[2025] SADC 135
Prosecution: R Counsel: MS R ANDERSEN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS
(SA)
Accused: PSR Counsel: MR M MEAD - Solicitor: MCGRATH LAWYERS
Hearing Date/s: 09/09/2024, 10/09/2024, 11/09/2024, 12/09/2024, 13/09/2024, 16/09/2024, 17/09/2024,
18/09/2024, 19/09/2024, 20/09/2024, 24/09/2024, 25/09/2024, 26/09/2024, 27/09/2024, 10/12/2024, 11/12/2024,
13/12/2024, 18/12/2024, 29/01/2025, 30/01/2025
File No/s: DCCRM-22-009097
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 PSR
Criminal Trial by Judge Alone
[2025] SADC 135
Reasons for the Verdict of her Honour Judge Schammer
26 November 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE
PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-
INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY
EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF
DETAILS AND FACT OF COMPLAINT
The accused was committed to stand trial on an Information dated 18 September 2023, charged with
six counts of rape of his wife, FS.
The trial commenced in September 2024 and proceeded over 21 sitting days including the voir dire,
concluding in January 2025. FS gave her evidence at trial with the assistance of a female interpreter,
fluent in Pakistani Urdu.
At the commencement of trial, a nolle prosequi was entered with respect to count 4. During the trial,
count 2 was amended to charge one count of indecent assault, in lieu of rape. The alleged offending
comprised:
• count 1, a count of rape, particularised as having occurred between 1 December 2018 and 31
March 2019 at Munno Para West, when the accused inserted his penis in FS’s vagina. This incident
is alleged to have occurred in the family car, after the accused and FS had gone alone, together, to
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Bunnings at Munno Para West, and on the way home, the accused parked the car, off the side of
Frisby Road, near a gate.
• count 2, a count of indecent assault, particularised as having occurred between 1 December
2018 and 31 March 2019 at Munno Para, when the accused pushed his penis against FS’s mouth,
when they were in the back of the family car, in the car park at Spotlight.
• count 3, a count of rape, particularised as having occurred between 1 December 2018 and 31
March 2019 at Munno Para, when the accused inserted his penis in FS’s vagina when they were in
the back of the family car, in the car park at Spotlight.
• count 5, a count of rape, particularised as having occurred between 1 December 2018 and 31
March 2019 at Gawler, when the accused inserted his penis in FS’s vagina. This incident is alleged
to have occurred in the family car, after the accused and FS had gone alone, together, to Bunnings at
Gawler, and on the way home, the accused parked the car, off the side of the road.
• count 6, a count of rape, particularised as having occurred between 31 December 2021 and 1
February 2022 at Smithfield, when the accused inserted his penis in FS’s anus.
During the trial, the Court declined an application made for a directed acquittal as to count 6.
FS and the accused were married in an arranged marriage in Pakistan in 1999. Thereafter, the couple
had three children in Pakistan, with a fourth child born later when the family lived briefly in New
Zealand. FS has had numerous health issues, including a significant hearing disability, for which she
now wears hearing aids.
The family moved to Australia to live in 2012 and settled first in New South Wales. FS alleges that
when living in Pakistan and New South Wales, the accused routinely verbally and physically abused
her. FS alleges that when the family lived at Kogarah, the accused would engage in forceful and
aggressive penile vaginal intercourse with her, and, that when they were living in Minto, for the first
of many times, he engaged in anal intercourse with her without her consent and forced her to perform
fellatio on him without her consent (uncharged acts).
The alleged offending is said to have occurred after the family moved to live in South Australia. The
charged counts were alleged to have occurred against a background of the accused continuing to
verbally and physically abuse FS, and to have regularly forced her to engage in sexual intercourse
with him, without her consent (uncharged acts).
FS first complained about the alleged offending in counts 1, 2, 3 and 5 in a phone call made to
1800RESPECT in October 2020. FS’s oldest daughter, F, assisted her to make that call, as FS is
fluent in Pakistani Urdu and speaks very limited English. F overheard what FS said during that phone
call.
The accused was arrested on 31 March 2022, after police attended at their Smithfield home on 30
March 2022 in response to a request received from 1800RESPECT. At that time, FS was sleeping in
the lounge room. The accused had demanded his children assist him to remove all of FS’s belongings
out of the main bedroom. F had rung 1800RESPECT, seeking their assistance, as she was scared for
her, her mother’s and her siblings’ safety.
During the trial, FS was cross-examined at length about multiple purported inconsistencies in her
evidence, and other prior out of court statements given by her. Those prior out of court statements
were provided at times when, variously, either the accused had acted as FS’s interpreter, and/or an
interpreter had been provided over the telephone rather than in person, and/or the interpreter was not
fluent in Pakistani Urdu and/or the interpreter was a male.
It was the defence case that those inconsistencies and omissions (and internal consistencies in the
evidence given by FS) were a product of FS having lied about the alleged offending (and the
accused’s behaviour generally) to enable her to leave the marriage in a culturally acceptable way.
Various potential reasons for marital discord, other than the alleged offending (and/or the accused’s
behaviour generally) were suggested to FS, but denied.
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Alternatively, it was the defence case that the numerous inconsistencies in FS’s evidence
demonstrated that the court could not be satisfied beyond reasonable doubt as to the reliability of her
account of each of the alleged offences.
FS’s evidence as to the accused’s behaviour generally was supported, in part, by the evidence given
by her daughter, F and her son, HS.
Orders
Pursuant to s 128(2)(b) of the Criminal Procedure Act 1921, counts 1, 2, 3 and 5 on the Information
are amended to particularise the alleged offending to have occurred between 1 December 2018 and
31 March 2020.
Verdict
The accused is not guilty of count 2.
The accused is guilty of counts 1, 3 and 5.
As to count 6, the accused is not guilty of the charged offence of rape but guilty of the alternative
charge of attempted rape, pursuant to s 270A and s 48(1) of the Criminal Law Consolidation Act,
1935.
Criminal Law Consolidation Act 1935 (SA) ss 48(1), 56, 75, 270A; Juries Act 1927 (SA) s 7;
Evidence Act 1929 (SA) ss 13A(12), 34M; Criminal Procedure Act 1921 (SA) s 128(2)(b), referred
to.
R v Richards (2016) 125 SASR 341; R v Winner (1989) 39 A Crim R 180; R v Collingridge (1976)
16 SASR 117; Haughton v Smith [1975] AC 476; R v MAS [2013] SASCFC 122; R v M,JJ, R v CJN
[2013] SASCFC 51; R v A, GP (2012) 113 SASR 146; Fergusson v The King [2024] SASCA 63;
Nelson (A Pseudonym) v The King [2025] SASCA 79, considered.
-- 3 of 200 --
-- 4 of 200 --
R v PSR
[2025] SADC 135
[Criminal]
Introduction
1 The accused, PSR,1 was committed to stand trial on an Information dated
18 September 2023 charged with six counts of rape pursuant to s 48(1) of the
Criminal Law Consolidation Act 1935 (the Act). The complainant in each count is
the accused’s estranged wife, FS.
2 The accused elected to be tried by a judge sitting without a jury pursuant to
s 7 of the Juries Act 1927.
Procedural issues
3 At the commencement of trial, a nolle prosequi was entered as to count 4.
4 During the trial, and while the complainant was giving evidence, count 1 was
amended, without opposition, to amend the place of the alleged offending from
Munno Para to Munno Para West.
5 After the complainant gave her evidence as to the circumstances of the
offending in count 2, the Court granted a contested application made by the
prosecution to amend count 2 to charge one count of indecent assault pursuant to
s 56 of the Act, in lieu of the charged count of rape.2
6 At the close of the prosecution case, counsel for the accused made an
application for a directed acquittal as to count 6. The application was refused.3
The charges4
Count 1
Offence Details
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[PSR] between the 1st day of December 2018 and the 31st day of March 2019, at Munno
Para West, engaged in sexual intercourse with FS, by inserting his penis into her vagina,
without her consent to engaging in sexual intercourse, knowing or being recklessly
indifferent to that fact that she was not so consenting.
1 The accused now uses the first name, ‘Prince’. FS explained this was not his given name at birth, rather
a name he had taken for himself, see [166] and [947] herein.
2 T 383.24-388.36.
3 Ex-tempore reasons for ruling delivered on 10 December 2024.
4 As reflected in the Information as amended during the trial.
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[2025] SADC 135
2
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘presumptive disqualification offence’ within the meaning of sections 26A
and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A
and 18U of the Disability Inclusion Act 2018.
Count 2:
Offence Details
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars
[PSR] between the 1st day of December 2018 and the 31st day of March 2019, at Munno
Para, indecently assaulted FS, by pushing his penis against her mouth.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘presumptive disqualification offence’ within the meaning of sections 26A
and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A
and 18U of the Disability Inclusion Act 2018.
Count 3
Offence Details
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[PSR] between the 1st day of December 2018 and the 31st day of March 2019, at Munno
Para, engaged in sexual intercourse with FS, by inserting his penis into her vagina, without
her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to
that fact that she was not so consenting.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘presumptive disqualification offence’ within the meaning of sections 26A
and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A
and 18U of the Disability Inclusion Act 2018.
Count 5
Offence Details
Rape. (Ibid).
Particulars
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[2025] SADC 135
3
[PRSR] between the 1st day of December 2018 and the 31st day of March 2019, at Gawler,
engaged in sexual intercourse with FS, by inserting his penis into her vagina, without her
consent to engaging in sexual intercourse, knowing or being recklessly indifferent to that
fact that she was not so consenting.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘presumptive disqualification offence’ within the meaning of sections 26A
and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A
and 18U of the Disability Inclusion Act 2018.
Count 6
Offence Details
Rape. (Ibid).
Particulars
[PSR] between the 31st day of December 2021 and the 1st day of February 2022, at
Smithfield, engaged in sexual intercourse with FS, by inserting his penis into her anus,
without her consent to engaging in sexual intercourse, knowing or being recklessly
indifferent to that fact that she was not so consenting.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘presumptive disqualification offence’ within the meaning of sections 26A
and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A
and 18U of the Disability Inclusion Act 2018.
Background information
7 FS (DOB: 7 August 1975) married the accused in Pakistan in 1999. This was
an arranged ‘watta satta’ marriage. A ‘watta satta’ marriage involves a son and
daughter of one family marrying the daughter and son of another family.
FS’s brother, married the accused’s half-sister, in 1997.5
8 FS and the accused were married in a Muslim ceremony. Once married, they
lived in Pakistan for some time with FS’s brother and his wife.6
9 FS and the accused have four children - F (a daughter) born on 10 December
1999,7 HS (a son) born on 3 April 2002, MS (a daughter) born on 12 April 2005
and IS (a son) born on 28 January 2009.8 The three oldest children were all born in
5 T 332.16-333.35.
6 T 334.29-34.
7 T 718.8-9.
8 T 675.29-676.6; Exhibit P15 at [2]-[5].
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[2025] SADC 135
4
Pakistan. IS was born in New Zealand, where the family lived for as short period
before migrating to Australia.
10 It was the prosecution case that throughout the duration of their marriage, FS
was the victim of sustained verbal, emotional, physical and sexual abuse at the
hands of the accused, including multiple uncharged acts of sexual abuse in New
South Wales and uncharged acts of physical violence. It is alleged that FS accepted
this conduct as being necessarily incidental to the marriage and did not complain
about it, in line with cultural expectations. It is further alleged the offending
occurred in the context of the accused isolating FS from others in the community
and controlling most aspects of her life and the lives of their children.
11 FS gave evidence over nine separate sitting days. When giving her evidence,
FS required a Pakistani Urdu interpreter to communicate to the Court.9
Arrangements were made for a female interpreter to assist FS, as, in accordance
with her faith, FS was reluctant to discuss matters of a sexual matter with a male
who was not her husband.
12 Notwithstanding these arrangements, and the fact that, as far as possible, the
same female Pakistani Urdu interpreter assisted FS for most of her evidence, there
were obvious communication difficulties between FS and the Court.
13 FS gave numerous statements to police prior to trial, upon which she was
extensively cross-examined, at trial, on the basis that they apparently contained
multiple prior inconsistent statements. It became apparent that when giving those
statements, FS was, at various times, assisted by an interpreter who was not
physically present with her and was instead assisting via the telephone, and/or
provided with an Afghani Urdu interpreter and/or assisted by a male interpreter.
14 FS was also cross-examined as to purported inconsistencies in previous
statements apparently made by her in connection with child protection proceedings
in New South Wales, including an affidavit signed by FS but prepared (and signed)
in circumstances where the accused was acting as her interpreter.
15 A significant issue at trial was the extent to which any purported
inconsistencies between the evidence given by FS and what was contained in those
earlier out of court statements (and inconsistencies as between those statements)
impacted on my assessment of the reliability and credibility of the evidence given
by FS as to the alleged offending. Fundamental to this issue was a very careful
consideration as to the circumstances in which of these prior out of court
statements were made. Did FS properly understand the statements attributed to
her? Did she properly understand the questions posed of her by the authors of those
9 Noting that FS was briefly assisted by an Indian Urdu interpreter at the commencement of her evidence-
in-chief, which arrangement proved unacceptable. The trial was adjourned to enable a new Pakistani
Urdu interpreter to assist thereafter.
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[2025] SADC 135
5
statements? Were her responses to such questions accurately interpreted,
communicated and recorded?
16 Much of the evidence given by FS in cross-examination and re-examination
was directly relevant to this issue.
Summary of allegations
17 Counts 1, 2, 3 and 5 are all alleged to have occurred shortly after the family
moved to live at Smithfield10 and during a period when the accused was
undertaking renovations to the family home.
18 These four counts all relate to alleged offending which occurred away from
the home, and in the back of the family car11 on occasions when the accused and
FS were alone in that car, ostensibly for the purposes of attending at various retail
stores incidental to those renovations.
19 Count 1 (an alleged rape involving penile vaginal intercourse) relates to
alleged offending at night, in the family car, when it was parked on the side of the
road, near a gate, proximate to the Bunnings store at Munno Para West.
20 Counts 2 and 3 are alleged to have occurred at night, in the family car, when
it was parked next to a recycling bin in the Spotlight carpark at Munno Para.
Count 2 was initially charged as one count of rape (fellatio). FS gave evidence that
although the accused attempted to force his penis into her mouth on this occasion,
he was unsuccessful. As such, the Information was amended to plead the offence
of Indecent Assault in lieu of rape. Count 3 is an alleged rape involving penile
vaginal intercourse.
21 Count 5 (an alleged rape involving penile vaginal intercourse) relates to
alleged offending at night, in the family car, when it was parked on the side of the
road, proximate to the Bunnings store at Gawler.
22 The final count, count 6, relates to alleged offending at the family home,
several years later, when the accused is alleged to have anally raped FS.
23 The alleged offending was first reported to police following another incident
at the family home in Smithfield on 30 March 2022. The accused was arrested
early the next morning.
Defence case
24 The accused denies that any of the alleged offences occurred. The accused’s
case is that FS has fabricated the alleged offending and the alleged uncharged acts
of verbal, emotional, physical and sexual abuse and that she had several motives
10 Throughout the trial, this house was referred to and described as being located in Smithfield. However,
on a floorplan of the house, the suburb is described as ‘Smithfield Plains’; Exhibit P2.
11 The family car is to be distinguished from another car which was used by the accused in his occupation
as a taxi driver.
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[2025] SADC 135
6
to lie. One such motive was said to relate to the fact that the accused was opposed
to her desire to facilitate an arranged marriage between their two oldest children,
to her elder sister’s children in Pakistan, which allegedly caused great cultural
offence to her family. Another alleged motive for FS to lie was said to be to enable
her to separate from the accused in a culturally acceptable manner, and to ensure
that upon the couple’s separation, she would keep the family home and have
custody of the children.
25 FS was cross-examined about purported health issues suffered by the accused
which were suggested rendered the offending a physical impossibility. FS gave
evidence that she had been diagnosed with Hepatitis C in Australia. In cross-
examination, she agreed with a proposition put to her that was informed by a doctor
in 2018 that she no longer had Hepatitis C. She denied a proposition that she and
the accused did not have any form of marital relations from when they lived in
Australia until she was told that she no longer had Hepatitis C. FS gave evidence
that the accused had never spared her and that she had contracted diabetes from
the accused having sexual intercourse with her.12
26 FS denied a proposition put to her in cross-examination that the accused had
tried to have sexual relations with her in New South Wales in 2018 but that this
was unsuccessful as he was impotent.13 She disagreed with a proposition that the
accused had not had sexual relations with her since they arrived in Adelaide.14
Elements of the charged offences
Rape
27 In order for a verdict of guilty to be returned to counts 1, 3, 5 and/or 6, the
prosecution must prove the following elements beyond reasonable doubt:
1. An act of sexual intercourse took place between the accused and FS;
2. FS did not consent to engaging in sexual intercourse; and
3. The accused knew or was recklessly indifferent to the fact that FS was not
consenting.
28 ‘Sexual intercourse’ includes any activity involving or consisting of the
penetration of a person’s vagina or labia majora or anus, by any part of the body
of another person, or by any object, and includes the continuation of such activity.
29 As to the second element of the offence, consent to sexual intercourse must
be freely and voluntarily given. A person is taken not to freely and voluntarily
agree to sexual activity if the person agrees because of the application of force or
12 T 410.36-412.15.
13 There was no medical evidence before the Court as to the accused’s potency or impotency.
14 T 412.16-30.
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[2025] SADC 135
7
an express or implied threat of the application of force or a fear of the application
of force to the person.
30 There is no typical or normal response to non-consensual sexual activity.
31 It is not necessary for a person to demonstrate that they do not consent, for
example, by protesting or physically resisting, nor is it necessary for a person to
be physically injured in the course of sexual activity to indicate a lack of consent.
32 Non-consensual sexual activity can occur between people who are married
to one another and is not less serious just because the people involved are known
to one another and are in a close relationship.
33 The third element of the offence relates to the accused’s state of mind. The
prosecution must prove beyond reasonable that the accused knew that FS was not
consenting, or that he was recklessly indifferent to the fact she was not consenting.
As to the latter – the prosecution will establish the accused was ‘recklessly
indifferent’ to the fact FS was not consenting if it proves beyond reasonable doubt
either that the accused:
1. was aware of the possibility that FS might not be consenting to sexual
intercourse, but decided to proceed regardless of that possibility; or
2. failed to take reasonable steps to ascertain whether FS did in fact consent to
the activity; or
3. did not give any thought as to whether or not FS was consenting to the
activity but proceeded regardless.
34 Pursuant to s 75 of the Act, if the trier of fact is not satisfied beyond
reasonable doubt that the accused is guilty of rape but is satisfied beyond
reasonable doubt that the accused is guilty of an indecent assault, it must find the
accused not guilty of rape but may find the accused guilty of the lesser charge.
35 Notwithstanding submissions made to the contrary by defence counsel, I am
satisfied that the offence of attempted rape is also an available alternative to the
offence of rape, at common law.
36 The definition of attempted rape is included within the definition of the
offence of rape, having regard to the elements of those offences.15 The elements of
the offence of attempted rape are that the accused attempted to commit the offence
of rape. He must have actually embarked on the commission of the offence of rape
and to have taken a step towards the commission of that offence, such that the act
or acts committed by him would have culminated in the commission of the offence
of rape if such acts were not ultimately interrupted.16
15 R v Richards (2016) 125 SASR 341, R v Winner (1989) 39 A Crim R 180.
16 R v Collingridge (1976) 16 SASR 117; Haughton v Smith [1975] AC 476.
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[2025] SADC 135
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Indecent assault
37 In order for a verdict of guilty to be returned to count 2, or as to the available
statutory alternative with respect to the other counts, the prosecution must prove
the following elements beyond reasonable doubt that:
1. The accused applied force (directly or indirectly) to FS;
2. The force was applied intentionally;
3. FS did not consent to the application of force;17
4. The accused knew that FS did not consent to the application of force or was
recklessly indifferent as to whether FS was consenting;18 and
5. The force was accompanied by circumstances of indecency. It is a matter
for me to consider whether the proven conduct of the accused was indecent
by reference to reasonable contemporary standards. I must be satisfied that
the conduct had a sexual connotation.
Witnesses and exhibits
38 The prosecution called evidence from the complainant, FS and from her two
oldest children, F and HS. In addition, evidence was called from:
1. Dr Hakima Abbas;
2. Detective Brevet Sergeant A Poole (DBS Poole); and
3. Detective Brevet Sergeant A Menon (DBS Menon).
39 The prosecution tendered numerous exhibits. Those exhibits included a
Statement of Agreed Facts,19 and a USB containing video footage recorded on FS’s
mobile phone at the family home on 30 March 2022.20
40 The prosecution had intended to introduce into evidence a record of interview
conducted between DBS Poole and the accused on 31 March 2022. An application
seeking to exclude that evidence was determined on a voir dire prior to trial. The
evidence was excluded.21
41 The accused elected not to give evidence but called evidence from a social
worker, Ms Catherine O’Brien. Numerous agreed facts were also read onto the
transcript.22
17 See discussion at [29]-[32] herein on the issue of consent.
18 See discussion at [33] herein as to what constitutes reckless indifference.
19 Exhibit P15.
20 Exhibit P8.
21 T 316.25-318.26.
22 T 971.12-973.10.
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Legal directions
General
42 The prosecution bears the onus of proving the guilt of the accused beyond
reasonable doubt. There is no onus on the accused to prove anything. It is not for
the accused to prove that he did not commit the offence(s) as charged.
