity of that allegation is high. The need for greater satisfaction is enlivened. Given Ms Wilden's cooperation in providing screenshots, consulting with her solicitor, handing her phone over to an expert and offering to demonstrate the problem with her phone in court, I do not accept that she has deliberately deleted the messages highlighted in purple.
In any event, I am not persuaded that the messages which were not produced were harmful to her case. The first series of messages related to exchanges that occurred on 12 October 2014 after 11:55am, when Mr Jennings suggested to Ms Wilden that they 'go to lunch or something' and she replied by making reference to 'that wildlife place'. Part of the deleted messages included the allegation by Ms Wilden that Mr Jennings would rather go to the casino than go to the 'wildlife place' and that he wastes his time and money at the casino. The next deleted message was a statement by Mr Jennings that he will donate to the 'wildlife place' "when we have sorted our lives out".
The next missing message at page 7 was a message from Ms Wilden to Mr Jennings simply stating "I'm going to get lunch by myself. I don't need you".
The next missing message is in reply to a message from Ms Wilden stating "I wonder how many girls you fucked". Mr Jennings stated "I've fkd no one Kirra I've been trying to sleep with you all the time you fkn never do". The next message which was not missing was from Ms Wilden "wonder how many more girls there are and when else you 'were at the cas' aka with slutface".
The next message is highlighted in purple and was not included in the messages produced by Ms Wilden. It read: "yeah good excuse but I don't but it you could have sex five times in a day so don't keep using that as an excuse".
In my opinion, those messages, when viewed in the context of all of the messages referred to during the course of the hearing, are not damaging to Ms Wilden's case and, even if she had been minded to do so, there would have been no reason to delete those missing messages. I reject the defendant's submission that Ms Wilden deleted text messages from her phone in order to improve her case.
In her submissions in reply (MFI 18), Ms Wilden took exception with the submissions made against her as to the deletion of text messages. At [10] it was submitted: For abundant clarity: A. the concealed text messages referred to appear in Exhibits C and D; B. Exhibit C and D are emails from Ms Wilden to her solicitor and junior counsel; C. Exhibit C and D have, at all relevant times, been in the possession of Mr Jennings and his legal representatives since the first day of the trial; D. the screenshots in Exhibit C and D were taken on 22 May 2021. Ms Wilden attempted to send them to her legal representatives on that day, consistent with the other screenshots; E. the email became "stuck" in Ms Wilden's outbox and did not send; F. on 24 May 2021 Ms Wilden identified the issue and sent the screenshots to her legal representatives; G. Exhibit C and D were served upon Mr Jennings' legal representatives on 25 May 2021, at the same time and in the same bundle of materials from which Exhibit 1A (and therefore the markings in 1B) were drawn.
No explanation has been provided on behalf of Mr Jennings as to why Ms Wilden was cross-examined to the effect that she had failed to produce text messages which had in fact been produced. Not only was this a waste of the court's time, but it caused unfairness to Ms Wilden.
As mentioned, the allegation that Ms Wilden deliberately deleted any text messages is a very serious matter. Plainly, there was no evidence that she in fact did that. Accordingly, a finding could only be made that she did delete messages by way of inference from the fact that messages which were present on Mr Jennings' phone were missing on Ms Wilden's phone.
A fact finder's approach to the drawing of inferences must be approached with caution. I note the remarks of the High Court in Luxton v Vines [1952] HCA 19: In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) A.C. 674 at p. 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise (per Lord Loreburn (1911) A.C. at p. 678) ".
There are many explanations as to why the purple shaded messages may have not appeared on Ms Wilden's phone. They include, but are not limited to the following: 1. that the phone was malfunctioning in the manner she described in her evidence; 2. that she or some other person may have accidentally deleted those messages; or 3. that she or some other person may have deliberately deleted those messages.
These are conflicting inferences. I do not even consider that the inferences are of equal degree of probability. Given my acceptance of Ms Wilden and her evidence about the trouble with her phone, I consider the first inference to be more probable than the other 2 inferences. However, even assuming they are of equal degrees of probability, choosing between them would be a matter of conjecture and an impermissible approach to fact-finding. This is particularly so given the gravity of the allegation made by Mr Jennings that Ms Wilden acted so as to destroy evidence which would not have assisted her case.

