[2025] SADC 85

Prosecution: R Counsel: MS M MCKENDRICK - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: W, L Counsel: MS J ABBEY KC - Solicitor: WOODS & CO LAWYERS Hearing Date/s: 14/04/2025, 16/04/2025, 28/04/2025, 01/05/2025, 05/05/2025 to 07/05/2025, 09/05/2025, 12/05/2025, 30/05/2025, 20/06/2025 File No/s: DCCRM-23-045972 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. R v W, L Criminal Trial by Judge Alone [2025] SADC 85 Judgment of her Honour Judge Fuller 10 July 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT Accused charged with one count of rape upon the complainant on 5 June 2022 - accused married to complainant and they had two young children. Complainant alleged that after attending a birthday party together and then spending until the early hours of the morning in the city where they both continued drinking and consuming cocaine, the accused had sexual intercourse with her without her consent when they returned home. Complainant alleged she told the accused she was tired and did not want to have sexual intercourse with him, but he ignored her - immediately after sexual intercourse ended, the complainant used her mobile telephone to covertly record a series of conversations with the accused - prosecution case was that in those conversation the accused admitted to raping the complainant. Accused then fell asleep and complainant left the house and went to her mother’s house. A friend of the complainant received a Snapchat message from her between 6.30am and 7.30am on 5 June 2022 asserting that the accused had raped her - complainant did not recall sending that message. Accused stayed in family home until end of October 2022 - accused alleged to have made implied admissions to complainant in a series of text messages, to her mother in a phone call, to her friend at his father’s wake and in a recorded conversation between the complainant and the accused on 30 October 2022. Accused participated in record of interview and admitted having sexual intercourse with the complainant but said it was consensual. He denied the allegations that the complainant had told him she did not want to have sex with him but said she told him she was tired and to make it quick - accused said he did not think he needed to specifically discuss consent with complainant on this occasion because there was a mutual understanding between them as a married couple. -- 1 of 90 -- Held: Complainant’s credibility undermined significantly by prior inconsistent statements on material matters - complainant denied having sexual intercourse with the accused after 5 June 2022 - text messages from the complainant to the accused between June and October 2022 in which she invited him to have sexual intercourse with her were tendered - complainant admitted sending the messages but denied that sexual intercourse occurred. Denials were not credible. Complainant gave evidence that there had been prior occasions when accused had sexual intercourse with her without her consent but told police in 2023 that non-consensual sexual intercourse had never occurred before. Explanation for inconsistency not credible. Photographs and messages tendered in cross-examination established that complainant and accused had ‘rough’ sex and bondage in which she played a submissive role - complainant said she would have sexual intercourse with the accused on occasion even though she did not want to because she wanted to please him. Complainant’s credibility and reliability undermined to such an extent that her evidence alone not capable of proving charge beyond reasonable doubt. Prosecution failed to prove beyond reasonable doubt that complainant was not consenting – evidence established that accused believed complainant was consenting. Prosecution failed to prove the accused made any admissions to having raped the complainant - accused’s denials in record of interview could not be rejected beyond reasonable doubt - complainant’s credibility not bolstered to any material degree by complaint evidence. Verdict: Not guilty. Criminal Law Consolidation Act 1935 (SA) s 46 (2), s 47, s 48 (1) (A) CLCA ; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34L, s 34M, referred to. R v Salahattin [1983] 1 VR 521 at 528; R v S [2009] SASC 380; R v Christie [1914] AC 545 at 554; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Rahmanian [2010] SASC 137; R v Maiolo (No 3) [2014] SASCFC 89; Anderson (A Pseudonym) [2024] SASCA 36; R v P, S (2016) 261 A Crim R 329, considered. -- 2 of 90 -- R v W, L [2025] SADC 85 The charge 1 The accused was charged on Information with the following offence: Offence Details Rape. (Section 48 (1) of the Criminal Law Consolidation Act, 1935). Particulars [W, L] on the 5th day of June 2022 at Wynn Vale, engaged or continued to engage in sexual intercourse with [JW] by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting. The plea 2 The accused pleaded not guilty and elected for trial by Judge alone. I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver. Overview of the prosecution case as opened on 3 The accused and the complainant were husband and wife at the time of the alleged offence. They had two young children. When they married in 2016 their relationship was good. However, it changed following the birth of their first child. The accused started to work very long hours in his construction business and his relationship with the complainant became distant and strained. His behaviour became erratic, and he would yell and scream at the complainant. She became scared of him and his outbursts. 4 On 4 June 2022, the complainant and the accused had been to his brother’s 30th birthday party. Their children were staying overnight with friends. The accused and the complainant were drinking alcohol. The accused left the party to go to the city with some employees of his business and the complainant met him in the early hours of the morning on Hindley Street. They consumed more alcohol and also cocaine. Eventually, they caught an Uber to their family home. At that time, they had a young puppy who had been left in a sectioned off area of the house. Because the puppy had been left alone for around 12 hours, it had defecated several times and the complainant and the accused spent some time cleaning up the mess. After this, they both went into the bedroom to go to bed. 5 When the complainant got into bed, the accused was naked. She was extremely tired and just wanted to go to sleep. As she got into bed, the accused got up on his knees and the complainant knew he wanted to have sex with her. She told him ‘No’ she was not interested. There was further discussion, and she again said she was not interested and wanted to go to sleep. The accused then asked, ‘what would you do if I did it now?’ and the complainant told him she did not want -- 3 of 90 -- [2025] SADC 85 2 to have sex. A short time later, the accused said, ‘Fuck it, I’m doing it’. He then grabbed the complainant, pushed her onto the bed, pushed her legs apart and inserted his penis into her vagina and had sexual intercourse with her. During the intercourse, the complainant repeatedly said no and told him she did not want this. She was crying and in pain. The accused eventually ejaculated, withdrew his penis and told her he hoped she ‘fucking hated it’. 6 The complainant and the accused remained in bed together and after a period of silence, began talking to each other. The complainant decided to record the conversation covertly on her mobile phone. On the prosecution case, the accused made admissions to raping the complainant during that recorded conversation. After the accused fell asleep, the complainant got dressed and went to her mother’s home. Before doing so, she sent a message via Snapchat to her friend, EG, telling her that the accused raped her. She then told her mother, JK, something had happened with the accused. 7 Later the complainant told the accused that she did not want to speak to him and the relationship was over. The following night, the accused left for a business trip to Kangaroo Island. 8 A few days after the complainant visited her mother, JK, her mother telephoned the accused whilst her husband DK was present. During the conversation, which was on speaker phone, she told the accused he had raped her daughter, and he said, ‘she’s my wife’ and told her to stay out of it otherwise she would not see the children. 9 On 4 May 2023 the accused was arrested and interviewed. He said he had sexual intercourse with the complainant on the morning following his brother’s 30th birthday party. He said he did not inquire whether the complainant consented because in their ten-year relationship neither of them had asked each other for permission to have sex and they just had sex ‘mutually’. He said that the relationship had been a bit rocky at the time. When they got home and into bed, the complainant mentioned that she was getting tired but did not tell him she did not want to have sex, but said ‘just make it quick’. When he woke up the complainant was gone, and he called her mobile phone which was answered by her mother. Her mother told the accused that he had sexually assaulted the complainant, and he thought it was a misunderstanding and maybe they had got their wires crossed and he was in such shock that he thought it was a joke. 10 In the days and weeks that followed, the accused left the house but then moved back in. There were several text messages between the accused and the complainant in which the accused made admissions to having raped the complainant. On 30 October 2022, the complainant again recorded a conversation with the accused, but on this occasion, he was aware that she was recording it. In this conversation, the accused again admitted to having raped the complainant. -- 4 of 90 -- [2025] SADC 85 3 Pre-trial applications Complaint evidence 11 Ms Abbey KC, for the accused, sought an order that the evidence of the complainant’ mother, JK in paragraphs 5-10 of her affidavit dated 14 April 2023 was not admissible pursuant to section 34M (6) Evidence Act 1929 (SA)(‘EA’) as an elaboration of the initial complaint made to EG which was as follows: Between 6.30am and 7.30am I received a Snapchat message from [JW] simply saying “[the accused] just raped me’. I asked her what she meant and she replied, ‘I don’t know what to do’. Soon after that she wrote, ‘I’ve got to go he’s waking up’. 12 The complainant said she could not recall sending EG this message. 13 In her affidavit, JK said that her daughter came to her house between 8.30am and 9.00am on 5 June 2022 and was sobbing and highly distressed. She said to JK, ‘[the accused] raped me’. She then said that the accused had wanted sex, but she said no. He forced himself upon her even though she was crying and repeatedly saying no. The whole time she was saying no. 14 EG said that around 10.00am the complainant messaged her again to tell her that she could not say much about what happened but a mutual friend of theirs had stayed the night and was present during the incident. 15 Ms Abbey KC argued that the conversation with JK was not an elaboration of the initial complaint because there was no identifiable connection between the two statements and that they were in truth two separate complaints. Further, the impediment to the complainant elaborating upon the initial complaint to EG no longer existed when she left home to travel to her mother’s home. Finally, the complainant did not elaborate upon her initial complaint to EG when she subsequently communicated with her at 10.00am. 16 The prosecutor, Ms McKendrick contended that the complaint to EG had been interrupted by the accused waking up. Accordingly, she was not able to continue to describe to EG what happened, and the elaboration of that complaint instead was made to her mother, JK. However, Ms McKendrick conceded that when the complainant communicated with EG again a few hours later that morning, there was no impediment to her providing the further detail or elaboration which had been interrupted by the accused waking up during their first communication. 17 In determining this issue, I have had regard to the authorities of R v Maiolo (No 3) [2014] SASCFC 891, Anderson (A Pseudonym) [2024] SASCA 362, R v P, S (2016) 261 A Crim R 329.3 In Anderson the Court held: 1 [75] – [80]. 2 [88] – [96] 3 [24]. -- 5 of 90 -- [2025] SADC 85 4 Whilst it may be acknowledged that there is a degree of flexibility in the determination of what is an “elaboration”, particularly having regard to the time between the complaints and the people to whom they are made, there must nonetheless be a readily identifiable connection between the complaints, with any later complaint elaborating the initial complaint in a manner sufficient to enable their proper characterisation as one, “initial complaint”.4 18 In that case, the Court noted that the complainant, as is the case here, did not recall the first complaint at the time she made her later disclosure to different person. The Court said that this tended to suggest that what was later disclosed was not connected with, or in elaboration of the first complaint made, as it was difficult to see how what was later said could be regarded as “information provided by way of elaboration of the initial complaint”, as s 34M (6) required. 19 I ruled that I was not satisfied that what the complainant told JK was an elaboration of the initial complaint to EG. The complainant had no memory of making the complaint via Snapchat to EG. Further, there was a window of time during which the complainant was travelling to her mother’s house that morning when she could have contacted EG to continue the conversation. When the complainant did send a message EG it was at a time when she was still at her mother’s house, but she did not provide any further details about the alleged rape. 20 I concluded that the complainant made a separate complaint to her mother which was unconnected with her earlier complaint to EG. The complainant’s complete lack of recollection of her communication with EG supported this conclusion because if there had been a connection in her mind between her complaint to EG and her complaint to her mother one would have expected her to recall it. 21 Accordingly, I ruled that the evidence of JK regarding what the complainant told her was not admissible as an elaboration of the initial complaint to EG. Implied admissions 22 The prosecution relied upon evidence of what were described as implied admissions by the accused. In JK’s affidavit dated 14 April 2023, she described a telephone call between her and the accused on loudspeaker for which her husband DK was present. JK telephoned the accused and asked him what the hell had happened and said, ‘you raped [JW]’. The accused responded, ‘She’s my wife’. JK said ‘but you raped her’. The accused then told her to keep out of it or he would stop her seeing the children. DK’s account of the conversation in his statement dated 4 November 2023, was that JK told the accused that he had raped her daughter. JK kept saying to the accused ‘no means no’ and he responded, ‘but she’s my wife’. DK said the accused did not admit to anything but said to stay out of it or they would never see the grandchildren again. 4 [91]. -- 6 of 90 -- [2025] SADC 85 5 23 Ms Abbey KC referred to R v Salahattin [1983] 1 VR 521 for the principle that an allegation is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, ‘having heard the statement and having had the opportunity of explaining or denying it, and the occasion being one upon which he might reasonably be expected to make some observation, explanation or denial, has by his silence, his conduct or demeanour or by the character of any observations of explanations he thought fit to make, substantially admitted the truth of the whole or some part of the allegation made in his presence’ or that he has so conducted himself as to show a consciousness of guilt.5 24 Whether that inference can be drawn depends on the coalition of a number of facts: 1. Whether the statement was heard by the accused. 2. Whether the accused understood the statement. 3. Whether the facts stated were within the personal knowledge of the accused. 4. If the matters set out above are established, whether the circumstances were such that a dissent by the accused would in ordinary experience have been expressed by the accused if the statement put to him was not correct.6 25 It is not what is said to an accused person that is admissible, but rather it is the accused person’s response, by way of silence or conduct, from which an inference might be drawn that he or she has acknowledged the truth of the statement or shown a consciousness of guilt.7 26 Ms Abbey KC argued that it was not open to infer that the accused’s response to JK’s allegation was an admission. Ms McKendrick argued that the inference arising from the accused’s statement ‘she’s my wife’ or ‘but she’s my wife’ is that he was asserting that she was his wife, and he could do what he wanted. In other words, it was an implied admission that he had raped her by virtue of his justification for that conduct. Ms McKendrick referred me to R v S [2009] SASC 380 for the proposition that the existence of competing inferences does not render the evidence inadmissible. 27 I ruled that the evidence was admissible because it was open to the trier of fact to use the accused’s responses as implied admissions. I accept that the words ‘she’s my wife’ or ‘but she’s my wife’ may not signal the type of dissent one would expect if the allegation of rape was incorrect. On the face of it, there were other available and competing inferences open on the evidence which, if drawn, would lead the trier of fact to conclude that the accused had not made any admission to 5 (Ibid)527, 35-45 (McInerny and Murray JJ) 6 527-528. 7 R v Christie [1914] AC 545 at 554 (Lord Atkinson); R v Salahattin [1983] 1 VR 521 at 528 (McInerney and Murray JJ). -- 7 of 90 -- [2025] SADC 85 6 the alleged offending. However, the existence of competing inferences is not a bar to admissibility. 28 The prosecution also sought to lead a number of text messages sent by the accused to the complainant. Those messages were sent on 6 June 2022, 9 June 2022, 6 August 2022, 16 August 2022 and 10 November 2022. The accused objected to the admission of this evidence. 29 On 6 June 2022 at 10.29am the accused wrote: I hope you are ok after what happened to you. I’m really sorry I have put you through this. 30 The prosecution argued that this was relevant to the accused’s state of mind and demonstrated an acknowledgment that there had been an incident for which the accused was remorseful. I deferred my ruling on this message until the complainant gave evidence because it was not possible to determine at that stage what communications the complainant had with the accused leading up to the receipt of this message. Accordingly, given the lack of a contextual setting, it was not possible to determine whether this message related to the alleged offending the day prior. 31 On 6 June 2022, the following messages were exchanged between the complainant and the accused: Complainant: I’m angry because you raped me [L]. It’s very warranted. Accused: Ok. 32 The prosecutor argued that this was plainly an implied admission by the accused. Defence counsel argued that the response was ambiguous and the word ‘ok’ did not necessarily signal an assent to the allegation made by the complainant; it could in fact simply be an acknowledgment of the making of the allegation. In other words, ‘ok’ is equivalent to ‘if you say so’ or ‘I hear you’. I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission. Although there were competing inferences available which, if drawn, would lead the trier of fact to conclude that this was not an admission that was not a bar to admissibility. 33 On 9 June 2022 the accused sent the complainant the following message: I don’t want a reply message, I just wanted you to know this.. I’m truly and immensely sorry for what I put you through the other day, it will haunt me forever. You are my best friend. I hope this can always remain. Thank you for the chat this evening. Goodnight [crying face emoji] -- 8 of 90 -- [2025] SADC 85 7 34 I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission. Although there were competing inferences available which, if drawn would lead the trier of fact to conclude that this was not an admission that was not a bar to admissibility. 35 On 6 August 2022, the following messages were exchanged between the complainant and the accused: Complainant: I told you I didn’t want you here after drinking! It’s not safe to be around you! you can’t help yourself & god only knows if alcohol is the only thing you’ve had tonight! I will not sleep under the same roof as a rapist that can’t understand what no means every time they drink! Get. Out. Of. My. House!!! You are not welcome here!!! Accused: Im sober [J] 36 I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission because the accused had not dissented to the allegation that he was a rapist. Although there were competing inferences available which, if drawn, would lead the trier of fact to conclude that this was not an admission, that was not a bar to admissibility. 37 On 6 August 2022, the following messages were exchanged between the complainant and the accused: Complainant: I don’t give a fuck! Sleep in a gutter somewhere if you have too! You lost your right to calling this home here when you violated me! You’re not getting it through your thick head! A downward spiral? You’re joking right? The one you put your “family” on. Don’t be me not to do the same thing yo you! I hate you! I told you not to come back here!! Accused: [J]. Your tired. Please don’t do this. 38 I ruled that this evidence was not admissible as an implied admission because the preceding messages (which were not being led by the prosecution but included allegations of other discreditable conduct which could meet the description of a ‘violation’) altered the contextual setting of the accused’s response. In my view, it was not open to infer that the reference to being ‘violated’ was a reference to an allegation of rape and therefore it was not open to infer that the accused’s response (which was to deflect and disengage) was an implied admission. 39 On 6 August 2022, the following messages were exchanged between the accused and the complainant: Complainant: You’re a rapist when you drink! I was very clear do not come here. Accused: I’m sober [J]. I drove home. I had 4 beers over 5 hours. And good. I’m not even slightly intoxicated. I’m 100% sober. -- 9 of 90 -- [2025] SADC 85 8 Food* 40 I ruled that this evidence was admissible as it was open for the trier of fact to use the response of the accused as an implied admission because the accused had not dissented to the allegation that he was a rapist. Although there were competing inferences available which, if drawn would lead the trier of fact to conclude that this was not an admission, that was not a bar to admissibility. 41 The prosecutor sought to lead the following exchange on 6 August 2022 as relevant to the accused’s state of mind on the issue of consent: Complainant: I don’t want to hate you but I am so so damn angry with you. And I have every right to be. I hope you aren’t painting me in a horrible light to everyone because I don’t bloody deserve that. Accused: Of course I’m not. You know I’m fair and owning up to my wrongs. I’m not hiding what happened anymore, I need to get it out so I can fix it, or at least make it known to the world why went wrong so I can move on and you can move past it. 42 I ruled that the accused’s response was not admissible as relevant to his state of mind. The response was too ambiguous to enable an inference to be drawn that this was referable to the events of 5 June 2022. 