43 As to each count, the accused is presumed by law to be innocent of the charge
(and any available alternative) unless and until the evidence that I accept satisfies
me that every element of the offence has been proved beyond reasonable doubt.
Nothing short of proof beyond reasonable doubt will suffice.
44 There are five counts on the revised Information. I must assess these counts
separately and only take into account the evidence that is relevant and admissible
to the count under consideration.
45 As to each count, it is not sufficient for the prosecution to show a suspicion
of guilt or to show that the accused is probably guilty. Before the accused is
convicted of an offence, I must be satisfied that the prosecution has proved beyond
reasonable doubt each element of that offence.
46 In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’,
I mean to a standard of beyond reasonable doubt.
47 As to each count, considered separately, if I am satisfied that there is a
reasonable explanation consistent with the innocence of the accused, or I am
uncertain where the truth lies, then I must find the accused not guilty of that
charged count.
48 I must assess each witness as to their truthfulness and reliability. I must
determine whether I can rely upon the evidence that a witness gives. I can reject
or accept all or a part of a witness’s evidence.
49 FS gave her evidence with the assistance of an interpreter. FS, F and HS gave
their evidence via audio-visual link from outside of the court room, the court was
closed during their evidence and their evidence was recorded. Ms O’Brien gave
her evidence via audio-visual link from outside of the court room. I must not draw
any inference adverse to the accused because of these arrangements, nor allow
these arrangements to influence the weight given to that evidence.23
50 Neither MS nor IS were called to give evidence. I must not speculate about
the nature of any evidence I have not heard. I simply do not know what evidence
may have been given by any absent witness. I must decide the case only on the
evidence before me.
23 Section 13A(12) of the Evidence Act 1929 (EA).
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51 The accused elected not to give evidence. As a matter of law there can be no
criticism of the accused for doing that. The accused has a right to decline to give
evidence and I must not draw any inference adverse to him or the case he has put
forward because he has exercised that right. The accused’s silence in this court
does not constitute an admission against him and it cannot be used to fill any gaps
in the evidence tendered by the prosecution. His silence cannot be used in assessing
whether the prosecution has proven the elements of the offence beyond reasonable
doubt.
52 FS’s evidence is critical to the prosecution case as to each count. I must
carefully scrutinise her evidence before I can be satisfied, beyond reasonable
doubt, of its truthfulness and accuracy.
53 I must bring an open and unprejudiced mind to the case. I must make my
decision without sympathy, without prejudice, or fear and must not be influenced
by public opinion in relation to this matter.
Complaint evidence
54 Notwithstanding a submission made by defence counsel to the contrary, there
was admissible evidence properly led as evidence of initial complaint within the
meaning of s 34M of the Evidence Act.24
55 Such evidence is admitted as an exception to the hearsay rule to inform the
trier of fact as to how the allegation, in each instance, first came to light and as
evidence of the degree of consistency of conduct of the complainant. It is relevant
therefore to an assessment of the reliability and credibility of the complainant.
56 Importantly, complaint evidence is not admitted as evidence of the truth of
what was alleged and cannot be used as some form of independent evidence to
prove what happened, as only the evidence of the complainant as to the allegations
of the specific offending against her, is able to prove that.
57 There may be many and varied reasons why an alleged victim of a sexual
offence has made a complaint at a particular time or to a particular person. It is for
me to determine the significance (if any) of the evidence in the circumstances of
this case.
Forensic disadvantage
58 The alleged offending in counts 1, 2, 3 and 5 occurred between 1 December
2018 and 31 March 2019. The accused was arrested for the alleged offending in
March 2022. The trial did not commence until September 2024.
24 See discussion at [871]-[875] herein.
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59 As such, there was a significant period of delay between the alleged
offending in those counts and the accused’s arrest and the trial. This has resulted
in significant forensic disadvantage to the accused.
60 The passage of time may have adversely impacted upon the accused’s
memory of relevant events and his ability to instruct his solicitor and counsel.
It may have impacted upon his ability to test the evidence.
61 Had a timely complaint been made by FS in each instance of alleged
offending, the accused may have been able to provide a relatively
contemporaneous recollection of the nature of his interactions with FS at the time
of the alleged offending. He may have been able to give evidence, or lead evidence
from others, about where he was at a relevant time, or about who might have been
with him, or evidence which was otherwise inconsistent with the prosecution case.
62 I accept that in these circumstances, the accused has been deprived of the
opportunity to defend those allegations other than by way of a bare denial and to
fully test the complainant’s reliability and credibility by reference to the
surrounding circumstances of the alleged offences.
63 I have taken these forensic disadvantages into account when scrutinising the
evidence and in assessing whether the prosecution has proved each element of the
offences as charged beyond reasonable doubt.
Accused’s good character
64 It was an agreed fact that the accused has no criminal convictions in Australia
or New Zealand.
65 This evidence is relevant both to the probability that the accused committed
any of the alleged offences and to the court’s assessment of the credibility of the
accused’s ongoing denial of the alleged offending.
66 It is a factor affecting whether there is a reasonable explanation on the
evidence consistent with the accused being innocent of a count or counts.
67 Of course, if the court finds that the accused is a man of prior good character,
this does not mean it must find him not guilty of the alleged offending. Sometimes
persons of previous good character do offend.
Discreditable conduct
Notice of intention to adduce discreditable conduct dated 18 September 2023
68 The Prosecution filed a Notice of Intention to Adduce Discreditable Conduct
at trial,25 whereby it advised of an intention to elicit discreditable conduct evidence
at trial (the Notice).
25 FDN 23.
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69 The evidence fell into four separate categories.
70 Item 1 on the Notice refers to the evidence given by FS of each occasion
(other than occasions of charged conduct) when the accused caused her to perform
fellatio by first covering her mouth so she could not scream and then slap her in
the face to open her mouth to insert his penis.
71 The evidence is said to be relevant to the Court’s determination of count 2,
both as to whether the alleged sexual act occurred and whether the accused knew
or was recklessly indifferent to whether FS was consenting. The evidence was
intended to be used for a propensity purpose, namely, to demonstrate that the
accused had a modus operandi to sexually offend in a particular way. This made it
more likely, as to count 2, that FS did not consent to application of force (the
accused’s penis against her mouth), the accused knew of or was recklessly
indifferent to that lack of consent and that any innocent explanation for his actions
can be rejected.
72 I am satisfied that the probative value of this evidence outweighs any
prejudicial effect and that the permissible use of the evidence can be kept
sufficiently separate and distinct from any impermissible use, so as to remove any
appreciable risk of the evidence being used for any impermissible purpose.
73 If I accept the evidence given by FS as to the occasions referred to in
paragraph 70 herein, I can use the evidence for these permissible purposes.
74 However, I must not use this evidence to reason that as, because of such
conduct, the accused is a person of bad character and therefore is the type of person
who would have committed the offence in count 2 (or any of the offences) and that
as such, it is more likely he committed one or more of the offences.
75 Item 2 on the Notice refers to the evidence given by FS of each occasion
(other than occasions of charged conduct) when the accused had sexual
intercourse with her in the backseat of their car in an isolated area at nighttime.
There was no such evidence led at trial.
76 Item 3 on the Notice relates to FS’s evidence as to the alleged offending in
each count, in proof of the alleged offending in each other count, being relevant to
whether the sexual acts occurred and whether the accused knew or was reckless as
to whether FS was consenting.
77 The evidence was intended to be used for a propensity purpose, namely to
demonstrate that the accused had propensity to engage in forceful, penetrative
sexual activity with FS without her consent, thus making it more likely in relation
to each count, that FS did not consent to the sexual activity, the accused knew of
or was recklessly indifferent to that lack of consent and that any innocent
explanation for his actions can be rejected.
-- 16 of 200 --
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78 I am satisfied that the probative value of this evidence outweighs any
prejudicial effect and that the permissible use of the evidence can be kept
sufficiently separate and distinct from any impermissible use, so as to remove any
appreciable risk of the evidence being used for that purpose.
79 If I am satisfied beyond reasonable doubt of the evidence given by FS as to
a count or counts, I can use that evidence for these permissible purposes.
80 However, I must not use this evidence to reason that as the accused is a person
of bad character, he is the type of person who would have committed another
offence (or offences) and that as such, it is more likely he committed the other
offence (or offences).
81 Item 4 on the Notice refers to the evidence given by FS of each uncharged
occasion when the accused had sexual intercourse without her consent. Although
the Notice is worded such that it is confined to such acts in South Australia (SA),
there was a volume of evidence, led without objection, as to alleged uncharged
acts of sexual intercourse between the accused and FS which occurred without
FS’s consent when the couple were living in New South Wales (NSW). I have
assumed the Notice was intended to also capture that evidence.
82 The evidence is relevant to the Court’s determination of each count, both as
to whether the alleged sexual acts occurred and whether the accused knew or was
recklessly indifferent to whether FS was consenting. The evidence was intended
to be used for a propensity purpose, namely to demonstrate the accused had a
propensity to engage in forceful, penetrative sexual activity with FS without her
consent, thus making it more likely in relation to each count, that FS did not
consent to the sexual activity, the accused knew of or was recklessly indifferent to
that lack of consent and that any innocent explanation for his actions could be
rejected.
83 I am satisfied that the probative value of this evidence outweighs any
prejudicial effect and that the permissible use of the evidence can be kept
sufficiently separate and distinct from any impermissible use, so as to remove any
appreciable risk of the evidence being used for that purpose.
84 If I accept the evidence given by FS as to any alleged occasions when the
accused had sexual intercourse with her, without her consent, I can use that
evidence for these permissible purposes.
85 However, I must not use this evidence to reason that as the accused is a person
of bad character, he is the type of person who would have committed any of the
offences and that as such, it is more likely he committed any of the offences.
Other evidence of discreditable conduct
86 FS gave evidence, without objection, of occasions in Pakistan, NSW and SA
when the accused had been verbally, emotionally, and/or physically abusive
-- 17 of 200 --
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towards her. She gave evidence of occasions when the accused had threatened to
kill her and/or threatened to arrange for others to kill her.
87 The Court heard evidence that the accused had been both verbally and
physically abusive towards the children and had threatened to kill the children.
88 FS and F both gave evidence of occasions when the accused engaged in
coercive control and financially abused them.
89 This evidence was relevant and admissible for permissible non propensity
purposes, namely, to demonstrate the nature of the relationship the accused had
with FS (and the children), to show the context in which the alleged offending
occurred and to demonstrate the control the accused exerted over FS and the
household in general. The evidence was relevant and admissible to explain how
and why the accused was empowered to offend against FS, without fear of her
reporting it.
90 FS gave evidence that the accused was involved in fraudulent activity in
Pakistan and in New Zealand. She was questioned about whether he had been
charged with blasphemy in Pakistan. This evidence was relevant and admissible
for a permissible non-propensity purpose, namely the Court’s assessment of FS’s
credibility, in circumstances where her evidence on these topics was said to be
inconsistent with prior out of court statements said to be attributable to her.
91 In cross-examination, FS agreed with a proposition that she had spoken to
the police during 2022 with a view to withdrawing the charges. She then explained
that she did this because the accused (and the accused’s brother) were placing
pressure on her to do so. This evidence was relevant and admissible for a
permissible non-propensity purpose, namely whether the fact FS had made that
enquiry was consistent with her having lied about the allegations and having
second thoughts about continuing that lie. It was relevant to the court’s assessment
of FS’s credibility.
92 If I accept some or all of the above-mentioned evidence, I must only use that
evidence for the permissible purpose or purposes as specified. I must not use that
evidence to reason that the accused is more likely to have committed any of the
offences because of this discreditable conduct. Further, I must not reason from this
evidence that the accused is a person of bad character and is therefore the type of
person who would commit any of the alleged offences.
93 I am satisfied that the probative value of the above-mentioned evidence
outweighs any prejudicial effect and that the permissible use(s) of the evidence can
be kept sufficiently separate and distinct from any impermissible use, so as to
remove any appreciable risk of the evidence being used for that purpose.
94 FS gave evidence that the accused was involved in the murder of his nephew
in Pakistan. I am not satisfied that the probative value of this evidence outweighs
its prejudicial effect. The evidence is inadmissible and I have ignored it.
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General
95 If any evidence of the uncharged acts and/or discreditable conduct is essential
to my process of reasoning leading to a finding of guilt, as to any count, the
evidence cannot be used unless, on the whole of the evidence, the facts in proof of
which the evidence was admitted are established beyond reasonable doubt.
Motive to lie
96 As previously stated, it was the defence case that FS was lying about the
alleged offending and she was cross-examined as to various motives for her to lie.
97 I must consider the possibility of a motive for FS to lie, as a motive to lie is
relevant to the credibility of her evidence.
98 I remind myself that there is no onus on the accused to prove that FS had a
reason to make false allegations against him. If I reject any alleged motive for FS
to lie, that does not mean that she must be telling the truth. There may be many
reasons why a witness may lie. I must carefully consider all of the evidence to
determine whether the prosecution has satisfied me that FS is telling the truth about
the alleged offending.
FS’s evidence
Family background
99 FS gave evidence that she was born in Pakistan and married the accused in
Pakistan in 1999. The marriage was arranged by their respective parents. She said
she, as the girl, had no say in this marriage.26
100 FS explained that when she got married, she did not even get a proper bridal
dress. She described herself as very ‘unlucky’.27 The accused’s family were not
very good to her and would quarrel with her, such that her own family took her
back home. She and the accused then lived for seven years with her brother and
the accused’s half-sister.28
101 FS gave only limited evidence as to why and when the family left Pakistan
and went to live in New Zealand. As IS was born in New Zealand in 2009, I have
assumed the family moved to New Zealand in about 2008 or 2009. In cross-
examination, FS agreed with a proposition that the accused had been arrested by
the police in Pakistan. She denied he had been involved politically in Pakistan or
that he had been tortured by the police. She said he had run away from the police
and got himself bailed out.29
102 In re-examination, FS gave evidence that prior to the family moving to
Pakistan, her extended family was being threatened (and at times harmed) by
26 T 135.23-136.9; T 147.9-15.
27 T 160.32-36.
28 T 158.30.33.
29 T 335.35-336.12.
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others in Pakistan. This had occurred because the accused had taken money
(committed fraud) in Pakistan and had then fled to Dubai. She said that this was
why she had left Pakistan and first gone to New Zealand.30
103 FS gave evidence that after IS was born, she became sick. The family
returned from New Zealand to Pakistan. FS and the children went to live in Sialkot
City and the accused then returned to New Zealand.31 Thereafter, IS became very
ill with meningitis and had to be taken to hospital in Lahore. The accused
subsequently returned to Pakistan. FS disagreed with a proposition that he did this
to arrange for IS to have medical care and be admitted to hospital.32
104 Thereafter, the accused returned to New Zealand alone, leaving FS and the
children in Pakistan. FS gave evidence that it was very difficult for her to make a
life in Pakistan, so it was agreed she and the children would return to New Zealand.
When their visas for New Zealand expired, it was decided they would instead come
to Australia.33
105 In cross-examination, it was suggested to FS that while the family were living
in New Zealand, the accused had a very good job and was earning around $60,000
a year. FS disagreed with this and said that the accused had no salary and was not
earning. She said, ‘he had just taken such a letter from the owner of the company,
for his work visa.’34
106 By this and other evidence given by her, I have assumed that FS was
intending to convey to the Court that the accused had obtained a letter from the
owner of a company saying he earned $60,000 a year, in order to support an
application for a work visa, but that the contents of that letter were not true.
107 FS agreed with a proposition put to her in cross-examination, that while
living in Rotorua in New Zealand she had been admitted to a psychiatric hospital.
She said:35
A. He took me he used me and he had me there at the hospital to have some money
from the hospital to have food and necessities for children, he used me for it because
he had no job, no money and nothing.
108 FS gave evidence that she and the children moved to Australia to live in
around 2009. The accused joined them in Australia in 2010.36 She said that the
accused converted to Christianity in order to obtain a Protection Visa.37
30 T 678.16-679.17.
31 T 337.9-35.
32 T 338.23-25.
33 T 340.20.
34 T 336.29-337.7.
35 T 393.37-394.2.
36 T 137.18; T 138.8.
37 T 341.8-9.
-- 20 of 200 --
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109 The family settled first in NSW. They were ineligible for Medicare and/or
social security benefits. They were homeless. They spent one night staying in
Lakemba at a taxi driver’s house. FS gave evidence that the next day, she was
admitted to the Concord Psychiatric Hospital for three weeks. She agreed with a
proposition put to her in cross-examination that she was suffering from severe
depression and psychosis. She said she was worried about the children and the fact
they had no food.38 The accused was not working and as such, he looked after the
children when FS was in hospital. Thereafter, they obtained housing in Kogarah.39
110 The family lived at various locations in NSW (Kogarah, Minto, Bathurst),
before moving to live in SA in 2018.40
FS’s health
111 FS gave evidence that she had suffered from hearing issues in both ears since
she was aged six or seven. She explained that her left ear was completely blocked,
but she could hear a bit from her right ear, only if someone was very close to her
when they spoke. This affected both her ability to hear and to learn.41
112 FS first obtained hearing aids in 2016 when she was living in Bathurst and
continues to wear them. She is able to hear better since wearing hearing aids.42
113 FS gave evidence that she had anaemia and had been diagnosed with
Hepatitis C after arriving in Australia, for which she required treatment when
living in New South Wales. FS described feeling tired and weak because of the
Hepatitis C and said she would fall. She denied that this illness had caused her
gums to bleed. 43
114 It was agreed that on 14 October 2013, FS attended at the Department of
Gastroenterology and Hepatology at the Liverpool Hospital, in company with the
accused, who assisted to interpret for her on that occasion. The notes from that
attendance confirmed that FS had been admitted to the Concord Mental Health
Hospital in 2010 and that neither FS nor the accused were aware that FS had
Hepatitis until they arrived in Australia in 2009/10.44
115 It was further agreed that FS attended the Liverpool Hospital on at least one
other occasion and that she attended there, with the accused, on 16 December
2013, to discuss her Hepatitis C diagnosis with a Dr Levy.45
38 T 342.3-13; T 396.11-27.
39 T 342.18-38; T 396.28-35.
40 T 138.10.
41 T 700.1-8.
42 T 700.9-16.
43 T 343.5-19; T 345.2-21; T 392.5-6.
44 Exhibit P15 at [11]-[12].
45 Exhibit P15 at [13].
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FS’s language skills
116 FS speaks both Urdu and a Punjabi dialect and would speak with the accused
in either language. The children did not speak Punjabi. She and the accused would
speak to the older children in both English and Urdu. The younger children only
knew a little Urdu and spoke mainly in English.46
117 FS gave evidence that she had very limited, if any, English literacy skills.47
118 She gave evidence that she had learned some English when she was at school
in Pakistan. When asked in cross-examination how many years she had learnt
English at school, she said:48
A. A little bit of English in grade level 6 and 7 in the government schools, very little
start and they start with alphabet in class 6, grade 6.
119 Later, she agreed that she had continued to learn English at school after
Years 6 and 7 and had studied it every year until Year 12, although that did not
necessarily mean she understood what she had studied. She also explained that she
had thought the earlier questions were directed at when she had started to learn
English.
120 FS agreed that she passed a citizenship test, conducted in English, when she
came to Australia. She explained that she had memorised the answers and only
made one mistake on that test.49 She had not worked since arriving in Australia.
The accused’s health and employment background
121 During the marriage, FS was wholly financially reliant upon the accused
(save and except for any government assistance) and at times relied upon him as
her carer. FS gave evidence that while they were living in Minto, New South
Wales, the accused did not work but was being paid to be her carer. She said he
would take that money and the money for the children and have it for himself.50
122 It was agreed that the accused was employed with 13CABS from 31 May
2019 to 31 March 2022, being the date of his arrest.51 During that period, the
accused was the sole income earner for the family and therefore responsible for
the mortgage payments on the family home at Smithfield. However, the family
also received Family Tax benefits from Centrelink for the children and the two
older children received a study allowance from Centrelink while attending
university.52
46 T 436.19-38.
47 The extent to which FS could speak and/or understand English was in dispute.
48 T 323.7-9.
49 T 542.18-28.
50 T 170.6-8.
51 Exhibit P15 at [9].
52 T 554.18-555.38.
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123 FS disagreed with a proposition that the accused would pay for the children’s
education expenses. She said:53
No, he didn't, he never paid, he would not go for pay the school fee. He did not pay fee.