Ms Wilden Was Not Frank in the History Provided to Experts:

As I understand the submission, Mr Jennings says that Ms Wilden withheld information from Dr Roberts and Dr Samuell, so as to improve her position and obtain more favourable reports from the experts. Those matters are: 1. a full picture of her medical history; 2. the fact that she had consensual sexual intercourse with Mr Jennings in July 2017; and 3. that, initially, her sex life with Mr Maamary was without difficulty.
First, dealing with Dr Roberts, the problem with Mr Jennings' submission is that his opinion was not challenged. It cannot now be said that had other matters been raised with Dr Roberts he would have come to a different opinion when Mr Jennings chose not to put those matters to Dr Roberts in cross-examination.
It is also questionable as to whether the defendant's submission is accurate, as I note that Dr Roberts was provided with the Headspace material and was aware of Ms Wilden's previous psychiatric history.
As for the fact that she had consensual intercourse with Mr Jennings in mid-2017, it is now impossible to know what effect, if any, that may have had upon Dr Roberts' opinion. It must also be remembered that information gathering in the context of medico-legal assessment usually takes the form of questions being asked by the examiner and answers being provided by the person being examined. It may well be that Dr Roberts did not ask a question which would have elicited an answer informing him of the mid-2017 event.
As for failing to inform Dr Roberts that her sexual relations with Mr Maamary were initially fine, again, it is difficult to now predict what Dr Roberts' opinion would have been. Ms Wilden did tell Dr Samuell of that fact and it did not prevent him from reaching the same diagnosis as Dr Roberts. One might reasonably expect that Dr Roberts' opinion would not have reasonably been affected by that information.
I do not accept the submission for Mr Jennings that Ms Wilden should be disbelieved or not preferred because of shortcomings in the information provided to Dr Roberts or Dr Samuell.

Medical Condition

It was suggested for Mr Jennings that the reason Ms Wilden did not engage in sexual activity was because of a diagnosis of endometriosis mane when she was about 18 years old (T103.45). Ms Wilden conceded that on occasions she had some reluctance to engage in sexual activity "for reasons unrelated to Mr Jennings" (T104.20).
In any event the evidence made clear that Ms Wilden enjoyed normal sexual relations both before and after Mr Jennings. The latter only becoming problematic as a result of the PTSD condition caused by Mr Jennings. As Dr Samuell explained flashback and voidance are symptoms typical for PTSD.
Further it is not clear to me what bearing this topic has on the conduct of Mr Jennings unless it be suggested the Ms Wilden's occasional reluctance explained Mr Jennings forcing himself on her.

General Remarks on Conduct of Case for Mr Jennings

There were a number of troubling aspects in the manner in which his case was conducted. Some of them may have been created by the fact that one of the defendant's counsel only appeared for part of the hearing.
An example is that in cross-examining Ms Wilden Mr Thangaraj put that the offensive name calling contained in the statement of claim did not occur at all. In later cross-examination, Ms Campbell put precisely the opposite proposition. Her explanation was that the defendant's instructions had changed.
A further issue arose when, in the defendant's case, witnesses were called to give evidence on relevant and potentially significant matters which were not put to the plaintiff, notwithstanding that statements had apparently been obtained from those witnesses and that the plaintiff was recalled for further cross-examination on more than one occasion. This resulted in some of the evidence of some of the witnesses called in Mr Jennings' case being curtailed. This was done as a matter of fairness to the plaintiff.
The final matter which stands out as potentially unfair to the plaintiff was the fact that Mr Jennings had downloaded all text messages with Ms Wilden about a year before the hearing. They were provided to his solicitor about 6 months before the hearing. Although there is no requirement under the Rules to serve such material in advance of a hearing giving it to the plaintiff's legal representative after her evidence in chief had the concluded and knowing that it would be vital in the defendant's case caused a disruption in the hearing as the 47,000 text messages were examined by Ms Wilden's lawyers. In the end, as observed elsewhere the fact that aspects of Ms Wilden's evidence were corroborated by Mr Jennings' withheld text messages bolstered her credibility to some degree.