43 The prosecutor sought to lead the following message sent by the accused on 6 August 2022 as an implied admission and as relevant to his state of mind: It’s ok to be angry at me, I understand you wanting to hurt me, I’m not going to fight back with you and that’s not me not caring. I care, but I don’t have it in me to fight anymore. I want you to know that I just want to be mutual with you for no other reason that we all deserve to be not making things worse. I want the kids disrupted as little as possible but I also want to see them as often as we can agree. I’ve accepted we’re over, I’m ashamed of why but I’ve made my bed and I’m punishing myself for it. And you want me to suffer is normal. I just wanted you to know this, I’m sorry, I want to be your friend when the time suits, forever, we were best mates and we have to be something coz we’re tied together with the kids. So I wish to be as good as we can be. 44 I ruled that this message was not admissible as an implied admission or as relevant to the accused’s state of mind. The apology in the message is not referable to any allegation of rape, particularly where the context is an acknowledgment of the end of the relationship and the effect of that upon the children. 45 The prosecutor sought to lead the following exchange between the complainant and the accused on 6 August 2022 as an implied admission and as relevant to his state of mind: Complainant: How could you so easily destroy so many lives. How could you do this. How can you even live with yourself. Accused: I barely am. I’m getting help to improve for all my wrongs. -- 10 of 90 -- [2025] SADC 85 9 Complainant: You will never be able to take back what you did. Get all the help you want but you singlehandedly destroyed this family. Accused: I know I did and I wish I could. I’m truly sorry [J]. We all need sleep, we both have challenges in our minds from tonight’s conversations. Tomorrow will shed a better light on them Get some rest. 46 I ruled that these messages were not admissible as implied admissions or as relevant to the accused’s state of mind. The allegations made by the complainant in this text message are far too general for any inference to be drawn that they are referable to the alleged rape. Accordingly, the responses are not capable of being used as implied admissions, nor can they be used as relevant to the accused’s state of mind. 47 Finally, the prosecutor sought to lead the following exchange between the complainant and the accused on 10 November 2022: Complainant: Are you seriously blackmailing me that you are going to tell people I got weight loss surgery if I tell people you raped me? Are you seriously doing that to me [L]? Accused: You went against our promise [J]. I promise I won’t if you don’t fuck up anymore. We all have something to loose and your using what I have left against me and excusing it with the kids. Has nothing to do with the sexual assault. Making that clear. Complainant: You said if I told any more people you had raped me then you would publicly shame me that I had weight loss surgery to everyone! How is thay not about the sexual assault [L]!!!!!!!!! Accused: I never said that. It’s what you made up because you don’t listen and you have issues. I’m not normally like this, but your forcing me to defend myself ruthlessly, your choices have put me in this position. Now imagine if I started doing this to you but with your social peers and children. Then you might start actually being reasonable, coz I can bloody tell you, it’s appalling that someone has done this to me.. You’ve made me this person. You well and truly know it’s not me, but yo I took advantage pf my generosity and now a very important part of this relationship we now have. 48 I ruled that these messages were not admissible as implied admissions or as relevant to the accused’s state of mind. The fact (if true) that the accused told the complainant that if she told others that he had raped her he would tell them about her weight loss surgery is not capable of being used as an implied admission. It is not open to infer that the circumstances and context of these messages are such that the accused has admitted he raped the complainant. The complainant was not putting the allegation of rape to the accused; rather she was challenging him on his response to her informing others that he had raped her. -- 11 of 90 -- [2025] SADC 85 10 Elements of the offence 49 To prove the offence of rape, the prosecution must prove beyond reasonable doubt the following elements: • The accused engaged, or continued to engage, in sexual intercourse with the complainant; and • The complainant did not consent to engaging in the sexual intercourse – or – had withdrawn consent to the sexual intercourse; and • The accused knew the complainant did not consent or had withdrawn consent – or – was recklessly indifferent to the fact that the complainant did not consent or had withdrawn consent. 50 Sexual intercourse for the purposes of this trial means penetration of the complainant’s vagina or labia majora by the accused’s penis and includes a continuation of that activity. 51 Consent involves free and voluntary agreement.8 This requires a positive decision by the complainant to consent.9 52 Consent can be given by words or by conduct or a combination of both. Consent can be inferred by conduct, behaviour, or words. Absence of consent does not have to be in words, it may also be communicated by conduct. 53 A complainant is not to be regarded as having consented to the particular act the subject of the charge because he or she consented to being touched by the accused in a different way or had consented to being touched by the accused in this way on some other occasion. Non-consensual sexual intercourse can occur between married people and is not less serious as a consequence of the fact that they are married. 54 Trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not. The presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence. 55 It should not be assumed that a person consented to sexual activity because that person consumed alcohol. 56 An accused is recklessly indifferent to the fact that another person does not consent to an act of sexual intercourse if the accused:10 8 Criminal Law Consolidation Act 1935 (SA) s 46(2). 9 R v Rahmanian [2010] SASC 137, [32] per Sulan J. 10 Criminal Law Consolidation Act 1935 (SA) s 47. -- 12 of 90 -- [2025] SADC 85 11 (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed. Issues in dispute 57 The central issue in dispute was whether the complainant consented to the act of sexual intercourse with the accused. If the prosecution proved beyond reasonable doubt that the complainant did not consent, the secondary issue in dispute was whether the accused knew she was not so consenting or was recklessly indifferent as to whether she was consenting. General directions 58 The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G [2015] SASC 186, whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J. 59 The general directions were summarised by Lovell J in R v G. They are as follows: As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence. The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged. The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise. The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. -- 13 of 90 -- [2025] SADC 85 12 I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty. 60 The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.11 The accused’s record of interview, and any admissions or denials I find contained therein, is evidence in the case that I can take into account in determining whether the charge has been proved beyond reasonable doubt. There is no onus on the accused to prove anything he said in his record of interview. The evidence The complainant – JW 61 JW gave her evidence via AVL, with a court companion present and the court was closed during her evidence. Her evidence was recorded by audio-visual means. Orders for those arrangements were made pursuant to s 13 EA. Pursuant to s 13 (7) EA, I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to JW’s evidence. Background and relationship with the accused 62 JW was 31 years of age when she gave evidence. Her mother is JK, and her father was deceased. JW is the mother of two children, F, born in 2017 and R born in 2018. JW met the accused when she was in high school and later started dating him. The accused moved into her family home in 2010, and they married in 2016. They moved into their house in Wynn Vale in 2018. 12 63 JW’s relationship with the accused was happy when they were first married.13 She was 22 years old when they married and the accused 25 or 26. Their relationship changed significantly after the birth of their first child. JW described the accused as becoming distant, aggressive and uninterested in family life or her. She said he was ‘quite mean’. He yelled a lot and damaged furniture.14 11 Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67]. 12 T 128-129. 13 T 129. 14 T 130. -- 14 of 90 -- [2025] SADC 85 13 64 The accused’s occupation was that of a wall and ceiling fixer. By 2022 he had his own business in his partnership with his brother. JW was casually employed as a child youth worker.15 In 2022, JW described the relationship as follows: It just wasn’t a nice environment to be in, there was no love, there was no togetherness, there was, I was just a shell of the person I am. Everything in my life was just controlled, it was, I was just a robot and a puppet. It wasn’t a relationship, it wasn’t nice.16 65 JW said that both pregnancies were planned.17 In 2022, she believed that their financial situation was fine, they had their own house, and they were building a holiday home. JW had access to a shared bank account into which they both put money, but the accused managed all the banking and paid the mortgage and similar expenses.18 The evening before the alleged offence 66 On 4 June 2022, JW and the accused went to his brother’s 30th birthday party at his home in West Lakes19. Their children were staying with friends overnight. They arrived at the party around 7pm. There were about twenty people there. JW was drinking vodka cruisers and when at the bar she had some ‘shots’. JW said she was about 3-4 on the sobriety scale of 1-10.20 The accused was drinking beer, and she estimated he was 6 on the sobriety scale. He was being a lot more erratic and boisterous.21 When asked to explain what she meant, she said: It was just a lot of in and out of rooms and not being really present. There was one time where I was sitting with a group of people and he came up behind my chair and kicked my chair out from under me. It was that, but then there was just him disappearing, coming back, no-one really knew where he was or what he was doing.22 67 JW said that she had been sitting out the back with a group of friends and the accused came up behind her and kicked the chair out from under her. She fell on the floor, and she then got up and sat on another chair. The accused was asked by a few others what he was doing, and he grabbed her head, kissed her and said, ‘she knows I’m joking’. Before kicking her chair out, he had not said anything to her, and she did not know he was coming up to her. She felt very embarrassed and was worried about how the accused would look in front of everyone.23 15 T 130-131. 16 T 131, 23-28. 17 T 131. 18 T 132-133. 19 T 138. 20 1 represents a sober person and 10 a paralytic person. 21 T 133-134. 22 T 134, 37-38; T135, 1-4. 23 T 135-136. -- 15 of 90 -- [2025] SADC 85 14 68 Whilst at the party, she and the accused had about half a gram of cocaine between them throughout the night. She had taken cocaine with the accused on previous occasions. Cocaine would make her feel more awake and energetic.24 69 Shortly after the chair incident and around midnight, the accused came up to her and said they had to go. She said she did not want to leave as she was in the middle of a conversation with her friend EG, EG’s brother J and other friends and family. He then told her that he was leaving with B and J, his apprentices, and that she should catch up with him later. She continued to drink after the accused left.25 70 JW left the party around 2am. She felt ‘fine’ and ‘completely coherent’. She had spoken to the accused, and he asked her to meet him in the city, so she booked an Uber and met him near the casino. When she met him, he was with B and J, but then they left. B had arranged to sleep the night at their house on the couch. They gave him the door code to get into the house. After B and J left, the accused and JW continued to drink and dance and socialise. They left the city in an Uber around 6am. At that time, she was feeling tipsy and was about 5 on the sobriety scale. She had been drinking vodka cruisers or vodka and raspberry. She and the accused also had cocaine on two occasions in the city, the last time was shortly before they left to go home. The cocaine made her feel more ‘levelled out’ and awake. The accused was happy, friendly, energetic and chatty.26 71 When they were in town, they had been kissing, cuddling and flirting and hands on with each other.27 Sexual intercourse with the accused 72 The trip home took about half an hour.28 A floor plan of the family home at Wynn Vale was tendered: Exhibit P1. When they arrived home, they discovered that their new puppy had defecated everywhere. They had left her inside when they went out. She thought the puppy was stressed being inside and left alone for a significant period of time. She had not expected to leave the puppy alone for so long. Both of them spent a significant amount of time cleaning up the mess.29 73 When they got home, B was on the couch. After cleaning up the mess made by the puppy, she went into the ensuite and washed her hands and make-up cloth. She put on a nightie and then got into bed. The accused was naked which was how he normally slept.30 When she got into bed, she was exhausted. It was around 7am.31 24 T 136. 25 T 137. 26 T 138-141. 27 T 141-142. 28 T 141. 29 T 142-143. 30 T 144-146. 31 T 148. -- 16 of 90 -- [2025] SADC 85 15 74 Whilst she was lying in bed, almost immediately the accused got up and knelt between her legs. She described what happened next: And then I said to him, ‘I don’t want this, [L]’ and then he said ‘I know you don’t want this’. I said ‘No, I haven’t been wanting this for a long time. I’m tired, I just want to go to bed’.32 75 The accused was: Just saying like just saying like, ‘want you to be my friend’ and I said ‘It doesn’t mean I don’t want to be your friend. I’m tired. It’s 7 a.m. We’ve been out all night. I just want to go to sleep’, and then he said, ‘what would you do if I did it?’ I said, ‘No [L] I don’t want this’. And then he just stopped and paused and, like, looked at the wall, just paused and said, ‘Fuck it I’m going to do it anyway’. And then he inserted his penis into my vagina.33 76 JW said she was firm in her tone of voice when she told him she did not ‘want this’. She had rolled away from him when she said that. The accused had often told her he wanted to be her friend, but this usually occurred when they were arguing, and it was his way of making her believe that he did care about her.34 77 When the accused said, ‘fuck it, I’m doing it’ she was frozen and in complete shock. He then said, ‘way to be a dead root’ and she replied, ‘because I don’t want this’. He then told her he could tell she wanted it because her legs were up. She told him he was hurting her. She understood ‘dead root’ to mean not engaging or having ‘mutually benefitting intercourse’.35 JW said she raised her legs because her vagina was hurting. She then started crying. The accused did not react to her crying but continued to thrust his penis in her vagina. She said, ‘[BS] will be able to hear’ and he replied, ‘I don’t give a fuck about [BS] and I don’t give a fuck about you’. The accused then ejaculated inside her and said, ‘and fuck you too’.36 The sexual intercourse lasted for a maximum of one minute.37 The accused did not normally ejaculate inside her when they had sex. They relied on the ‘pull-out’ method of contraception. She was not on any birth control medication.38 78 The accused did not use a lot of force when he rolled her onto her back. She did not resist because she was scared that his behaviour would escalate; she was not sure if he would physically hurt her.39 79 JW mentioned BS hearing what was going on because she hoped that would make the accused stop.40 After the accused removed his penis from her vagina, she lay down facing the other way. She was in complete shock. She could not believe 32 T 149, 11-14. 33 T 149, 17-25. 34 T 151. 35 T 153-154. 36 T 155. 37 T 156. 38 T 182. 39 T 181. 40 T 155. -- 17 of 90 -- [2025] SADC 85 16 that this had happened in her own house with her own husband. She said to the accused, ‘I can’t believe you just did that’.41 Recorded conversation after sexual intercourse 80 Within minutes of the accused ejaculating, JW grabbed her mobile phone from the bedside cupboard and put it on record and put it back on the cupboard. She did not tell the accused that she had done this.42 When asked why she did this, she replied: Because I was just in complete shock of what had happened, I didn’t feel safe, I needed this to, you know, to show that if it happens again or anything that’s – many times throughout our relationship where I did record things when I felt unsafe, it just felt at the time like the only thing that would eventually keep me safe.43 81 JW had recorded other conversations with the accused on at least ten prior occasions. Prior to commencing the recording, the accused had said, ‘Sorry I just want your friendship. I just want you to want me’.44 JW made one long recording and two short recordings. She did this in the course of checking that the phone was actually recording.45 She had made videos in the past which had stopped recording, so she was constantly making sure that her screen was going to stay on and keep her safe.46 The accused did not know she was recording the conversation.47 The recordings were tendered: Exhibit P6.48 82 The first recorded conversation commenced at 7.24.08am and lasted for 1 minute and 58 seconds. The second recorded conversation commenced at 7.26.12am and lasted for 28 seconds. The third recorded conversation commenced at 7.29.17am and lasted for 2 minutes and 34 seconds. The fourth recorded conversation commenced at 7.33.11am and lasted for 33 minutes and 31 seconds. 83 The relevant aspects of the first conversation on the prosecution case were: JW: Yeah, and that’s what I’m saying – if you think, it’s anything but rape. The accused: Yeah, yeah it’s my fault sorry. JW: I’m, I never thought we’d get to this part in our fucking relationship or our lives. I never thought you could cross that line, but you just did. And I’m not shying away from it. I shouldn’t feel ashamed to say it, but you just raped me. 41 T 156, 24-25. 42 T 156-158. 43 T 156, 30-36. 44 T 157, 26-28. 45 T 158. 46 T 186. 47 T 187. 48 The transcript was marked MFI-P6A. An edited copy of MFI-P6A is annexed to these reasons. The text of the original copy of MFI-P6A has been amended to reflect the words that I heard when listening to P6. -- 18 of 90 -- [2025] SADC 85 17 84 JW said that there was no conversation during the breaks in the recording.49 She thought she told the accused that all he wanted was a ‘fuckbuddy’ and did not think she used the word mate. She said this because sex was all he was interested in and there was no relationship or connection. The only time he interacted with her was when he wanted sex. Overtime the affection and connection diminished and the only connection he gave her was sex.50 85 When the accused said that they had had conversations about this in the past, he was referring to conversations they had previously in which they had agreed that if one of them woke up and the other person was engaging in sexual activity with them that would be okay.51 86 JW was frustrated when the accused was crying during the conversation. She said this was one of ‘his many tactics’ when they had an argument or disagreement. At the time of the conversation, JW was feeling hurt and upset because she had been begging for a connection for years and he only showed her love when she was hurt.52 She did not believe his tears were genuine on this occasion.53 87 Within minutes of stopping the recording, JW heard BS leave the house. By this time the accused was asleep. She then got up, went to the other bathroom, cleaned up and then left the house.54 JW went to her mother’s house.55 Initial complaint 88 At this time JW was good friends with EG and had been for many years. They would often communicate on Snapchat. JW explained that shortly after the events of 5 June 2022, EG told her that JW had messaged her on Snapchat and told her what happened. JW could not remember doing this.56 89 When JW went to her mother’s house she was feeling completely ‘rattled, distraught, unsafe, devastated, hurt’. Whilst at her mother’s house, the accused had messaged her asking where she was and she replied, ‘I’m out’. He messaged her asking her when she was coming home, and she told him she was not.57 Conversations with the accused after alleged rape 90 A series of text messages between JW and the accused on Sunday 6 June 2022 were tendered: Exhibit P2. JW returned to the family home on 6 June 2022 and saw the accused but kept her distance from him. He asked her where she had been and what was going on, but she told him to leave her alone and that ‘we’re 49 T 188. 50 T 189. 51 T 189-190. 52 T 190. 53 T 191. 54 T 159. 55 T 160. 56 T 160-162. 57 T 162-163. -- 19 of 90 -- [2025] SADC 85 18 done’. On Monday he then left for Kangaroo Island to work. She could not recall if he stayed in the family home that night.58 91 JW said she sent the message, ‘I’m angry because you raped me, [L], it’s very warranted’ because he was trying to engage her in a conversation, and she wanted to shut it down.59 92 A further series of text messages on 9 June 2022 was tendered: Exhibit P3. At the time these messages were sent, the accused was on Kangaroo Island or staying with one of his employees. At this time the main focus of the conversations she had with the accused was the rape.60 Relationship between JW and the accused in the months following alleged rape 93 Text messages between JW and the accused on 6 August 2022 were tendered: Exhibit P4. At that time, the accused had returned to the house, but they were sleeping in separate rooms. She said they were no longer in a relationship. She was asked if she had sexual intercourse with the accused again after the alleged rape up until August 2022. She replied: There were multiple times where I spoke to him about attempting, to try, as we were trying to rebuild the relationship, and I said that I wanted to try but didn’t actually get to any point of doing it. … Like we would kiss, like I was making my best efforts to try and rebuild the relationship but I consistently said, ‘We’re friends, we need to build up a friendship first before we are able to have a relationship again’.61 94 JW was asked about the message she sent to the accused in which she said, ‘I’ll not sleep under the same roof as a rapist’. Although he had been sleeping at the house previously, JW explained that on this occasion he had been drinking, and he was more forceful and pushier when he had been drinking.62 95 Further text messages from 6 August 2022 were tendered: Exhibit P4A. In one of those messages, JW wrote ‘you’re a rapist when you’re drunk’ and sent him an attachment with details for three organisations, Mensline Australia, 1800RESPECT and Men’s Referral Service. The attachment was tendered: Exhibit P5.63 58 T 164-165. 59 T 166. 60 T 169-170. 61 T 174-175, 5-8,13-16. 62 T 176. 