They would ask for - I do not know what stories he would tell the school. After his arrest,
the letter was come - I had received a letter that I needed to deposit $1,000 and I did that
and from then on I'm doing it.
124 As a taxi driver, the accused was required to communicate with passengers
in English and therefore has some proficiency in English. FS gave evidence that at
times, the accused would interpret for her in her dealings with others, including
the authorities, while in Australia.
125 FS gave evidence that the accused had suffered from diabetes since they were
married and that he had one of his testicles removed in Pakistan.54
126 During cross-examination it was suggested to FS that the accused was
impotent. After the meaning of this word was explained to her, FS denied this and
said ‘his person was always fine’.55 She said, ‘when he would do it with me, it used
to be all fine, I never saw that he was in any kind of other than not being fine’.56
In re-examination, she reiterated that the accused never had any problems getting
an erection or with ejaculation.57
127 FS gave evidence that when she was being treated for Hepatitis C, a nurse
had told the accused, in front of her, not to have sex without a condom, as his
diabetes could be passed onto FS. The accused had translated this conversation to
FS. She said that the accused did not listen to this medical advice and continued to
have sex with her. She believed that that this was how she got diabetes.58
Life in Pakistan
128 FS gave evidence that from when they were living in Pakistan, the accused’s
behaviour towards her was not good. She said he was always angry and used foul
(abusive) words to her. She used to think of this as just a punishment for being a
wife and said she had not done anything wrong to provoke this.59
129 FS gave evidence that once or twice the accused had physically abused her
and had beaten her. If the accused did not like something or if she did something
wrong, he would slap her or give her ‘a box or a punch’. This happened
frequently.60 She did not tell anyone about this as in their religion, this was
53 T 556.14-19.
54 T 336.13-21.
55 T 670.33.
56 T 670.36-38.
57 T 670.22-38.
58 T 410.36-411.15, T 411.35-412.14, T 679.26-680.9.
59 T 158.30-159.9.
60 T 159.12-24.
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something wives had to bear, as husbands were afforded a high position, ‘next to
God’, and ‘it’s the mistake of the wife’.61
130 FS gave evidence that when they were living in Sialkot City, the accused had
pushed her, and her small children, out of the house where they were living. She
sought refuge at her sister’s house but did not initially tell her what had happened.
She tried to explain why. Although it was difficult to follow FS’s evidence on this
topic, I have inferred, from what she said at the time, and later in her evidence, that
she believed the accused’s behaviour was linked to the fact that his family had
never accepted her as their daughter-in-law, both because of her physical disability
(hearing issues) and her lowly socio-economic status. She said they wanted him to
divorce her and were rude to her. She was eventually taken back to the house by
her brother and the accused left the door open so they could come inside.62
Life in Kogarah
131 After moving to Australia, the family lived for two and a half years at a house
in Kogarah, NSW. FS gave evidence that the physical abuse she had experienced
at the accused’s hands in Pakistan continued.63
132 When FS and the accused were living in Kogarah, the children were removed
from their care for a period by Child Protection. FS described the accused as
always angry and very abusive. He would take his anger out on her. He would use
foul language and slap her.64
133 FS explained that she had lost count of how many times the accused had
punched or slapped her in the head. He did this whenever he was angry (including
in front of the children when they were there). He had also slapped the children a
number of times. He did this to whichever of the children he was angry with and
would also use foul words to everyone. 65 FS gave the following evidence:66
Q. When you say he slapped you, you told us about one time that that happened, were
there any other times that that happened in this house.
A. It happened more times and he had slapped me and abused me in front of the kids
and once it happened that I left the house and my daughter came out with me. And
because of that the child protection took off with the children.
INTERPRETER: I am asking her to explain what she had just said.
A. Because of the situation that he's not taking care of the children and the wife the child
protection had taken away the kids, but I was not aware that I could report that I'm
physically abused.
61 T 162.3-7.
62 T 159.27-161.30.
63 T 162.8-10; T 162.34-163.5.
64 T 164.4-165.5.
65 T 167.5-10.
66 T 166.10-22.
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134 FS said that as the children were not there (and in the care of Child
Protection), the accused would frequently engage in forceful and aggressive sex
with her. She explained that on one occasion, the force was so severe that she
suffered vaginal bleeding for a month, such that the accused took her to see a
doctor at the Liverpool Hospital.67 She explained that when she saw the doctor, the
accused waited outside. The doctor gave her medicine, which helped her. He had
also suggested some tests but the accused did not take her for the test.68
135 In cross-examination, FS agreed that in her first police statement made on
31 March 2022, she had said:69
When we lived in Minto about six years ago, after my husband penetrated me I was
bleeding so bad from my anus for about two months. After that I needed to get medical
treatment. On this occasion I went to the Liverpool Hospital to get treatment and
medication. (my emphasis)
136 FS gave evidence that what she was referring to in that statement related to
her bleeding from the vagina (not the anus), which had started when they were
living in Kogarah, but did not stop before (they moved to) Minto. She denied that
the statement contained these differences because she was making this up.70
137 In cross-examination, FS was asked to clarify if what the accused had done
to her in Kogarah (aggressive penile vaginal intercourse) had occurred with or
without her consent. She said:71
A. As I told you earlier, in Kogarah house, he used to do it from the front but very
excessive and when he saw that this cheap, low person, when he saw that slot
bleeding from the front, he started to do it from the back. He would not spare me.
He's a dirty man. Shameless. Help me get rid of this bad man.
Q. And so he would start doing it to you from the back when you were living at Kogarah.
A. He started doing from the back in Minto and from the mouth also. Dirty cheap
person. And I told him that my gums bleed and I tried to convince him I had fallen
my hands in front of him but he did not listen. He's a very cheap person.
Q. So when he was having this forceful sex with you in Kogarah, was he doing that
without your consent.
A. Yes, without consent because I had come recently from Pakistan and I had four
surgeries. From New Zealand I went to Pakistan and then I came back to Australia
and my health was not in good state. And all these diseases are to me because of this
cheap person. And whenever I would recover a bit, he would go and do excessive
sex and then I again fall ill.
67 T 165.8-166.2.
68 T 251.20-23.
69 T 486.1-4.
70 T 486.15-23.
71 T 518.33-519.23.
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Q. And did you tell [the accused] that you didn't want to have sex with him on these
occasions.
A. Yes, every time I would tell him not to do it but he would not listen to me and he
would say that if I do not do it, I do not get relax and peaceful and this is in my blood
and in my parents. He would slap me and go forceful and then later he would do it
rough.
138 She explained that he did this in Kogarah both before and after the children
were taken by Child Protection, but that he did it more aggressively after the
children were taken.72
139 It was an agreed fact that there is no reference in any of FS’s police statements
to any non-consensual sexual activity having occurred at the house in Kogarah.73
FS agreed that in her police statement made on 10 February 2023, she had said,
‘Sexual abuse first started after we moved into 9 Blackwood Avenue, Minto’.74
140 FS gave evidence that the children were returned to their care when they were
still living at Kogarah.75
141 FS explained that she and the accused had gone to court to have the children
returned to their care. As part of this process, they had attended at the Jannawi
Family Centre, where they had meetings with the children.76 FS disagreed with a
proposition that she and the accused had attended there for counselling but said
that they had had ‘a little chat’ to a social worker there. She said:77
It was not counselling. They would bring the children there and they would tell us to meet
them.
142 FS was asked if she had told the social worker that in 13 years of marriage to
the accused, they had never had a single fight. She said:78
A. He had scared me off that if I share anything as such, they will not give the kids. I'm,
after all, I'm a mother, I used to cry, and I wanted to have my children back. With
great difficulty, I had got my children from Pakistan here, and as I came, my children
were taken away.
Q. So do you agree that that's what you said to the worker on that occasion.
A. I did not say anything because I do not know English and he would say everything
and he would make the reports also, and he had made the affidavit himself, his own
and mine too. …
72 T 520.6-28.
73 Exhibit P15 at [14.a.i].
74 T 527.25-528.8.
75 T 167.11-14.
76 T 529.1-10.
77 T 530.3-4.
78 T 530.16-27.
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143 In re-examination, FS gave evidence that a male interpreter was present at
the Jannawi Centre at a later time but that he did not translate much to her.79
144 FS said that otherwise she relied on the accused to tell her what was going
on and to translate for her.80
145 FS was asked whether, when she was in Kogarah, she was taught English
each Tuesday for about a year by a ‘Sister Mansour’. She agreed that there was a
sister who came to the house in Kogarah. However, the accused had ‘misbehaved’
towards her and called her a spy for Child Protection.81 She said:82
Q. But do you agree that she taught you English for about a year when you lived in the
house at Kogarah.
A. It was not a year. It was less but then she used to come, but then he would not let me
talk, he would not let me study. He would start talking about other things. She mainly
used to come to support me because my children were taken away and she would
just give me a few words of English.
146 FS gave evidence that the Sisters of Mercy lived next door to them in
Kogarah. When the children were still with them, Sister Audette used to come on
Wednesdays to teach her English. After the children were taken away, the accused
had misbehaved towards Sister Audette and she stopped coming.83
147 FS gave evidence in cross-examination that after the children were removed,
a Pakistani interpreter had arranged for his wife, Salma, to visit her, as she was
crying. Salma had suggested she attend the Rockdale Migrant Resource Centre to
meet other Pakistani women. She had attended there once or twice. She disagreed
that she had learned English or taken English classes there. There was no evidence
to the contrary.84
148 FS agreed that she had attended once at the Pakistani Women’s Association
in NSW. She said this was to obtain a letter of support from them to assist to get
the children returned to her care. She denied learning English or taking English
language classes at that Centre. There was no evidence to the contrary.85
149 FS also denied a proposition that she had attended English language classes
at the Red Cross in NSW however, said she had attended there seeking financial
support.86
79 T 698.7-10.
80 T 698.1-699.3.
81 T 531.28-30.
82 T 531.33-38.
83 T 537.16-34.
84 T 540.23-541.11.
85 T 541.22-33.
86 T 541.12-21.
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Parramatta Children’s Court proceedings
150 During cross-examination, FS was questioned about purported
inconsistencies in the evidence she had given about the accused’s behaviour
towards her and the children, and his employment, in Pakistan, New Zealand and
Kogarah, and her English language skills, compared to evidence she had given on
those topics in proceedings in the Parramatta Children’s Court relating to the care
of the children.
151 Several questions were directed at establishing purported inconsistencies
between oral evidence given by FS in the Parramatta Children’s Court compared
to the evidence she gave to this Court on those topics.
152 FS acknowledged that she had given oral evidence in those earlier
proceedings and said that she had a male interpreter at that time. She agreed that
she was sworn in before she gave that evidence. She said she tried her best to tell
the truth and did tell the truth.87 She said the accused was not allowed in the court
when he gave her evidence but that she was accompanied by a caseworker from
Hurstville Child Protection.88
153 FS gave evidence to the effect that there was very little questioning of her in
the Parramatta Children’s Court. She said that she had been shown a report from a
psychologist from the mental hospital where she had been admitted by the accused
and a report relating to the birth of IS. Although her evidence was difficult to
follow (and fully understand), its effect was that the evidence she had given in the
Parramatta Children’s Court related only to the contents of those reports. She
suggested that the caseworker who was with her, would confirm this.89
154 FS was asked in cross-examination if, in response to a question asked of her
at that time, about whether she had returned to Pakistan when she was in New
Zealand, she had responded:90
… 'Yes, that's true, after my kids was - my child was born and the medicine had had the
reaction. I had gas problem, I had liver problem, I couldn't even stand up'.
155 FS denied that she given such evidence and described, at length, what she
claimed to have said, at that time, in response to that question.91
156 FS was also asked whether, in response to a question about how the family
was able to afford to travel back to Pakistan from New Zealand, she had told the
Parramatta Children’s Court:92
87 T 615.26-35; T 618.27-31.
88 T 616.38-617.2.
89 T 616.14-15; T 616.35-38; T 617.1-2; T 618.5-9.
90 T 616.6-9.
91 T 616.13-32. It was agreed that FS did give such evidence on that earlier occasion, see T 972.18-23.
92 T 617.7-619.8.
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At that time my husband was working, his salary was $60,000. We had just started but we
were financially all right at that time. The situation was good.
157 FS gave evidence that ‘nothing as such was in the court’ and reiterated that
there were two reports shown to her in court. She maintained the situation was not
good and that she had explained to that Court that she was a refugee.93
158 FS disagreed that in that earlier proceeding, she had given oral evidence that
when IS fell ill in Pakistan, they had been in Mepore and that she had taken him to
Rawalpindi and then to Lahore.94 She said:95
The point of being in Mepore and going to Rawalpindi is of that time when we were on a
run, it was something which was in 2007 we were on a run. This is what all had been told
in the affidavit, might be in 2007 it happened and might be told in the court.
159 FS was cross-examined about an affidavit signed and sworn by her on 8 April
2011 in connection with the Children’s Court proceedings. Although that affidavit
was not before the court, the affidavit was read to FS and she agreed that what was
read to her, was written in the affidavit. However, she said that the accused had
written this affidavit (and others) on her behalf.96
160 It is important to reproduce what was written in that affidavit as it was said
to be markedly inconsistent with much of the evidence given by FS in terms of the
accused’s behaviour towards her and her children, their relationship and family
life.
161 The affidavit included the following statements attributed to FS:
162 As to the accused’s employment background in Pakistan:97
At [7]: My husband had worked at very senior executive post in Pakistan and was serving
as country manager sourcing for an American company thus associated with top class
business tycoon of Pakistan leather industry through his high social contacts.98
163 As to the illness suffered by IS:99
At [21]: My husband kept close contact on situation and he boarded bus from Wellington
to Auckland in cold weather... [Minus centigrade] and reached Auckland from where he
managed expensive Emirates airline travelling around 33 hours and joined us in children
hospital Lahore, thus risking his own life as blasphemy charges were levelled against him
93 T 618.5-12; T 619.1-8. It was agreed that FS did give such evidence, see T 972.23-27.
94 T 625.24-27; T 626.6. It was agreed that FS did give such evidence, see T 972.27-973.3.
95 T 625.36-626.2.
96 T 629.24-30; T635.32-34.
97 T 627.27-36.
98 There was no evidence given by FS identified as being expressly inconsistent with this. When FS was
read this part of the affidavit, she said that the accused had worked for an American Company but it
was not a long term job. She said he worked as an agent and that he and several students who worked
with him had committed fraud. She said the accused had taken money from other people and run to
Dubai; T 627.37-628.7.
99 T 629.4-23; T 632.31-633.5.
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or being outspoken in favours of Christianity and exampling Australian/New Zealand
culture and values to Pakistani fellow countrymen...
At [22]: My husband, with his high negotiation and personal skills, engaged various doctors
from nearby Mayo Hospital, children hospital and then Rashid Latif (a private children
hospital), as well as Ittefaq Hospital owned by ex-prime minister of Pakistan and spent
money like water on treatment and multiple examination for [IS]. He also hired a private
ward to convenience of attending medical child specialist and hire private services of the
nurses. Meanwhile, I was personally there to monitor all situation.
164 As to their time in New Zealand:100
At [31]: Later we moved to Rotorua (Bay of Plenty) on 14 February 2010 where my
husband had to establish a new branch of travel company.
At [36]: In Rotorua my husband refused to partner wrong things of his company managing
director who in return threatened my family with police action if we did not vacate that
house which was originally provided by company, as a result of my husband refusal to his
boss.
165 As to FS being taught English:101
At [68(a)]: Sister Audette Mansour teaches my English each Tuesday since last 11 months
and I had improved lot my reading skills and little bit with vocabulary...My husband always
had been source of inspiration for family and he helped our lovely family in such unique
way that if any other Pakistan is taken rebirth he cannot finish one-third of assignment he
complete in a day. He is an extraordinary, intelligent, well-balanced personality born in
several years in remote rural areas of Pakistan. If his father agricultural land was not
forcefully taken by ex-prime minister of Pakistan he could be the next prominent political
figure of Pakistan but it is all God plan. For him, managing a little family of just five people
to whom he loves too much is just a simple matter.
166 The affidavit was signed by FS in the presence of her lawyer, Ms G Winn.
However, FS maintained she was not aware of the contents of the affidavit, and
that it was written by the accused.102 It was suggested to FS that she knew when
she signed the affidavit that she was swearing that its contents were true and
accurate. She said: 103
A. Because he said that I prepared the affidavit on behalf of her, so we had to get the
children, so what was written in it I did not know it was right or wrong or truth. I
was only concerned about the children and the lawyer told me to sign. You can
confirm all this from the lawyer and the child protection.
Q. And you knew this was going to be given to the judge.
A. I did not know this, I did not. All the documents used to be given to judge from both
the parents, mother and father.
100 T 633.7-18.
101 T 633.31-634.17.
102 T 645.5-647.3; T 649.12-34.
103 T 647.7-648.1.
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HER HONOUR
Q. Can I just stop you, I didn't understand that answer. Did you know it was going to
be given to the judge.
A. I did not know that, the only thing I knew that this is given to the caseworker.
XXN
Q. And you knew it was to be given to the caseworker because you were going to court
to try and get your children back.
A. Yes.
Q. And as I understand your evidence, you were prepared to lie in that affidavit for that
purpose.
A. I did not say to lie, I did not even know what is written so much of a lie in this paper.
What I knew that he is writing something to get the children back. I did not know
that he had made himself a Prince and whatever he had done and whatever he has
written in it.
Q. So to be clear, you were swearing in an affidavit that these matters were true even
though you didn't know what was in the affidavit; is that what you're saying.
A. Yes, I did not know what it is written down in it. I only knew he is writing on my
behalf, just from the mother's side.
167 Relevantly, the affidavit includes the following Interpreter clause:104
In the matters of [F], [HS], [MS], [IS]. Interpreter clause. I declare that I, [PSR] (as my
capacity of an Urdu interpreter individually) with also status of being a family head and
husband of deponent, I state for court purpose that I have read this document to deponent
and she understands and agrees to contents to the best of her knowledge.'
168 FS denied that the accused had read to her the entirety of her affidavit in
Urdu. She said:105
This is fake, you should understand that if he has become my interpreter he has written
everything by himself. Nobody had asked me anything, I was just told to sign. Such a cheap
person. You are putting a blame on me, why are you lawyer? Why are you - you should tell
the lawyer this is what you had written everything. That day I had sworn on my book and
the Bible is lying in front of me. I can swear on this Bible and you may ask anybody in the
Parramatta court that this paper was not done by me and you will get to know the truth.
169 FS denied that everything that was written in that affidavit was the truth.106
170 In re-examination, FS denied the accused (or anyone else) had read that
affidavit to her. When shown some pages of the affidavit wherein many of the
words were in bolder and larger writing, she maintained that she had not written
104 T 649.1-11.
105 T 649.12-21.
106 T 650.5-14.
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these things and did not know what was written there. She had only signed the last
page of the affidavit, rather than signing every page and had signed the document
in the presence of the accused and the lawyer, who only spoke English.107
Life in Minto
171 FS gave evidence that after a period living in Kogarah, the family then moved
to live in Minto.108 She said that the accused’s behaviour stayed the same insofar
as he was very angry.
172 FS gave evidence that it was in Minto that the accused ‘raped’ her.109 The
children were in school. She got upset with the accused as he had spoken ill of his
friend who as a charity worker. The accused was working on his computer. He
pulled her into his bedroom,110 and started to touch her on her back. He pushed her
onto the bed and ‘from the back side he did it’.111 She said:112
So when he inserted his penis in my rectum I screamed and I was in pain so he pushed my
face in pillow so that I cannot scream. That was the first time he did.
173 FS gave evidence that when it happened it was so painful that she screamed
and said ‘no, no’ but he did not stop.113 She was unable to walk properly for many
days thereafter.114
174 When asked if the accused had done anything else to her on that occasion,
FS said, ‘No, this is all what he did’.115
175 FS was cross-examined about what she had said to police about this incident
in a statement made by her on 10 February 2023. Precisely what, if any, purported
prior inconsistent statement about this incident, is in that statement, is uncertain.116
However, FS said that when she was making this statement, the interviewer did
not ask her much about this as he could tell she was in pain. She said he did not
force her to go into detail, rather he had told her, ‘What you don’t want to tell, it’s
okay if you don’t want to.’117
176 FS gave evidence that the accused first put his penis in her mouth when they
were living at Minto. This was very painful. She was bleeding from the mouth and
her gums were damaged. She would vomit and tell him to stop but he would not.
107 T 681.7-682.5.
108 It was agreed that a bond was lodged with NSW Rental Bonds in the names of the accused and FS for
a house in Minto on 1 February 2013 and that the bond was repaid on 26 May 2015; Exhibit P15 at [6].