Limitations defence

The defendant has pleaded and maintains that the proceedings have been brought out of time. The defendant's submissions regarding this topic are at MFI 17 [6 - 35]. Division 6 of the amended Limitations Act 1969 (NSW) applies to personal injury actions such as this. S 50C provides that an action is not maintainable if brought after the expiration of a limitation period of, relevantly, the 3 year post-discoverability limitation period, which is the period 3 years running from and including the date on which the cause of action is discoverable by the plaintiff.
S 50D provides as follows: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
The defendant referred to the decision of Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454, where the court identified 3 important elements. The defendant submitted: [11] First, the word 'fact' (when it appears in s 50D(1)(c)) refers to the key factors necessary to establish legal liability, and there is no need for the party to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. It is the key factor necessary to establish legal liability which must be known (at [39]). [12] Secondly "ought to have known" means that the person should have taken all reasonable steps to enquire as to a fact and in appropriate circumstances, includes retaining medical and legal advice and information: (at [37]). Further, in most circumstances the extent of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking "all reasonable steps". [13] However, Basten JA noted "in some circumstances there may no doubt be a question as to whether the plaintiff's instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion". This did not arise in Baker-Morrison. [14] Thirdly s 50D(1)(c) requires a legal evaluative assessment of the factual question of whether the injury was sufficiently serious to justify bringing an action, on the basis that the person had available to her the relevant legal and medical information, knowing those facts and having taken the appropriate advice on those facts to allow an informed professional judgment to be made (at [41] - [44]).
The defendant also referred to decisions of the NSW Court of Appeal in State of New South Wales v Gillett [2012] NSWCA 83 and Best v Rosamond [2020] NSWCA 90.
The defendant appears to rely upon the fact that the plaintiff engaged a solicitor on or before 7 February 2018. That retainer of course related to the family law proceedings.
Further, the defendant relies upon the fact that Ms Wilden told Mr Ibrahim of the assaults at some time in the second half of 2016.
Those submissions do not necessarily inform the questions under s 50D(1)(a) - (c). Plainly the plaintiff was aware of the fact that the events later giving rise to the psychiatric condition of Post-Traumatic Stress Disorder had occurred.
The questions are: 1. when did she first become aware, or ought to have become aware, that she had suffered the psychiatric injury the basis of the cause of action; 2. the fact that the psychiatric injury was caused by the fault of the defendant; and 3. the fact that the psychiatric injury was sufficiently serious to justify the bringing of an action.
The involvement of Mr Ibrahim in 2016 and Mr Penhall in 2018 do not, of themselves, answer these questions. In any event, if it is the retention of a lawyer for another purpose which is determinative of the questions above (which I reject), the proceedings commenced in February 2020 were still within time.
To be clear, as the proceedings were commenced on 24 February 2020 the plaintiff would be out of time if she had satisfied each of the s 50D criteria or factors prior to 24 February 2017.
Mr Jennings relies heavily in regard to liability on the fact that the couple engaged in consensual intercourse June 2017. The evidence established that in 2016 and 2017 the couple were at least entertaining the idea of reconciliation. It seems to me that this is a relevant consideration in considering the question of the limitation period.
Mr Jennings also relies upon the fact that Ms Wilden was referred by her general practitioner to a psychologist following a diagnosis of anxiety/depression on 11 September 2017. Ms Wilden did not follow up that referral. When seen next on 18 September 2017, there is further reference to anxiety and depression and a referral to Ms Nada Sakla, psychologist. About a year later on 22 October 2018 there was a further referral to a psychologist, pursuant to a mental health plan. This occurred again in May 2019 when the general practitioner referred Ms Wilden "for counselling/CBT of psychological problems (from) failed marriage". It was only following that referral that Ms Wilden attended upon Ms Sakla, psychologist.