63 T 179-180. -- 20 of 90 -- [2025] SADC 85 19 96 The accused sent her his tax file number after she messaged him requesting it. She wanted it to apply for a single parenting allowance through Centrelink.64 97 By October 2022 they were living together again but sleeping in separate bedrooms. She was asked about the state of her relationship with the accused by this time: It was strained. I was trying everything possible to save our relationship. I was trying to steer past everything that had happened, and I was trying to ignore what had happened and I was attending counselling. I was getting therapy and asking him to get therapy. I attended couples’ therapy. I was booked into a psychiatrist. I tried everything to build up a friendship and I just couldn’t. I just couldn’t do it anymore.65 Second recorded conversation 98 On 30 October 2022, JW recorded a final conversation with the accused. The recording was tendered: Exhibit P7. She recorded the conversation because the accused ‘gets angry’ and she was scared. She referred in that conversation to calling police because there were times when he would yell at her for hours and she did not feel safe. Her response was to tell him she would call the police if he did not stop yelling. At the time of the recording, she was feeling weak, numb, small and scared. 66 Cross-examination 99 Ms Abbey KC made an application pursuant to s 34L EA to cross-examine JW regarding her non-recent sexual activities with the accused prior to and after the alleged rape. 100 In support of the application, Ms Abbey KC relied upon several text or Facebook messages exchanged between the accused and JW before and after the alleged offence. The messages included invitations by JW to the accused to have sex with her. Others referred to JW’s sexual inclinations. 101 In addition, there were several photographs of JW in what I will loosely describe as sexy lingerie or bondage outfits, and one image of her and the accused engaged in a form of sexual activity. In addition, there were paintings of a woman in a bondage outfit which Ms Abbey KC said were paintings of JW by her sister- in-law. There was also a Facebook post created by the complainant depicting her in the nude which had been removed by Facebook for breaching Facebook posting policy. Finally, there was a photograph of the ceiling of the bedroom JW shared with the accused which had a hook in it which I was told was used to hang a ‘sex swing’. Of note, on the evening of the 5 June 2022 (the date of the alleged offence) JW sent the accused a message in which she attached a picture of a Tinder profile 64 T 180. 65 T 191, 26-34. 66 T 194-195. -- 21 of 90 -- [2025] SADC 85 20 she was creating together with a wink/kiss emoji and a hand with the middle finger extended emoji. 102 In September and October 2022, JW sent messages to the accused including ‘come home at lunchtime and fuck me’ and ‘sexy time tonight?’. JW had given evidence in examination in chief that after the alleged rape she did not have sexual intercourse with the accused again. 103 Accordingly, the messages in which she invited the accused to have sex with her undermined her evidence on this topic. 104 Ms Abbey KC submitted that the material demonstrated (and her instructions were) that the accused and JW had a sexual relationship that involved bondage, rough sex and that they had an agreement that each of them consented to sexual acts being performed on each other whilst asleep. I was also told that there was a ‘safe’ word which JW and accused would use and JW did not suggest that this word was used at the time of the alleged offence. 105 Some of the material upon which Ms Abbey KC sought to cross-examine JW was material to which s 34L EA did not apply. For example, the messages containing invitations to have sex with her and the message attaching a Tinder profile. However, Ms Abbey KC indicated that she intended to pursue a line of questioning that involved putting to the complainant that her intentions were acted upon, and she did have sexual intercourse with the accused post the date of the alleged offence. 106 It was argued that the messages and photographs of JW, at times with the accused, established that they did not have a ‘vanilla’ sex life and that it was often JW who sought and pursued sexual activity with the accused and did so after the alleged offence. This evidence was probative of the state of their relationship and capable of undermining materially the credibility of her assertions that she was never interested in having sex with the accused and her evidence that after the alleged rape there were no other occasions of sexual intercourse between them. 107 Ms McKendrick did not oppose the application. However, she argued that if JW admitted the matters put to her, it was not necessary to tender the various messages or photographs. 108 I granted the application and indicated that I would deal with any objections to the tender of the photographs and messages as they arose. I was satisfied that the evidence was of substantial probative value as it was relevant to the state of the relationship between JW and the accused prior to, during and after the alleged offence. It was probative of their mutual understanding of consent and the boundaries of their sexual relationship. 109 Further, the messages sent by JW to the accused after the alleged offence were likely materially to impair confidence in the reliability of her evidence that she did not have sexual intercourse with the accused after the occasion of the -- 22 of 90 -- [2025] SADC 85 21 alleged offence. I formed the view that cross-examination on these messages and images which involved consensual sexual activity in the marriage would not occasion unnecessary distress, humiliation or embarrassment to JW. Plainly, discussing her sex-life and the nature of the sexual activity in which she and the accused engaged in a public forum would involve some embarrassment, but I did not consider this to be unnecessary. 110 JW agreed in cross-examination that before 5 June 2022, the accused had had a vasectomy. However, she insisted that they were still practising the withdrawal method of contraception because he had not yet had a follow up test to see if it had been successful.67 111 JW agreed that when she went to the 30th birthday party for the accused’s brother, she spoke to people about her intention to break up with the accused. One of those people was her friend EG.68 112 JW said that by August 2022 she was no longer in a relationship with the accused. They lived in the same house but slept in separate bedrooms. She said they did not have ‘physical sexual intercourse’. She agreed that on occasion in August 2022 she was scared of him coming home. He had ‘broken’ her and she did not feel safe with him in the house. JW said she was trying to get over what happened and continued to attempt to rebuild a sexual, physical and romantic relationship but it was too ‘much up and down’.69 She then gave the following evidence: Q And you weren’t about to start having sex with him again because you felt scared and unsafe. A Yes, but I was attempting to rebuild that.70 113 JW was then shown messages between her and the accused on 21 September 2022: Exhibit D8. In one of those messages, JW wrote ‘Come home at lunchtime and fuck me’. The accused responded, ‘Oh man’ and JW sent an eggplant emoji and winking emoji. Later that same day, the accused wrote, ‘that sounds like a hot date to me, I can’t wait to pound your kitty’ and JW responded, ‘bring it on’ with a love heart eyes emoji. 114 JW agreed that pounding her kitty meant having sex with her. The eggplant emoji was meant to represent a penis, and the wink face was flirtatious. JW agreed that she was still making sexual invitations and overtures to the accused in September 2022. However, she denied acting on them, and denied having sex from time to time with the accused.71 67 T 203-204. 68 T 204-205. 69 T 206. 70 T 206, 15-17. 71 T 207-208. -- 23 of 90 -- [2025] SADC 85 22 115 JW denied being untruthful about the state of her relationship with the accused at this time in 2022. When asked how she explained those messages, she said: I don’t explain this. I had still a type of knowledge in my brain that that is all that I was worthy of and that’s what I needed to please my husband. Hence why I was attending therapy at Yarrow Place for sexual abuse support and I did my best. I had lowered my worth to that being what it was that I needed to do to make him happy. And so that is what my belief was that I needed to provide for my husband to make him happy.72 116 JW was asked whether in the month before the accused left the family home permanently, she was having sex with him. She said she did not think so.73 However, they were talking about having sex with each other. It was put to JW that on 9 October 2022, she sent the accused a text message saying, ‘sexy time tonight?’. She said she could not recall that, but it was something that she might have done.74 117 JW said she was still scared of the accused in October 2022. She was asked whether she and the accused communicated about rough sex and the enjoyment of rough sex in October 2022, and she said she could not recall.75 JW was shown a series of Facebook messages between her and the accused on 4 October 2022. She agreed that one of the messages she sent to the accused showed a hand on a drink dispensing machine pressing buttons designated as ‘rough sex’, ‘love and attention’ and ‘want to be alone’. She agreed that she liked rough sex, wanted love and attention and also wanted to be alone sometimes. She agreed that throughout her relationship with the accused, she had enjoyed rough sex with him. However, they never talked about or engaged in rape fantasies.76 118 JW agreed that consent was something they had discussed and something they each respected when they were engaging in rough sex. She then gave the following evidence: Q And it was your observation and experience from him that he respected that you needed to consent in whatever sexual activities you were engaged in. A I wouldn’t fully agree with that comment. Q You’ve described an occasion on 5 June 2022 where you say that [the accused] had sex with you without your consent and that he knew you weren’t consenting, don’t you. A Yes. 72 T 208, 36-38; T 209, 1-5. 73 T 209. 74 T 210. 75 T 210. 76 T 211. -- 24 of 90 -- [2025] SADC 85 23 Q That’s the first time you something like that has happened, isn’t it. You don’t say that anything like that’s happened before. A This was a direct, ‘No, this isn’t happening’ and I continued to say ‘No’ during it, whereas previously there was other times where there was coercion and pushing me into saying ‘Yes’. Q We’ll come back to that, but I want to first ask you a very direct question. You’ve told us about one occasion. Do you say there was ever another occasion where [the accused] and you had sex and you were not consenting. A Yes.77 119 JW agreed that in November 2023 when she spoke to a police officer for the first time about the allegation of rape by the accused, she was asked whether the accused had ever had non-consensual sex with her before this. She agreed that she told police that it had not happened before, and this was the first time it had happened. JW then said that when she told police it had not happened before, that would have been her belief at the time.78 When it was put to her that there had never been a time when she had said no to having sex with the accused and he had done it anyway, she said: I suggest that my beliefs and understandings of the circumstances around consent and what I was coerced or manipulated into, I would believe as no at the time of that statement. Since undergoing psychological therapy and treatment, my understanding now is yes, he did push me or coerce me into sex on numerous occasions.79 120 JW was asked whether the message she sent to the accused in D8 in which she said ‘come home at lunchtime and fuck me’ was sent because she was being manipulated, and it was against her will. She said: A You can see that just before that he’s saying ‘Anything to be by your side’ and I am saying ‘Bit cute’ because at that time he was being nice and engaging so, yes, there was a lot of manipulation, coercive control that happened throughout that relationship. Q Do you say that those comments are coercive control ‘Anything to be by your side’ and being nice. A Yes.80 121 JW agreed that the message she sent the accused in D9 did not seem like an example of her being controlled and manipulated. This was because she did like rough sex.81 77 T 212, 17-37. 78 T 214-215. 79 T 215, 21-26. 80 T 216, 2-12. 81 T 217. -- 25 of 90 -- [2025] SADC 85 24 122 Further text messages between JW and the accused on 21 September 2022 were tendered. They were the same messages in D8, but they were missing the emojis.82 Text messages dated 9 October 2022 were tendered: Exhibit D11. In one of those messages, JW wrote ‘sexy time tonight’. She agreed that this was her inviting the accused to have sex with her.83 123 JW said on the evening of 5 June 2022 she could not recall whether the accused was in the family home. At that point she was scared of him.84 She agreed she would not have wanted to provoke him.85 When it was suggested to her that he was there that night and there was a difficulty getting one of their children to bed and she had messaged the accused asking her to help him, she said she could not recall the details of that night. She could not recall messaging the accused around 8.50pm that evening saying, ‘should have got that melatonin, hey’. However, she said that the children were prescribed melatonin. JW did recall sending the accused a message at 9.05pm showing him the Tinder profile that she had created.86 124 Text messages between JW and the accused on 5 and 6 June 2022 were tendered: Exhibit D12. Those messages included one from JW with her Tinder profile and wink with a kiss emoji and an emoji with a hand with the middle finger extended. JW said she sent that message because she was angry, emotional, sad and hurt. She agreed the purpose of the message was to tell the accused that she was getting back out on the scene with other men, and it was a bit of a ‘stuff you’. JW said she was scared of him at this time.87 125 JW agreed that she had been suggesting to the accused for some time before 5 June 2022 that they should have counselling as a couple. She really wanted this to occur.88 JW said their relationship was a good and happy one in the beginning, but it started to deteriorate in 2017 after their first child was born. JW was upset because she felt that the accused devoted all his attention to his work and not her and the children. She wanted him to be present in the home.89 126 JW said that the accused became disinterested in the family or her, and became aggressive, often shouting and yelling. JW agreed that she also got really angry and yelled and shouted. When it was put to JW that for the most part her relationship with the accused was happy enough since 2017, she said: A At the time I believed it to be, yes. Q Have you looked back and changed your mind. 82 T 217-218. 83 T 219. 84 T 219-220. 85 T 220. 86 T 220-221. 87 T 222. 88 T 223-224. 89 T 224. -- 26 of 90 -- [2025] SADC 85 25 A I’ve looked back and I’ve sought therapy and a clearer understanding of what my relationship was like and since leaving and experiencing freedom and choice of thought and not walking on eggshells every day, yes, my mind has changed. Q You had freedom of choice and thought since 2017 in your relationship I suggest. A So I thought. Q So your answer to that is that you didn’t, is that my understanding correctly. A Not fully, no. Q Not fully. A No, I was able to say when I’d go to the toilet or what I would wear, I had some range of choice, yes, but there was a lot of things that I didn’t. Q What were the things that you didn’t have freedom of choice about, could you come and go from the house when you chose. A No. Q You say you were a prisoner in the house, do you. A Yes. Q You had a car. A Yes. Q Your complaint was that [the accused] was not at home and he was at work all the time, isn’t it. A That’s correct. Q So what was it that was holding you at home. A My children mostly. Q Do you say they were oppressing you. A No, absolutely not. 90 127 … Q Did he ever do any nice things for you. A From time to time, yes. Q You’ve said in your evidence that sometimes he would just be nice and that was a manipulation. 90 T 225, 29-38, T 226, 1-24. -- 27 of 90 -- [2025] SADC 85 26 A Yes. Q Were there ever any times where he was nice in a loving and genuine way, in your view. A I don’t know what was genuine from him any more. Q Do you look back at the relationship and assess it differently from how you did when you were there. A Absolutely yes.91 128 Text messages between JW and the accused from 9 October 2022 were tendered: Exhibit D 13. These messages preceded the message ‘sexy time tonight’ which JW sent at 9.24pm on 9 October 2022. In one of those messages the accused said, ‘please leave your car out of the garage, baby’ with two love hearts. JW responded to that message, ‘FFS, it’s already back in’. JW said FFS meant ‘for fuck’s sake’ and that she said that when she was frustrated. When it was put to her that she was able to stand her ground and say how she felt when she was frustrated, she replied ‘no, not all the time’ and sometimes she became a little more confident.92 129 When it was put to JW that she initiated and invited sexual contact from the accused in October 2022 she said: As we spoke about yesterday, yes, I was trying to initiate a relationship and a sexual relationship again as I was trying to build up a relationship again because that is a trauma response that you want to get closer to your abuser.93 130 Text messages between JW and the accused from 23 August 2022 were tendered.: Exhibit D 14. JW said that the message from the accused ‘how do you feel on the meds’ was a reference to the accused supplying her with prescription medication, namely dexamphetamines. JW agreed that this was the first time she had ever alleged he supplied her with prescription medication. She denied that she had been prescribed that medication by her psychiatrist.94 131 JW agreed that the message ‘it’s okay, I made the fuck up. I made the fuck- up. I’m going to fix it’ was a reference to a hole she made in the gyprock wall in the main bedroom. However, JW denied doing this on purpose and said that she and the accused continuously undertook renovations in the house.95 91 T 228, 9-19. 92 T 235-236. 93 T 238, 4-8. 94 T 239-240. 95 T 240-241. -- 28 of 90 -- [2025] SADC 85 27 132 JW agreed that the message at 9.28am on 23 August 2022 from the accused, ‘how has your morning gone, love’ was a loving interaction. She also agreed that she sent him a humorous meme later that evening.96 133 JW agreed that during her relationship, including after their first and second child was born, she and the accused would spend a night together having cocaine, alcohol and sex. When it was put to JW that there was love and consensual sex between her and the accused, she said: There was also times that he would feed me drugs and alcohol to ensure that he got sex that night.97 134 Text messages dated 5 June 2021 were tendered: Exhibit D 15. In one of those messages, the accused wrote, ‘What the plan when we get home? Shall we have a drink and a smoke LOL’. JW responded, ‘coke, drinks, sex, movie’. JW said she could not recall this conversation but agreed that this is something that she may have wanted at the time. Coke was a reference to cocaine.98 135 JW said that, before 5 June 2022, initiating or inviting sex with the accused was definitely something she did.99 Text messages dated 24 and 25 January 2022 were tendered: Exhibit D16. In those messages, JW wrote, ‘can we have sex tonight without you thinking that everything has gone back to normal?’ The accused responded, ‘I thought you’d never ask. I’d love that. Although I’d love for things to be normal’. JW replied, ‘I don’t know if things will ever be able to be normal again. I’m so gutted at everything. I honestly wish you had just cheated, killed someone, anything but this’. JW agreed that they had had a disagreement over the parenting of their child F. It was put to JW that there was nothing that was manipulated by the accused in her request to him to have sex with her. JW agreed.100 136 One of the messages from the accused in D16 was, ‘If you want sex that’s fine. I’ll never turn it down but if not I don’t want you to be doing something you don’t want to’. JW said that this message demonstrated that the accused had a full understanding of what consent was.101 137 Photographs dated 25 January 2022 were tendered: Exhibit D17. In the first of those photographs JW was wearing a dress with sexy underwear underneath. When asked whether this was an occasion when she had asked for sex, she said ‘I imagine so’ although she could not recall specifically if she had sex that night. She was then shown the second photograph in D17. She explained that this was a photograph she took of her wearing green coloured underwear and the accused ‘blowing cocaine up my bumhole’. She agreed she enjoyed having sex with the 96 T 242. 97 T 242, 32-33. 98 T 243-244. 99 T 244. 100 T 246-247. 101 T 248. -- 29 of 90 -- [2025] SADC 85 28 accused and said she had initiated it many times in the past.102 Two more photographs of JW and the accused dated 6 March 2022 were tendered: Exhibit D18. JW could not recall the occasion of those photographs or whether it was a night of togetherness.103 138 A photograph of JW dated 6 August 2021 was tendered: Exhibit D19. JW agreed she had added text to the photograph which read ‘husband of the year award. Come home from work and [the accused] has brought me latex pants from honey birdette’ with love heart eyes. JW said this was a snapchat photograph she had sent, although she could not recall to whom. JW agreed she was not manipulated into thinking the latex pants she was wearing in the photograph were a good idea; she had asked for them and she liked them. JW explained that Honey Birdette was a lingerie store.104 139 A text message dated 30 September 2020 from JW to the accused was tendered: Exhibit D20. The same message but in a different format was tendered: Exhibit D 21. The text message contained a ‘honey birdette wish list’. On that list were the following items: • Belinda orchid body suit set with bra, g string, stockings & suspenders 12 D or 10D • Black latex leggings • Latex dress • Latex dressing aid and shining spray • Fox mask rose gold • Handcuffs equestrian • Strap in set • Salted caramel lube 140 JW said the accused bought the leggings, dressing aid and salted caramel lube. The leggings were the ones shown in exhibit D19. JW denied that this was a list of things for sex. She said not all of them were for sex. She said the strap in set was some type of sex toy but she could not remember. JW agreed that ‘to an extent’ she initiated bondage sex and liked it in her sex life.105 141 JW said she and the accused had a word that they would use in their day to day lives which was meant to convey, ‘I’m being very serious about this’. That word was ‘fridge magnet’. JW denied using it as a safe word during sex.106 JW said 102 T 250-251. 103 T 252. 104 T 253. 105 T255-258. 