109 T 167.30-31.
110 Bedroom 2 on the plan, Exhibit P1 at p 3.
111 T 167.30-168.10.
112 T 168.13-15.
113 T 169.31-33.
114 T 169.36.
115 T 169.38.
116 T 590.1-34.
117 T 590.36-591.1.
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It used to smell like urine. This had happened many times in the accused’s bedroom
(bedroom 2).118 He would force her to do this. She said:119
He would hold me from my hair and he would ask me to open my mouth. If I would not
open he would slap me and would be angry and shout at me to open.
177 FS explained that when they were living in Pakistan, the accused had never
had anal or oral sex with her, as this was not allowed in their religion. She said that
she had told him this many times but he would never listen.120
178 It was an agreed fact that in her first police statement made on 31 March
2022, FS made no reference to any acts of non-consensual oral sexual activity.121
FS said that she had told the police about everything, ‘all the three’ but that she
had provided more details in later statements.122
Life in Bathurst
179 FS gave evidence that after a period living in Minto, the family moved to live
in Bathurst.123 She said that the accused’s behaviour continued to be the same. He
was angry and he would do ‘all three; mouth, back and front.’124
180 FS gave evidence that the accused would force her to have oral sex and if she
would not let him, he would slap her and try and open her mouth and hit her on the
head. He would ejaculate on her face. Afterwards she would run to the washroom,
vomit and use mouthwash.125 This could sometimes happen twice in the same day
and more than once a week.126
181 FS gave evidence that when they lived in Bathurst, the children were at
school. For a period of time, the accused was not working and he would have penile
vaginal intercourse with her any time in the morning or at night. When the accused
obtained work as a security guard, he would go to a club and look at women. When
he came home, he would wake FS and force her to have sex with him. He would
take off her trousers and slap her hands if she tried to stop him. She would say ‘no
go away I don’t want to do it’. He would hold her tight from the back, slap her and
tell her not to make noise and to stay quiet.127 She said:128
118 T 170.11-171.1.
119 T 171.4-6.
120 T 171.12-31.
121 Exhibit P15 at [14.b.i].
122 T 653.6-16.
123 It was agreed that a bond was lodged with NSW Rental Bonds in the names of the accused and FS for
a house in Bathurst on 6 July 2015 and that the bond was repaid on 17 October 2018; Exhibit P15 at
[7].
124 T 172.19-21.
125 T 175.1-36.
126 T 178.35-37.
127 T 177.5-178.13.
128 T 178.16-19.
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He would first touch me or bite me. If he wished to do it from the back he would do it from
the back or if he wished to do it from the front he would do it from the front.
182 She said he had done this many times.129
183 FS was cross-examined about the evidence that she had given of the accused
biting her.130 FS said that no one ever saw these bite marks. She said:131
Who else was at home, whom should I have shown it to, who would look at it? There were
kids at home, but I did not share such things to my children. This man should be, should
have shame, how could I share such things to anybody.
184 She gave evidence ‘in the beginning’ the accused had bitten her on her cheeks
(the face) and later, he had bitten her on her back. She said: 132
A. Yes, in the beginning he would go, he would bite on the cheeks and later he would
do it on the back also. But more he was interested that I get my thing done. I would
push him back and he would slap me and he would grab me from my hair. If I would
turn to get away from him, he would pull me with strength to the face and front.
Many times he had punched me on face and saying to be straight and then putting
his hand on my mouth.
INTERPRETER: She's indicating that.
A. And he would 'Stay quiet, don't say a word.'
XXN
Q. But no-one ever saw these bite marks on your face, is that your evidence.
A. No, nobody saw. But I used to have it whenever he used to do it.
Q. Did you have any injuries on your face when he would punch you.
A. Many times when he used to punch, I used to have nose bleeding.
185 FS gave evidence that she had never consented to engaging in either oral sex
or anal sex with the accused.133
186 FS gave evidence of an occasion in Bathurst when the accused took a phone
call from family in Pakistan and then threw a glass of water at her when she was
sitting on her bed in her room. Three of her children were also sitting on the bed.
HS was nearby, playing in the room. The glass hit her on the chest and she was
pushed back a little bit.134
129 T 178.32.
130 Noting this questioning was for the purpose of proving a purported prior inconsistent statement relating
to whether FS had shown the police any bite marks (or bruises) on her body at the time she gave her
first police statement on 31 March 2022; T653.18-654.15.
131 T 654.17-21.
132 T 654.22-655.15.
133 T 179.8-10.
134 T 172.33-38; T 249.13-250.3.
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187 In cross-examination, FS agreed that in her first police statement made on
31 March 2022, she was recorded as saying, of this incident, ‘Thankfully the glass
missed both me and my children but it scared us all and we huddled in a corner
together. The only reason the glass missed my head was because I managed to
duck. Then he threw it which then caused me to hit my head on a wall.’135
188 FS gave evidence that she did tell the police that the glass hit her on the chest,
and threw her backwards, so she hit the wall. She said, ‘It was like a touch, not
much, but the whole glass of water and the glass had fallen down ...’. When she
gave that statement the interpreter was over the phone.136
189 FS gave evidence that on other occasions, the accused would throw food at
her or throw his clothes in the room and tell her to wash them. Once he threw a
bed sheet at her.137
190 FS gave evidence of an occasion when she was in the kitchen in Bathurst,
and the accused came into the room, pointed a knife to her chest and threatened to
kill her.138
191 During her evidence-in-chief, FS said the accused told her to pray before he
killed her. She thought she was about to die as the tip of the knife was touching
her chest. She said she recited the ‘kalima’ (or ‘kalma’), which is a prayer that
Muslims would say if they felt that they were dying. This prayer includes the
words, ‘God is the only one that we believe in and Prophet Muhammad is the last
prophet’. She had said this prayer loudly and then the accused moved back. She
was very scared both then and a few days thereafter, as she did not know what the
accused was going to do next.139
192 FS was cross-examined about the difference between the ‘kalma’ and another
prayer, the ‘bismillah’. She explained that the kalma is the pillar of Islam and that
there are six kalmas. The first one, the ‘kalma tayyaba’ was the one most often
recited. She agreed that the translation of the first kalma in English is, ‘There is no
God but Allah and Muhammad is his messenger’. These prayers were taught at
school and memorised. They did not have their origins in the Quran, rather they
came from holy books, the hadiths.140
193 FS gave evidence that the bismillah was also a fundamental prayer in Islam
and taught at school. Every verse of the Quran (except one) started with the
bismillah.
135 T 587.17-21.
136 T 587.22-24; T 589.18-33.
137 T 249.8-12.
138 T 172.21-25; T 172.38-173.1.
139 T 172.1-173.22; T 174.19-29.
140 T 433.10-434.8; T 434.29-435.8.
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194 FS agreed that in her first police statement made on 31 March 2022, she had
said, of this incident:141
I could feel the blade resting on my chest. My husband told me to start reciting the holy
Arabic words in the name of God which is something our people say when they’re about
to die. (my emphasis)
195 FS agreed that ‘the holy Arabic words in the name of God’ was a prayer
called the bismillah. However, she denied that what she had told the police was
that the accused had made her recite the bismillah. She said she had used these
words to try to explain what the kalma was.142 She said:143
A. I said Kalma. But they did not understood, it's not necessary the one who is listening
to me also knows about Muslim religion and is a Muslim. And I told them that the
meaning of Kalma is to remember God and when you see the death close, you
remember God. And I could see that it was death in front of me when he had put
knife on my chest.
Q. And I'm suggesting that you've mixed up the prayers because that incident, in fact,
never occurred.
A. And also it's not like that. I remember when this incident did take place, and I could
see death and he had kept, he had put the knife on my chest and prayer, these two
are two different things prayers to begin and Kalma. Bismillah is different, it's a
prayer. It's a prayer to start anything that you would like to begin with.
196 In re-examination, FS agreed that the words she had said at the time of this
incident, translated to, ‘There is no God but Allah’. She explained that the words
she had said were those that Muslims who were about to die should say to ensure
that they went to paradise. She agreed that if another person was with a person who
was dying, they would remind them to say the kalma before they died.144
197 FS gave evidence that although nothing like this, with the knife, had
happened again, she explained that as the accused was hot-headed, she was always
scared. He would say to her, ‘I will do it again’.145
198 FS also gave evidence that when they were living in Bathurst, the accused
would threaten her by saying, ‘Satan tells me to kill my wife and my kids’.146 He
had also told her that someone else might hurt her if he told them to. She said:147
A. Yes, he said that there are people who kill you if you pay them, they will shoot you
and many times he held me by my throat. He had held my neck as well.
141 T 496.19-34.
142 T 497.5-498.3; T 506.31-34.
143 T 507.5-20.
144 T 693.26-38.
145 T 174.26-29.
146 T 180.1.
147 T 180.17-25.
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Q. So did he hold your neck while he said these things to you about paying somebody
to do that.
A. He was loud, the kids even heard him that he said while holding my neck that he will
have somebody kill me. 'It is not difficult to get somebody to kill you, you give them
money and somebody can kill'.
199 It was an agreed fact that there is no reference in any of FS’s police statements
to the accused saying to her that Satan had told him to kill the children.148
200 FS maintained that she had told the police about the accused making these
threats. She was uncertain if they had written it down, but she had told them when
they came to the house. She had also told the police about the accused saying there
were ghosts in MS’s room.149
201 FS gave evidence that the accused would threaten to divorce her, in front of
the children. He would say to her that she had to follow his rules and must listen
to him. He would not let her go out into the community or meet anyone.150 She
described how she had met a Pakistani lady when she dropped the children at
school but the accused had fought with that lady and told her not to come to their
house. She said this had happened only two or three days after she met that lady
and after that she had no friends, nobody.151
202 FS gave evidence in cross-examination that when they lived in Bathurst, she
took some English language classes at Bathurst TAFE. However, she said she only
attended once or twice, as she did not have a hearing aid then, and she was told by
the teacher to return when she got one.152
Moving from NSW to SA
203 FS gave evidence that in 2018, the family moved to SA, where it was
affordable for them to buy a house. They had been renting in NSW.
204 A proposition was put to FS in cross-examination that while living in NSW,
the accused had worked hard to save $50,000 for the house deposit. FS denied this.
She gave evidence that the accused had not worked for 10 years before he obtained
work in Bathurst. She said the $48,000 deposit for the house was funded by
Centrelink and that this included Centrelink benefits that were paid to her. They
also obtained a Homestart loan.153
205 When FS was asked if she and the accused had gone to South Australia before
they bought the Smithfield house, FS responded:154
148 Exhibit P15 at [14.a.iv].
149 T 637.6-28.
150 T 180.4-10.
151 T 181.5-12.
152 T 540.1-17.
153 T 410.1-31.
154 T 181.29.
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Yes, once. I and the kids have come to see the house.
206 FS then went onto give evidence that during that trip, they had stayed in a
motel at Hay and the accused had forced her to have sex with her ‘the same way’.155
She later clarified that this was penile vaginal sex. She had told him she was too
tired, in pain and did not want to, but he had said, ‘I’m buying a house so I need
you to pay for it.’156 She also described the same thing happening at a motel in
Elizabeth.157 This had occurred on an occasion when she and the accused came
alone to South Australia to see another house in Berryman Street.158
207 When FS was asked where the children were when these things had
happened, she explained that the children were in Bathurst and that she and the
accused had come once, without the children, to see the house and a second time
with the kids.159
208 In cross-examination, FS agreed that they had also signed a contract to buy a
house in Murray Bridge but did not go through with it as it was too expensive.
They had also signed a contract for another house in Berryman Street. She said:160
Yes, as I told earlier that we had come a number of times. We had seen multiple number of
house, but as I told earlier we could not arrange for money because loan was not sanctioned.
Then we took Smithfield affordable house.
Life in Smithfield – uncharged acts
209 FS gave evidence that the family purchased a three-bedroom house in
Smithfield and moved to live there in about August 2018.161
210 FS gave evidence that in the Smithfield house, she and the accused slept in
bedroom 1, in separate beds. HS and IS slept in bedroom 2 and F and MS slept in
bedroom 3.162
211 There is a bundle of photographs depicting the Smithfield house.163
FS confirmed that bedroom 1 was that depicted in photographs 11, 12 and 13,
however the furniture in the room was set up differently to when the accused lived
with them. The bed with the pink covering was not there. Instead, in that location,
was a big double bed that the accused slept in. There was also a computer in that
room.164
155 T 181.33.
156 T 182.9-10.
157 T 183.1-9.
158 T 539.6-15.
159 T 183.12-19.
160 T 512.15-19. See also T 538.1-539.15, wherein FS explained they came to South Australia multiple
times to look at different houses, some of which were in Whyalla and Port Pirie. On two such occasions,
the children came with them.
161 T 412.36-38; T 437.1-7.
162 T 185.5-12; Exhibit P2.
163 Exhibit P3, taken by DBS Poole.
164 T 568.30-T 569.1; T 570.2-571.20.
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212 FS gave evidence that when they first arrived, there was damage to the
kitchen and bathroom, which required renovation. The bathroom was unusable for
a time, meaning they had to go to shopping malls to use the washroom.165 The
accused would undertake renovations to the home at night. When it was suggested
to her that these renovations occurred over the summer of 2018 and 2019, she
said:166
I don't exactly remember the months but we had moved in in August, so after that in parts
he got done some portion in 2018 and then a break, but it was not a continuously done from
'18 to '19, it was done in small portions and different times.
213 FS gave evidence that in 2022, the accused put up a tall fence around the
house.167 When you were inside the fence, you could not see over the top of the
fence, to the outside. She and the children had asked the accused why he was
putting up the fence but he did not say anything.168
214 In cross-examination, it was suggested to FS that the reason the accused
erected the fence was to stop people from breaking into the house, in the context
of people having previously tried to break into the accused’s taxi and copper pipe
having been stolen from the property. She said:169
He did not say anything. He did not tell me anything but when the kids asked he scolded
them to stay quiet or 'You don't know anything'. Even our neighbours were concerned at
how could he have such high fences without permission because neighbour fences are not
that high.
215 FS was asked about an occasion when a television crew was outside the front
of their house because someone had set fire to a car in the street. She remembered
that incident. At that time, they still had the original (shorter) fence around their
house. She agreed the high fence was erected after this but said it was sometime
thereafter, about four to five months before the accused’s arrest.170
216 FS gave evidence that once the family moved to Smithfield, the accused
continued to get angry and slap and hit her and, in fact, it happened more often.
She said that he would hit her, hold her neck and slap her and had also punched
her a few times. It would happen whenever he would ask for sex, she would say
no, and he would ‘try to strangulate’ her.171
217 FS explained that the accused would force her to have oral or anal sex with
him, she was in pain for years and could not tell anyone about it. When asked how
165 T 437.1-34.
166 T 437.37-438.3.
167 Exhibit P3 at p 1; T 192.3.
168 T 192.12-17.
169 T 515.28-32.
170 T 651.18-29.
171 T 183.36-184.11.
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many times the accused had forced her to have oral sex with him, in this house,
she said:172
Many a times, like twice in a week, and then he did one sex or another sex. He would not
stop. He used to drive taxi, would look at women, I do not know what would go wrong and
he would wake me from sleep and do it.
218 FS said that she was so scared of the accused, she would take her single
mattress from her bedroom and put it in the laundry and then put a chest of drawers
in front of the door so he could not come in. She explained that this was at a time
when they did not have the washing machine.173 However, he would scream and
yell at her, even though the children were at home and the older children were now
adults. She said that many times he had pulled her arm, dragged her out of the
laundry, to his room and then had sex.174
219 She explained that as her mattress was in the laundry, the accused would have
sexual intercourse with her on the floor in their bedroom. She described feeling the
tiles hitting her.
220 It was an agreed fact that there is no mention in any of FS’s police statements
of the accused dragging her from the laundry at the Smithfield house or of her
putting a chest of drawers against the laundry door.175 FS maintained that she had
told the police that she used to put a cupboard (or chest of drawers) in front of the
laundry door and that she was telling the truth about this having happened.176
221 FS gave evidence that the accused had urinated on her during sex three or
four times, in bedroom 1 at the Smithfield house.177 She said:178
When he did urinated on me to - three to four times I was very scared and I would let - he's
gone very low in what kind of things he's doing. I - he would never thought of what pain
I'm going through, he used to do what he wanted to and now he's come down to this level.
He used to have some tablets and he would do it at least two to three times in a week. He
would take lots of medicine and then he would do it.
222 It was an agreed fact that there is no mention in any of FS’s police statements
of the accused urinating on her.179 FS maintained that she had told the police this.180
223 FS gave evidence that the accused had anal sex with her many times in the
Smithfield house. He would come into the bedroom at night when she was asleep
in bed and grab her from her sides so that his arms were around her and pull her
trousers off. When she told him she did not want to do it and to get back, he would
172 T 187.9-13.
173 T 207.3-18.
174 T 184.13-185.38.
175 Exhibit P15 at [14.a.ii].
176 T 652.1-653.4.
177 T 175.15-16; T 200.24.
178 T 200.24-31.
179 Exhibit P15 at [14.a.iii] and [14.a.v].
180 T 656.25-28.
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slap her and hold her neck very tightly to move her, so he could get in her bed. He
would put his hand over her mouth and tell her to keep quiet.181 When FS was asked
if it happened a similar way on each occasion, she said:182
It used to be almost the same but at times, doing it from the front, he would turn me and he
would say 'You are my goat'. He has never called me with my name, he would call me
'bully', he would call me deaf. He would tell me to turn back. And then he would do it by
force.
224 FS gave evidence that he would force her to have penile-vaginal sex in the
same way, that is, he would hit her on her hands to pull her trousers off and if she
tried to get away, he would hold her tight and force her to do it.183
225 These sexual acts would only ever occur in bedroom 1 at the Smithfield home
and not in any other room of the house. This was why she had moved into the
laundry.184 The children would be home, but they would be in their rooms. She
said, ‘The kind of environment he had created, they would not come out of their
room.’185 In cross-examination, FS agreed that it was not appropriate in Pakistani
culture to have sexual relations when other adults were present in the home.186
226 FS was asked if the children had seen the accused do anything (abusive) to
her in the house. She gave the following evidence:187
A. I do not know, he was always very angry when he come from work. He would
verbally abuse and when he wanted to do all sorts of wrong things with me and I
would stop him he would again start abusing me. So he would call the kids in the
same room and he will abuse me in front of them, verbal abuse and using foul
language for children and myself. He would not consider whether the kids are
sleeping, he will just tell them to come in the room. He will have food from outside
and just leave it in the kitchen. He would give me his dirty clothes that he would
throw them on my face, even very late night 3 o'clock, to go and wash. Before this
washing machine here I had, for two years I used to hand wash all the clothes. And
he also knew they were all wet.
Q. Would you ever not - sorry, let me rephrase that. What would happen, [FS], if you
didn't do the washing as [the accused] had asked you to do - told you to do.
A. It has never happened that I have not wash his clothes, but at times if I'm not well,
because of him only that I'm not well, he would say that 'I have to go for taxi driving
in the morning', I would forget about my pain and I would go and wash. Since we
move to Australia he never had his haircut from outside, he would make me cut his
hair and would force me to - he would force me to cut his hair, he would not see that
181 T 200.2-17.
182 T 201.11-15, noting the transcript at T 201.13 incorrectly uses the word ‘god’ instead of the word ‘goat’,
which was the word used by FS.
183 T 202.15-32.
184 T 209.11-12.
185 T.208.37-38.
186 T 662.24-28.
187 T 209.22-210.27.
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if I'm well or not. He would ask me to do the underarms and he would also ask me
to do his arms as well.
Q. Did you ever say no to any of the requests that [the accused] made of you.
A. I have, many times I requested it but he would not listen. He will go angry and then
my kids would say 'Please go and do it, he will not stop'. He used to use foul language
in the washroom very loud 'Come and do it and do it now'.
Q. When he would use foul language or verbally abuse you, what kind of things would
he say.
A. He would use 'mother fucker' and all that kind of words and he would say 'Why are
you not coming first'. He also say that 'You are deaf' and 'I have done a great favour
to you for marrying you and your family had given me a sick daughter'. And the
surgeries I had it was due to childbirth, it's not my fault. And my low iron is because
of him and the kind of bleeding I have in mouth is just because of him.
227 In cross-examination, FS was asked if she agreed with the proposition that
when they were living at Smithfield, none of the children ever saw the accused hit
her or be physically violent towards her in any way. She said:188
Since he was too use abusive language and swear at me in the room, the children used to
get scared and go to their rooms. But at night when he would do all these things, maybe
they heard and maybe not, I do not know. I do not know on one side daughter's room and
one side on the son's room, I do not know whether they heard or not.
Alleged offending in the car (counts 1, 2, 3 and 5)
228 FS gave evidence that when they were living at Smithfield, the accused had
taken her out in the family car to different places and had sex with her, in the car.
She said: 189
Twice he took me out and he has done it in the car at different places.
229 Later she said:190
He took me twice in car just for sex, once around Bunnings. Three different places, one at
Bunnings. After that I did not go with him anywhere in the car.