Ms Wilden saw Ms Sakla for the first time on 28 May 2019. As is clear from the chronology above, Ms Sakla recorded a provisional diagnosis of "depression with PTSD?" and "reported being sexually abused by previous partner. Also subjected to regular verbal abuse and putdown".
The question arises as to whether a provisional diagnosis is sufficient to inform the plaintiff as to the seriousness of the injury in order to bring proceedings. Even if it is, the provisional diagnosis in respect of the injury for which this claim was brought was made within the 3 years prior to the commencement of proceedings.
The notes of Ms Sakla, psychologist, are informative as to the state of mind of Ms Wilden and as to whether a person in her position ought to have known of the relevant facts under s 50D(1). For example, on 9 July 2019, being the third consultation, they commenced discussing Ms Wilden's feelings, but she was "ultimately … unable to discuss abuse further that day".
Further, on 18 February 2020 Ms Wilden was "too anxious" to discuss the sexual assault by the defendant. The psychologist recorded: Feels that she is unable to discuss as she was his wife and also that it brings back bad memories, she feels this interfering in her current marriage.
Also relevant to the question under s 50D(2) as to whether a person would have taken all reasonable steps to ascertain the relevant factors under s 50D(1) is the evidence of Mr Penhall, solicitor, as to his dealings with Ms Wilden. It is apparent from the evidence of Mr Penhall, which is referred to above, that he had great difficulty obtaining information from Ms Wilden, and that he had to arrange for her to consult with Dr Roberts, psychiatrist, in order for information to be obtained. It was only in his report of 21 February 2020 that Dr Roberts made a diagnosis of PTSD, amongst other conditions. In my opinion, this was the occasion upon which Ms Wilden became aware that the injury was sufficiently serious to justify the bringing of an action, which she then promptly did.
It was also around this time that Ms Wilden commenced seeing Dr Pignataro, psychologist, who in the report of 15 May 2020 also diagnosed the condition of PTSD.
It was submitted for Ms Wilden that mental injury is different from physical injury. I accept that submission. Reference was made to a decision of Hanley JA in Commonwealth of Australia v Smith [2005] NSWCA 478, where his Honour stated at [16]: The law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness. That has been recognised as such by "professional medical opinion" … a plaintiff … who is aware of all his symptoms, cannot know that he has suffered a mental injury unless he knows that they constitute a recognisable psychiatric injury. Without this knowledge he cannot know that he has suffered something which the law recognises as an injury.
Dealing with each of the 3 factors in s 50D(1), I make the following findings: 1. Ms Wilden did not know, or ought to have known, of the fact that she suffered Post-Traumatic Stress Disorder until that diagnosis was made in 2020; 2. Ms Wilden did not know, or ought to have known, that she had a cause of action against the defendant until after the diagnosis of the psychiatric injury was made. As to the question of fault or cause of the injury, Ms Wilden was also uncertain as to whether non-consensual sexual intercourse was legally actionable if it occurred within a marriage (T191.19); and 3. Ms Wilden was unaware that the condition from which she suffered was sufficiently serious to justify the bringing of an action until after the diagnosis was made in 2020. Drawing on the remarks of Hanley JA above, she may well have been aware of her symptoms, but did not know that she had suffered a mental injury, as she had not been diagnosed with a recognisable psychiatric illness.
For these reasons I find that the proceedings were commenced within 3 years of the post-discoverability limitation period.
Further, having regard to the conduct of Ms Wilden and Mr Jennings, and the numerous medical records previously referred to, I find that Ms Wilden took all reasonable steps to ascertain knowledge of the relevant factors under s 50D(1)(a) - (c).