106 T 258-259. -- 30 of 90 -- [2025] SADC 85 29 that she understood that a safe word was ‘a mutually agreed word to, like, stop activities’.107 Two photographs of JW were tendered which showed her wearing a bondage outfit, eye mask, and wrist straps: Exhibit D22. JW agreed that D22 showed her wearing latex underwear and was an occasion when she and the accused engaged in bondage-style sex.108 JW said that bondage was ‘hitting, like more rough, can involve like pain, tying up, like things like that’ during the course of sexual activity.109 When it was put to JW that she was not manipulated by the accused into engaging in sexual activities of this kind she said: I would like to describe it in a way I mutually engaged in activities that I felt would please him.110 142 An image of a woman with ropes tied around her was tendered: Exhibit D 23. JW agreed that this image formed the basis of a tattoo she has on her right calf which was the size of her right calf. She did not know whether she had that tattoo put on her calf before or after June 2022. JW said she did not get this tattoo because she liked rough sex.111 143 JW agreed that there was a piece of hardware in the roof of the main bedroom to which she and the accused would attach a swing used for sex. A photograph of that was tendered: Exhibit D24.112 144 Two photographs of JW were tendered, one dated 24 July 2021 showing her in revealing underwear with a caption ‘outfit sorted for tonight’ and the other dated 5 June 2021 showing her in the nude with a caption ‘ready for tonight’ with a blowing kiss emoji and devil emoji. JW said the nude photograph was an example of her initiating and inviting sex with the accused. The other was just her being silly.113 JW agreed that these were probably photographs that she sent to the accused via Snapchat and there were lots of other occasions upon which she sent the accused images like these.114 145 Undated text messages between the accused and JW were tendered: Exhibit D26. In those messages, JW wrote ‘I can’t wait to fuck you hey’ and the accused replied, ‘Same. Just come home and I’ll pound your ousts. Pussy*’. JW agreed that ‘pounding kitty’ or ‘pounding a pussy’ was the way they talked about sex. JW also agreed that there were occasions when she drank alcohol of her choice and not because she was being plied with alcohol.115 146 JW said that by 5 June 2022 she had not yet decided that she wanted the accused to leave the family home. She had thought about who would live where if 107 T 263, 32-35. 108 T 263. 109 T 265, 27-30. 110 T 264, 12-13. 111 T 265. 112 T 265-266. 113 T 266. 114 T 267-268. 115 T 269-270. -- 31 of 90 -- [2025] SADC 85 30 the relationship ended. The thought had crossed her mind that she would stay in the family home with the children. The other house they had was one that was being built at Mannum, about an hour’s drive away.116 147 Text messages dated 5 and 6 June 2022 which included those in P2 were tendered: Exhibit D27. JW agreed that the accused must have been in the house that night, but she could not recall if he was staying there or not. JW said she did not want to be anywhere near him after he raped her.117 The next day JW messaged the accused requesting his tax file number and told him she wanted it to organise single parenting payments. JW said that his response, ‘Great’ was sarcastic and she thought ‘why are you being snide and cocky after what you’ve just done’. When it was suggested that the accused’s messages showed that he was being quite responsive to her request she said: That is what he would do. He would play very friendly and want forgiveness and be very obliging and this was very common after any time there was an incident in the relationship.118 148 Text messages between 9 and 10 June 2022 were tendered: Exhibit D 28. In one of those messages, JW wrote ‘did you call the psychologist today?’ JW said this was a psychologist the accused had seen previously but this request was for him to see someone about what he had done.119 149 After that message, there were phone calls between her and the accused as a result of which at 10.39pm on 9 June 2022 she sent the accused a screenshot of the Uber transaction from 5 June 2022. JW said that he had accused her of stealing from the business when she booked the Uber.120 At 11.48pm the accused wrote: I don’t want a reply message. I just wanted you to know this. I am truly and immensely sorry for what I put you through the other day. It will haunt me forever. You are my best friend. I hope this can always remain. Thank you for the chat this evening. Goodnight.121 150 JW said that the Uber account would not have been the only topic of conversation when they spoke between 10.39pm and 11.48pm but it was the basis of the conversation.122 JW said the message at 11.48pm was an apology for the 116 T 271. 117 T 273-274. 118 T 275, 31-34. 119 T 281-282. 120 T 282-283. 121 Exhibit P3. 122 T 285. -- 32 of 90 -- [2025] SADC 85 31 rape. The next thing that JW did was to send the accused photographs of the children.123 151 JW was asked whether there was ever a conversation in which the accused told her that he had not known she was not consenting. JW said: A He described it following the rape as ‘It wasn’t rape, it was non-consensual sex’. That was his description of it to me, and others that he told too. Q So in talking with you, there were conversations where he was apparently accepting from you that you were not consenting and telling you he didn’t realise. If you were not consenting, he didn’t know that. A He’s described it as non-consensual sex, not rape. Q He was drawing those two things as different. A Yes. 124 152 Text messages between 5 and 6 August 2022 were tendered: Exhibit D 29. Many of those messages were demands by JW for the accused to leave the house. JW said that she did not want him around her because she did not feel safe. She wanted to stay in the house for the best interests of the children.125 When it was put to her that she was still making sexual invitations to the accused at this time she said: I’m unsure of the times and what was spoken about and dates, but this is also a very well- known fact of trauma and trauma bonding and how that is very confusing, that you want to be involved with your abuser and you want to do things like that. And that is a very well- known fact of trauma and trauma bonding.126 153 Text messages between 6 and 7 August 2022 were tendered: Exhibit D 30. JW said she wanted the accused to find another life and to leave, to ‘go elsewhere, leave us alone, stop bringing this reign of terror, this reign of terror on us’.127 154 JW said that they had been out to dinner the night of 6 August 2022, but she and the accused had a disagreement, and he had left to spend time with a friend and get drunk. JW was asked whether she sent the message, ‘Ha ha, okay did you sleep with someone else?’ because she thought he had done so. She said, ‘yes because he went out and was with some random person I’d never heard of before, spent all this time there, I didn’t know anything about what was going on and he was very secretive about it’.128 JW denied being concerned about whether the 123 T 286. 124 T 286, 21-30. 125 T 287. 126 T 291, 7-12. 127 T 293-294. 128 T 297, 8-11. -- 33 of 90 -- [2025] SADC 85 32 accused had a girlfriend and was reminded of her evidence that she wanted him to move on and get his own life with someone else. She said: A Absolutely, but I would also like to go back to the trauma bonding, of how you become aware of the situations but then you hope, hold on to hope, and that is how you slowly do break the chain, is when you start realising more and more and more how horrible the situation is and stop holding on to this hope, or this idea of the relationship, or the relationship how it was before. You stop holding on to that hope and praying for better and praying for a family that you wanted, with the children and us together. You start realising more and more. Hence why I finally built up the courage to finally leave, right. But yes, there were glimmers of trying to remain and trying to hold on to that relationship that I had made – and that I had put 12 years of my life into because I was committed and wholeheartedly wanted a life with him. So yes, there were glimmers of hope, yes, it would have been upsetting had he moved on. It’s the first time either one of us would move on. It is a natural stage of a grieving a relationship ending. Q Is that why you told him to ‘Get the fuck out’ in capitals, a bit earlier. A No.129 155 JW agreed that she and the accused had had a great night out together at the party on 4 June 2022. She did not know exactly how the accused kicked the back of the chair and made her land on the floor, but it occurred not long before he left the party.130 It was put to JW that this never happened, and she said it definitely happened.131 When JW met the accused in town they were happy together and having a good time. They both consumed cocaine in town and just before they caught an Uber home. She could not recall any conversations they had in the Uber. JW rejected the suggestion that the first time she said she did not want to have sex with the accused was when she started recording their conversation.132 156 JW denied initially providing only the longer recorded conversation to police because that was the one that she thought was most helpful to her allegation.133 JW agreed that what was recorded in the first recording at 7.24am was not the start of the conversation. JW disagreed with the suggestion that before she started recording, she had just told the accused that she had not been consenting to having sex with him.134 157 JW said that in the two minute and thirty-seven second break between the recording starting at 7.26am and 7.29 am there was ‘sobbing and then there was gaps in time and then there’s ‘I’m not a bad person’, this and that, nothing proactive and nothing beneficial like you’re trying to say happened during those times’.135 JW said there was no conversation during that break in the recording.136 JW insisted 129 T 297, 19-38; T 298, 1-3. 130 T 299. 131 T 300. 132 T 303-305. 133 T 307. 134 T 309-311. 135 T 311, 31-34. 136 T 312. -- 34 of 90 -- [2025] SADC 85 33 that she started the conversation at 7.29am with the words ‘what, then?’137 JW could not recall the full details of what occurred before the start of the 7.33am recording.138 158 JW agreed that she did not have an independent recollection of the conversation. She agreed that she was not crying on the video recording, but the accused was. JW denied that the accused said he was sorry for crying.139 159 JW agreed that being raped by her partner of 12 years was the sort of thing that would consume all other domestic problems. When it was put to her that in the minutes after she alleged she was raped, she was discussing domestic issues with the accused, she explained that she was responding to his question, ‘why do you hate me?’140 160 JW disagreed with the suggestion that the accused’s questions, ‘And you didn’t want sex?’ and ‘are you telling me you didn’t want it’, signalled that he was coming to learn that she was now saying she did not want sex.141 161 JW did not report the allegations to police until 23 November 2022.142 162 JW said her friend EG knew that she had gone to the police. EG told her that she had received a Snapchat message from JW. They also talked about the party on 4 June 2022, but she was not sure if they discussed the incident when she came off her chair.143 Re-examination 163 JW had an opportunity to listen and watch the recording in P6. She marked up the transcript of that recording to include words she heard or which she considered to be incorrect in the transcript: MFI P6B.144 164 Final long-term orders were made in the Family Court proceedings in August 2023 in relation to children and property.145 165 JW was asked why she believed she needed to provide for her husband and make him happy in September 2022: Because I was trying to rebuild the relationship back up and whenever we would speak about incidents and stuff that would happen he would tell me that I needed to get over it 137 T 313. 138 T 321. 139 T 321. 140 T 326-327. 141 T 329-330. 142 T 336. 143 T 337-338. 144 T 345-346. 145 T 346. -- 35 of 90 -- [2025] SADC 85 34 and if we were going to move forward we needed to work on the relationship and that’s what he needed from me and I needed to put that in the past and move forward.146 166 JW was asked why she was not crying during the video recording she made minutes after being raped: There is a few reasons. Due to being in this relationship for a while and having experienced some other things that I had during this time and through like the therapy I was receiving I had learnt skills to avoid it escalating. So I was – many times I would practice the stonewalling technique where I would be quite emotionless and not allow, you know, things to get heightened. So that was something that I would do, along with just disassociating and just shutting down not just trying – trying to not feel my emotions and I have not all that long ago also been diagnosed with autism as an adult and I do, I guess, express emotions differently to what could be seen as typical.147 BS 167 BS was 21 years of age when he gave evidence. He met the accused when he obtained employment with him as an apprentice gyprocker in January 2022. He worked for the accused for six months before leaving on good terms to continue his apprenticeship elsewhere. BS met JW a handful of times. 148 168 On 4 June 2022, BS went to a party held by the accused’s brother. He went to the party with a co-worker, JP. They arrived between 7 and 8pm and there were around 12 or 13 people there. He had four or five alcoholic ciders that night. He saw JW and the accused, and they seemed happy and were having a good time. They both seemed intoxicated but not out of control. On a scale of 1 – 10 with 1 being sober and 10 being very drunk or ‘legless’ he said JW and the accused were 3 out of 10 when he arrived at the party.149 169 BS left the party with JP between 11 and 12pm. They caught an Uber to town and went to the Red Square nightclub. He was drinking double black Smirnoffs. At this time, he was 5 or 6 on the sobriety scale. Around 1am he messaged the accused and then spoke to JW via Facebook messenger. They discussed meeting up so he could get the code for the front door because he was staying at their house that night.150 170 BS met JW and the accused around 3am on Hindley Street. At that time, JW was 5 out of 10 on the sobriety scale and the accused was 3 or 4. He then caught an Uber to their house arriving around 3.40am. Upon arrival he went to the toilet and then went straight to sleep on the couch. He saw the puppy in the living area or bathroom when he went to the toilet.151 146 T 347, 11-17. 147 T 348, 35-38; T 349, 1-9. 148 T 351-353. 149 T 353-354. 150 T 355-356. 151 T 357-358. -- 36 of 90 -- [2025] SADC 85 35 171 After falling asleep, BS did not hear any noise or movement. He woke at 8am and ordered an Uber and left.152 Cross-examination 172 BS said that the accused’s brother was a partner in the business. When BS stopped working for the accused, they lost contact.153 173 BS left with JP not with either of the men named Jordan who were both at the party.154 174 BS did not see any incident involving JW and a chair and he did not see her come off a chair. When he saw JW and the accused in Hindley Street, they appeared happy and having fun together.155 EG 175 EG met JW when she was 17. EG was 30 years of age when she gave evidence. She described her friendship with JW as ‘off and on’. She did not know the accused before he married JW. 156 176 EG went to the accused’s brother’s thirtieth birthday party in 2022 with her then fiancée.157 They arrived between 6 and 7 pm and left between 11 and 12pm. She did not drink at the party. There were around 30 people there, including JW and the accused. She said JW was not drunk and she was 2 or 3 on the sobriety scale. The accused was drinking one of two drinks an hour and, in her opinion, would not have been able to drive; he was around 4 or 5 on the sobriety scale.158 177 During a conversation on the patio between JW, the accused and others about the state of the relationship between the accused and JW, JW was defensive. Another person was suggesting ideas for their relationship when out of nowhere the accused had tackled JW to the ground. She had been sitting on a white camping chair with plastic legs, and it snapped. JW yelled ‘what the fuck are you doing’ and got up and went to the bathroom. When the accused approached her, he ran at her front on. 159 178 On the morning of 5 June 2022, between 6.30am and 7.30am, EG received a Snapchat message from JW which read ‘[the accused] just raped me’. EG wrote back, ‘What are you talking about?’ JW sent the same message again. JW then sent 152 T 359. 153 T 360. 154 T 361. 155 T 362. 156 T 365-366. 157 T 370 158 T 370-372. 159 T 372-374. -- 37 of 90 -- [2025] SADC 85 36 a message, ‘I gotta go, he’s woken up’. JW did not provide any more detail at that time.160 179 Later in 2022, EG attended a wake for the accused’s father. As EG was walking through the eating area to go out to the beer garden, the accused pulled her aside and said, ‘I know what I did was wrong and I raped her, and I’ll have to live with this’. She had not said anything to him before he told her this. He was intoxicated, about 6 or 7 on the sobriety scale.161 Cross-examination 180 EG agreed that if the accused had had only four drinks at the wake, she would not describe him as overly intoxicated, but he would still not be able to drive. EG agreed that she gave a statement to a police officer with the surname McIntyre on 22 May 2024. It was put to her that in that statement she said, ‘[the accused] did not appear overly intoxicated at the time’ and that she had seen him have probably about four drinks. She agreed that there was a difference between what she told police on this topic and what she said in court.162 181 EG said that when the accused pulled her aside and said he had made a mistake and raped JW and would have to live with it, he kept going on about it for one and a half to two minutes. EG said to him, ‘I don’t know what happened but I’m here to protect the children’. She was referring to their children.163 182 EG said she told JW about a week later that the accused had told her this, but she said everyone already knew. EG then said that the accused had previously sent her a text message saying, ‘[JW] could use a friend right now’ and when she asked if everything was okay and she was there for everyone, he wrote something along the lines of ‘I’ve made a mistake, I raped [J], and I’ll have to live with this’.164 183 EG said she had two or three drinks at the wake and was not feeling affected when she spoke to the accused.165 EG agreed that she was a cocaine user at the time but did not take cocaine at the wake until after the conversation. She got it from the accused and JW.166 184 EG agreed that there was a time when JW told her the police might want to speak to her, but she could not remember when that was or the conversation.167 185 EG said she spoke to JW about what had happened at the accused’s brother’s party including the time when she came off the chair. EG told JW that what happened with the chair was not okay. This conversation was about a week after 160 T 375-376. 161 T 376-377. 162 T 378-379. 163 T 380. 164 T 380-381. 165 T 382. 166 T 383-384. 167 T 385. -- 38 of 90 -- [2025] SADC 85 37 the party. EG agreed that she described the accused charging at JW when he knocked her off the chair. She said she could not be mistaken about this happening. JW went backwards on the chair and the accused landed on her.168 186 EG said she did not see the accused and JW kiss at the party or look like they were having fun and she did not see JW smiling.169 187 EG said she did not have the messages from JW on Snapchat because they disappear. She did not take a screenshot of it because JW would know she had done that. She said it was not her story to tell even though she did tell it.170 JK (JW’s mother) 188 JK was 60 years of age when she gave evidence. She is married to DK. She has two children, JW and B. JW and the accused started dating when she was 17 and their relationship was very good.171 Their relationship changed over time and by June 2022 they were having difficulties.172 189 On 5 June 2022, JW came to her house and told her she had been raped by the accused.173 JK then rang the accused two days later from the lounge room on her mobile phone on loudspeaker in DK’s presence. She said the conversation was as follows: A I said ‘What the hell, [accused’s first name]. Q And what was said next. A I said, ‘You raped [JW]’. Q And did the accused respond when you said that. A Yes, he did. Q And what did he say in response. A He said, ‘She’s my wife’. Q And what was the next thing that was said. A He told me to butt out of it otherwise he wouldn’t let me see the grandchildren. Q And how did you respond to that. A I didn’t get a chance to response, he hung up. 168 T 385-388. 169 T 388. 170 T 388. 171 T 390-391. 172 T 394. 173 T 394. -- 39 of 90 -- [2025] SADC 85 38 Q You said the accused had responded, ‘She’s my wife’. A Actually there was another part. He said ‘She’s my wife’, and I said ‘But ‘no’ means ‘no’’. Q And what did the accused then respond to that. A ‘Butt out [JK] or I won’t let you see the kids’. 174 190 The accused sounded a little bit annoyed.175 Cross-examination 191 JK said that when JW came over and told her the accused had raped her, the children were with someone else because they had gone out the night before. JK denied answering JW’s phone when she was at her house and talking to the accused.176 DK 192 DK has been married to JK since 2019. He knew her daughter JW and her husband. On 5 June 2022 he was at work, but his wife told him JW had been to their house. A couple of days later, they were sitting in their recliners and JK rang the accused and put the phone on loudspeaker. She regularly put her phone on speaker when she used it. JK did not tell him who she was calling.177 He described the conversation he overheard as follows: [JK] said to [the accused] that he’d raped her daughter and ‘No means no’. [The accused] replied, ‘But she’s my wife’ and [JK] stated again, ‘No means no’ and then [the accused] said ‘Stay out of it or I’ll stop you seeing the children’. That’s basically the end of it.178 193 DK could not recall who hung up. The accused sounded a little bit aggravated.179 Aaron McBride 194 Mr McBride works in the Digital Evidence Section at SAPOL. His expertise was not in dispute. He undertook a review of a phone seized by police which was given the exhibit number PE0007. The extract from that phone was labelled PE0009. In this case, the data on the phone was extracted twice because not all of the data was extracted on the first occasion.180 195 The extract report from the first extraction was tendered: exhibit P 31. Mr McBride explained that IMG and MOV are unique to Apple devices. The metadata 174 T 396, 1-17. 175 T 396. 176 T 397. 177 T 400. 178 T 400, 33-37. 179 T 401. 180 T 404-405. -- 40 of 90 -- [2025] SADC 85 39 date is the date that the file is created. The second date (29 January 2025) is the date the data was copied to a new phone.181 196 Emojis did not appear on any text messages extracted because the software was not able to decode them.182 Cross-examination 197 Mr McBride could not say whether the last entry in the table ‘full size render’ had been modified or not. The same could be said for entries 5, 6 and 7.183 Brevet Sergeant Andrew McIntyre 198 Brevet Sergeant McIntyre was allocated the investigation of the allegations in this matter on 23 November 2022. On 11 April 2023, JW gave him a video taken on 5 June 2022. It was in two separate files. It was provided by transferring it from her phone to a SAPOL phone. One file was 15 minutes long and the other 18 minutes and 31 seconds. On 12 September 2023, JW contacted him to advise that she had located further footage and that was transferred in the same way.184 199 Brevet Sergeant McIntyre arranged for two extractions to be performed on JW’s phone because the first did not capture all messages. He was satisfied upon reviewing the second extraction that there was nothing obvious that he could see was missing but said there were around 53,000 text messages so he could not definitively say nothing was missing.185 200 Brevet Sergeant McIntyre said that the ‘full size render’ file was the two videos that JW had initially provided.186 201 Brevet Sergeant McIntyre interviewed the accused on 4 May 2023: Exhibit P32.187 He contacted the accused and arranged for him to attend the station; he did not believe he told him of the allegations he was facing.188 202 In the interview, the accused said the following things: • When asked whether he had sex with JW without her consent on 5 July 2022189 he said ‘we did have sex at that time…there was no inquiry whether the consent existed as in neither of us in our relationship of ten years had inquired about needing to get permission for sex and we just had sex mutually’. • Both he and JW were intoxicated and it was early morning after a late night. 