(my emphasis)
230 FS then went on to describe three separate times that the accused had taken
her out in the family car and then had sex with her in the back seat of the car,
without her consent. This is the offending in counts 2 and 3 (at Spotlight), count 1
(near Bunnings at Munno Para West) and count 5 (near Bunnings at Gawler).
188 T 669.1-7.
189 T 184.11-12.
190 T 211.15-16.
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Spotlight – counts 2 and 3
231 When FS was asked to describe the first time that the accused took her
somewhere to have sex, she described alleged offending which had occurred in the
carpark at Spotlight, near their house (counts 2 and 3 on the Information).
232 FS explained that when they were renovating their house, the accused would
buy things from Bunnings and then return them. She said that on one such
occasion, he took her with him. She sat in the back seat of the car because she was
hard of hearing and he was a ‘rash’ driver.191 She explained that the accused had
loaded up the car with bags of rubbish, as they did not have any bins at their house.
There were recycling bins in the carpark at Spotlight.192
233 FS gave evidence that the accused parked the car near the recycling bins in
the carpark at Spotlight and put the bags of rubbish from the car, in the bins.193 He
then opened the back door of the car and sat next to her. He pulled her towards him
and closed the door. He started to touch her on the chest. She said, ‘What are you
doing, there are people around’.194
234 The accused would not listen. He pulled his penis out and tried to put it in
her mouth. She tried to put her lips tight (count 2). He slapped her and verbally
abused her. She then fell into the footwell. He grabbed her and pulled her back
onto the seat. FS said that she told the accused that she did not want to do it and
that she wanted to go home.195 He did not listen to her. She was hit against the door
and the window. She tried to crawl away but he pulled her from her legs and pulled
her trousers down to their cuffs. She was stuck in the back seat, in a confined
position, with the accused on top of her. He then had ‘sex from the front’ (count 3).
She covered her face and was crying. She was scared that people were watching
them.196
235 In cross-examination, FS confirmed this offending had occurred in the small
white Camry, the family car, not the accused’s taxi. This was the car they had
travelled to South Australia in, from Bathurst.197 That car was sold in about 2022.
Although the accused also had a taxi at the time of this alleged offending, she was
quite sure the offending (and the offending in counts 1 and 5) had occurred in the
family car ‘because he used to bring things for home in that car.’198
191 T 213.7.
192 T 211.15-29.
193 FS marked the location of the recycling bins on Exhibit P4, the aerial map depicting Spotlight; T 214.34-
215.31.
194 T 211.34-35.
195 T 217.20.
196 T 211.15-212.11; T 216.27-218.28.
197 T 440.33-441.9.
198 T 671.2-672.16.
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236 They had gone first to shop at Bunnings and had then gone to Spotlight,
where the accused had thrown the garbage bags in the bin.199
237 FS could not recall precisely when this incident occurred, other than the fact
that it had occurred in summer during a period when the house was being
renovated. She could not be certain but thought it was during the second summer
that they were in the house.200
238 FS agreed that there was no mention of this incident in her first police
statement made on 31 March 2022. She said that at that time, she had only told the
police what the accused had been doing to her in general, about basic assaults and
about the violence he had done that day (30 March 2022). She said that she had
told the police about this incident in her second statement.201
239 FS agreed she had told the police, in her first statement, about being raped by
the accused when they lived in New South Wales. She gave the following
evidence:202
A. Yes, I did, as they would ask I would give them the answers.
Q. So it's not true, is it, that you were only telling the police about things that had
happened on the day [the accused] was arrested.
A. Yes, I told them as they asked as gradually they would ask me the questions, I had
given the detail that he had been assaulting me and would have sex from the backside
from my rectum as gradually they would ask I would tell them.
240 FS agreed that on 8 June 2022 she gave another statement to the police, with
the assistance of an interpreter, for the purpose of explaining the things the accused
had done to her in South Australia. She agreed that she had not told the police
about this incident in that statement.203
241 FS gave evidence that she first made mention of this incident in her police
statement made on 10 February 2023, at which time she received assistance from
a male interpreter, who was also a police officer. She explained that she could
understand him better than the female interpreter who had assisted her on an earlier
occasion.204
242 The statement dated 10 February 2023 was read to FS. In cross-examination,
FS acknowledged the contents of that statement insofar as they were relevant to
199 T 216.8; T 439.35-37.
200 T 440.2-24. The family moved to the Smithfield house in August 2018. The second summer was from
around December 2019 to Feb/March 2020.
201 T 441.21-443.2.
202 T 443.9-18.
203 T 443.24-444.9.
204 T 447.23-449.19.
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the alleged abuse at Spotlight. She agreed the following was written in that
statement:205
[33] Around summer 2019 three separate instances of rape occurred. We were doing house
renovations and [the accused] had to go to Spotlight at Smithfield. The kids were sick of
going with him and pressured me to go instead. [The accused] told us that someone had to
go with him because no one was helping him. He had lots of stuff in the back of the seat of
his white Toyota Camry taxi to return to Spotlight. He stopped on the way and asked me
to move to the back seat so that he could put the items to return in the front seat. He parked
next to a recycling bin in the car park of Spotlight and got into the back seat. He pushed
my chest and I landed on my back. My head was behind the passenger seat. He pulled down
my pants and then I was saying ‘don’t do this’. He put his penis in my vagina and had sex
with me.
243 FS agreed that things were a little different in that statement to what she had
said in her evidence. She explained that this may have been because the officer
who took the statement was a male.206 She could not recall whether she had told
the police if this incident and the other two incidents had occurred at the start or
the end of 2019.
244 FS gave evidence that there was a mistake in the statement, insofar as it said
they had been returning items to Spotlight instead of Bunnings. She explained they
had only gone to Spotlight to put things in the recycling bins. She said that maybe
when she gave this statement, she had not remembered correctly.207
245 FS acknowledged that her police statement referred to a white Toyota Camry
taxi. She said that at that time she had shown the police a photograph on her phone
of the family’s white Camry car. She thought the police were unable to understand
whether she was referring to a car or a taxi.208
246 She agreed that there was no mention in the statement of the accused trying
to put his penis in her mouth during this incident. FS said that she thought that she
had told the police about this incident. She explained that what she had done was
to simply respond to the questions asked of her.209
Bunnings - Munno Para West – count 1
247 FS was asked during examination-in-chief about the accused taking her in
the car to Bunnings. She said that when they were renovating, the accused would
buy things from Bunnings and then return them. One night the accused had told
the children to tell her to get ready to go to Bunnings. She said the children were
scared of him and did not want to go with him, so she had no choice but to go.
248 They finished their shopping at Bunnings Munno Para and went back to the
car. Rather than turn to the right to drive towards their home, the accused ‘turned
205 T 451.35-452.6.
206 T 453.15-17.
207 T 460.5-19.
208 T 460.25-461.19.
209 T 461.36-462.3.
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the car the other side’ and then parked the car off the side of a road near some open
land in front of a gate. It was dark but in the car lights FS could see the gate.210
249 FS gave evidence that the accused got into the back seat and touched her on
the chest. He pulled her and told her to turn around and to be a ‘goat’. She would
not do it and did not do it. She was scared that people could see. She told him he
had no shame, what are you doing in the car, we don’t do in the car. He told her
that in this country we do what we want and then ‘he did it from the front’.211
250 FS explained that she had been wearing trousers with an elastic waist and he
pulled them down. The accused was wearing a red polo top and black trousers. She
tried to stop him but he was very strong and was holding her very tight. She could
not move as she was a very small space in the Camry car. She screamed and told
him not to but he would not listen and would not stop. No one would have heard
her scream from the outside.212 He then drove them home.
251 FS gave evidence that this incident had occurred after the offending at
Spotlight. When asked how long after, she gave the following evidence:213
Approximately a month because they were renovating the house. I went only twice, once
to Bunnings Munno Para and once to Bunnings Gawler otherwise after that I did not go
with him. And after that I did not go at all anywhere.
252 She explained that they were renovating the house over a year and a half after
they moved into the house in 2018. When asked when, during the course of those
renovations, these incidents had occurred, FS said it was sometime between 2019
and 2018. She remembered it being warm and at a time when they had snakes in
their house.214 She said this was the only time she had gone alone with the accused
to Bunnings at Munno Para, although she had been there with him and the children
on other occasions.215
253 FS agreed that she had not told the police about this incident in the statement
made by her on 8 June 2022.216 She agreed she first mentioned this incident in her
police statement made on 10 February 2023.217
254 Portions of that statement were read to FS. In cross-examination, FS
acknowledged the contents of that statement insofar as they were relevant to the
alleged abuse which occurred near Bunnings at Munno Para West. She agreed the
following was written in that statement:218
210 T 220.21-27; FS identified the land and gate as that depicted in a photograph tendered as Exhibit P6;
T 232.30-32; 233.30.
211 T 220.6-13; T 220.38-221.7.
212 T 221.8-222.18.
213 T 235.4-8.
214 T 235.23-30.
215 T 547.8-26.
216 T 444.10-13.
217 T 449.29-33.
218 T 462.23-467.35; T 476.15-477.3.
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[34] The same thing happened again by returning from Bunnings Munno Para. We had
gone there to exchange items that [the accused] had purchased earlier. He had filled up the
boot of the car and the front seat with merchandise. [The accused] asked me to sit in the
back seat. I sat on the rear passenger side. It was dark at the time. On exiting the car park
instead of turning left to head towards home [the accused] turned the car right on
Frisby Road. Drove a short distance and parked the car in an isolated section. I couldn’t
see what was outside except a gate leading to a rural property. [The accused] got out of the
driver’s seat and came into the back. He lowered the trackpants that he was wearing,
exposing his penis, grabbed my head and pushed my head towards it. I had closed my
mouth tightly shut. He slapped my face and asked me to open my mouth. I refused saying
I don’t like to do and to do that and threw up each time he makes me to do. [The accused]
did not listen, slapped me again. Made my mouth open and put his penis inside my mouth.
He then pushed me down on the seat and tried pulling my pants down. I resisted, told him
to stop and wrestled with him to pull up my pants. He eventually managed to pull it down
completely and inserted his penis inside my vagina. I asked him to stop but he continued
thrusting and had sex with me. It felt like 20 minutes or so to me. Once he finished he got
back into the driver’s seat and we drove home. I did not have a conversation with him about
this.
(my emphasis)
255 FS gave evidence that she had told the police that they were coming back
from Bunnings and that what she was doing was repeating whatever they had asked
and trying to answer to those questions. FS gave evidence that the entire process
(or incident) might have taken 20 minutes.219
256 FS gave evidence that what was written in the statement about the accused
exposing his penis, grabbing her head and pushing her head towards it, had been
‘mixed up’. She said that what she had described there did not relate to this incident
but to another incident. She said, ‘there is a mixture here’.220 In re-examination, FS
reiterated that what was being referred to were two separate incidents and that the
facts relevant to those incidents had been mixed up.221 She agreed with a leading
proposition put to her that when she told the police that the accused grabbed her
face so it was near his penis, slapped her face and then asked her to open her mouth,
what she meant was that this was something he would usually do and had done
many times. She said:222
Yes, he would - he was grab me from my head and if I do not do it, then he would slap me
and I would tighten my lips. And yet he would do.
257 In re-examination, FS confirmed that she had not seen Exhibit P6 when she
made that statement. She first saw that Exhibit (a photograph of a gate labelled
‘Frisby Road’) when at the DPP’s office. She had recognised the gate in that
photograph.223
219 T 469.25.
220 T 465.30-466.5.
221 T 688.6-34.
222 T 689.4-6.
223 T 690.7-18.
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258 In cross-examination, FS agreed that in a statement made by her to police on
23 February 2024, she had said, in reference to an aerial photograph:224
[24] I confirm that when [the accused] exited the car park, he turned right. I believe he
pull over in the first driveway. I believe the final street view, Matthew Australia Street
photograph, is where [the accused] pulled the car over by the gate. (my emphasis)
259 She agreed that this was a reference to the incident in count 1 and agreed with
a proposition that the paragraph was both true and accurate.225
Bunnings - Gawler – count 5
260 FS gave evidence about an incident that had occurred when she went with
the accused to the Bunnings at Gawler in the family’s Camry car (not the taxi).226
He did some shopping. It was the evening. On the way back, the accused stopped
the car towards some rocks. He took an item out from the centre console that
looked like a long stick, or a hairstyler. He told her that ‘this is something which
women here use to want them for sex’. He told her if she used it, she would want
sex.227 She said:228
I started to cry, ‘How low you are what you want to use on me, I’m your wife’. Then he
kept it aside, then he had sex with me from the front and back and then I did not talk to
him and then we came home. (my emphasis)
261 FS explained that the accused had been in the front seat of the car but after
he took out the item he came out and sat next to her in the back seat. He had not
used the item on her. She had no idea what he had done with it. He had pulled her
trousers down in order to have sex with her. She did not want to do it. She was
crying and exhausted but tried to stop him.229
262 When asked how she tried to stop him, FS said:230
A. I told him 'Why don't you feel embarrassed you had done this earlier with me too
let's go home'. The entire way back I did not talk to him at all.
Q. Did you try and move or do anything with your body.
A. I tried to pull myself back so that he can just lose the hold on my legs.
Q. Did that work.
A. No, he had pulled me and when he had put his penis in how could I have pulled
myself away from him?
224 T 638.13-17.
225 T 639.2-6.
226 T 545.15-25.
227 T 235.34-236.6.
228 T 236.6-10.
229 T 237.12-238.16.
230 T 238.18-26.
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263 FS explained that she was on the back seat of the car and the accused was on
her. He was holding her legs and pulled her trousers down to her knees. She tried
to pull herself back so he would lose hold of her legs. He was wearing a red polo
shirt and black trousers (which is what he wore if he went out shopping for the
renovations). His trousers were halfway off. He put his penis ‘in the front’,
forcefully with his hands. The whole incident lasted about 10 minutes.231
264 FS confirmed that this incident had occurred about two to three months after
the incident near Bunnings at Munno Para. They were still doing house renovations
at that time and it was still warm.232
265 FS was asked if the accused had tried to have anal sex with her during this
incident. She said:233
A. He used to do it from the back at home but he tried to do the same in Munno Para,
Bunnings, 'You turn back and I would like to do'.
Q. And you would like to do.
A. He would like to do, 'Turn back, I would like to do', that's what he said.
Q. And did that also happen at Bunnings, Gawler or no.
A. At Gawler he first tried to show me, that time I started to cry and then he did it from
the front only, all three. All three times he did it from the front.
Q. When you say 'all three times', is that Spotlight, at Bunnings, Munno Para and
Bunnings, Gawler.
A. Yes.
Q. And I think you told us at Spotlight he also tried to put his penis in your mouth, is
that right.
A. Yes. Yes, he tried to but I had my lips tight and he touched my lips.
Q. Is that as far as it went into your mouth on that time.
A. Yes.
(my emphasis)
266 FS agreed that she had not told the police about the incident at Bunnings,
Gawler, when she made her first statement on 31 March 2022. She said:234
A. I had just mentioned rape and the details that were given that was told later as
gradually things came out.
231 T 238.1-239.37.
232 T 241.15-24.
233 T 242.2-20.
234 T 443.22-23.
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267 FS agreed that she had not told the police about this incident in the statement
made by her on 8 June 2022.235
268 FS agreed that she first made mention of this incident in her police statement
made on 10 February 2023.236 Portions of that statement were read to FS. In cross-
examination, she acknowledged the contents of that statement insofar as they were
relevant to the alleged abuse which occurred near Bunnings at Gawler. She agreed
the following was written in that statement:
[35] A similar incident has happened via returning Gawler Bunnings. I do not remember
which road it was. He stopped the car in an isolated section of the road and got into the
back seat. He had a silly box containing a product that looked like a hair curler. I saw him
get this box out of the centre console before he joined me in the back seat. I asked [the
accused] what it was and he said it was something that would make me feel more agreeable
and nice. I objected to it, but he continued insisting that I try it saying that women here use
it a lot and it makes them happy. When I began crying, [the accused] verbally abused me.
He put the box back in the centre console and continued to sexually abuse me in the exact
manner as detailed in paragraph 34.237 All times I told him to stop. I would try to get up,
he would push me down. He would say you are my wife. If you do not give me what I want
I won’t forgive you.
(my emphasis)
269 FS said that she assumed there was a sex toy in the box that came from the
centre console. She said that the accused had sexually abused her and that he had
done it from the front. She had been crying and then stayed quiet the entire way
back home.238
270 FS gave evidence in cross-examination that although this incident had
occurred after the earlier incident (when the accused had taken her to Bunnings
Munno Para), she had no choice but to go with him, alone, on this occasion. She
explained that it was a necessity, the children refused to go with him and they had
to buy things for the house.239
271 She said that after this incident, she did not go anywhere alone with the
accused in the car, although she would go in the car with him with the children.
When it was suggested to her that after the summer of 2019, she had gone alone
with the accused to the school for a meeting with the teacher, and to Ikea, she
disagreed. There was no evidence to the contrary.240
235 T 444.14-18.
236 T 449.29-38.
237 Paragraph 34 is that outlined in [254] herein.
238 T 478.34-483.22.
239 T 548.10-20.
240 T 553.20-554.13.
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272 FS was asked whether at the time of this incident, the accused had a taxi or
was working driving taxis. She said she did not know but was adamant they did
not go in the taxi to the Bunnings at Gawler.241
Alleged offending at Smithfield – count 6
273 FS gave evidence that the last time the accused had tried to have anal sex
with her had occurred in January 2022, just before the accused got COVID.242 She
remembered it happening at this time, as this was the last time she had slept in the
main bedroom. Thereafter, she had moved into the laundry and then into the lounge
room.243
274 FS gave evidence that she had been in her bed in bedroom 1. This was the
bed with the floral cover depicted on page 12 of Exhibit P3. It was in the same
location as depicted in that photograph. The headboard depicted in that photograph
was also in that same position, that is, abutting the wall adjoining bedroom 2,
where the boys slept.244
275 FS gave evidence that she had been asleep, lying on her side, in the bed. The
accused pushed her and said, ‘get aside’ and ‘I want to get in the bed’.245 He
grabbed her from her sides and had his arms around her. He held her tight.246 He
pulled her trousers, put his hand on her mouth and then touched her with his penis
at the back.247 He was not dressed.
276 She said that the accused ‘wanted to do it from the back’.248 She was saying
‘what are you doing, get back’ and ‘I don’t want to do it.’249 She tried to get away
from him. In the struggle, the bedhead banged against the wall. At that moment,
she noticed that a light had been switched on in the hall. The accused then rushed
back to his own bed in that room, although she did not know where he slept. He
was verbally abusing her. She got up and then saw HS in the kitchen. She stayed
the entire night in the lounge room. She assumed that HS must have been the
person who turned on the hallway light.250
277 FS was asked during examination-in-chief if, during this incident, she had
felt the accused’s penis go in anywhere. She gave the following evidence:251
A. A bit of it - a bit of it had gone in but he was trying to put in.
241 T 545.26-546.4.
242 T 199.8-10.
243 T 591.17-26.
244 T 195.7-27; T 197.12-16; T 205.3-5.
245 T 197.17-23.
246 T 197.32-36.
247 T 198.7.
248 T 187.21-22.
249 T 198.14-16.
250 T 187.17-34; T 198.21-28; T 205.6-13.
251 T 198.33-199.7.
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Q. And where did it go.
A. I was moving away from him so he was trying to put in.
Q. And where did - when you say 'a bit of it had gone in', where did it go in.
A. In the rectum.
Q. Did it hurt when he did that.
A. Yes, when he started to do it I had the same kind of pain because I didn't want that.
I'd already suffered three years with this pain.
278 FS gave evidence-in-chief that the accused was abusing her and saying words
like ‘motherfucker’, both to her and the children, who were still in their beds. She
said he was very loud and abusive. The children were scared of him so they would
stay in their rooms.252
279 She waited in the lounge room for some time. She was used to praying at
night, so she said a prayer called the ‘Hajut’. She then went into her daughters’
room, bedroom 3 on the plan, at around 500am.253
280 FS referred to this incident in her first police statement made on 31 March
2022. She agreed the following was written in that statement:254
In another statement about three months in January 2022, my husband sexually assaulted
me at home by anally penetrating me. I was wearing my pyjamas at the time, but no
underwear. My husband has forcefully taken my clothes off and thrown them to the side of
the room. I told him before he started, that I didn’t want to have sex but he proceeded to
put the penis in my anus. I again told him to stop and that I didn’t want to and tried pushing
him away. My son was at home doing uni work in the next room and heard the commotion
so my husband stopped. My husband became angry and pushed me with two hands to my
chest causing me to fall back onto the bed. He then left the room. After this incident I
moved the mattress out into the lounge room and started sleeping out there.