Damages

Having found liability in favour of Ms Wilden and rejected the defendant's defence under the Limitation Act, it remains to undertake an assessment of damages. The plaintiff claims damages under the following heads: 1. general damages; 2. aggravated damages; 3. exemplary damages; 4. past and future treatment costs; and 5. future economic loss by way of buffer.
Mr Jennings' position in relation to damage is curious. In his original submissions dated 18 June 2021 (MFI 17) it was submitted on his behalf that the plaintiff "has not suffered any loss as a result as she was not troubled by the conduct" (at [255]).
In the defendant's submissions in reply dated 13 July 2021 (MFI 19) his position changed for no apparent reason. It was submitted that if the plaintiff was accepted as to the sexual assaults then she "should" be awarded damages comprising general damages, past treatment expenses, future treatment expenses and a buffer for future economic loss.
As the submissions in reply are later in time than the earlier submissions, I will take those as representing Mr Jennings' position in relation to the award of damages.
In the written submissions for Mr Jennings (MFI 19) the following concessions were made: 1. general damages $50,000.00; 2. past treatment and costs (agreed) $1,341.00; 3. future treatment costs - buffer $5,000.00; 4. future economic loss - buffer $10,000.00. Total $66,341.00
Attached to the plaintiff's submissions on damages (MFI 16), damages are contended for as follows: 1. general damages $250,000.00; 2. aggravated damages $100,000.00; 3. interest on general and aggravated damages $35,000.00; 4. exemplary damages $150,000.00; 5. past treatment costs (agreed) $1,341.00; 6. future treatment costs $118,000.00; 7. future economic loss (cushion) $200,000.00; Total $854,341.00
As is clear from the above, other than for past treatment expenses which are agreed, there is a significant divergence between the parties as to the assessment of damages.
As noted above, damages are to be assessed at common law as claims of intentional tort fall outside the scope of the Civil Liability Act 2002, save for claims in respect of gratuitous domestic assistance.
I accept the submission by Ms Wilden that she is entitled to both damages for the trespass and also immediate harm and consequential damage. I note the authority of Palmer Bruyn v Parker Pty Ltd [2001] HCA 69 that the boundary is set by the concept of "natural and probable" result of the conduct of Mr Jennings.
Although initially claimed, Ms Wilden has abandoned the claim for damages in respect of the verbal abuse she suffered during the course of the relationship. Damages are to be assessed for the consequences of the 4 alleged sexual assaults.
I accept the submission that non-consensual sexual intercourse, particularly physically forced, is a serious act which ought to sound in a significant award of damages.
I shall consider the claim under each of the heads contended for by the plaintiff.

General Damages

The evidence given by the plaintiff as to the physical acts imposed upon her by Mr Jennings are set out above and need not be repeated. Her evidence as to the effect of those acts upon her demonstrated that they had a significant physical and emotional impact. For example, following the first rape she left the bed and went to the shower where she sat on the floor of the shower. She told the court that she felt violated and disgusting. She was very emotional in the course of giving her evidence about these events, highlighting the traumatic impact they had upon her, and continue to have upon her.
The second rape demonstrated the context within which the sexual assault occurred. Mr Jennings was abusive and forceful in removing Ms Wilden's clothing and using his considerable bodyweight to pin her down and separate her legs. She described the touching of her genitals as "quite rough" (T31.17). She was crying and told him that he was hurting her, but he kept raping her until he finished and she went to the shower crying. She said to the court at T32.22 and following: I felt disgusting. I felt humiliated, ashamed of what happened because he was my partner and I thought that he loved me. I didn't, I didn't think that - at the time that it was assault because I thought it was my duty to have sex with him. I knew it was wrong because I didn't want it to happen, but I just - I don't know, I just - I felt violated. I felt betrayed.
The third rape again involved verbal abuse together with Mr Jennings removing Ms Wilden's clothing and using his legs to force her legs open. She stated at T34.31 and following: I just remember laying there and feeling, like, dead. I didn't feel it. I just, no feeling but blank. Like I was actually dead. Like my soul had left my body.
She again went to the shower where she sat and washed herself. She said that she felt dirty and disgusting, and that she had to "wash it off".
The fourth rape followed a similar pattern. During the forced sexual intercourse she laid there crying.
As mentioned in a different context, Ms Wilden has been diagnosed with PTSD, which impacts her on a daily basis. Both the psychiatrist retained for the plaintiff (Dr Roberts) and the defendant (Dr Samuell) were satisfied that the diagnostic criteria for Post-Traumatic Stress Disorder had been met. In the case of Dr Samuell, his opinion was expressed on the basis that such a diagnosis would be made if the plaintiff was accepted. I accept the plaintiff. Dr Samuell stated: If one takes Ms Wilden's self-report at face value, she describes stressors that would fulfil the stressor criteria for a post-traumatic stress disorder. She said that she had been having nightmares in the "last few weeks". She described intrusive recollections of the alleged sexual assaults that satisfy the re-experiencing phenomena criteria for a post-traumatic stress disorder. The difficulties with sexual functioning may also be a form of avoidance, satisfying that criteria for post-traumatic stress disorder …" (Exhibit A page 85)
It is the intrusive recollections, re-experiencing the traumatic event and avoidance which manifest as symptoms of this psychiatric condition.
Ms Wilden has been suffering these symptoms for a number of years now, and there is no reason to expect that she will spontaneously recover. She will only recover if she undertakes the treatment recommended for her by Dr Roberts. The great effect of this condition is that the intrusive thoughts can occur at any time, and impact upon her day to day living.
The assessment of general damages should also reflect the fact that Ms Wilden had expectations of a happy marriage and a family, starting a business and owning a house. Those expectations have been at least significantly compromised by the conduct of Mr Jennings.
It is the opinion of Dr Roberts that even with treatment it is probable that Ms Wilden will continue to experience ongoing residual apprehension in respect of intimacy (Exhibit A p 65). In his opinion, treatment will be difficult and may not be totally successful (Exhibit A p66).
The rapes perpetrated by Mr Jennings also impacted subsequent relationships resulting in them failing.
Whilst I accept the submission for Ms Wilden that it is difficult to separate out the impact of each individual rape, and that a global figure may be appropriate, I intend to specify the same amount of general damages for each of the 4 rapes which I have found occurred.
Having found that Ms Wilden was raped by Mr Jennings on 4 occasions, I award general damages in the sum of $50,000.00 per act, resulting in an overall allowance of $200,000.00 for general damages.
In order to avoid any suggestion of over compensating I have not included in general damages an award for hurt feelings.