181 T 407-409. 182 T 411. 183 T 412. 184 T 418 – 422. 185 T 423-424. 186 T 425. 187 The transcript of the interview was MFI P32A. 188 T 426-427. 189 This date is clearly incorrect. The date of the alleged offence was 5 June 2022. -- 41 of 90 -- [2025] SADC 85 40 • They were married with two children and had been married for 6 years and together for 6 years before that. • The state of their relationship was rocky around that time and they ‘like sort of grew apart with intentions with wishes as in like my work drive and her personal drive…and then the children and what not’. • There was no serious bad history, just some arguments, just ‘innocent stuff’. • When asked where he had been the night before, he said they had been at his brother’s surprise birthday party and they went to town separately with friends and met in town and came home together. • They were both drinking at the party. He arrived in town around 1am and JW arrived around 3am. They drank less in town because they could not get in any where. He was a little beyond tipsy but not drunk. JW was about the same. • They booked an Uber not long before 4am and got home around 4.30am. They both napped in the Uber. When they got home they were chatting about enjoying the time they had had. It was rare to have time without the children at home; they were with JW’s mother. • The accused said, ‘we went to bed and had sex. It, it was insinuated we sort of undressed, started undressing each other like normal and we had sex’. • It started with some physical touching but ‘nothing exaggerated, we’d been together so many years…it’s not like it was um fresh and all exciting and what not it was just we had sex when we could’. • It was penis-vagina sex, missionary position. He was not wearing a condom, he never did and he had had a vasectomy. He thought he ejaculated inside JW. • JW mentioned that she was tired before they had sex and said ‘just make it quick…I’m actually tired it’s late got to get the kids in a few hours’. When the sex ended he rolled over and went to sleep. He could not confidently recall what JW did. • He did not recall BS staying there that night. • He woke up and JW was not there and he walked around the house and was confused about where she could be. He tried to call her but he did not think she answered and then he sent her a text message and tried to call her again. He could not remember if he called JW or her mother but her mother answered the phone and she told him JW was there and she was crying and upset about what he did. He asked what he had done and she mentioned something along the lines ‘well you sexually assaulted her’ and he said no. • The accused then said, ‘and the debating that come from it was almost like how could, how could this um like even like possibly be a thought…we’ve never had this and or never been any complications um and I think [JW]’s mum mentioned that, that she just wanted to let [JW] rest and I was just shocked. I was just like surely there’s a misunderstanding….this, this isn’t something that’s happened in our life there’s no dramas there’s no problems let’s just live a normal life. Um and -- 42 of 90 -- [2025] SADC 85 41 I thought maybe I’ll just chat with [JW] maybe she was a bit upset about something and just the wires were crossed’. • It came as a complete shock to him, ‘like I almost thought it was a joke’. He said that JW mentioned in some passing comments that she thought he had sex with her without her consent. He had been in complete denial of that the whole time because ‘we had never each in the past received like the communication type to need to get consent it was insinuated within each other and our whole relationship and our years of having a great sex life…and ah a sort of freaky sex life…that it was not required to get consent…and then we tried to you know obviously we had some chats about it and there was some some boundaries set about how we go about ensuring each other are feeling prior to being sexual.’ • He said after this he was a bit wary but he did not have any doubts because he did not do anything. He was just shocked but they went on with their life and continued their relationship until they separated on 26 October 2022. He said their lives just grew apart and they agreed it was best for the kids because the tension in the house was not great. • He had never been of the opinion that they needed to chat about consent because for years they had sex, sometimes drunk, sometimes not drunk and sometimes in every fashion you could think of having a ‘freakish relationship’. • The allegations were put to him (that she told him she was not interested and wanted to go to bed, she was not into it and she was tired and just wanted to go to sleep, she had not been into it for some time and that he asked her what she would do if he did it now). The accused denied those allegations. • Further allegations were put to him including that he said, ‘fuck it I’m doing it’ and she again told him she did not want to do this but he started having sex with her and said ‘way to be a dead root’ and she then told him she did not want this, she was crying and said her legs were bent because he was causing pain in her vagina. The accused denied these allegations. • Further allegations were put including JW telling him that BS was out there and would be able to hear and he responded ‘fuck [BS]’ and continued to have sex with her and then ejaculated. The accused denied these allegations. • He was asked whether he had a conversation after this with JW in which he apologised to her when she said that she believed he raped her. He could not recall any conversation with her. He did not know that she had made a video recording of her speaking with him. • He believed he was having consensual sex with JW that night. 203 As part of his inquiries, Brevet Sergeant McIntyre contacted JH, LJ, KJ and NJ but they each declined to provide statements to police.190 Cross-examination 204 When he contacted these witnesses, he told them it was an investigation in relation to JW and the accused and gave them a time frame and told them it was a 190 T 427. -- 43 of 90 -- [2025] SADC 85 42 serious offence being investigated. It was clear from what he said to them that he was investigating the accused as the potential offender.191 205 When JW provided the further videos, she did not say why she had not provided them earlier. She told him that she was constantly reviewing her phone for anything else that might assist police.192 He did not edit or alter the videos he received in September.193 206 Brevet Sergeant McIntyre took a statement from JK on 14 April 2023 and DK on 4 November 2023.194 207 A statement of agreed facts was tendered: Exhibit P 33. Those facts were as follows: First conversation with police 1. On 23 November 2022 [JW] attended the Salisbury Police Station and spoke with police. 2. It is agreed that [JW] reported that [the accused] had had sex with her on 5 June 2022 when she was not consenting, and during her conversation with police the following interaction occurred: Police Officer: and nothing like that happened in the past? [JW]: No Police Officer: and that was the first time? [JW]: Yes First Extraction of [JW]’s Mobile Phone Evidence of Andrew Cooper 3. Brevet Sergeant of Police Andrew Baker is a member of the Northern District Criminal Investigation Branch. 4. Brevet Sergeant Baker has completed certified training provided by Micro Systemation (MSAB) in forensically sound mobile phone examination utilising the XRY Logical Kiosk. 5. During March 2025 the complainant provided her current mobile phone SAP2200267448PE0007 (Apple iPhone 15 Pro) to police for the purposes of data extraction. 191 T 429. 192 T 431. 193 T 432. 194 T 434. -- 44 of 90 -- [2025] SADC 85 43 6. During March 2025, a request was received at the Digital Evidence Section to assist in a police enquiry for an upcoming District Court Trial that included property item SAP2200267448PE0007 (Apple iPhone 15 Pro). 7. On 26 March 2025 Brevet Sergeant Cooper commenced the extraction process of this property item at the Elizabeth Police Station and extracted the ‘Video’ and ‘SMS/MMS’ content from the mobile phone. The extraction included the contents of the SIM card. 8. Brevet Sergeant Cooper’s role in this matter related to data extraction only and he did not conduct any analysis on the extracted data. Evidence of Nicholas De Guglielmo 9. Nicholas De Guglielmo is a Digital Evidence Support Officer currently attached to the Digital Evidence Section, within the Financial and Cybercrime Investigation Branch of the South Australia Police and a suitably qualified expert in Digital Evidence. 10. On 28 March 2025 Mr De Guglielmo was provided the extracted content from exhibit SAP2200267448PE0007 from Brevet Sergeant Cooper. 11. Mr De Guglielmo made the extracted content available for review. 12. On 31 March 2025 Mr De Guglielmo was advised that the review of the data was complete, and the files had been tagged for export. 13. As a result of the review, Mr De Guglielmo extracted the items tagged by the investigating officer and created the following reports: - SAP2200267448PE0007 PHONE-TAGGED.pdf - SAP2200267448PE0007 PHONE-TAGGED.html - SAP2200267448PE0007 PHONE-TAGGED.xlxs 14. Mr De Guglielmo also generated PDF and Excel reports detailing the contents of the Sim Card extracted by Brevet Sergeant Cooper file names as follows: - SAP2200267448PE0007 SIM.pdf - SAP2200267448PE0007 SIM.xlsx 15. The selected items and above reports, including a glossary explaining terms found in the reports, were copied to an encrypted USB flash drive marked for identification as DES 2025/1247 ND1. Second Extraction of [JW]’s Mobile Phone Evidence of Nicholas De Guglielmo -- 45 of 90 -- [2025] SADC 85 44 16. On Tuesday, 15th April 2025 a request was received at the Digital Evidence Section to assist in relation to the following exhibit property item SAP2200267448PE0009. 17. On Thursday, 17th April 2025, Nicholas De Guglielmo from the Digital Evidence Section commenced the examination and extraction process of the property item SAP2200267448PE0009 (Mobile Phone, APPLE iPhone 16 Pro (A3102). 18. Mr De Guglielmo extracted content from the phone and SIM card. 19. All extracted data was made available for review. Evidence of Howard Baker 20. Senior Constable Howard Baker is a member of the South Australian Police Digital Evidence Section. 21. Senior Constable Baker has specialised knowledge-based training and experience in the use of forensic tools including forensically sound media imaging techniques relative to Digital Forensics, and the identification, preservation, analysis and presentation of digital evidence. 22. On Tuesday, 15th April 2025, an additional request was received at Digital Evidence Section, in relation to internal reference: DES 2025-1247, in relation to Property Item SAP2200267448PE0009 (Apple iPhone 15 Pro (A3102) (the same phone as had earlier been marked PE0007). 23. On Thursday, 24th April 2025, Senior Constable Baker was provided the extracted and processed data from exhibit property SAP2200267448PE0009 by Digital Evidence Support Officer De Guglielmo. 24. On Thursday, 24th April 2025, Senior Constable Baker was advised that the review had been completed, and files had been tagged for export. 25. As a result of the review, Senior Constable Baker extracted the items tagged by the investigating officer and created the following reports: - SAP2200267448PE0009 PHONE-TAGGED.pdf - SAP2200267448PE0009 PHONE-TAGGED.html - SAP2200267448PE0009 PHONE-TAGGED.xlxs 26. Senior Constable Baker copied the extracted files and above reports, including a glossary explaining the terms found in the reports, to an encrypted USB, marked for identification as DES 2025-1247 HB1. 27. Senior Constable Baker’s role in this matter related to data extraction only and he did not conduct any analysis on the extracted data. Defence case 208 The accused did not give or call evidence in his defence. -- 46 of 90 -- [2025] SADC 85 45 Closing submissions Prosecution 209 Ms McKendrick commenced her submissions by contending that this was not simply an ‘oath against oath’ trial. The accused made express and implied admissions to JW during the covert recording immediately after the alleged offence and also made implied admissions to JK and EG. 210 Ms McKendrick said that JW gave a clear, consistent and credible account of the events of the morning of 5 June 2022. Her account was one of enjoying a good night out with her husband, despite the difficulties in their relationship. However, by the time they returned home she was too tired to contemplate sexual intercourse, and the accused persisted in his request and when rebuffed, had sex with her anyway. 211 JW’s account of the accused knocking her off her chair at his brother’s birthday party was corroborated by EG and demonstrated that JW was scared of the accused, and he would react physically when he was unhappy. JW, on the other hand, pretended everything was fine and did not overreact. 212 Ms McKendrick said that JW enjoyed rough sex and wanted to please the accused. The fact that she did not immediately end her relationship with the accused after he raped her because she did not want to break up the family and try to repair the relationship explains why she then pursued sex with the accused. It was argued that I should not infer from the text messages from JW to the accused after 5 June 2022, in which she invited him to have sex with her, that they in fact had sex. The absence of any messages suggesting that they actually had sex following the invitation to do so suggested that they did not. Ms McKendrick accepted that if I drew an inference from JW’s invitations to the accused to have sex with her that they did indeed have sex, then her denial of any sexual intercourse with the accused after 5 June 2022 was not credible. 213 Ms McKendrick submitted that JW’s evidence that she enjoyed rough sex with the accused did not mean her evidence that she was scared of him should be rejected. JW’s evidence was that she saw the sexual relationship as a means to keep the accused happy. With the wisdom of hindsight JW’s perspective of the relationship and her behaviour towards the accused had changed. For example, the apparent enthusiasm she displayed in the sexualised messages and photographs was now perceived as manipulation or coercion by the accused. However, even if that cast some doubt on the reliability of her evidence about her sexual history with the accused, her account of events of 5 June 2022 was one implicitly accepted by the accused in his responses in P6. 214 The accused explicitly said in P6 ‘that I raped you’. This, in combination with his acceptance that he said ‘I hope you fucking hate this’ was at the very least an acknowledgment that there was a possibility JW was not consenting, and he proceeded to have sexual intercourse with her anyway. -- 47 of 90 -- [2025] SADC 85 46 215 Ms McKendrick urged me to reject the accused’s denials in his record of interview as not being reasonably possibly true. It was suggested that the fact that the accused could not recall BS sleeping over, gave an inconsistent account about how he and JW got undressed and that he could not recall any conversation with JW after the sexual intercourse in combination created significant doubt about the reliability of his account. In addition, his account of the sexual intercourse on 5 June 2022 was at odds with the admissions he made in P6. Ms McKendrick conceded that if I did not conclude that the accused impliedly or explicitly admitted having raped JW in his responses in P6 then I could not reason in that way. 216 Ms McKendrick placed emphasis on the number of occasions when, on the prosecution case, the accused impliedly admitted in text messages to JW that he had raped her. Those messages were often apologetic for hurting her, for putting her through ‘this’ and at no stage did he refute her allegation that he had raped her. He accepted, by his silence and failure to repudiate, her characterisation of him as a rapist. 217 Ms McKendrick referred to JW’s evidence that the accused subsequently told her that he did not know that she was not consenting to the sexual intercourse on 5 June 2022. If JW’s account of the circumstances of the sexual intercourse was accepted, then there was no basis upon which the accused could have reasonably held this belief. Ms McKendrick referred to P6 and the accused’s admission that he said, after a ‘bit of conversation’, ‘fuck it, I’m doing it’. 218 Further implied admissions were made by the accused to both JK and EG. Ms McKendrick urged me to infer that when the accused responded to JK’s accusation that he had raped JW by saying ‘she’s my wife’ he meant ‘she’s my wife, I can do what I want’. Ms McKendrick said I should accept EG’s evidence that the accused pulled her to one side at his father’s wake and said, ‘I know what I did was wrong and I raped her, and I’ll have to live with this’. If so, this was a clear admission to having had sexual intercourse with JW, knowing that she did not consent. 219 The evidence of initial complaint to EG demonstrated consistency of conduct and was evidence of how the allegations first came to light. Ms McKendrick accepted that the bare allegation of being raped did not demonstrate, to any significant degree, consistency of account. 220 Ms McKendrick accepted that P6 was not a complete record of the interaction and conversation between the accused and JW immediately after sexual intercourse until he fell asleep. However, she urged me to accept JW’s evidence that nothing of any relevance was said or occurred in the breaks between the recordings. Ms McKendrick said it was open for me to find that the accused was completely unaware that the conversation was being recorded and that initially he was being quite open and honest about what happened. She suggested, however, that as the reality of the situation sank in, he changed his position and started to develop the theme that he had not known she was not consenting. Ms McKendrick -- 48 of 90 -- [2025] SADC 85 47 accepted that there must have been some conversation prior to the start of the first recorded conversation in P6 but I should accept JW’s account of what was said. 221 Ms McKendrick argued that when JW said, ‘I shouldn’t feel ashamed to say it but you just raped me’ this was the time when it would be reasonable to expect the accused to challenge JW. Even if there had been a conversation before the recording commenced, Ms McKendrick said that if the accused had disputed the assertion at that time, it was reasonable to expect that he would do so again, but he did not. 222 Ms McKendrick argued that the conversation in which the accused challenged JW on her assertion that she did not want to have sex with him was the start of a change in his position, having become worried about the repercussions of what he had done and wanting to walk back his acknowledgement that he had raped her. However, the accused acknowledged implicitly that during sexual intercourse he had said to JW ‘fuck it, I’m doing it’ and that he said ‘I hope you fucking hate this’, although he said that he did not mean it literally and was trying to be funny. 223 An admission in the recorded conversation on 30 October 2022 (Exhibit P7) was also relied upon. In that conversation, the accused said ‘then you got raped because of me, right…’ Defence 224 Ms Abbey KC said that if the accused’s denials in his record of interview were a reasonable possibility, then the prosecution had not proved the charge beyond reasonable doubt. Whilst it was not accepted that JW was not in fact consenting, the real issue in the case was whether the prosecution had proved beyond reasonable doubt that the accused knew this or was recklessly indifferent. In essence, the defence case was that JW did not convey to the accused that she was not consenting (if indeed she was not) and he did not understand there was anything other than positive consent. 225 Ms Abbey KC placed particular emphasis on the accused’s question to JW in P6, ‘And you didn’t want sex?’ and ‘are you telling me you didn’t want sex?’ He said this at a time when he had no idea the conversation was being recorded and accordingly, the questions were genuine inquiries that reveal that the accused was learning, for the first time, that JW did not want to have sex. This inquiry must be understood against the background of their sexual relationship and the evidence of JW that she would in the past have sex with the accused when she did not want to but because she wished to please him. In other words, the history of reluctant acquiescence meant that this encounter was no different from many others and the accused would have no reason to think that JW was not consenting, even if she was unenthused and expressed her lack of enthusiasm to the accused. 226 Ms Abbey KC emphasised the proved prior inconsistent statement to police when JW said that the accused had never had non-consensual sex with her prior to -- 49 of 90 -- [2025] SADC 85 48 5 June 2022. In evidence, she asserted that there had been a previous occasion when the accused had sex with her without her consent. The reason for the inconsistency was that JW had reflected upon her relationship with the accused and her sexual behaviour. Thus an occasion when she was tired but consented because she was prepared to give the accused what she thought he wanted mutated in her mind into non-consensual sexual intercourse. 227 Ms Abbey KC said that JW was prone to overreacting and she referred to a series of messages in D16 from January 2022 to illustrate this. JW asked the accused if they could have sex that night without him thinking everything had gone back to normal. When the accused responded positively to the suggestion of sex but said he would prefer for things to be normal, JW said she did not think things would ever be normal, that she was ‘gutted’ and wished he had cheated or killed someone rather than what he had done, which, as it transpired, was a dispute about parenting. 228 The messages also demonstrated the way in which the accused and JW approached sexual intercourse and the topic of consent. In one message, the accused wrote ‘if you want sex, that’s fine. I’ll never turn it down, but if not, I don’t want you to be doing something that you don’t want to’. This demonstrated the accused’s respect for JW, and his deferential and polite manner towards her. 229 Ms Abbey KC contended that the conversations in P6 must be considered in the context of what was the breakdown of the relationship or a precipitous moment. At all times, the accused appeared to be trying to preserve the relationship and was hurt and upset by the thought that it might be over. 230 In evaluating the conversation and drawing inferences, great care must be taken because there is no independent and reliable evidence of what was said before the recording started and during the breaks in between. Further, both the accused and JW often used the word ‘okay’ as a conversation construct rather than in its ordinary meaning as an agreement or assent to a proposition. Accordingly, when JW responded ‘okay’ to the accused’s assertion that ‘I’m not a bad guy’ this was not, on the prosecution case, an assent to that proposition. At times, JW used terminology such as ‘okay it’s all my fault’ when, on the prosecution case, JW did not think that she was at fault. When being cross-examined about the accused’s comments in P6, ‘well what do you want me to say’ and ‘what will make it better’ JW agreed that when they argued the accused would say things like that. 231 Ms Abbey KC submitted that the accused’s explanation in P6 for the comment ‘I hope you’re hating this’ should be accepted. It was not an odd thing for him to say in the context of their relationship, one which involved rough sex, a form of sex that JW said she liked. 