281 In cross-examination, FS said that the accused did not insert his penis in her
anus but that he was trying to insert it and it was touching her hip. She was trying
to stop him and to get away from him. This made some noise in the bed. It was
then that the light in the hallway was switched on and the accused left and went to
his bed. He was swearing at her and she rushed out of the room. It was then that
she saw HS in the kitchen.255
252 T 188.35-189.8.
253 T 189.13-29; T 194.9-13.
254 T 591.33-593.18; T 605.9-30; noting that when the interpreter was first asked to read out this paragraph,
she interpreted, in English, the line ‘My husband has forcefully taken my clothes off and thrown them
to the side of the room’ as ‘My husband has forcefully taken my clothes off and thrown me to the side
of the room’; T 591.37. She then corrected herself.
255 T 603.30-604.9.
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282 FS then reiterated that at no time did the accused insert his penis into her
anus. She said:256
Yes, he was not able to insert and I was getting forward and pushing him backwards to
create a gap and then there was a noise as well. And as I told earlier, the light was switched
on.
283 FS acknowledged that her evidence in court differed from what was written
in the statement as to the precise circumstances of this incident. She explained that
the police had been asking for the details but that certain parts had been missed by
the interpreter. It was nighttime when she gave her statement. She said, ‘This is
how this is written down, but the incident is the same as I told you earlier.’257
284 In cross-examination, FS was also asked about what she had said about this
incident in her police statement made on 8 June 2022. It was agreed that in that
statement FS was recorded as saying:258
[22]-[24] The incident that I reported that happened on 15 January 2022, stood out because
of the fight that occurred after when he was hitting me. This was also the last time that he
tried to rape me. [FS] locked the door and told him that the children were home and they
were adults now. He tried to push his penis into my anus like I said before, but because
my back is against the same wall that my son, HS, has his bed in the next room, I believe
he heard us and turned the light on. [FS] stopped what he was doing but was angry. As I
said in my previous statement [FS] used two open hands against my chest pushing me onto
the bed and I hit my head on the wall causing me pain. [FS] was saying to me to fuck your
mum and fuck your sister. My mother has passed away and I asked him why he would say
those words to my mother who is no longer in this world. He didn’t get it.
(my emphasis)
285 It was pointed out that in that statement where FS’s name had been used, it
had been incorrectly interpreted and transcribed as the accused’s name (and vice
versa). FS said that what was written in that statement was all mixed up and that
some of what had been written related to another incident when the accused was
trying to have oral sex, putting it in her mouth.259
286 FS agreed that in that statement, she had also said, of that incident:260
[25] I went and slept in the lounge room after this. [FS] was sending me text messages
telling to come back in the room. He sent pictures of me sleeping in the laundry to my
brother. He tell him that I was not doing the right thing by my husband.
256 T 604.36-605.1.
257 T 605.31-606.1.
258 T 606.37-608.14.
259 T 608.15-21.
260 T 608.34-609.17.
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287 FS gave evidence that what was written in that statement was wrong. The
accused was not sending her messages but he was sending the pictures of her
sleeping in the laundry to her brother and to one of her nieces.261
288 FS also agreed that she had referred to this incident in her police statement
made on 10 February 2023. She agreed that in that statement, she was recorded as
saying:262
[38] During the incident I described in both of my previous statements … I was asleep on
the bed. It would have been about 10 to 11pm. [The accused] came home and took off his
clothes. I didn’t see him to do this but it is his habit. I was sleeping on my side. He stuck
to my backside. I woke up and felt his naked body on me. He lowered the bottom of my
dress to my thigh. He grabbed his penis by his hand and tried to guide it into my anus.
‘What are you going?’ He didn’t respond. I could feel the tip of his penis got a little bit
into my anus. I said ‘what are you doing?’ and he tried to move a little bit. He grabbed my
shoulder and pushed me back into bed. I said ‘What are you doing? Don’t do this to me.’ I
slid forward. He slid forward too. This action cased a knock on the wall. This woke up [IS]
who turned on his light. [The accused] stopped. He got up and he left.
(my emphasis)
289 FS was asked whether what she had said in that statement, namely that she
could feel the tip of his penis go a little way into her anus, was wrong. She said
that it did not go in entirely but it touched.263 She agreed that there was nothing in
that statement about her having prayed after that incident.264
290 FS disagreed that she had simply made up this alleged incident. She said:265
What is the need of making it up? So much is done on a woman, why are you putting blame
on me? It has been two years that I have been listening to all this and listening to what his
family is saying. He has sent all my statements to his family. Since two years I have been
continuously listening to all this, that means the blames that you are putting me - on me.
Consultation with Dr Abbas
291 FS gave evidence that when she was living in Smithfield with the accused,
she had seen a doctor who spoke Urdu, Dr Abbas, about the pain she experienced
from the accused forcing her to have anal sex. She said Dr Abbas gave her some
oil to apply if she had pain. She said she told Dr Abbas that the accused ‘does it in
the mouth and the back’.266 When the accused found out that she had seen a doctor
from the Urdu community, he had told her that she dare not go back again.267
261 T 610.6-8.
262 T 611.37-612.23.
263 T 612.26-29.
264 T 612.38-613.6.
265 T 613.9-15.
266 T 203.31-32.
267 T 203.3-34.
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292 FS said she had gone to see Dr Abbas after the incident at Spotlight (see
discussion below – that is – after the alleged offending in counts 2 and 3) and had
only seen Dr Abbas once.268
293 In cross-examination it was suggested to FS that it was the accused who had
organised for her to visit Dr Abbas. She said:269
No, not him. I went myself because once and twice I had gone so I had seen that there is a
Pakistani doctor there because we had taken children there. So I thought she's of my
language so I can go because my daughter has also gone there once or twice. It was such a
big problem and I was in real pain so I used to think 'Where do I go, whom do I talk to?'.
He would not take me anywhere. So I went, I went to her.
294 She denied that the accused had ever taken her to see Dr Abbas and
maintained she had only been seen by Dr Abbas, alone, once, at which time the
doctor had said she would give her references to see another doctor and a
psychologist. She acknowledged that she had been to the clinic on other occasions
for the children.270
295 In re-examination, FS reiterated that she had only previously been to that
clinic for her children and not for herself.271 When asked, immediately thereafter,
if she had received any treatment for her hearing since she had been in South
Australia, FS said:272
I only go to her in Australia for the machine, the device.
(my emphasis)
296 FS was not asked to provide any further clarification as what she meant by
that answer or whether ‘she’ was Dr Abbas, or another doctor.
297 FS disagreed with a proposition put to her in cross-examination that the
accused would organise for her to consult with doctors who spoke Urdu so that she
could clearly communicate with them. She said that the accused would take her to
see doctors and would talk on her behalf.
COVID – January/February 2022
298 FS gave evidence that the accused got COVID in January 2022.
299 FS said that first the accused had COVID, then she had COVID, then her
daughter had COVID. From this time, until the accused was arrested, FS slept in
the lounge room with her daughter, F. The accused stayed in bedroom 1. MS also
268 T 251.24-252.1.
269 T 543.17-24.
270 T 543.36-544.3; T 544.16-31.
271 T 700.36-38.
272 T 701.6-7.
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had COVID so she stayed in bedroom 3. Neither HS nor IS had COVID so they
stayed in their bedroom, bedroom 2.273
300 During this period, the accused had called out to her but she was very scared
and never went into his room. She stayed in the lounge room.274
301 In cross-examination, it was suggested to FS that she stopped cooking and
washing for the accused when he had COVID. She denied this. She agreed that the
accused had kept working during the pandemic as he had an exemption as a taxi
driver. She denied that she had moved into the living room before he caught
COVID as she was scared of catching it from him. She denied that once the
accused caught COVID, he had tried very hard not to spread it to the rest of the
family. She said he would go in and out of the kitchen when he was meant to stay
in his room and that he would spit on the utensils.275
Incident at Smithfield– 14/15 March 2022
302 FS gave evidence that the incidents at Spotlight, Munno Para and Gawler as
outlined earlier, were the only times when any alleged offending had happened
away from the Smithfield home.276
303 However, FS said the accused tried to get her to go out to other places with
him but she would not go. He would ask her to go with him to the beach. She
explained that he would also try to trick her to come out with him by telling her
that he had a customer in his taxi who would like to meet her. She would say no.
304 FS gave evidence that one night the accused messaged her to say there was a
Pakistani girl who wanted to meet her. That night he stayed away from the home.277
305 FS was shown a copy of some text messages apparently exchanged between
her and the accused on 14 March 2022.278 The messages read:
Accused: Karachi Pakastani girl she wanna meet you in my taxi (4:09 pm)
FS: Sorry (4:11 pm)
Accused: She talk too much (5:11 pm)
Accused: Doing Whyalla return job will come back tomorrow morning (10:28 pm)
FS: Okay (10:38 pm)
273 T 186.1-22; T 199.24-25.
274 T 199.20-25.
275 T 565.33-568.24.
276 T 242.22-25.
277 T 242.25-243.4.
278 Exhibit P7.
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306 FS gave evidence that the message about the Pakistani girl was an example
of what the accused would say to her, to try to trick her to go places with him in
his taxi. She did not go to meet the Pakistani girl.279
307 In cross-examination, FS explained that as the accused had tricked her before
when he took her to Bunnings and to Spotlight, she was worried the same thing
would happen again.280 She said:281
It had happened in the other car and I was scared that he will trick me and do the same in
the taxi so I did not go.
308 FS gave evidence that she was at home when she read the message. She did
not know where the accused was when he sent it, as he was out in the taxi.282
309 As to the second part of this text message exchange, FS said that the accused
would often send her messages to say he was not coming home for some time but
instead he would come home only half an hour later. However, in this instance, he
did not come home and he stayed out overnight. He had come back the next
morning ‘around school time for the kids’.283 He did not come inside the house.
Instead, he threw lots of water bottles (around 600 ml bottles) on the floor at the
gate – some empty, some filled. He just said, ‘Take the bottles and fill them’.284
310 FS said she was at home with her daughter, F. She did not go outside at the
time but afterwards, she and F had picked up the bottles, washed them all and
refilled them.285
311 In cross-examination, FS said that both F and HS were attending university
at this time. The two youngest children were still attending school and had left for
school at the time the accused came back to the house and threw the water bottles.
She said the children left for school after 8:00am as the school day started at
9:00am. When asked if the accused had come back to the house at around 8:00am
to 9:00am, FS said, ‘Maybe because I did not see what time it was’. She agreed
that it was in the morning.286
312 FS was cross-examined at length about whether she had seen the accused
throw the bottles, how many bottles he threw and where these bottles had come
from. These were bottles that she and F would fill with water and put in the fridge,
for the accused to take with him to work. She could not say how many bottles the
279 T 243.35-245.1.
280 T 325.26-35.
281 T 325.37-326.1.
282 T 325.13-20.
283 T 247.10-11.
284 T 247.17-30.
285 T 245.12-246.5; T 247.4-248.5.
286 T 327.2-328.8.
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accused threw at the house but said there were many bottles and most of them were
empty. She gave the following evidence:287
Q. And did you see him drive the taxi into the front yard of your home when he arrived.
A I did not see when he threw the bottles on the front of the door then my daughter told
me that he has arrived. Then we saw from the window that he threw the bottle then
he left.
313 FS gave evidence that the accused threw the bottles at the big (front) gate.
She was inside when the accused arrived. She and F had heard him at the gate. She
said:288
I did not see him opening the gate, I did not see him leaving, I saw him very brief while
throwing the bottles.
314 FS gave evidence that the accused returned to the Smithfield home that night.
She had laid some food out on a table in his room. He was in his room sitting at
the computer. She was standing in the doorway. She asked him where he had he
been for the night as they were worried about him. He abused her for asking him
this and threw a glass at her. The glass fell on the floor and it broke. She had water
on her. The accused then went out to the car and she was so scared, she had picked
up all of the knives from the kitchen and hid them in her daughter’s room.289
315 It was an agreed fact that there is no mention in any of FS’s police statements
to her collecting knives from the kitchen because she felt afraid.290 FS agreed there
was nothing in her statements to this effect but said that she had told them this.291
316 FS agreed that in her first police statement made on 31 March 2022, she had
apparently said:292
Since moving to Adelaide in 2018 the verbal, physical and sexual abuse from my husband
has continued. On Monday 14 March 2022 my husband left home at about 10.30 pm and
did not come home until the early hours of Tuesday, 15 March. I asked him where he was
because I was worried about him and he started assaulting me by throwing a glass of water
at me. The glass did not hit me but the water was thrown all over me. He was very angry
about me asking where he was and continued to verbally abuse me.
317 FS gave evidence that when she had said ‘the early hours’ she had meant ‘the
children going to school time’, that is, morning time, from, around 7:00am to
8:00am.293 She agreed she had not mentioned the accused throwing bottles of water
on the morning of Tuesday 15 March 2022. She said:294
287 T 328.9-14.
288 T 332.2-4.
289 T 246.5-247.3.
290 Exhibit P15 at [14.a.vi].
291 T 669.28-30.
292 T 486.34-487.31.
293 T 488.29-33.
294 T 489.9-12.
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The first thing when he had thrown glass of water at me it was the night-time that he had
done and the other incident of the bottles was the next Tuesday when he came back.
318 FS agreed that in a police statement made by her on 23 February 2024, she
had said: 295
In para.12 of my statement dated 31 March 2022 I made a statement. I state that [the
accused] did not come home on the night of the 14th March. I’m confident this date is
correct because there were WhatsApp messages... The next morning I believe the time he
came home was around 8 to 9 am. This is an estimation and I base the time on the fact that
children had not gone to school yet and they usually start school at 9.
319 FS agreed that she had not mentioned the accused throwing bottles on the
morning of 15 March. She could not now remember if the children had left for
school and explained that it was difficult to recall after about a month. She denied
she was having difficulty remembering as she was making this incident up.296
Incident at Smithfield – 30 March 2022
320 FS gave evidence that on 30 March 2022, she was still sleeping in the living
room, although the family no longer had COVID. That night, before the accused
came home from work, he messaged the children to take out her cupboard and
things from bedroom 1. When the accused came home, the children were sleeping
and he pulled them out by force. He started throwing her clothes and other personal
things out of the cupboard and from the drawer from under her bed. She asked the
accused why he was throwing her things out of the room. He had said, ‘in this
house it will be everything according to me, my rules and I do not go by any other
rule’.297
321 FS started to record what was happening on her mobile phone, from behind
a curtain in the lounge room. FS gave evidence that the accused started to abuse
her for doing this and told her to stop filming. FS said, initially:298
… Then he tried to slap me and then I put my arms around my face to cover so that save
myself, against the wall. Then he knocked, very hard knock on my younger daughter's door
and said 'Come out', and all the kids were scared. When he slammed the phone and the
video was not on him, then he was more abusive and we were all scared and he went out
and then we called the police. …
322 The video footage as taken by FS was tendered as Exhibit P8.
323 Some of the footage was taken from a position partially behind a thin curtain.
The accused, HS and IS can be seen, on the footage, at various times, walking
through the house, carrying items of furniture out of the main bedroom, including
drawers from a bookcase. The boys do this in virtual silence, although occasionally
295 T 490.20-492.5.
296 T 492.15-493.7.
297 T 253.36-254.6; T 254.35-255.2; T 259.30-32.
298 T 254.11-18.
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the accused is heard to speak to them, to give directions, in a calm and measured
voice.
324 The accused is recorded in the footage approaching the position from where
FS is filming on two separate occasions. When doing so, he speaks to her in a stern
voice, with an angry tone. IS it not readily apparent, from what can be seen on the
footage, whether, when he approached FS on one such occasion, he tried to take
(or knock) the phone from her hand, but there appears to be some momentary
altercation, resulting in the camera going on an angle.
325 During the footage, MS can be seen, briefly, although she remains in her
room. The accused stands in front of what appears to be the door to her bedroom,
and speaks firmly and loudly to her, although he is not shouting as such. The
accused is not seen in the footage, to bang on any doors or to physically abuse
anyone.
326 As the footage was played to the Court, FS was asked several questions about
what could be seen and heard on that recording. The evidence given by FS (and
others) as to what the accused could be heard saying in that recording in a language
other than English, as interpreted by them, was admitted de bene esse.299
327 After the recording was played, FS was asked if she could remember what
the accused was saying to the children as they moved her things out of the
bedroom. She gave the following evidence:300
When he saw me making video he said 'Stop making this film', then he went in and he told
the kids to take out the items from the room. He was talking about the things in the room.
There were personal things in the cupboard and he was telling me eldest son to take them
out. It is not a good thing to do. It is not a child's responsibility to - so I did not stop making
the video and I just wanted to see what he wants to do and then he got more angry and he
rushed towards me and he said 'Stop this' and I step backwards and then he stepped back
and then he sweared at me and he tried to catch hold of me to squeeze me and me and then
I had my arms around my face to save myself and then the phone fell on the floor. And
then he was more angry and went to the other daughter and started swearing at her also.
When he saw there was no more video made then he was more abusive, abusive language.
328 At the end of the recording, the accused can be seen to walk towards FS.
When she was asked about that, she said:301
A. He came towards me but then he went back and then came again.
Q. Did he make any physical contact with you when he came up to you then.
A. He came to hit me and he came to hit me, my phone fell down and I covered my face
and my daughter came in.
299 See discussion below.
300 T 258.8-24.
301 T 261.11-18.
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Q. Is that a different time to what we're seeing here.
A. Just after this.
329 FS was asked what happened immediately after the recording ended. She
gave evidence that when the accused came up to her, he hit her on the hand and
the camera fell down. He tried to hit her again. She covered her face with her arm
and then he started using foul language to her and the children. He then went to
MS’s bedroom and started hitting the door with his elbow and verbally abusing
her.302
330 When FS was asked what happened that night, after she had made the videos,
she said:303
When he saw the phone has fallen down and he was more angry and we all left and went
out, and then he broke the door off [MS’s] bedroom and everybody was scared and we
were all out and he was also out. Then my daughter called the police. Then when the police
came he quickly grabbed the bins and he kept the bins against the door and then he kept
money in the car and my son was inside so he saw. He took money and then he ran away
from home. And police came and we told everything to police. And we told him, then we
told the police everything that happened and before that what he had been doing to us.
331 This was the last time she had seen the accused at the Smithfield house.304
332 It was an agreed fact that when the police attended at the Smithfield house
on the night of 30 March 2022, there was no apparent damage observed to the door
of bedroom 3 in Exhibit P2 (MS’s bedroom). However, it was further agreed that
no extensive search or examination of the premises was conducted at that time.305
333 It was suggested to FS in cross-examination that in the days prior to 30 March
2022, the accused had told her that he was going to take the computer out of the
bedroom and rearrange the furniture in the room. FS denied this. She said she was
not talking to the accused at that time and her interactions with him were confined
to leaving his food on the table in the room.306
334 FS was also asked whether the accused had sent a message to the family
‘WhatsApp’ page during the afternoon of 30 March 2022, requesting her bed and
cupboard be removed from the bedroom. FS said she did not know, but had been
informed by her son, HS of such a request. She was also asked if she knew about
another message apparently sent by the accused at around 8:27pm that evening to
the same group, enquiring whether this had been done. She said she had no
knowledge of this, as she had left the family group chat.307
302 T 261.31-38.
303 T 263.37-264.10.
304 T 264.11-13.
305 Exhibit P15 at [15].
306 T 572.11-17.
307 T 572.18-573.18; T 574.12-575.9.
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335 FS agreed that when the accused got home from work that night (30 March
2022) the children had not removed her bed and cupboard from the main bedroom.
She said:308
… They were saying 'Why should we take out your things from the room?'. And they said
that 'He stays in this house, and mum, you also stay in this house. How can we throw your
things out?'. Later children told me about these messages.
336 FS denied that she had filmed the accused that night because she was trying
to set him up. She gave the following evidence:309
Why would I try to set him up. We were scared. The way he's waking the children up and
making them work, we were scared what he will do later. We have experienced his anger
and his behaviour. You people haven't seen that because here he's sitting quietly, innocent.
The real side we have seen. I have seen, my kids have seen. I made this for our safety, very
scared.
337 She agreed that the accused had seen her filming him and had told her to stop
and that she continued to film him after he had told her to stop. This meant that the
recording was not continuous as she kept having to stop it and restart it, resulting
in 11 separate recordings.310
338 It was suggested to FS that her youngest son, IS, could be seen in the
recordings smiling at her, indicating that he was not scared at all at that time. She
explained that he was scared of the accused but would smile when looking at her,
his mother. She agreed that the accused was not yelling during the recording. She
said that her son was simply doing quietly what the accused had instructed him to
do. She said, ‘He was scared just to do it and get rid of the situation’.311
339 It was suggested in cross-examination that rather than the accused coming
towards FS to hit her, he was simply approaching her to get her to stop recording.
FS gave the following evidence:312
Q. Do we see [the accused] in that clip.
A. Yes, you are seeing [the accused]. He's swearing at me and saying that I sending this
video to Pakistan and using bad swearing words for my sister and mother. Do you
think this is a respectful and decent person? Is this the way to talk to a wife, swearing
of mother and sister?