Interest on General Damages

I have calculated interest at 2% for the period of 5 years. That comes to $10,000.00.

Aggravated Damages

I intend to make a separate award for aggravated damages. It is hard to imagine a clearer case of an intentional tort where such damages ought to be awarded. It is plain that Ms Wilden has suffered enormous insult, humiliation, embarrassment and shame by the conduct of Mr Jennings, and that ought to be reflected in an award of damages. I accept the evidence of Ms Wilden as to how she felt following each of the acts and generally since they occurred. [
In MFI 16 at [30] it was submitted on behalf of Ms Wilden that the court ought to find the following aggravating circumstances to each of the rapes: 1. Mr Jennings was her fiancée, and later her husband, and therefore in a position of special trust and intimacy with Ms Wilden; 2. the rapes occurred in Ms Wilden's home in the bed they slept in, that is, in a place that she ordinarily would feel protected and safe; 3. the rapes occurred at night; 4. the rapes were repeated. Each repetition of rape compounded the harm she suffered and is an aggravating circumstance. Eventually, Ms Wilden came to feel scared that, at any time, he would come home after a night out and rape her again; 5. the rapes occurred in the context of repeated alcohol abuse; 6. the rape involved Mr Jennings using physical force and his bodyweight to restrain Ms Wilden and remove her underwear during the first 3 rapes; 7. the rapes were in defiance of Ms Wilden's physical and verbal resistance, increasing her sense of helplessness; 8. the rapes involved penetrative intercourse, which continued for a significant period of time; 9. the impact was further aggravated by the verbal abuse accompanying the first 3 rapes where Mr Jennings alleged Ms Wilden was sleeping with other men and called Ms Wilden a "slut"; and 10. the impact was aggravated by ongoing aggressive verbal and, on one occasion, physical abuse.
In my opinion, those circumstances accord with the evidence of Ms Wilden, who I accept as an honest and reliable witness. I make those findings.
I allow a specific sum of $50,000.00 in respect of aggravated damages.

Interest on Aggravated Damages

I calculate interest at 2% for 5 years that comes to $2,500.00.