232 Further, the night of 4 June 2022 into the early hours of 5 June 2022 had all the attributes of the type of night they would have which involved alcohol, cocaine and sex when their children were not home. That is why the accused said, ‘I -- 50 of 90 -- [2025] SADC 85 49 thought we were on mutual ground’. In other words, he thought they were in the normal territory as a married couple where they have consensual sex. There was nothing to indicate to him to the contrary and nothing to indicate that she was not consenting in the way that she had previously. 233 The fact that the accused said to JW in P6 that she did not specifically say ‘no’ but instead said ‘if that’s what makes you feel good’ reflected a state of affairs that was not uncommon, namely JW agreeing to have sex without really wanting it because she wanted to make the accused happy. Their sexual relationship involved JW assuming a submissive role, including having her wrists bound, wearing an eye mask and bondage outfits. 234 Ms Abbey KC said that the ‘admissions’ relied upon by the prosecution were not in fact admissions by the accused to having raped JW. In truth, the accused was not challenging JW’s assertion that he raped her because he had accepted that he had done something unwittingly to hurt her and did not mean to do so. He was upset to discover that he had sex with JW when he thought she was consenting, but she subsequently told him she was not and branded him a rapist. The conversation turned to the wider issues affecting their relationship, including parenting and all of the other criticisms JW levelled at him which suggested that what just occurred was not an issue overwhelming JW’s thoughts. 235 Further, JW’s decision to record parts of the conversation and the tone and manner of JW’s conversation stand in stark contrast to her evidence that at this time she was petrified, paralysed and numb and her evidence generally that the accused was controlling. At the end of the conversation, it is the accused who said he was scared and felt like JW was trying to ‘kill’ him. 236 Ms Abbey KC urged me to reject JW’s evidence that the reason for separate recordings was because she was checking to see if the phone was recording. She argued that I should infer that JW was deliberately stopping and starting the recording at times when she thought she might capture something damaging to the accused. JW could not say whether she had cropped any of the video recordings. The expert evidence from Mr McBride was neutral on the question of whether the recordings had been modified. 237 Ms Abbey KC said the accused’s response to the rape allegation put to him by JK, ‘she’s my wife’ should be construed as meaning, ‘she’s my wife, of course I would not do that’. 238 Ms Abbey KC said that the accounts given by EG and JW about the ‘chair’ incident were divergent and both unreliable. BS did not witness it, despite JW’s account that everyone was present and outside when it happened. Even accepting that an incident of this type occurred, it was isolated and occurred in public and JW did not suggest that it had any bearing on the events that followed. JW agreed to meet the accused in the city and said they had a good time whilst there. They were kissing and cuddling in the Uber. -- 51 of 90 -- [2025] SADC 85 50 239 Ms Abbey KC said that EG was not a reliable witness and did not present as a person giving an unbiased version of events. Her account of the conversation at the wake did not ring true and was inherently unlikely. In any event, EG said that the accused told her ‘I made a mistake’ and if this evidence is accepted, it is in keeping with the way that the accused had been respectfully and gingerly treating JW’s allegation of rape as one where he accepted that she genuinely believed he had raped her, but he genuinely believed she was consenting. 240 Turning to the record of interview, Ms Abbey KC said that the fact that the accused was shocked by the allegation, notwithstanding the conversation in P6, was not in fact that surprising. The relationship continued for some time after the events of 5 June 2022 and involved ongoing communications sometimes involving JW using inflammatory or extreme language. The accused did not know the conversation had been recorded. Ms Abbey KC said that it is open to infer that the shock expressed by the accused was because JW had now involved the police. It is only if a finding was made that the accused admitted raping JW in the conversation in P6 that there would be a basis to reject the denials in the interview. 241 Ms Abbey KC said that all of the statements made by the accused in the text messages which were relied upon by the prosecution as implied admissions were in fact merely acknowledgments by him that JW believed he had raped her but not admissions by him that he had done so. The theme of the messages sent by the accused is one of placation and an attempt to repair the relationship. 242 All of the messages were entirely consistent with the accused deciding not to challenge JW’s assertion that he raped her and instead accept that this was her genuine belief in the same way he did in the conversation in P6. However, Ms Abbey KC conceded that this construction of the messages would only be open if I rejected JW’s evidence that she had said to the accused ‘I don’t want this’ ‘no, I don’t want this’. 243 Ms Abbey KC argued that JW’s credibility was irreparably damaged when her evidence that she had never had sexual intercourse with the accused after 5 June 2022 was undermined by the evidence that she subsequently sent messages inviting the accused to have sex with her. 244 JW had painted a picture of being terrified of and controlled by the accused which was at odds with her sexual overtures and invitations to him. Ms Abbey KC said that the irresistible inference from those messages was that JW did have sexual intercourse with the accused after 5 June 2022. Her evidence that she was a prisoner in her own home and that any time the accused was nice to her this was a form of manipulation did not bear scrutiny and was inconsistent with the tone of the messages exchanged between them. 245 The complaint evidence did not bolster JW’s credibility in any meaningful way as she was simply repeating the allegation she made to the accused. -- 52 of 90 -- [2025] SADC 85 51 246 Ultimately, the defence submission was that the prosecution had not proved the charge beyond reasonable doubt because it was at least a reasonable possibility that JW was consenting. Alternatively, there was a reasonable possibility that the accused did not know that JW was not consenting. Moreover, there was a reasonable possibility that he believed she was and had turned his mind to that as evidenced by the things he said to her in the lead up to the sexual intercourse and their historical pattern of sexual interaction. Findings of fact on undisputed or agreed evidence 247 I find proved the facts agreed in P33. 248 I make the following further findings of fact: 1. JW and the accused were married in 2016 after dating for some years. 2. JW and the accused moved into their house in Wynn Vale in 2018. 3. JW and the accused have two children, F born in 2017 and R born in 2018. 4. The accused had a vasectomy prior to 5 June 2022. 5. The accused lived in the family home until the end of October 2022. 6. Prior to 5 June 2022, JW enjoyed ‘rough’ sex with the accused, which involved bondage and the mutual consumption of alcohol and cocaine. 7. On the evening of 4 June 2022, the accused and JW attended the birthday party of the accused’s brother. The accused left the party without JW and travelled into the city with some of his employees. JW later met the accused in the city. 8. In the early hours of 5 June 2022, JW and the accused were in the city. They caught an Uber to their home address some time before dawn. 9. An employee of the accused, BS, was already at their home having arranged to stay there the night. He was on the couch in the lounge room sleeping. 10. JW used her mobile telephone to covertly record a series of conversations between her and the accused commencing at 7.24am on 5 June 2022 whilst they were in bed together in their bedroom. The first conversation commenced at 7.24.08am and lasted for 1 minute and 58 seconds. The second conversation commenced at 7.26.12am and lasted for 28 seconds. The third conversation commenced at 7.29.17am and lasted for 2 minutes and 34 seconds. The fourth conversation commenced at 7.33.11am and lasted for 33 minutes and 31 seconds. 11. Between the end of the first recording and the commencement of the second recording 6 seconds elapsed. Between the end of the second recording and the commencement of the third recording, 2 minutes and 37 seconds elapsed. Between the end of the third recording and the commencement of the fourth recording, 1 minute and 18 seconds elapsed. 12. JW used her mobile telephone to record a conversation between her and the accused on 30 October 2022. -- 53 of 90 -- [2025] SADC 85 52 13. JW’s evidence that there were other occasions apart from 5 June 2022 when the accused had sexual intercourse with her without her consent was inconsistent with fact that on 23 November 2022, she told a police officer that the first time the accused had had sexual intercourse without her consent was on 5 June 2022. Evaluation of witnesses and further findings of fact BS 249 BS gave his evidence in a straightforward manner. I formed the impression that he was doing his best to recall events and was giving truthful evidence. I accept his evidence that the accused and JW seemed happy at the party and were having a good time. I have taken into account his description of his sobriety as being 5 or 6 on the scale when he was in the city in evaluating the reliability of his recollection of events involving JW and the accused. BS said that when he was in town, he had contacted the accused by phone but when his phone went flat, he contacted JW by Facebook messenger to arrange to meet up to get the code for their front door because he was staying the night. BS said he then met JW and the accused at 3.00am. 250 In contrast, JW said that she met the accused in the city, and he was with BS and it was then that they gave the door code to BS. Although not much turns on it, I prefer the evidence of BS on this topic. It is unlikely that BS would contact JW for the door code if he was with the accused at the time, because he could simply ask him. I also prefer the evidence of BS over JW regarding the person with whom he left the party because I consider that detail is something he was more likely to remember accurately. 251 I accept the evidence of BS that JW was about 5 out of 10 on the sobriety scale and the accused 3 or 4 out of 10 when he saw them in the city. 252 I accept the evidence of BS that he did not see JW coming off a chair at the party but find that it is possible he was not at all times in a position to observe what JW was doing. EG 253 I have taken into account EG’s friendship with JW in evaluating her evidence and whether any of it was affected by bias. 254 EG described the accused as charging at JW front on from a distance of three and half metres and tackling JW to the ground, snapping the chair she was sitting on in the process. EG said the accused landed on JW and the chair was underneath her. This description suggests a considerable degree of force and violence towards JW in the presence of at least six people. Despite this, EG made no mention of any reaction by anyone else present, nor did she suggest that JW was in pain or injured. 255 EG’s account of this incident is different from that of JW, whose account leaves open the possibility that the accused accidentally knocked JW off her chair. I am not prepared to accept EG’s evidence on this topic as I consider her account -- 54 of 90 -- [2025] SADC 85 53 inherently unlikely. I find that she has exaggerated the nature and extent of this incident. 256 EG’s unchallenged evidence was that JW sent her a Snapchat message between 6.30am and 7.30am on 5 June 2022 which read ‘[the accused] just raped me’. EG did not retain this message. Although I have reservations regarding EG’s reliability on other topics, and notwithstanding JW has no memory of sending this message, I am prepared to accept EG’s evidence that she received this message. 257 I found EG’s evidence of the conversation with the accused at his father’s wake to be contrived. Her evidence was that he simply came up to her and said, ‘I know what I did was wrong and I raped her, and I’ll have to live with this’. However, shortly after giving this evidence she gave a different account and said the accused told her that he had ‘made a mistake’ and had raped JW. 258 She said the reason she did not speak to him before he told her this was because he was intoxicated. However, her description of the accused being 6 or 7 out of ten on the sobriety scale was inconsistent with her statement to police on 22 May 2024 that he did not appear overly intoxicated, and he had around 4 drinks. 259 I am not prepared to accept the evidence of EG regarding the conversation with the accused at his father’s wake. Her evidence on this topic was internally inconsistent and struck me as inherently unlikely. The credibility of her account was undermined by the proved prior inconsistent statement to police. 260 Accordingly, I find that the accused did not make any admission to having raped JW to EG on this occasion. JK and DK 261 JK was a nervous witness. Her evidence of the conversation with the accused was corroborated to a large degree by the evidence of DK. He gave his evidence in a straightforward manner, and I formed the impression he was a truthful witness. 262 However, what struck me as curious about JK’s evidence of this conversation was the timing. In his record of interview, the accused said he spoke to JK on the morning of 5 June 2022 when he woke to find JW was not there. JW said that the accused messaged her when she was at her mother’s asking where she was, and she told him she was out. When she told him she was not coming home, she said he was ‘trying to find out where I was and whatnot’.195 263 I am satisfied that, on the morning of 5 June 2022, the accused was looking for JW and trying to find out where she was. It would be natural for him to contact her mother in an effort to find her. I infer and find that he did contact JK looking 195 T 163. -- 55 of 90 -- [2025] SADC 85 54 for JW, as he said he did in the interview. By this time, JK had been told by JW that the accused had raped her. 264 In these circumstances, I am not able to accept as reliable JK’s evidence that the first time she spoke with the accused was a couple of days later. I consider it a reasonable possibility that the accused did speak with JK on 5 June 2022 and during this conversation the allegation of rape was raised by JK. The accused’s account in his record of interview of this conversation sounds entirely plausible and I am unable to reject it. Accordingly, I am satisfied and find that the allegation of rape was put to the accused by JK on 5 June 2022 and he denied it and told JK there must be some sort of misunderstanding. 265 JK said that in the conversation with the accused a couple of days later, she put the mobile phone on loudspeaker because she did not want the conversation to be misconstrued. I infer and find that she put the phone on loudspeaker because her husband, DK, was present and she wanted someone to be able to verify her account of the conversation. I infer and find that she intended to put the allegation to the accused in the hope that he would admit it. 266 I am not satisfied that the accused’s response ‘but she’s my wife’ is an implied admission to having raped JW. By this time, the allegation has been put to him and been denied. JK said the accused sounded annoyed. DK said he sounded a little bit aggravated. Such a reaction is consistent with having a baseless allegation levelled for the second time. 267 In those circumstances, the inference that the words ‘but she’s my wife’ equated to ‘but she’s my wife so I can do what I want to her’ is not open. Even if this had been the first time the allegation had been put to him by JK, it is reasonably possible that the response ‘but she’s my wife’ was intended to mean ‘but she’s my wife, I would never do that to her’. I cannot exclude this inference as not reasonably open, and therefore find that what the accused said is not an implied admission to having raped JW. Aaron McBride 268 I accept the evidence of Mr McBride. It was not controversial. He was unable to say whether the audiovisual recordings made by JW (P6 and P7) had been modified or not. Accordingly, his evidence does not assist in evaluating JW’s evidence on this topic. Brevet Sergeant McIntyre 269 Brevet Sergeant McIntyre’s evidence was uncontroversial and unchallenged. I find that the accused attended the police station voluntarily on 4 May 2023 after being requested to do so. The accused was cautioned appropriately at the commencement of the interview, and I am satisfied that he understood the caution and his rights generally. I find that the accused was not advised of the allegations prior to the interview commencing. -- 56 of 90 -- [2025] SADC 85 55 270 Brevet Sergeant McIntyre incorrectly referred to the date of the alleged offence as 5 July 2022 when he put the allegation of rape to the accused. The accused agreed that he had sex with JW ‘at that time’. I am satisfied from the accused’s further responses that he understood that the occasion about which he was being questioned was the morning following his attendance at his brother’s surprise birthday party. 271 In other words, despite the error in the date, both he and Brevet Sergeant McIntyre were referring to 5 June 2022. I infer and find that by the time of the interview the accused was well and truly on notice from his conversations with JW that she alleged he had sexual intercourse with her without her consent on 5 June 2022. JW 272 JW was an argumentative and voluble witness who appeared at pains to cast the accused in the worst possible light and portray herself as the victim of a manipulative, coercive and controlling husband. 273 Her account of being a ‘robot’ and a ‘puppet’ and of everything in her life being controlled to the point that she was a prisoner in her own home was at odds with the picture of her relationship with the accused that emerged from the messages exchanged between the two of them during 2020-2022. When pressed on how the accused kept her prisoner in her own home (after being reminded that her complaint was that the accused was not present at home and devoted all of his attention to his work) she said it was her children that were ‘mostly’ holding her at home. 274 JW’s account of being coerced and manipulated into having sex with the accused prior to 5 June 2022, at times without her consent, was at odds with the text messages exchanged between them and her statement to police on 23 November 2022. This proved prior inconsistent statement was a material one and undermined her credibility. I reject her evidence on this topic as untruthful. 275 The distinct impression I gained of JW was that she was prone to histrionics and overreacted to circumstances or situations that displeased or upset her. When recounting historical events, she gave an explanation for her behaviour which was an ex post facto construct justified by resorting to the benefit of hindsight and psychological therapy. 276 The clearest example of this was JW’s attempt to reconcile her evidence196 that she did not have sexual intercourse with the accused after 5 June 2022 with the text messages she sent in September 2022: D8 - ‘come home at lunch time & fuck me’, ‘bring it on’ in response to the accused’s message, ‘I can’t wait to pound your kitty’ and in October 2022: D 11 - ‘sexy time tonight’. 196 In examination in chief and confirmed in cross-examination. -- 57 of 90 -- [2025] SADC 85 56 277 JW agreed that these messages were invitations from her to the accused to have sex with her, but she said there was never a time after 5 June 2022 when she acted upon them and had sex with the accused. 278 When asked how she explained the messages she sent, she gave this incredulous response: I don’t explain this. I still had a type of knowledge in my brain that that is all that I was worthy of and that’s what I needed to please my husband. Hence why I was attending therapy at Yarrow Place for sexual abuse support and I did my best. I had lowered my worth to that being what it was I needed to do to make him happy. And so that is what my belief was that I needed to provide for my husband to make him happy.197 279 I infer and find that JW had sexual intercourse with the accused after 5 June 2022, and at least on the occasions the subject of the messages in D 8 and D 11. I am satisfied that JW lied when she said this never occurred. I infer and find that she lied about the true nature of their relationship because she realised that her behaviour towards the accused was inconsistent with her evidence that she was frightened of the accused, and they were no longer in a relationship. 280 Another example of reconstruction was JW’s attempt to reconcile her evidence that the accused had sexual intercourse with her without her consent on earlier occasions than 5 June 2022 with her statement to police in November 2023 that this had never happened before. JW explained that in November 2023 that was her belief. When it was put to her that there was never a time when she said no to sexual intercourse with the accused and he did it anyway, she said: I suggest that my beliefs and understandings of the circumstances around consent and what I was coerced or manipulated into, I would believe as no at the time of that statement. Since undergoing psychological therapy and treatment, my understanding now is yes, he did push or coerce me into sex on numerous occasions.198 281 JW’s evidence that an example of the accused’s coercive control over her could be found in his message in D8 ‘anything to be by your side’ strained credulity. 282 I reject JW’s evidence that there were any earlier occasions of non- consensual sexual intercourse. Whether her view on this topic has been influenced by the psychological therapy or treatment she said she has received or is a deliberately false narrative to paint the accused as a sexual predator is impossible to determine. Either way, the reliability and credibility of JW’s account of the nature of her relationship with the accused has been undermined. 283 JW’s evidence that the accused came up from behind and kicked her chair out from under her at the birthday party was at odds with the account given by EG. EG described the accused as charging at JW front on, tackling JW to the ground and snapping the chair she was sitting on in the process. EG said the accused 197 T 208, 36-38; T209, 1-5. 198 T 215, 21-26. -- 58 of 90 -- [2025] SADC 85 57 landed on JW. I am satisfied that there was an incident at the party during which JW came off her chair. On the state of the evidence, I am not satisfied that the accused deliberately knocked JW off her chair. I have found EG’s account of the accused’s tackling JW to the ground to be inherently unlikely. 