Q. I suggest he was asking you again not to film him.
A. It is not about the film here. He was giving - he was swearing at me. This is the time
he told me to stop and the second time he came to hit me when he threw the phone.
308 T 575.14-18.
309 T 575.37-576.5.
310 T 576.6-577.1.
311 T 578.9-10.
312 T 579.2-580.7.
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Q. I suggest that was the last clip you filmed and that was about the fourth or fifth time
he asked you to stop filming him.
A. No. There was one film that I had made and when he would come forward I would
be scared and put the phone down. I was also making of children. Because it used to
get stopped and then I used to switch it on.
340 She agreed that the recording did not depict the accused hitting or banging
on MS’s bedroom door.313
341 FS disagreed with propositions put to her in cross-examination that MS was
being disrespectful to the accused when the recordings were made and that the
children were very lazy.314
Accused’s behaviour towards the children
342 FS was asked if she could remember any specific incidents where the accused
had done something to the children.
343 FS gave evidence that when they were living in Bathurst, the accused would
slap HS and said the kids were always scared of him. When asked if she had ever
seen the accused slap or hit F, FS said that the accused had beaten ‘them’ in
Pakistan and had abused them. He had also told the girls that there were ghosts in
their room when they were in Pakistan, Minto and Bathurst.315
344 She gave evidence that when they were living at Smithfield, IS was playing
with an iPad when the accused came in from outside, pulled him from his shoulder
to the hallway, threw him to the floor and then stomped on him with his feet. She
described IS’s face hitting the tiles.316
345 FS denied propositions put to her in cross-examination that the accused
would encourage the two oldest children to get a job, had taught them how to drive
and had tried to get them to drive his taxi.317
Complaint
346 FS was asked during her evidence-in-chief if she had ever told anyone over
the phone about the sexual things that the accused was doing to her. She said that
her NDIS caseworker had given her a number to call, so she called that number
and told that person ‘a little bit’.318
347 FS was asked if there was anyone with her at that time. She said: 319
313 T 580.36-581.31.
314 T 582.3-37.
315 T 250.30-251.7.
316 T 250.14-27.
317 T 557.2-31.
318 T 252.12-13.
319 T 252.16-19.
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Yes, my daughter because was I do not know English so my daughter had to talk. I was
talking to that person, I do not know if the daughter was in the room or she left because I
was talking to that person on the phone.
348 When asked what she had told the person over the phone, she gave the
following evidence:320
A. I told the person how he does it with me and then police had come and he had ran
away from home. I was crying on the phone, I was crying on the phone and ask what
should I do, I do not know. They said 'Have you spoken to your family'. That's it, I
did not talk to my brother and nothing with anybody.
Q. When you were speaking to that person over the phone you said you told them that
he does it to you. Do you remember what words you said to that person on the phone
about what [the accused] was doing.
A. I answered how he does the sex in mouth, so how should I tell anybody?
…
Q. Do you remember anything else that you said to this person on the phone about what
[the accused] was doing.
A. I don't recall but I think this is what I told, that how he - what he does to me and I
was told by somebody to talk to the family. How could I told, how could I say all of
this to my brother how my husband behaves with me? Then there was no interpreter
so the call was disconnected.
Q. There was no interpreter so the call was disconnected.
A. Yes.
349 She thought this may have occurred during 2021.
350 In cross-examination, it was suggested to FS that the first time she told
anyone about the accused physically or sexually abusing her was on 12 October
2020, when she spoke to someone on the phone from 1800RESPECT. FS gave
evidence that she did speak to someone, through an interpreter, with
1800RESPECT on that day. She said she told them that the accused ‘assaults me
at home’, but the girl did not ask for details and she did not tell her details. She
said, ‘I was telling as much as I could do, say; whatever she was asking I was
answering’. She was uncertain if F had overheard this conversation.321
351 In re-examination, FS confirmed that F had made the call to 1800RESPECT
for her. She had done some of the talking for her and had told them to arrange an
interpreter.322
320 T 252.34-253.7; T 253.14-23.
321 T 666.34-667.26.
322 T 670.8-17.
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Motive to lie
Watta satta - 2011
352 It was suggested to FS in cross-examination that in about 2011, she discussed
with the accused a possibility of their two oldest children, F and HS, entering into
a ‘watta satta’ marriage with her elder sister’s children. FS denied this and said
that at that time, F was only aged seven and that nothing like this was discussed.323
353 FS agreed she had two sisters, K and M. They were married to two brothers,
LA and KA. LA and LA’s older brother, RFA, had spent some time in prison in
Pakistan because of their political views. FS’s brother, IR, was married to the
accused’s sister, N.324
354 FS gave evidence that her sister, K, had five children, a daughter, S, a son,
FAH, a daughter, Z and two other sons, ZA and AH. FS agreed that her other sister,
M, also had five children and that her brother, IR, had four children. These children
were all alive and well.325
355 It was suggested to FS that she and her sister, K, discussed a watta satta
marriage wherein HS would marry K’s daughter, S and F would marry K’s son,
FAH. FS denied this. She said:326
It is all a lie. My children are very young and [S] is just five years younger to me and my
son is now 23 year old and she got married earlier and such an older girl to marry to my
son. What kind of questions are these, these are third class questions. A 45-year-old girl to
be married to my son, 23-year-old who is living in Australia. I've been living in Australia,
my children are more used to Australian system and I do not have these kinds of thoughts
and she has always been in Pakistan.
356 It was suggested to FS that the accused had said no to this proposal, that this
caused great offence within their culture and that as a result, the accused had started
sending money to K in Pakistan. FS denied this. There was no evidence to the
contrary.327
357 In re-examination, FS gave evidence that S was already married as at 2009.
She said that in 2010, S was aged either 29 or 30 and HS was aged only eight.
FS also gave evidence that in 2010, FAH was aged about 24 or 25 and F was aged
only 11.328
Watta satta - 2016
358 It was suggested to FS in cross-examination, that in 2016 the accused went
to Pakistan as K had made another offer of a watta satta marriage, this time it was
323 T 345.22-36. It was suggested to FS this had been discussed about the time they moved to Kogarah;
T 396.33-397.8. Later, it was suggested to FS that this was discussed in 2010; T 403.18.
324 T 397.9-398.2; T 402.2-4.
325 T 398.3-399.15; T 400.32-402.21.
326 T 403.32-404.3.
327 T 404.5-22.
328 T 676.9-677.26.
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a proposal for HS to marry K’s younger daughter, Z and for F to marry K’s younger
son, AH. FS agreed that the accused had gone back to Pakistan in 2016, but not for
that reason.329 FS denied a proposition that she was often talking to her relatives in
Pakistan at this time. She said, ‘He would not let me talk to my family and he
would not make me talk to anybody.’ She denied that at this time she had an iPhone
that the accused had bought for her in 2012.330
359 FS denied a proposition put to her that the accused had said no to this second
offer of watta satta. She said this was a lie. She disagreed vehemently that she and
the accused would argue a lot after 2016 about this issue of watta satta.331 She
disagreed that she and K were very angry with the accused because of his refusal.332
She disagreed that the accused had continued to send money to K after this second
refusal because of the offence this had caused.333
360 FS was asked if any of her sisters had been involved with a watta satta that
involved first cousins and she agreed that two of her sisters (K and M) had been
involved in such an arrangement.334 K’s daughter, Z, had married one of M’s
sons.335 K’s son, FAH, had married M’s daughter, C.336 She explained that this used
to be common in Pakistan but was now discouraged as it can cause disease.337
361 FS gave evidence that watta satta marriage involving first cousins was not
important or significant in her family. She said, ‘If it doesn’t take place it is not a
big issue.’338 When it was suggested to her that this was not true, given her sisters’
children had married this way, she said:339
I said that this was the only children who were married in watta satta, the other children
also of my sisters but they didn't marry watta satta. They had married in different families.
Watta satta is from their family, in my family it was only myself, my brother and [PSR]
and his sister and then this one only. Other children have not married in the family.
Watta satta - 2018
362 In cross-examination, it was suggested to FS that after the family arrived in
Adelaide, her brother, IR, proposed a watta satta marriage wherein his son, A was
to marry F and his daughter, N, was to marry HS. It was suggested that FS was
very supportive of this proposal but the accused was not. FS denied this. She
explained that these kinds of discussions were for families who were in happy
relationships and a good environment, with adult children. Her children were too
young for marriage at that time (as were IR’s children). Her situation at home was
329 T 404.23-37.
330 T 405.21-38.
331 T 406.14-25.
332 T 409.18-24.
333 T 409.27-32.
334 T 408.17-19.
335 T 432.2127.
336 T 432.31-38.
337 T 408.32-409.12.
338 T 407.34-35.
339 T 433.3-9.
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very tense. She was unwell for three years with rectal pain associated with anal
sex. There was a lot of violence at home and the house was being renovated
meaning the living environment was difficult.340
363 FS denied that the accused was against the idea of the watta satta because of
a fear that it could lead to diseases being passed on between the cousins and/or that
she had been upset with him because of his opposition to the idea.341 She denied
that things came to a head on 12 October 2020, when he came home from work
and told her that he refused to allow the watta satta and wanted his children to
choose their own spouses. She said:342
He would not let his children breathe at home, how would he let his children choose, such
a low person, a rascal, he would never let the wife breathe at home and he is saying all this.
…
364 FS emphatically denied that thereafter she had made a gesture to the accused
wherein she had put her hand over her chin and ran it down her face and then said
to him, ‘I swear I am going to get you put in prison’.343 She gave the following
evidence:344
He's such a cheap person, just think about of a woman who is so sick and she's almost dead
and she doesn't know how to go out, how can she give this kind of a threat? I was trying to
save my life, do I have the courage that I can say this to him? When he was running towards
me with the household knives I was trying to hide and save my life, I was trying to save
my children's life, how could I say all this? You haven't seen the fear that we have lived
through when he was staying with us at home. Now we are a little better. We have seen the
face of life now, how to breathe.
365 It was suggested to FS that the police had attended the house that evening.
She said the police had attended twice, once when the accused had sent pictures of
her sleeping in the laundry to her sisters and he was assaulting her and once when
he was being violent at home and was threatening to send her home to her brother
in Pakistan if he provided the money for the ticket. She said she showed the police
the messages and the accused had fled. This was when the police had given her a
Relationships Australia card as they thought it was just a marital argument.345
366 FS denied that she had continued to argue with the accused about the topic
of watta satta from October 2020 until the time he was arrested.346
340 T 413.18-414.18.
341 T 415.7-29.
342 T 416.34-37.
343 T 415.30-417.22; T 640.33-641.10.
344 T 417.23-33.
345 T 641.11-642.10.
346 T 560.20-30.
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367 In re-examination, FS was asked if she had tried to arrange any watta satta
marriages for her children with her family in Pakistan since the accused’s arrest.
She said:347
First there is nobody there to arrange watta satta. The main thing is I do not like this.
General discord
368 During cross-examination, FS was asked if, in 2021, she had told the accused
that she had told a NDIS worker that she wanted to leave him and to live in another
home. She said that she had spoken to a NDIS person a little about this. She gave
the following evidence:348
He used to assault previously also and once police had come to our place and then they
thought there was some personal matter between the husband and wife. They had given us
a card of Australian - Relationship Australia. So I could not understand whom to tell so I
spoke to the NDIS person. Then he was to send me back messages at night 'I'll do this to
you and that'. I've shown it to the police, and at that time I said that 'If you will not stop all
this nonsense, then I will tell the caseworker how long I can take all this, I'm a wife'. He
said 'Show me how you can leave' and then he had slurred me with very bad language. And
he said 'You will see what the people outside will do to you'. Then I said quiet, I got scared.
I did not talk to anybody then. But he did not stop and he started the same kind of behaviour.
369 She agreed that she had told the accused that she wanted to leave him as he
was ‘misbehaving’. She explained that the NDIS worker would visit the house, so
the accused got to know about this.349
370 FS denied that during 2022, she and the accused would argue about money.
She gave evidence that she never had discussions about money with him other than
on one occasion when she had asked him for money for an injection. She explained
that the money the family received from Centrelink went into the accused’s
account until she was able to get her own account.350
371 FS denied a proposition that they would argue over the large sums of money
he had in his wallet from taxi driving. She gave the following evidence:351
Q. And he would try and explain to you, I suggest, that the money in his wallet wasn't
his, that he had to give it to the taxi owner.
A. It's I lie, it's a lie. It is just an allegation against me. I had no need because I was
getting for my medicine via Centrelink. My entire life he had never done anything
for us. Only this property he had made and this house also.
INTERPRETER: I would like her to repeat what she said in the last.
347 T 702.18-19.
348 T 561.11-26.
349 T 565.15-32.
350 T 558.6-15.
351 T 559.18-31.
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A. He has made only one house and we don't want this house. Give to him. There is no
peace in this house. We don't want it. Where there's no safety, there is no peace. Why
do we need such things?
372 It was also suggested to FS that she resented the accused because he worked
such long hours, meaning he was not at home and could not drive her around.
FS disagreed. She explained that she was happy when he was out of the house as
both she and the children felt better and it was more peaceful. She explained that
when the accused was at work, he would keep calling her on the phone, either
demanding for his food to be laid out on the table or saying he would not be coming
and demanding they remove that food and replace it later with fresh food.352 She
said:353
The moment he would come home, the fear would come back to us and the children will
go back in their rooms. They would not come out of the house until he leaves the home
again.
Family/Federal Court proceedings
373 FS disagreed with a proposition put to her in cross-examination that she had
commenced Family Court proceedings with respect to a property settlement since
the accused’s arrest. She said she had asked a lawyer about a divorce and was told,
‘Everything comes under the divorce’.354 She had not spoken to the lawyer after
being told that the accused was not responding to them.
374 When asked if she would like full custody of the children (noting IS was the
only child under 18) she said:355
This depends on the court, whatever I have told them that’s the truth.
375 FS was not questioned further as to whether, by this response, she meant a
Court dealing with any ongoing custody dispute, or this Court.
Dropping the charges
376 FS agreed with a proposition put to her that she had spoken to the police
during 2022 with a view to withdrawing the charges. She said she did this because
the accused and the accused’s brother were placing a lot of pressure on her to do
so, both directly to her and via her brother.356 In re-examination, she explained
further that the accused had sent a video to his family wherein he falsely claimed
to be suffering from paralysis and told them to tell her to drop the charges.357 She
said:358
352 T 558.16-559.1.
353 T 558.21-25.
354 T 663.2-3.
355 T 663.9-10.
356 T 663.11-36.
357 T 703.9-704.6.
358 T 704.9-12.
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I didn't want to drop the charges. He stressed me a lot. He made the kids cry. A lot of
tension he had given. They were all also scared that was an issue too. And then his family
was doing a lot of things.
377 She disagreed that she had been told by the police at a meeting on 10 October
2022 that if she dropped the charges, the accused would no longer have bail
conditions, meaning there was nothing stopping him from taking the children away
from her.359
F’s evidence
Family background/living arrangements
378 F is the oldest of the four children. She gave evidence outlining her
recollection of where the family had lived from time to time and her experiences
living with the accused.
379 F gave evidence that the family first left Pakistan when she was aged about 7.
IS had not yet been born. She said the family moved to New Zealand and then
returned to Pakistan. They then returned to New Zealand, where IS was born. They
stayed in New Zealand for about two years in 2008 and 2009. They then returned
to Pakistan. She, FS and her siblings then stayed in Pakistan until October 2009.
They then moved to Melbourne. She, the accused and her siblings then moved to
Auckland, where FS later joined them. In March 2010 the whole family then
moved permanently to Sydney.360 They had no other family in Australia.361
380 F gave evidence that after arriving in Sydney, the family ‘couch surfed’ for a
few weeks before they found short-term accommodation in Lakemba. They stayed
in Lakemba for a few months or less. Thereafter, the family moved to Kogarah in
2010, to Minto in January 2013 and then to Windradyne (Bathurst) in 2015. The
family moved to South Australia in 2018, at which time F was aged 18 and had
finished school.362
FS’s hearing difficulties
381 F gave evidence that FS had hearing difficulties. She said that when speaking
to her, you needed to speak really loudly and be close to her.363
382 F remembered her mother getting a hearing aid when they were in Adelaide.
She said that thereafter it was easier to speak with FS and to converse regularly
with her. She spoke to FS in Urdu and Punjabi. When asked if she spoke to FS in
English, she said, ‘not really’, but said that she would write messages to her in
359 T 664.37-665.6.
360 T 718.22-26; T 725.28-726.24.
361 T 733.12-13.
362 T 727.9-22; T 728.32-34; T 729.12-17; T 729.32-37, T 730.18-20.
363 T 718.34-719.2.
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English. She gave as examples, ‘take care’ and goodnight’, being basic English
phrases that FS could understand.364
383 F was not questioned any further about FS’s ability to communicate in, or
understand, English.
Living in Pakistan
384 F gave evidence that her childhood in Pakistan was very violent and difficult.
When asked what was violent, she said that the accused was physically very violent
towards herself, her mother and her siblings.365 As to what the accused had done,
she said:366
Beating us up, hitting us, slapping us, swearing at us, threatening us.
385 F gave evidence that this happened regularly. She also described the accused
as having picked her up and thrown her on the ground.367
386 F gave evidence of an incident that had happened in Pakistan when she was
aged only six or seven. HS was only aged about four or five. She described the
accused hitting her and HS with a wooden broomstick and then locking them in a
room. She thought this had been precipitated by a phone bill and that the accused
had blamed her and HS for this.368
387 F described seeing the accused slapping FS, swearing at her and said he was
always pushing and shoving her. This would happen in front of her, as they were
all living in the one room. MS was just a toddler. Whenever the accused was angry,
he would take it out on them.369
388 F agreed in cross-examination that in her first police statement, made on
31 March 2022, she had said:370
Before I started school in Pakistan I can remember my father being abusive towards myself
and my mother. I remember my father physically assaulting us by slapping and kicking and
also using weapons like broomsticks to hit us. I was so young I cannot remember specific
details, however remember it as a period in my life.
389 She agreed that she would have been only four or five at that time, although
she may have been older.371
364 T 719.3-7; T 723.15-33.
365 T 723.34-724.8.
366 T 724.11-12.
367 T 724.23-28.
368 T 724.30-725.3; T 759.10-33.
369 T 725.4-23.
370 T 777.36-778.4.
371 T 778.23-28.
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390 F acknowledged this was the only police statement wherein she had described
suffering abuse at the hands of the accused in Pakistan. She said:372
I think when they asked the question that was the only one I could remember immediately.
Living in New Zealand
391 F gave evidence that when the family moved to New Zealand, the family
dynamic remained the same and there was still ‘abuse’ happening at home.373
392 She recalled a specific incident when the accused was angry and slapped HS,
causing one or two of his front teeth to fall out.374 In cross-examination, F denied a
proposition that in fact, HS had fallen off his scooter in New Zealand and that was
how his tooth fell out. She said: 375
He didn't have any scooter in New Zealand. We were literally sleeping on mattresses in
New Zealand, do you think my dad would have the money to buy us a scooter?
393 F agreed that when they lived in New Zealand, the accused would take the
family to visit a lot of beaches. When asked if he took them to see the sites in
Rotorua, she said:376
I can't remember that. In Rotorua we didn't even have good condition, like, we were literally
just living on civil soil so I don't know if we went out or not.
Living in New South Wales
General
394 F gave evidence that when the family moved to NSW, the accused was often
‘physically violent’ towards her mother and that some of this occurred in front of
her.377 She acknowledged that when they lived in Sydney, the accused would take
her and her siblings on outings (such as to the beach) and to visit various country
towns.378 However, she described being socially isolated, in the sense that although
she had some friends at school, the accused would discourage friendships.379
395 As to whether FS had a phone when they were living in NSW, F gave
evidence that the accused and FS shared a phone. This was a phone the accused
had purchased.380 She had no memory of FS having her own phone but
acknowledged that she could have. F agreed that the accused had purchased her a
mobile phone (albeit precisely when was unclear).381
372 T 778.21-22.
373 T 726.25-31.
374 T 726.32-38.
375 T 760.5-7.
376 T 782.16-18.
377 T 787.5-10.
378 T 781.9-782.10.
379 T 733.14-20.
380 T 780.31-781.6.
381 T 781.8.
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In Kogarah
396 F gave evidence that she and her siblings were removed from the care of FS
and the accused and placed in foster care for 18 months when the family was living
in Kogarah. She and HS were placed together in the same foster care house and
were separated from MS and IS who were placed together in another house.382
397 F gave evidence that at the time, she believed that this was her fault. The
police had attended at the family home when the accused had threatened to commit
suicide and kill them as well. When the police attended, she told them that she was
looking after her siblings. She said that as such, the accused had blamed her for
Child Protection intervening and removing the children from the home. F said that
it was only later that she came to realise that she was not to blame and that they
had been removed as police had seen their living conditions and because of reports
made to DCP in Kogarah about the neglect and abuse.383
398 In cross-examination, a proposition was put to F that when she was in foster
care, she had been interviewed by a social worker. F could not remember anything
about the questions asked to her by that social worker. When it was suggested to
her that she had told the social worker that there was nothing about the accused
that she did not like, she said ‘I guess so’.384 She agreed that she had written letters
to FS and the accused, telling them how much she wanted to come home and live
with them. She said she felt guilty for tearing the family apart and that she had
written many such letters as the accused had asked her to do this, so the letters
could be presented to the social worker. She did want to go home as they were still
her parents.385 She was very sad to be separated from her younger siblings and
missed both them and her mother.386
399 FS and her siblings were returned to the care of the accused and FS in
September 2012. She was happy to be back with her siblings.387
In Minto
400 F gave evidence that the family moved to live in Minto in January 2013 and
remained in Minto until 2015.388 When asked about the family dynamic in Minto,
F said:389
The abuse was still the same, but I think my dad was attacking me a lot more by then.