Exemplary Damages

Such damages are directed to punishing the defendant and to act as a deterrent to both the defendant and others. There is no question that conduct of this type should not be tolerated in society and there is a need to deter both Mr Jennings and others like him from behaving in this manner. I note the observations of McColl JA in Whitbread & Anor v Rail Corporation NSW & Ors [2011] NSWCA 130 at [64]: The objectives of an award of exemplary damages are to punish the wrongdoer, deter him and others from committing like conduct again, to provide vindication to the victim and to denounce the wrongdoer's behaviour.
In my opinion, Mr Jennings displayed a conscious and contumelious disregard for Ms Wilden's rights and entitlement to live without being forcibly raped.
Mr Jennings has not been dealt with by the police as no complaint was made. Ms Wilden did not wish to risk or ruin Mr Jennings' career by a conviction. In those circumstances, there is no risk of double punishment by the award of exemplary damages. To make any assessment as to whether or not Mr Jennings will be charged by the police in the future, following this judgment, is to engage in speculation which ought not reduce the award for exemplary damages.
Mr Jennings was aware that it was wrong to force intercourse upon his wife, but he did it nevertheless. I accept the submission on behalf of Ms Wilden that "his actions displayed high-handed and contumelious disregard for her rights to her own autonomy, and showed utter contempt for her feelings".
Submissions were made on behalf of Ms Wilden as to the conduct of the hearing and the impact which it may have upon the assessment of exemplary damages. Whilst I accept that the conduct of the defendant's case was messy and involved Ms Wilden being recalled on a number of occasions and various different propositions being put to her and the criminal conduct of Mr Jennings, I am not satisfied that the conduct of the hearing ought to add to the award of exemplary damages.
After giving careful consideration to the evidence of the plaintiff as to the effect of the sexual abuse upon her, I award exemplary damages and assess them in the sum of $75,000.00.

Out of Pocket Expenses

These were agreed mathematically only in the sum on $1,341.05. All that remains is for me to make a finding that the expenses were incurred as a consequence of the conduct of the defendant. I make that finding and award the out of pocket expenses otherwise agreed.

Future Treatment Expenses

Both experts have expressed opinions as to Ms Wilden's needs for future treatment. Unsurprisingly, they recommend psychological treatment. Dr Samuell's recommendation is for twice monthly counselling, at a cost of $250.00 per session, for a period of 2 years. That is about $60 per week for 2 years.
The opinion of Dr Roberts was that the plaintiff would require psychotherapy at a cost of $465 per hour on a weekly basis for a period of 2 years. He also recommended medication, although the plaintiff is avoidant of same. I allow a buffer of $10,000.00 for medication based on Dr Roberts' recommendation and factoring in the evidence of the plaintiff as to her preference not to take medication, but acknowledging that her preference may ultimately be overridden by her condition.
For psychotherapy, I allow a buffer of $45,000.00 based upon the opinion of Dr Roberts.
Dr Roberts also recommended, in addition to psychotherapy with a psychiatrist, cognitive behavioural therapy with a psychologist for a minimum of 25 sessions. The plaintiff adopted the costing for a psychologist provided by Dr Samuell of $250 per session, and claims $6,250.00 in respect of cognitive behavioural therapy, which I allow.
Dr Roberts also recommended transcranial magnetic stimulation at a cost of $180 per treatment for 30 treatments, and hospital admission for 4 weeks. I am not satisfied that these recommendations are reasonable, or that they would be pursued by the plaintiff. There was no evidence as to that matter. I reject that aspect of the plaintiff's claim.
The total allowance for future treatment expenses, therefore, is $51,250.00.