284 JW said she felt embarrassed and concerned about how this incident would reflect on the accused. JW did not suggest that this was an example of coercive or controlling behaviour. In any event, this incident does not appear to have had any bearing on the subsequent interaction between JW and the accused. By all accounts, they enjoyed their time together in the city and on the way to their home in the Uber. 285 I accept JW’s evidence that by 5 June 2022 she was unhappy in her marriage to the accused. However, I reject her evidence that this was because the accused controlled every aspect of her life, and she was a robot and a puppet. I reject her evidence that she was a prisoner in her own home because of the accused. I infer and find that JW believed that she and the accused had grown apart and that he was more interested in his work than her and the children. 286 I infer and find from the messages and images in D15, D 16, D17, D 18, D19, D20, D 21, D 22, D 25 and D 26, together with JW’s evidence that she liked rough sex and bondage with the accused, that their relationship was one in which she, at times, pursued and initiated sexual intercourse. JW was often a willing and enthusiastic participant in the sexual activity and clearly enjoyed playing a submissive sexual role, as demonstrated by the photographs depicting her in bondage outfits, wearing a mask and having her hands bound together. 287 I am satisfied that there were conversations about consent in this context, including the giving of consent in advance by each of them to the performance of sexual acts whilst the other was asleep. I am satisfied that when the children were not home, JW and the accused had a routine of drinking alcohol, taking cocaine and having rough sex. I find that, at times, JW genuinely enjoyed having sexual intercourse with the accused and this was, in part, because these were times when he paid attention to her. 288 However, I infer and find that in 2022, JW was concerned to ensure that the accused did not misinterpret her willingness to have sexual intercourse with him as a sign that she was happy in the relationship. 289 The text message from the accused to JW on 25 January 2022199 is an instructive window into his view of their relationship, including their sexual relationship, and his desire to ensure that when they had sex, JW did so because she wanted to have sex with him. 199 D16: If you want sex, that’s fine, I’ll never turn it down, but if not, I don’t want you to be doing something you don’t want to. -- 59 of 90 -- [2025] SADC 85 58 290 JW gave evidence that when she and the accused were in town they had been kissing, cuddling, flirting and being ‘hands on’ with each other. She said she consumed cocaine shortly before heading home. Plainly, at this time, JW was interested in having sexual interaction with the accused. 291 JW was clear in her evidence that she told the accused repeatedly that she did not ‘want this’, ‘no’ and she just wanted to go to sleep. On her account, there could be no doubt she was not consenting and that she had articulated to the accused that she did not consent to having sexual intercourse with him. She said she did not resist him because she was scared his behaviour would escalate and she was not sure if he would hurt her. 292 I have considered the effect of the complaint evidence upon JW’s credibility. JW could not recall sending a message to EG via Snapchat in which she said the accused had raped her. EG’s unchallenged evidence was that JW sent her a Snapchat message between 6.30am and 7.30am saying ‘[the accused] just raped me’. 293 I am prepared to accept EG’s evidence that she received this message. I have used this evidence for the limited purpose of explaining how the allegations came to light. Given the lack of detail in the complaint, it does not, in my view demonstrate consistency of account to a degree sufficient to bolster JW’s credibility. I have also used this evidence for the limited purpose of demonstrating consistency of conduct given the relationship between JW and EG at the time. In other words, EG was a person to whom it was reasonable to expect JW would complain. 294 JW’s credibility and reliability were undermined by the matters to which I have referred to such an extent I could not be satisfied beyond reasonable doubt based on JW’s evidence alone that events in the bedroom unfolded as she described and that she did not consent to having sexual intercourse with the accused and told him so in no uncertain terms. 295 However, this is not a case where the only evidence relied upon to prove the charge beyond reasonable doubt is that of the complainant. The prosecution case relies upon evidence of implied admissions in the recorded conversations and text messages. 296 I have scrutinised carefully the conversations recorded in P6 and P7 and the text messages to determine if the accused has made any admissions to having had sexual intercourse with JW knowing that she did not consent or being recklessly indifferent to that fact. In other words, are there implied admissions that support JW’s account that she did not consent and that the accused knew she was not consenting or was recklessly indifferent to that fact. -- 60 of 90 -- [2025] SADC 85 59 Implied admissions 297 JW did not have an independent recollection of the conversation in P6. I view with considerable circumspection her assertion that, before the recording commenced, she could recall the accused saying, ‘Sorry I just want your friendship. I just want you to want me’. I also view with considerable circumspection her assertion that she could recall that nothing was said during the breaks in the recordings. I am unable to accept her evidence on these topics. 298 I find that the accused did not know that the conversation was being recorded. Having listened to P6 several times I am satisfied that the responses of the accused were unguarded and unvarnished. I am satisfied that the accused was tired and emotional. On the other hand, JW did not sound distressed, anxious or scared at any time during the recording. 299 The conversation did not focus solely on what JW alleged had just occurred but included her account of the accused’s failings over time in their relationship. I find that she made a calculated decision (on the prosecution case within seconds of being raped) to record a lengthy conversation with the accused and to begin the recording at a particular moment in time of her choosing. 300 I infer and find that JW intended to engage in a conversation with the accused in the hope that she would secure admissions from him that he had raped her which she could use against him in the future. Her questions of, and responses to the accused left me with the impression that they were formulated with a view to putting a self-serving narrative to the accused of what she alleged had occurred. 301 JW’s assertions and statements are not evidence and cannot be used for testimonial purposes. It was not suggested, and nor could it be the case, that these statements were part of the res gestae. It is not what was said to the accused that is admissible, but rather it is his response, by way of silence or conduct, from which I must determine whether an inference might be drawn that he has acknowledged the truth of the statement or shown a consciousness of guilt.200 302 The conversation between JW and the accused (which lasts for over half an hour) must be considered as a whole before any inferences can be drawn about the accused’s state of mind and whether anything he said amounts to an implied admission that he raped JW. It must also be considered against the evidence given by JW about the way in which she and the accused interacted and spoke to each other. 303 It is noteworthy that it is JW who introduces into the first recorded conversation the word ‘rape’. When viewed in isolation, it is superficially attractive to conclude that when the accused later says that he is worried about the repercussions ‘that I raped you’ this is an admission that he knew that JW was not 200 R v Christie [1914] AC 545 at 554 (Lord Atkinson); R v Salahattin [1983] 1 VR 521 at 528 (McInerney and Murray JJ). -- 61 of 90 -- [2025] SADC 85 60 consenting to sexual intercourse with him or that he had been recklessly indifferent to any lack of consent. 304 I reject JW’s account of the conversation that took place prior to the commencement of the recording. I infer from the fact that JW said in P6 ‘if you think it, it’s anything but rape’ that there was a prior discussion about the sexual intercourse that had just taken place. 305 I infer and find that, prior to the commencement of the first recorded conversation, JW told the accused that she believed he had just raped her. I infer and find that the accused did not accept the allegation JW made as an accurate reflection of what he believed had occurred during sexual intercourse and told her so. That is why JW said, ‘if you think it, it’s anything but rape’. 306 It is not possible to determine what, if anything, was said during the breaks in the recording. JW’s explanation for stopping and starting the recordings does not withstand scrutiny. It would have been obvious from the screen of her mobile phone whether the phone was recording or not. I cannot be satisfied that P6 is a record of the entire conversation between JW and the accused from the start to the end of the recording. 307 Against that background, to my mind what is of singular importance in evaluating the conversation and determining whether the accused has made any admissions (express or implied) to having raped JW, are the following exchanges: JW: Well that’s the thing you don’t understand cos we have a fun night doesn’t mean you’re entitled to it. We’d had a great night – yes I’m not denying that, but I’m saying then I got to bed and I was very tired, I wanted to go to sleep. Accused: And you didn’t want sex?201 JW: Yes. Accused: Are you telling me you didn’t want it?202 JW: I didn’t want it and I was very clear about that. I was very clear about that. Accused: I wouldn’t have, sorry. JW: You cannot tell me that I was not clear about that. Accused: yes you were very clear and you were [inaudible]203 JW: And then even during it you said to me ‘I hope you’re hating this’. 201 The tone in which this was said was questioning and incredulous. 202 Again, the tone in which this said was questioning and incredulous. 203 What the accused said immediately after ‘you were’ is inaudible. As a result, I am not prepared to infer that ‘yes you were very clear’ was an acknowledgement that JW said, ‘I did not want it and I was very clear about it’. -- 62 of 90 -- [2025] SADC 85 61 Accused: I was trying to be funny and put a twist on. [J]? JW: What? Accused: I’m not, not a weirdo, I’m not a creep. I’m not trying to make you miserable for a second….I asked you, for your information, because I wanted you to enjoy it with me. JW: Mmm. And then. Accused: Did I not? JW: Yes. And then I said ‘it’s not happening’. And you said ‘fuck it, I’m doing it’. And then. Accused: After a bit of conversation – yes. Is it not mutual ground that we’ve got to though, do we not do this every time. Or is it not ok for me to assume that? JW: No it’s not ok for you to assume that. Just because we usually have sex after we come home and I’ve made it clear that ‘I don’t want it’. And then you said, ‘you know I just want you to want it.’ And I said ‘ I’ve not wanted it for a long time. I always just say yes because I do it to make you happy.’ And I’ve made that clear that I don’t want it. Like you said, you know I haven’t wanted it and you said ‘so if I was to do it now, would you be okay with it’. And I said ‘no – but you are going to do it anyway’. Accused: Okay. JW: And you said ‘fuck it I’m doing it’ And it’s something that, and then you were rough and loud and I’m saying ‘I don’t want [B] to hear and stuff’. And you said ‘fuck it’. Everything that happened, I, happened during it I didn’t want, you were like ‘fuck you I’m doing it’. That’s why. You even… Accused: I’m sorry. JW: You even specifically said half-way through ‘you fucking hate this don’t you?’ Accused: And ah, I, I don’t, I didn’t mean it. JW: Oh no, ‘I hope you fucking hate this’. Accused: I, I didn’t mean it as in like ‘I hope you hate it’ it was, I was trying to be fun. JW: Mmmm. Accused: [J]? JW: What [L]? Accused: Can I have eye contact for a second. I’m sorry [inaudible]. Sorry doesn’t take it away. Sorry doesn’t make it go away. Sorry doesn’t undo what happened. Sorry you went through that. That’s my fault. I am really truly sorry. If you feel like I raped you. JW: I feel like you raped me. Accused: Then I’m truly sorry I raped you. Is that what makes you happy? -- 63 of 90 -- [2025] SADC 85 62 JW: No, I’m not going to be like, have that swung back on me like that ev, everything that I. Accused: Alright I’ve said it. It’s a horrible thing to admit and it’s just hard. JW: Yeah. Accused: Okay? Like it [inaudible]. JW: It, it’s a horrible thing to fucking receive, like it’s a horrible thing to digest in my mind that my husband just did that to me. Accused: We’ve had conversations about this in the past [J]. JW: Not when I’ve specifically said ‘no’. Accused: You didn’t specifically say no. You said if that’s what makes you feel good. JW: [sighs]. Oh my God. Accused: What [J]? [Emphasis added] 308 JW did not refute the accused’s assertion that she had not specifically said ‘no’ but had said ‘if that’s what makes you feel good’. Further, JW recited a history of their sexual encounters on similar occasions, namely when they had come home and had sexual intercourse despite her indicating to him that she did not want to but said yes and did so to make him happy. 309 I infer and find, as the accused said, that this is what they did every time she acquiesced to having sex with him. In other words, it was commonplace on those occasions for JW to tell him she did not want to have sex with him but agree to it to keep him happy. This was the ‘mutual ground’ to which the accused was referring. 310 I am not satisfied that the accused made any express or implied admissions to having raped JW in the recorded conversations. JW and the accused often used the word ‘okay’ as an acknowledgment that a statement by the other had been made, without affirming the accuracy or truth of that statement. Accordingly, I find that when the accused said ‘okay’ in response to JW during this conversation, it was not said in an affirmative sense. The accused’s admission that he said, ‘I hope you fucking hate this’ to JW during sexual intercourse and his explanation that he did not mean it and it was meant to be fun, is in keeping with the nature of their sexual relationship, namely rough sex and bondage. In another setting such words might take on a different complexion but the history of their sexual relationship suggests that such language was acceptable and not indicative of an intention to have non-consensual sexual intercourse. 311 I find that the accused was genuinely upset and shocked because, despite being prepared to accept that JW believed he had raped her, he honestly believed -- 64 of 90 -- [2025] SADC 85 63 that she had been consenting. The inferences I have drawn about the accused’s state of mind are supported by JW’s evidence of a subsequent conversation between them on this topic. In that conversation the accused had told her that ‘it wasn’t rape, it was non-consensual sex’. In other words, the accused was contesting her account that she had told him that she did not want to have sex with him. 312 I have considered the text messages relied upon by the prosecution as implied or express admissions by the accused to having raped JW in light of my findings regarding his state of mind at the time of the conversation in P6. 313 I am not satisfied that the accused’s message in P2, ‘I hope you are ok after what happened to you. I’m really sorry I have put you through this’ is an implied admission to having raped JW. 314 This message was sent after JW sent him a picture of her Tinder profile with an emoji showing a hand with the middle finger extended. I find that this message was intended to provoke and upset the accused and signal to him that the relationship was over, and she was advertising herself as available on a dating website. It is obvious from the subsequent messages that the accused did not want the relationship to end. His response was consistent with his desire to repair the relationship. It was also consistent with my finding that the accused was genuinely upset and sorry, having accepted that JW believed he had raped her. 315 The accused’s acknowledgment that he had put her ‘through this’ was no more than a recognition of her assertion that she had been raped and that this was the result of him having sex with her. The accused’s obvious remorse when JW told him she will never be ok (‘I’m truly sorry about that’) is consistent with his desire to salvage the relationship and not an admission to having raped her. 316 I am not satisfied that the message sent by the accused on 9 June 2022 in P3 is an implied admission to having raped JW. This message came after JW sent him the Uber receipt for their trip home on 5 June 2022. She did this because the payment had been made from his business account, and he had queried it. JW agreed that she had a telephone conversation with the accused after sending him the receipt and before receiving the text message in which he said, ‘I’m truly and immensely sorry for what I put you through the other day. It will haunt me forever’. 317 I reject JW’s evidence that this conversation was mostly about the Uber receipt. I am satisfied that the accused and JW discussed their relationship and what occurred on 5 June 2022, although I cannot make any further findings regarding the content of that discussion. I find that the accused’s expression of regret and remorse was no more than a recognition of her assertion that she had been raped, and this was because he had sex with her. The accused’s obvious remorse is consistent with his desire to salvage the relationship and not an admission to having raped her. -- 65 of 90 -- [2025] SADC 85 64 318 I am not satisfied that the accused’s messages in August 2022 in P4 and P4A are implied admissions to having raped JW. By this time JW had well and truly branded the accused as a rapist, and he had accepted that this was the label he had been given. I find that the accused was trying to deflect and disengage during this exchange of messages. 319 Finally, I turn to the conversation recorded on 30 October 2022: P7. I am satisfied that the accused was aware that the conversation was being recorded. JW told him she was going to do so. The accused asked JW if she wanted to know why he was numb. He then told her he was numb because of her and said, ‘then you got raped because of me. But you’ve never lived that down’. 320 I am not satisfied that this is an implied admission of having raped JW. It is simply a recitation of the historical fact that JW accused him of raping her and his ongoing and repeated acceptance of her belief that she had been raped. Record of interview 321 The accused’s interview is not evidence on oath and has not been subjected to cross-examination. I have considered carefully the record of interview and the responses given by the accused. The accused did not prevaricate when he answered questions, and I formed the impression that his answers were spontaneous and unscripted. Whilst he was well and truly on notice that JW was alleging he had raped her, his shock was at the fact that she had now involved the police. 322 His account of their sex life as ‘freakish’ accords with the exhibits tendered by defence and the admissions made by JW. His account of their relationship as ‘rocky’ by June 2022 is consistent with JW’s evidence and her complaint that he worked too much and was not ‘present’ with her or the children. He described their history of arguments but said it was just ‘innocent stuff’. 323 The accused said that just before having sex with JW she said she was getting tired and to make it quick. She had told him that she did not want to go to bed a great deal later than she already was. This account is consistent with JW’s evidence that sexual intercourse lasted for no more than one minute. 324 The accused said that for years they had sex like that without needing to talk about consent. The accused’s description of the sexual intercourse sounded entirely plausible and consistent with their sexual history and the length of their relationship. 325 The accused’s account that after he had learnt from JK that JW was alleging he sexually assaulted her he was in shock and thought it was ‘like a joke’ is consistent with a genuine lack of recollection of any discussion on the topic with JW on the morning of 5 June 2022. It was after this that JW told him that he had had sex with her without her consent. The accused’s explanation that ‘it was never a thing’ that either of them had in the past needed to get consent, but it was -- 66 of 90 -- [2025] SADC 85 65 ‘insinuated’ sounded entirely plausible and consistent with their sexual history and the length of their relationship. 326 The accused said that once he learnt what JW alleged, ‘some boundaries [were] set about how we go about ensuring each other are feeling on par prior to being sexual…permitting to each other.’204 In other words, he had accepted her account that she had not consented but because he was not aware of that, he was careful to ensure that there was no repeat of this situation. He said they had spoken about it a few times. I find that this aspect of the interview had the ring of truth about it and was entirely consistent with the content and tone of the conversation he had with JW on 5 June 2022. 327 I am not prepared to reject the accused’s account that he could not recall any conversation with JW after having sexual intercourse and before he went to sleep. The accused looked genuinely surprised when told that JW had recorded a conversation with him immediately after the alleged rape. It is unfortunate that this recording was not played to the accused during the interview. Had that occurred, it may have refreshed his memory. In any event, it would have given him an opportunity to comment on the things he had said, and in particular whether, as was put to him by Brevet Sergeant McIntyre, he was apologising for having raped JW and thereby admitting to have done so. 328 The accused was firm in his denials of the particulars of the allegations. He looked genuinely surprised and shocked when he was told that JW had said she did not want to have sex with him and that he had said ‘way to be a dead root’. 329 The fact that the accused had no memory of BS staying the night at his place does not, in my view, undermine his reliability. BS left before the accused woke up and the accused did not see him upon his return home. 330 Overall, I formed a favourable impression of the accused’s responses in his record of interview; he gave a coherent and plausible account of his relationship and the circumstances of the alleged offence. I found his denials to be compelling. Based on the interview alone, there was nothing that caused me to doubt the accused’s denial of having committed the offence alleged against him. Conclusion 331 It is my task to determine whether the prosecution has proven the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview. 332 The findings I have made regarding the evidence of JW have left me in a position where I have a reasonable doubt regarding the credibility and/or reliability of material aspects of her evidence. The compelling nature of the accused’s denials 204 MFIP32A, A 378, page 19. -- 67 of 90 -- [2025] SADC 85 66 in his interview have fortified that reasonable doubt. I am not satisfied that the accused has made any express or implied admissions. 333 As a result, the prosecution has not proved beyond reasonable doubt that JW did not consent to sexual intercourse with the accused on the morning of 5 June 2022. Whilst it is possible, indeed probable, that she did not feel like having sexual intercourse with the accused, it is a reasonable possibility that she did so to please him but regretted doing so at the time and immediately afterwards. 