Economic Loss

Ms Wilden plans to work as a paramedic, which is a high stress job. She is yet to complete her course, and therefore it remains to be seen whether her psychiatric condition impacts upon her performance of that job. Common sense suggest that it most probably would.
I accept the opinion of Dr Roberts in the Joint report that Ms Wilden "may be at increased risk of decompensation (at work), being at a greater risk than if the post-traumatic stress disorder was not present". (Exhibit A, p 100)
She impressed me as a hard working person who, at various times, has juggled work with full time studies. It seems likely to me that her condition will impact upon her capacity to work in the future, and that a buffer ought to be allowed for that loss of earning capacity. It is impossible to predict with any degree of certainty what that loss will be. There is also the possibility that her condition will resolve, or otherwise abate, which will therefore not impact upon her working life.
Ms Wilden has provided evidence of paramedic earnings, which appear to be just over $1,000.00 per week in the first year, increasing slightly in the second year. It was submitted that, ultimately, if she managed to continue in that job then she would be a paramedic specialist, and earn about $1,600.00 gross per week.
It was submitted that it is more likely that Ms Wilden would work as a patient transport officer than as a paramedic specialist given her predisposition to trauma of a psychiatric nature. At [101] of MFI 16, it was submitted for Ms Wilden that the following factors ought to be taken into account in determining the amount to be allowed as a buffer for loss of earning capacity: 1. Ms Wilden is a young woman (32 years of age) with 35 years of working life remaining to age 67 years (the relevant multiplier is 1174.0) [note: multiplier is actually 1138.0]; 2. no separate claim is made for superannuation … ; 3. assuming Ms Wilden was capable of earning $1,600.00 per week … this would be a net weekly wage of about $1,230.00 …; 4. it is perfectly conceivable that she could have periods of unemployment brought about by her psychological difficulty … ; 5. if she was an ambulance transport officer her net wage would reduce to $905.00 per week … ; 6. on the 3% tables, a modest loss of capacity of $250.00 per week … capitalises out at $284,000.00 over 37 years with no vicissitudes; 7. if she was totally or partially incapacitated for several years, she would sustain a significant economic loss and be exposed to considerable financial strain; and 8. the base wages do not include the various allowances set out at Exhibit A pp 421 - 322.
Ultimately, it was submitted on behalf of Ms Wilden that a cushion in the sum of $200,000.00 ought to be allowed.
No allowance was made for the adverse vicissitudes of life in the plaintiff's approach to the assessment of damages. In paragraph (i) under [101] it was submitted: No deduction for vicissitudes has been taken into account as the negative vicissitudes (not being able to obtain or retain employment as a paramedic) is considerable;
It seems to me that even if the negative vicissitudes are considerable then there must be some reduction or factoring in of a reduction in the claim for economic loss.
Mr Jennings conceded a buffer of $10,000.00 for future economic loss "for an occasional day off". I reject that submission, and consider such an amount to be unreasonably low.
I acknowledge that the assessment of a buffer for economic loss is difficult as there are a large number of imponderables, which do not allow for precise calculation. Such matters include the likelihood of treatment being successful, the likelihood of Ms Wilden securing employment and the question as to whether or not her condition will impact upon her employment in the future. Having regard to the fact that she had been suffering from this condition for a number of years and the medical experts' recommendations as to treatment, I consider a buffer in the sum of $100,000.00 to be reasonable in the circumstances.
This represent about $100.00 per week for Ms Wilden's working life (37 years, multiplier 1138.0) after a 15% discount for the adverse vicissitudes off life or about 10% of her earning capacity. This calculation is performed only to test the reasonableness of the amount allowed as a buffer. I consider such an allowance to be fair and reasonable.

Summary of Assessment of Damages Head of Damage Amount General Damages $200,000.00 Interest on General damages $10,000.00 Aggravated Damages $50,000.00 Interest on Aggravated Damages $2,500.00 Exemplary Damages $75,000.00 Out of Pocket Expenses $1,341.05 Future Treatment Expenses $51,250.00 Economic Loss $100,000.00 Total $490,091.05

oRDERS

I make the following orders: 1. judgment for the plaintiff against the defendant in the sum of $490,091.05; 2. the defendant to pay the plaintiff's costs of the proceedings; 3. leave to both parties to file and serve a notice of motion to vary the costs order within 21 days, if necessary; 4. exhibits returned; 5. that the Judicial Registrar refer this judgment and the transcript of the proceedings to the NSW Police for investigation and consideration of criminal prosecution of Michael Joseph Jennings.

I certify that the previous [369] paragraphs are the reasons for the Judgment of his Honour Judge D Wilson SC. J Bailey Associate

Endnotes

Fox v Percy (2003) HCA 22 at [29].
ALRC History of Activism and Legal Change, 10 November 2020.

Amendments 21 December 2021 - corrections made 30 March 2022 - [21] amended. The word 'inconsistent' is replaced by the word 'consistent'. 16 August 2022 - decision numbered (no 1) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2022

Limitations Act 1969(NSW)

Crimes Act 1900(NSW)s 61I

Wilden v Jennings

At a glance

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Judgment (51 paragraphs)

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