334 The prosecution has not excluded the reasonable possibility that JW initially indicated that she was tired and did not feel like having sex but then said to the accused to make it quick, thus signalling to him that she consented to sexual intercourse. That she may have immediately regretted it or resented the accused for acting on her reluctant acquiescence does not amount to proof of lack of consent. I am satisfied that the accused believed on reasonable grounds that JW was consenting to having sexual intercourse with him on 5 June 2022. Verdict I find the accused not guilty of the charge of rape. -- 68 of 90 -- [2025] SADC 85 67 ANNEXURE This is a tape recorded conversation between [W, L] and [W, J] The conversation commenced at Seven Twenty Four AM (07:24AM) on Sunday the Fifth Day of June, Two Thousand and Twenty Two (05/06/2022) and took place at WYNN VALE. Transcribed by G Gale File Name: 82134E55-3BBA-46CB-9CA6-AB79E54969E6 Date/Time: 05/06/2022 – 07:24:08AM Duration: 01:58 ITEM NAME CONVERSATION 1. [W, L] It hurts. 2. [W, J] It hurts you? 3. [W, L] Yeah of course, it’s the fucking truth. 4. [W, J] Yeah, and that’s what I’m saying – if you think it, it’s anything but rape 5. [W, L] Yeah, yeah it’s my fault – sorry. 6. [W, J] I’m, I never thought we’d get to this part in our fucking relationship or our lives. I never thought you could cross that line, but you just did. And I’m not shying away from it. I shouldn’t feel ashamed to say it, but you just raped me. 7. [W, L] Are you gonna leave me? 8. [W, J] Hu? 9. [W, L] Are you going to leave me? 10. [W, J] What? I don’t know what I’m going to do [L]. I’m, I’m completely shocked. -- 69 of 90 -- [2025] SADC 85 68 What, what do you expect me to do dude? 11. [W, L] I don’t know. I don’t know ###. 12. [W, J] [sighs] 13. [W, L] I’m sorry. 14. [W, J] You’re sorry? That makes it all better. 15. [W, L] Well it doesn’t, I know that. I presume I’m not allowed to cuddle you. 16. [W, J] No. Not that you #### listen anyway. 17. [W, L] Sorry? 18. [W, J] Not that you could’ve listened anyway to what I want or don’t want? File Name: 606439B8-3D2A-4AA2-AC2D-B77A2D6F0E2F Date/Time: 05/06/2022 – 07:26:12AM Duration: 00:28 19. [W, L] I’m not a bad guy. 20. [W, J] You’re not a bad guy. 21. [W, L] I’m not a bad guy. I don’t want you to think I’m a bad guy. 22. [W, J] Okay. File Name: 070DC136-1B0C-4454-B7B9-FD9CE9F90DE8 -- 70 of 90 -- [2025] SADC 85 69 Date/Time: 05/06/2022 – 07:29:17AM Duration: 02:34 23. [W, J] [sighs] What then? 24. [W, L] I don’t want to know. 25. [W, J] You don’t want to know? 26. [W, L] Mn, mn. ####. 27. [W, J] Are you seriously acting like this? 28. [W, L] Yep. ####. 29. [W, J] Hu? 30. [W, L] ####. 31. [W, J] What the fuck is going on right now. Like I’m sorry, like it’s, I’m going to say the word - you raped me and you’re crying. 32. [W, L] Mhmm. 33. [W, J] crying. 34. [W, L] Mhmm. 35. [W, J] How does that make sense? 36. [W, L] There is something I want to ask you and I don’t like it. 37. [W, J] And what’s that question? 38. [W, L] ####. 39. [W, J] Well don’t ask it then. 40. [W, L] I’m not. -- 71 of 90 -- [2025] SADC 85 70 [crying] I’m sorry, okay. 41. [W, J] Mhmm. 42. [W, L] I’m sorry. File Name: FullSizeRender Date/Time: 05/06/2022 – 07:33:11AM Duration: 33:31 43. [W, L] I’m very sorry. 44. [W, J] Mhmm. [tap, tap, tap, tap] What’s that? 45. [W, L] Me. 46. [W, J] What happened? 47. [W, L] Nothing. 48. [W, J] [sighs] 49. [W, L] I’m just so upset. 50. [W, J] Are you seriously acting like this? 51. [W, L] You have a right to be upset and that’s what I’m upset about. It’s not that you don’t have the right to be upset. 52. [W, J] That’s why I don’t get why you’re being all upset about it. You just did that to me. 53. [W, L] I know. 54. [W, J] I should be the one that’s upset. 55. [W, L] That’s not. -- 72 of 90 -- [2025] SADC 85 71 56. [W, J] Why are you upset? 57. [W, L] I know. I’m sorry. You have a perfect right to be upset and that’s why I’m sorry. Because it happened. And now I’m worried. 58. [W, J] Mm? 59. [W, L] And now I’m worried. 60. [W, J] Worried about what? 61. [W, L] Of the repercussions. 62. [W, J] What repercussions? 63. [W, L] That I raped you. 64. [W, J] What? 65. [W, L] That I raped you. 66. [W, J] That’s what you’re worried about? 67. [W, L] I’m worried that you’re upset; I’m worried about all of it. Why do you hate me so much? Why do you hate me so much? Be nice and tell me. And I’m not a bad guy. 68. [W, J] Bad guys don’t rape people. Good guys don’t rape people. 69. [W, L] That’s all you got to say hey? 70. [W, J] Mm? 71. [W, L] That’s all you’re going to say, hu? 72. [W, J] Mm, I’m just saying that you are leading up to this; you’re a very self- centred selfish individual. You have made it clear to me that that only happiness that you’re getting…. No you asked me, I’m going to tell you. The only happiness you get from life is from work. When I have said to you about separating and what we do with the kids. You said I’ll just give you money if you want to look after them. You know how much that breaks my heart to know that your children don’t even come first in your life? It’s -- 73 of 90 -- [2025] SADC 85 72 73. [W, L] Please don’t go down this path. 74. [W, J] No, you asked me why I hate – you asked me, and I’m 75. [W, L] ####. 76. [W, J] telling you. You asked me and I’m telling you. I’m telling you word for word what you said to me. 77. [W, L] I really thought we were friends tonight. 78. [W, J] Yeah I thought we were too. And that comes from understanding too that sometimes I’m tired, sometimes I don’t want it. It’s nothing to do with you or the night we had or anything. This is, ‘no’ is a fucking complete sentence. 79. [W, L] Sorry? 80. [W, J] ‘No’ is a complete sentence. It doesn’t need an excuse, it doesn’t matter we’ve had a good night or something. It doesn’t mean again you just take it into your own hands. That’s what I mean, you sit here and you go ‘why do I hate you’, and I say ‘it’s because there is numerous things’ when you were just so focused on yourself and your work. And I am, I’m so proud of you, I’m so proud of your work and you’re an amazing business man but that’s your only drive in life now you don’t care about us. ‘ 81. [W, L] That’s a lie. 82. [W, J] You’re like ah, I, you do care of us about us in your own special fucking secluded way, you don’t. You know I’ve got the kids; you don’t have to worry about them. You never care about me and I’m very fucking aware of that. You care about work and what benefits you, is growing your business. That’s when you made it perfectly clear when I said to you that time – ‘what are we going to do with the kids if we separate blah blah blah’, and you said 83. [W, L] Alright. 84. [W, J] ‘I’ll just give you money and you can have them’. and I said ‘###’ -- 74 of 90 -- [2025] SADC 85 73 85. [W, L] I thought it was the best outcome for my kids. 86. [W, J] Because it’s. 87. [W, L] You can provide better for my kids than anyone else can [J]. 88. [W, J] That’s what I mean, like it’s not that I ever want there to be an argument or anything but it’s like you, you don’t even have that fight in you about your children. 89. [W, L] Mm, I just thought 90. [W, J] ###. 91. [W, L] it was best. ####. I’m just so upset that you don’t like me anymore. 92. [W, J] Yeah and I’m so upset that I’m a minute person in your life now. I didn’t. 93. [W, L] You’re not. Don’t even think that. ####. 94. [W, J] [L], me and the kids do not come first 95. [W, L] No don’t. 96. [W, J] ####. 97. [W, L] Don’t. 98. [W, J] Don’t say we do because you are all about work. I have tried counselling, I’ve tried getting you to go to counselling, I have tried, have spoken to. 99. [W, L] Are you trying to beat me, are you trying to make me, are you trying to kill me today? 100. [W, J] I’m not trying to kill you. 101. [W, L] Trying to kick me inside. 102. [W, J] Nup well you asked me and I’m telling you. This is everything. I have tried every. thing. we can. I don’t know what else I can do. I have stuck by you through three (3) years. It’s been going for years. You go behind my back, you were lying, you were hiding things on your phone, you were hiding fucking porn pictures and started hiding things from me. -- 75 of 90 -- [2025] SADC 85 74 I had, I can’t see what I’ve done so bad that caused you to be so distant and I’ve been trying, I did everything we agreed on. I gave up my business for you, I gave up. 103. [W, L] It’s not your fault. 104. [W, J] No, but that’s what I’m trying to say. I gave up everything and I raised 105. [W, L] ####. 106. [W, J] and I raise our children and I fucking put everything into it, and I continued to stay by your side and put up with everything that you do. And you never, you’re never home, you’re never interested in us. You drink. You yell at the kids all the time, you yell at me, you. 107. [W, L] Alright I’m shit, I get it. 108. [W, J] You asked me and I’m telling you. 109. [W, L] I don’t like it. That’s what I was worried about. All of this is you just #### any chance of how much of a shit-cunt I am. I’ve been good. Fucking it hurts. [crying] 110. [W, J] It hurts me living this life too. 111. [W, L] [crying] Nah. No. 112. [W, J] What? 113. [W, L] [crying] Who are you. I’m sorry. It doesn’t fix ####. [crying] 114. [W, J] Why are you so sad? -- 76 of 90 -- [2025] SADC 85 75 115. [W, L] Hey? 116. [W, J] Why are you so sad? 117. [W, L] [crying] Because I want your friendship cos I do need a friend. [crying] ###. 118. [W, J] Do you not realise that all I have been asking for years is a friend? 119. [W, L] But you’re pushing me away ####. 120. [W, J] [sighs] It’s always my fault. 121. [W, L] No it’s not, it’s sad. 122. [W, J] Mhmm. 123. [W, L] Not your fault. You’re a good person. [crying] ####. Sorry. [crying] I’m sorry. 124. [W, J] Mm. 125. [W, L] Sorry. I just, I want to be your friend for all the night, and so when we had so much fun, we had so much fun, I literally left everything just to meet you outside, to be your friend because we need it. [crying] -- 77 of 90 -- [2025] SADC 85 76 126. [W, J] And I enjoyed being your friend. 127. [W, L] [crying] I loved it. 128. [W, J] Yes and I. That’s all I’ve ever. 129. [W, L] I was prepared to stay out so long, so late with you. 130. [W, J] Yes and I appreciate that, and that’s all I want to is a friend. 131. [W, L] [crying] 132. [W, J] That’s all I’ve ever wanted was a friend and husband and a father. 133. [W, L] I don’t want any friend; I want you as my friend. Just you, that’s it, I wanted you to come out. 134. [W, J] Friends don’t treat friends the way you’ve treated me. 135. [W, L] [crying] It doesn’t seem right does it ####, and I’m really sorry for that. I’m just so desperate for your friendship ####. 136. [W, J] [sighs] God, do you know how long I’ve been begging for your friendship. All I want is 137. [W, L] I know. 138. [W, J] is a friend and you are equally rock solid. You are an interesting ####. 139. [W, L] I was here, well yeah I was here. Yes I am. I #### I’m your friend. I am here. 140. [W, J] Okay, well it seems that all you want is fuck-buddy. 141. [W, L] I was, at the start with you, whenever I was, you, you called it. You know that. Right? 142. [W, J] No. -- 78 of 90 -- [2025] SADC 85 77 143. [W, L] I was staying out with you. I was with you as soon as you were there I go outside, did I not. 144. [W, J] Yes. 145. [W, L] I wanted you with me tonight.. 146. [W, J] And we had fun until we got home. 147. [W, L] Yep we did, you are right. 148. [W, J] And I am not to blame for being tired and saying “no”. I’m allowed. 149. [W, L] If not, I’m not saying you, like I promise you I’m not. 150. [W, J] Well that’s the thing you don’t understand cos we have a fun night it doesn’t mean you’re entitled to it. We’d had a great night – yes I’m not denying that, but I’m saying then I got to bed and I was very tired, I wanted to go to s[W, L]p. 151. [W, L] And you didn’t want sex? 152. [W, J] Yes. 153. [W, L] Are you telling me you didn’t want it? 154. [W, J] I didn’t want it and I was very clear about that. I was very clear about that. 155. [W, L] ####. I wouldn’t have, sorry. 156. [W, J] You can not tell me that I was not clear about that. 157. [W, L] Yes, you were very clear, and you were ####. 158. [W, J] And then even during it you said to me “I hope you’re hating this”. 159. [W, L] I was trying to be funny and put a twist on. [J]? 160. [W, J] What? 161. [W, L] ### I’m not, not a weirdo, I’m not a creep; I’m not trying to make you miserable for a second. Oh I’m, I asked you, for your information because I wanted you to enjoy it with me. -- 79 of 90 -- [2025] SADC 85 78 162. [W, J] Mhmm. And then. 163. [W, L] Did I not? 164. [W, J] Yes. And then I said “it’s not happening”. And you said “fuck it, I’m doing it”. And then. 165. [W, L] After a bit of conversation – yes. Is it not mutual ground that we’ve got to though, do we not do this every time. Or is it not ok for me to assume that? 166. [W, J] No it’s not ok for you to assume that. Just because we usually have sex after we come home and I’ve made it clear that ‘I don’t want it’. And then you said, ‘you know I just want you to want it. And I said I’ve not wanted it for a long time. I always just say yes because I do it to make you happy. And I’ve made that clear that I don’t want it. Like you said, you know I haven’t wanted it and you said, “so if I was to do it now you would be okay with it”. And I said “no – but you’re going to do it anyway”. 167. [W, L] Okay. 168. [W, J] And you said “fuck it, I’m doing it”. And it’s something that, and then you were rough and loud and I’m saying “I don’t want [B] to hear and stuff”. And you said “fuck it”. Everything that I… happened during it I didn’t want, you were like “fuck you I’m doing it”. That’s why. You even 169. [W, L] I’m sorry. 170. [W, J] you even specifically said half-way through “you fucking hate this don’t you”? -- 80 of 90 -- [2025] SADC 85 79 171. [W, L] And ah, I, I don’t, I didn’t mean it. 172. [W, J] Oh no “I hope you fucking hate this”. 173. [W, L] I, I didn’t mean it as in like ‘I hope you hate it’, it was, I was trying to be fun. 174. [W, J] Mhmm. 175. [W, L] [J]? 176. [W, J] What [L]? 177. [W, L] Can I have eye contact for a second? I’m sorry ####. Sorry doesn’t take it away. Sorry doesn’t make it go away. Sorry doesn’t undo what happened. Sorry you went through that. That’s my fault. I am really truly sorry. If you feel like I raped you. 178. [W, J] I feel like you raped me. 179. [W, L] Then I’m truly sorry I raped you. Is that what makes you happy? 180. [W, J] No, I’m not going to be like, have that swung back on me like that ev, everything that I. 181. [W, L] Alright I’ve said it. It’s, it’s a horrible thing to admit and it’s just hard. 182. [W, J] Yeah. 183. [W, L] Okay? Like it ###. 184. [W, J] It, it’s a horrible thing to fucking receive, like it’s a horrible thing to digest in my mind that my husband just did that to me. 185. [W, L] We’ve had conversations about this in the past [J]. 186. [W, J] Not when I’ve specifically say ‘no’. 187. [W, L] You didn’t specifically say ‘no’. You said if that’s what makes you feel good. 188. [W, J] [sighs] Oh my God. -- 81 of 90 -- [2025] SADC 85 80 189. [W, L] What [J]? 190. [W, J] ###. 191. [W, L] No please. ### you can see I’m trying. 192. [W, J] Yeah. 193. [W, L] Please [crying] I don’t want this to go this way. I’m trying. Okay fine I’m a piece of shit, I raped you – whatever. That does that make you feel good? [crying] 194. [W, J] No it doesn’t make me feel good at all. 195. [W, L] Does it make you feel better that I said it? 196. [W, J] No. 197. [W, L] Well what do you want me to say? [crying] 198. [W, J] I know it’s so hard for you to say it though. 199. [W, L] With what, well make, well what will make it better? 200. [W, J] Nothing [L]. 201. [W, L] I’m sorry. I just want you – my friend. [crying] 202. [W, J] Mm? 203. [W, L] I just want you as my friend. Please? You can see how I care. [crying] -- 82 of 90 -- [2025] SADC 85 81 204. [W, J] Do you want me to turn on the TV or something so [B] can’t hear you? 205. [W, L] [crying] I don’t care. 206. [W, J] Hu? 207. [W, L] I don’t care. 208. [W, J] Yeah. 209. [W, L] I only care about us. [crying] Isn’t it obvious I’m a piece of shit. 210. [W, J] You what? 211. [W, L] Is it obvious, I’m a piece of shit. 212. [W, J] I don’t know who you are anymore to be honest with you. 213. [W, L] [crying] I am someone that misses you. It’s my fault I know #### effort. 214. [W, J] That’s what I’m saying, like I tried everything. I’ve begged and pleaded for your love. Like I said I used to dote on you, no one in this world shone brighter than you. I would’ve scream it from the roof tops how much I loved and adored you. Nothing you could do was wrong. 215. [W, L] I know. 216. [W, J] And then. 217. [W, L] I know it is my fault. 218. [W, J] [sighs] 219. [W, L] ####. Just missing you man. I just miss our friendship. That’s only reason why I’m so ### get my ####. -- 83 of 90 -- [2025] SADC 85 82 220. [W, J] What? 221. [W, L] Only reason why I was okay with getting what we did from [D] was because I miss our friendship. I need that, I need that connection. 222. [W, J] Mhmm. 223. [W, L] But I can’t deny it. [sighs] I’m sorry for crying. It’s probably not very nice to see. I’m really not much of a partner am I? 224. [W, J] Not much of a what? 225. [W, L] A partner. Of a partner. 226. [W, J] You can fucking, I don’t know what road you’re going down, but you just on fucking self-pity and blah blah blah. 227. [W, L] Yeah that’s what I’m saying. 228. [W, J] But. 229. [W, L] You ####. Yes I am making about me. I’m sorry. 230. [W, J] Not just I, I have spoken to you in depth about all this stuff for years. 231. [W, L] #####. 232. [W, J] I tried so hard to have our relationship back, so hard, I tried so hard to have our friendship back with you, and you wouldn’t do it. I’ve even gone to counselling myself, I’ve pushed you to go to the Doctor, and you. 233. [W, L] Am I’m a piece of shit. I know. I’m a piece 234. [W, J] I’ve. 235. [W, L] of. shit. I’m the worthless piece of shit. 236. [W, J] There’s nothing more I can do and then it’s you are sitting here crying to me saying you just want your friend back, and it’s like 237. [W, L] Yeah I miss you. -- 84 of 90 -- [2025] SADC 85 83 238. [W, J] ‘are you joking me’. Are you joking me? 239. [W, L] Okay, I’m sorry. I see how it’s going to go. I always want my friend back. 240. [W, J] Mhmm. 241. [W, L] [whispers] I’m sorry. What’s the best thing for me to do for you right now? 242. [W, J] I just need space. 243. [W, L] I’ll leave you alone. 244. [W, J] Mhmm. 245. [W, L] What do you want me to do. 246. [W, J] You can do whatever you want [L]. No one tells [W,L] what to do. 247. [W, L] I’m asking to make you feel comfortable. I’m asking to make you feel comfortable. I’m nervous. 248. [W, J] You’re nervous? At what? 249. [W, L] Our future. 250. [W, J] Our future? 251. [W, L] Don’t think into it. 252. [W, J] Mm? 253. [W, L] Don’t think into it. 254. [W, J] Don’t think into it. What are you nervous about our future it’s like, what do you mean? 255. [W, L] The fact that you don’t like me at all. Or the fact that I’m just continuously trying but not going anywhere with the outcomes. 256. [W, J] You’re tr. 257. [W, L] And the fact that. -- 85 of 90 -- [2025] SADC 85 84 258. [W, J] Trying? 259. [W, L] I, I just. 260. [W, J] Where, where have you tried to? 261. [W, L] I built you a whole house bro. I built a whole house for you. 262. [W, J] It wasn’t for me. 263. [W, L] For everybody. [crying] 264. [W, J] It was your lifelong dream. 265. [W, L] For everybody. 266. [W, J] Maybe now you’ll realise that it wasn’t about the materialistic shit. It wasn’t about the things. Things don’t matter. 267. [W, L] I’ve tried everything to make you feel special though. [crying] 268. [W, J] You’ve tried everything. 269. [W, L] Whatever you want. 270. [W, J] Okay. 271. [W, L] To like, I like, I’m sorry that I raped you, I’m so sorry. I will never do it again. 272. [W, J] Mhmm. 273. [W, L] if it makes you feel better I will never do it again. 274. [W, J] But had I heard you a week ago you would’ve said ‘you would never do it’, so why am I 275. [W, L] What? 276. [W, J] to. If a week ago you would’ve said ‘you would never do that’ so why am I to believe that you’d never do it again? 277. [W, L] I said how you said it. I’m not going to say it again. 278. [W, J] I am not having my fucking children -- 86 of 90 -- [2025] SADC 85 85 279. [W, L] Oh no don’t bring them into this. [crying] 280. [W, J] No, just because you fucking were raised seeing that and thinking it was okay? 281. [W, L] [crying] 282. [W, J] I will not have my children raised seeing that stuff. It stops here. 283. [W, L] Mhmm. [crying] I’m so sorry. Please be my friend. [crying] I want your friendship. [crying] 284. [W, J] You’ve got plenty of friends at work that you enjoy being around more than us, so. 285. [W, L] Sorry? 286. [W, J] You’ve got plenty of friends at work that you enjoy being around more than us. 287. [W, L] Not true. 288. [W, J] You’ve told me that. 289. [W, L] Hey? 290. [W, J] You’ve told me that straight to my face. 291. [W, L] It’s not true how you’ve worded it. I don’t prefer them over you guys. 292. [W, J] Okay, but you prefer being at work more than at home. 293. [W, L] It’s less stressful – yeah. 294. [W, J] Yeah. 295. [W, L] You hate me don’t you. You just say it. -- 87 of 90 -- [2025] SADC 85 86 296. [W, J] I don’t know. I really don’t know how I feel. 297. [W, L] I’ll feel better if you said it now. 298. [W, J] I don’t know how I feel. I never expected that I’d be in this situation in my life. I’m, I’m numb. I don’t feel anything. I feel completely numb. 299. [W, L] You feel like I’m a monster. 300. [W, J] Hu? 301. [W, L] You feel like you’re with a monster. I can’t breathe. 302. [W, J] What’s wrong? 303. [W, L] My nose is blocked. 304. [W, J] Well breathe through your mouth then. 305. [W, L] I am but it’s hard. 306. [W, J] Go blow your nose then. 307. [W, L] Mhmm. 308. [W, J] Like do you need an Ambulance or something? Like can you. 309. [W, L] No, I’m okay. I will be okay. Just really sad. 310. [W, J] Yeah. 311. [W, L] And it’s self-inflicted but it’s okay. It’s my fault. And I’m sorry you went through it. I’m just really sad, upset with, really upset with us, like me but not. You matter a lot. I have so many songs to relate to. 312. [W, J] I can’t hear you. 313. [W, L] I have so many songs that relate to us, I can’t help. 314. [W, J] So many songs? 315. [W, L] Yeah. I listen to lots of music. There are so many songs that relate to how I feel. Just that ####. I’m not that guy that complains. -- 88 of 90 -- [2025] SADC 85 87 316. [W, J] I can’t hear you. 317. [W, L] I’m just hurt but I’d never say it because I’m not the guy that complains. I don’t want to be a burden on anyone. But I do hurt okay. [crying] Everyone thinks I don’t care. I really do ### and I’m scared. 318. [W, J] Why are you scared? 319. [W, L] About us because you are my friend and I don’t want to lose you, my friend, I’m in love with you. [crying] I know you don’t care anymore – you’ve lost that. I can’t. But for me I really love our friendship, well cos I love going out with you. I love being in places with you. It’ so fun. You are my friend. I don’t have many. [crying] ####. [crying] I’m sorry. [crying] I can’t stop crying – I’m sorry. Do you want your eyepatch? 320. [W, J] Mm? 321. [W, L] Do you want your eyepatch. 322. [W, J] Do I want my eyepatch? 323. [W, L] Your eye thingy. Your eye cover so it’s not bright. 324. [W, J] No, it’s fine. Why don’t you go sleep in River’s room so it’s dark? -- 89 of 90 -- [2025] SADC 85 88 325. [W, L] I don’t want to be away from you. I’m scared it’s just ###. I don’t care about me I care about you. [crying] Please don’t kick me out. 326. [W, J] Please don’t what? 327. [W, L] Please don’t kick me out. 328. [W, J] Kick you out of the bed? 329. [W, L] Yeah. -- 90 of 90 --