401 F gave evidence that the accused first started working a small job in Minto
but also spent a period unemployed.390 When the accused was unemployed, he
382 T 797.29-35; T 798.27.
383 T 727.30-728.28.
384 T 778.29-779.5.
385 T 779.6-24.
386 T 788.1-13.
387 T 728.29-31; T 788.7.
388 T 728.32-34.
389 T 728.37-38.
390 T 739.32-33.
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seemed to take his anger out on her. He also took his anger out on her siblings. He
would accuse them of being the reason why he had to work hard to pay the rent for
the house (even though he was not working and was receiving Centrelink). He
would tell them to hurry up and finish their education so they could repay him.391
402 F gave no specific evidence-in-chief of ‘physical’ abuse perpetuated upon
her by the accused in Minto. She was not specifically asked if the accused did, in
fact, physically abuse her or her siblings in Minto. However, in cross-examination,
F agreed with propositions put to her that she had not said anything about any
physical abuse directed by the accused towards her at Minto, or in Australia, in her
police statements made on 31 March 2022, 3 April 2022 and/or 26 May 2022.
F explained that at the time of the first statement, she was just talking about what
had led them to the police the previous night. It was a brief summary about who
they were, how they had come to Australia and where they had lived before coming
to South Australia. She said that the second statement was just a follow up from
what had occurred and how the family was scared that if the accused was released,
he would try and harm them again. The third statement was just an overall
summary of the accused’s behaviour and had focussed on the contents of her
diary.392
403 A proposition was put to F that the first time she had mentioned the accused
being physically abusive towards her when they were living in Minto was that day
when giving her evidence. She said, ‘No, I think I’ve mentioned it before’ to police
officers when trying to explain the situation. She clarified that she thought she had
mentioned things like that when responding to questions about her childhood,
asked of her by those officers who were taking her statements. She denied that she
was lying about that.393
404 In re-examination, F explained that when giving her statements to police, she
had not been asked specifically whether the accused had been physically violent
towards her in Minto (or Bathurst). Rather the police had simply asked her to give
them examples of occasions when he had been physically violent towards her.394
In Bathurst
405 F gave evidence that when the family moved to Bathurst, the ‘family
dynamic’ progressed to become even worse. The accused started ‘brainwashing’
them against religion, they did not have any neighbours and he tried to keep them
more secluded.395 She described the accused as abusing them and FS more
regularly. This was physical abuse, verbal abuse and emotional abuse.396
391 T 729.2-11.
392 T 773.35-774.16; T 774.32-775.1; T 775.6-21; T 776.1-25.
393 T 776.26-777.34.
394 T 786.23-34.
395 T 729.18-25.
396 T 729.26-31.
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406 F recalled that when the family lived in Bathurst there was a period when the
accused did some work cleaning and in security but that he also spent periods
unemployed.397
407 She explained that although she obtained a learner’s driving permit in
Bathurst and had been encouraged by her parents to do so, there was no actual
opportunity for her to learn to drive, as all of the transportation had to be through
the accused. She said:398
So any time if we had to go somewhere we had to go with dad otherwise we couldn't go.
We were not allowed to leave the house, basically, without him.
408 F was asked in cross-examination when was the last time the accused was
ever physically violent towards her. She said:399
I think with the slapping and the hitting I would say maybe from Minto to Bathurst,
sometime between then.
409 She could not remember the details of the last specific incident of such abuse
and could only remember the details of a few such occasions. She described an
occasion when she was about 13, and the accused was upset with the Australian
education system. She said he tried to teach her something he had learned at
university and when she could not understand any of it, he had slapped her across
the face.400
410 F denied she was making that up. In response to a proposition put to her that
the accused wanted her to go to university, she acknowledged that her father had
impressed upon them, when they were younger, that they had to become doctors
to look after them. However, she said he never did anything to physically support
them on their journey to education.401
411 F was asked if the accused ever apologised for what he did. She said:402
No, not apologise directly, but in Bathurst afterwards he would say that satan had put like
evil thoughts inside his head, and now he has controlled them and that now we would be a
happy family.
412 F was asked during her evidence-in-chief if she had seen the accused break
things. She described an occasion when he smashed the fan in ‘their room’ and
said he had also broken plates and glasses.403 Immediately thereafter, she was asked
if she had ever seen him ‘throw anything like that at anybody’. She said, ‘Yes, at
my mum’ and that this had occurred once in Bathurst.404 She was not asked to
397 T 739.33-36.
398 T 730.15-17.
399 T 779.30-31.
400 T 779.32-780.5.
401 T 780.6-17.
402 T 736.12-15.
403 T 736.31-36, T 732.3.
404 T 736.38-737.4.
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elaborate. She did not give any evidence-in-chief specifically to the effect that the
accused had thrown a glass at FS when they were living in Bathurst.
413 In cross-examination, F agreed that there was nothing in either her first police
statement made on 31 March 2022, her second police statement made on 3 April
2022 or her third police statement made on 26 May 2022, about the accused having
thrown a glass at her mother when they lived in Bathurst.405 Later, she gave the
following evidence:406
Q. Do you agree there's nothing contained in any of your statements about your father
throwing a glass at your mother when you lived at Bathurst.
A. I think so, yes.
Q. And do you agree that the first time you've ever said that was in your evidence today
in court.
A. No, I think I've said that before as well.
Q. And when did you say that and to who to.
A. Again, to just the police officers but I think - sorry.
Q. And which police officer or officers are you referring to.
A. Again, the ones that took the statement.
Q. And which statement are you referring to.
A. Probably most of them.
Q. I suggest you're just lying about that.
A. I would disagree with that.
414 Defence counsel asked F if the glass had hit her mother, or if it had missed
her. She said:407
A. I think it hit her, because I was standing at the door of the room.
Q. So you were standing at the door of the room.
A. Yes, I had just given my dad the glass of water.
Q. And then he threw it and it hit your mum in the chest, did it.
A. Yeah, over something he found out.
405 T 774.18-23; T 775.2-5; T 775.22-24.
406 T 777.19-34.
407 T 783.35-784.3.
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415 In re-examination, F was asked if a police officer, when taking her statement,
had ever asked her specifically about this incident. She said:408
The police officer didn’t specifically ask like, ‘What happened?’, it was just like I told
them, I think.
Living in South Australia
General
416 F gave evidence that the family moved to South Australia to live in 2018
when she was aged 18 and had finished school.409
417 She said that she had been accepted into university, but the accused was
against her doing that course and as such, she took a ‘gap year’. F said she studied
online during that year. 410 She would have liked to work but said, ‘I wasn’t even
allowed to do that, so I was just stuck at home doing nothing.’411
418 A proposition was put to F in cross-examination that the accused wanted her
to work and to drive his taxi but that she had refused as she was too busy.
F disagreed and explained that she still only had her learner’s permit, so could not
have driven a taxi.412
419 F started studying in 2019. She received a study allowance through
Centrelink but otherwise was reliant on the accused to financially support her. She
gave evidence that the accused would constantly say that her study allowance was
his money, as it had only been received because of his citizenship.413
420 F also gave evidence that the accused would go through her iPad.414
Accused’s employment
421 F gave evidence that the accused was unemployed for about a year after they
moved to South Australia and then started working as a taxi driver. When asked if
she noticed any change in his behaviour thereafter, she said:415
A. Yes, when he started working he became like so egoistic (sic) and that he had this
God complex that only he was the rationalist one, and everyone else was like
leeching off him even though we weren't like living on his money.
Q. What kind of things would he say to you that would give you that impression.
A. Well, he would always tell us that we'd have to repay him and we need to like, like
he even thought that studying at university was useless and was telling us to quickly
408 T 787.2-3.
409 T 729.32-37; T 730.20.
410 T 760.23-32.
411 T 761.35-37.
412 T 761.1-3; T 761.11-23.
413 T 734.37-736.4.
414 T 736.30.
415 T 740.3-14.
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get a job. But then when we would actually go out and apply for jobs, like try to
apply for jobs, he wouldn't even give us the permission to work.
Accused’s behaviour
422 F gave evidence that when the family moved to South Australia the accused’s
behaviour progressed and became even worse. She described him as brainwashing
them against their neighbours and said that he banned them from talking to an
elderly couple, who were their neighbours, as he considered them to be spies. They
were also banned from talking to another neighbour, a woman, who the accused
said was immoral and a bad influence.416
423 F said that the accused would tell them not to interact with other people and
to keep family matters at home. He thought that everybody else was going to report
them.417
424 F gave evidence that the accused would require his permission before they
were allowed to leave the house. He was always wondering why they would want
to go outside and thought that they were doing inappropriate things.418 After the
accused started driving taxis, F and her siblings would freely go to the local mall
but she explained that even then they were a little bit scared. When asked why, she
said:419
Because he would think that we’re doing wrong thing, like, at the shopping centre.
425 She explained that almost every night they would have a family meeting
where the accused would rant about how everyone was bad and immoral in
Australia and that he was the only righteous person who was trying to teach them
values.420
426 F gave evidence that the accused would regularly make threats to her mother
and to the family that he would withdraw their citizenship and get them deported
to Pakistan. He would tell them that none of them had a right to live in Australia
and that they were only there because of his citizenship.421 This made her very
scared as there was nowhere for them to go in Pakistan. They were afraid that if
they were forced to return to Pakistan, they would have to pay for the things that
he had done there.422
427 F gave evidence that the accused made these threats continuously up until his
arrest. He would use her to send messages to FS to tell her that unless she accepted
all of his wishes, he would deport her.423
416 T 730.31-32; T 733.27-36.
417 T 734.17-19.
418 T 730.37-38; T 734.12-14.
419 T 734.9-10.
420 T 732.34-733.1.
421 T 731.3-10.
422 T 731.11-16.
423 T 734.27-31.
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428 F also gave evidence about the fence that was installed around the Smithfield
property. She believed this was installed in either 2021 or 2022 and she described
this as a nine foot fence, the height of which made them feel even more excluded.
She explained that they already felt isolated in this street and when this fence was
installed, they could not even see what was happening outside. She said they were
afraid that if something happened to them inside the house, no one in the street
would know because they could not see them.424
429 In cross-examination, a proposition was put to F that the fence was erected
because there had been a lot of crime in their street. She agreed that there had been
cars set on fire in the street but she did not know if there had been any break-ins in
the street. She maintained that it was her perception that the fence had been erected
to keep the family secluded from the neighbourhood.425
430 F said that when the family first moved to South Australia, she observed the
accused acting in a very violent way towards her mother. She said that he was
always trying to blackmail her. He would do this by gathering the siblings together
and then belittling FS in front of them. He would try to get her involved by telling
her to put some sense into her mother’s head. As to how the accused would belittle
FS, F gave the following evidence:426
Like, basically saying she is deaf so she should be thankful he married her, he’s done a
favour onto her. She’s so poor and he was, like, some king basically. That is the way he
was portraying himself as well.
431 She observed the accused being ‘violent’ towards her mother. As to whether
she had observed any ‘physical abuse’ going on in the home, she said:427
A. With my siblings as well, with mum I used to always hear things from their room as
well. I would always hear that he's smashed the fan that was in their room and he
was always, like, slamming the door shut as well and he was kicking her bed.
Q. What would you do when you would hear things like that.
A. I was very afraid, so all of us would just freeze in our rooms and, like, listen really
closely to what's going to happen next.
432 She had a memory of an occasion in South Australia when the accused had
told them that Satan had said to strangle every single family member but that he
had worked hard to control it.428 She had seen him break plates and glasses.429
424 T 740.15-741.9.
425 T 755.13-756.11.
426 T 731.31-34.
427 T 732.1-9.
428 T 736.20-26.
429 T 736.37.
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433 F also described the accused as being violent towards her and her siblings.
She said that although he never hit her when they were living in Adelaide, he was
violent in other ways, for example, kicking her door.430
434 She said the accused would also target both MS and IS. She described the
accused dragging IS from his bedroom into the lounge room and then kicking him.
She also described an occasion when IS was eating in the kitchen and the accused
came and hit him on the back, grabbed his head and slammed his face into the
table. The accused had done that as he was angry because IS was not contributing
to the household expenses. She acknowledged that she was around 20 or 21 at the
time, meaning IS was around eight or nine.431
Sleeping arrangements at Smithfield
435 F gave evidence that when they moved into the house at Smithfield, FS and
the accused slept in bedroom 1 on Exhibit P2. IS also slept in that room for a few
months. Thereafter, IS moved out of bedroom 1 and slept in the same room as HS
(bedroom 2). She and MS shared bedroom 3.432
436 F gave evidence that from 2020, her mother would, on various occasions,
sleep in the laundry. She said:433
Yes, so at the time because again there were all of these fights happening in our house, my
dad was always like being violent and aggressive towards her, I thought that maybe she is
doing that to get away from him, but I helped her set up that room, the laundry.
437 F gave evidence that FS had slept in the laundry on more than one occasion
and at one time she slept there for a few days before the accused convinced
everyone to convince FS to return to bedroom 1 and they then had to move their
mother’s stuff back.434 She said that when her mother was sleeping in the laundry,
her mother and the accused were not speaking to each other. The accused was
mostly passing messages through her to tell her mother. She said he called FS’s
family members and told them that she was misbehaving and not being a proper
wife, so that they would also put pressure onto her.435
438 F gave evidence that FS also regularly slept in the lounge room and that she
and her mother had moved permanently into the lounge room just prior to the
accused’s arrest.436
430 T 756.21-23.
431 T 732.12-23.
432 T 737.5-37.
433 T 738.7-11.
434 T 738.38-739.2.
435 T 739.21-26. F was not asked whether she overheard those conversations between the accused and FS’s
family members and as such, this aspect of her evidence may have been hearsay.
436 T 739.3-16.
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439 When her mother was sleeping in bedroom 1 with the accused, she would
regularly come and ask F if she could sleep in the room F shared with MS. Prior
to that, she often heard arguments happening in their room.437
October 2020
440 F gave evidence about an incident which occurred in October 2020. She said
that about one to two weeks prior to this, the accused had been constantly
threatening them and saying that he was going to deport their mother to Pakistan.
He was always angry and always threatening to withdraw their citizenship. On one
occasion, there was a fight between the accused and her mother. She called the
police because she was so scared. She did not know what was causing these
fights.438
441 When the police attended the home, she told them that her parents were
fighting. The police had treated this as not being a serious issue and had given them
a few numbers to call for organisations such as Relationships Australia and 1800.439
442 It was at this time that FS was sleeping in the laundry. It was also at this time
that the accused was passing messages through her to FS to put pressure on her
mother and to tell her that she had to oblige with his wishes.440
443 In cross-examination, F said that she had heard her parents yelling at each
other, albeit she had mostly heard the accused’s voice. It was because of this
argument that she had called the police. When asked whether she had seen any
physical violence on that day, she said:441
I can’t remember that, no. It’s been four years.
444 F said that when the police arrived, she tried her best to speak to them but she
did not really know the right words to use to explain what was happening. She had
said something like ‘he’s forcing her, blackmailing family’ and the police had
understood that it was just a couple having a fight. F did not think that she had said
anything to the police to the effect that there had been any physical violence.442
445 The next day she went with her mother to Relationships Australia to seek
their help. Relationships Australia said they could not really help unless there was
a registered referral.
437 T 747.6-748.6.
438 T 741.19-29.
439 T 741.29-33.
440 T 742.1-14.
441 T 762.30.
442 T 764.1-22.
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1800RESPECT
446 F gave evidence that Relationships Australia gave them a number for
1800RESPECT. They went home and she rang that number.443
447 F gave the following evidence as to what happened when she called
1800RESPECT:444
A. At first, I told them that my mum would just like to speak to someone about our
father's behaviour and by that I meant like him being violent and aggressive, and
verbally abusive, and physically abusive. Then they got an interpreter on the phone,
and then my mum was speaking to the interpreter, and the interpreter was then
translating to the 1800 worker, but I was in the room so I heard everything.
Q. And can you tell us what it was that you heard your mum say on this occasion.
A. Yes, she was crying and she was saying that he had been sexually assaulting her
forcefully and she couldn't even say 'no', and she couldn't tell anyone because there
is no-one, and if she like refuses, he slaps her and pulls her hair as well. Like he
abuses her and then has the intercourse.
Q. Were they the words that you remember your mum saying.
A. In Urdu, yes.
Q. In Urdu she said that your father was sexually assaulting her.
A. Yes, and that she didn't anyone to tell and she doesn't know what to do.
448 She explained that the interpreter had been cut off and she had to finish the
rest of the conversation. The lady had told them that the next time something like
that happened, they were to call the number back again and she gave them some
phone numbers to give to the accused to fix his behaviour.445
449 Thereafter she had taken her mother to pharmacies to try to get her something
to help with her infections and pain and she eventually took her to see Dr Abbas.446
450 In cross-examination, F confirmed that this was the first time that she became
aware of any allegation of any sexual coercion in relation to the accused and FS.
She agreed that after hearing that, she then lost all respect for her father.447
451 F was also cross-examined about whether FS had told her about other assaults
that had occurred in the house at Smithfield. She explained that she never actually
saw her father physically assault/hit FS when they were living at Smithfield.448
However, she had observed him being aggressive and violent towards her. She
explained that after overhearing the 1800RESPECT conversation with her mother,
443 T 764.36-765.1.
444 T 742.20-743.3.
445 T 743.12-20.
446 T 743.23-28.
447 T 765.16-26.
448 T 757.27-31.
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she then understood why it was that her mother had moved out of her bedroom and
what was the reason behind all of those incidents.449
Water bottle incident
452 In cross-examination, F was asked if she had ever seen the accused throw
bottles of water at or towards the house prior to his arrest. She said that she had
seen him throw water bottles both outside and inside the house and that this
occurred on multiple occasions.450
453 When asked if she could name one such occasion, she described an incident
which she thought had occurred in 2021 after she and her mother had moved into
the lounge room. She said that they could see outside from the lounge room, him
getting out of the taxi and then throwing bottles of water on the ground before
leaving.451
454 When F was asked whether there was any such incident in 2022, she said that
‘maybe in 2022’ he had a bag he would take the water bottles in. The accused
would throw the bag on the ground whenever he entered the house and they would
go and fill them up and place the bag back in his taxi. When asked when that had
happened in 2022, she was uncertain as to when, but assumed it was before March
and maybe from mid-morning to afternoon.452
Incident – 30 March 2022
455 F gave quite detailed evidence of what had occurred at the Smithfield house
on the evening of 30 March 2022.
456 She explained that this time she was undertaking a placement at university
and her mother had moved to sleep permanently in the lounge room. At this time,
she, her siblings (other than IS) and the accused, were members of a family group
chat on WhatsApp.
457 She recalled that earlier in the day she had received a message via that group
chat from the accused, asking for the siblings to remove their mother’s furniture
from out of the main bedroom. Rather than do this, she and her siblings had simply
gone to bed and fallen asleep. When the accused came home at around 9:00pm, he
must have seen that none of the furniture had been moved.
458 F described the accused as banging on the door of her brothers’ room and
demanding them to take the furniture out right now.
459 She explained that both she and her mother were awake in the lounge room
and were sitting on her bed. In response to her father banging and yelling, she
recalled her mother got her phone out to record what was happening. She said,
449 T 766.13-18.
450 T 784.4-13.
451 T 784.15-19.
452 T 784.20-37.
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‘that was just for her safety’. She said her mother only started recording after her
siblings had come out of the room to take out the furniture.453
460 F gave evidence that the accused was angry when he saw the camera and he
came to snatch it away. He was swearing a lot and sayings things like ‘I’ll show
you what I’m going to do, you don’t know who I am’.454 She tried to stand in front
of her mother to prevent him from trying to snatch the phone away.455
461 Thereafter, the accused went to MS’s room and started banging on her door,
demanding that she clean up his mess.456
462 She saw her father trying to come back and smash the phone and try and hit
her mother, maybe two to three times.457
463 F gave evidence that she then ran to MS’s room to help her sister. She said,
‘I knew that if he got inside the room he would hit her for sure’.458 She went into
MS’s room and was holding her and trying to keep the door shut. The accused was
swearing and yelling at MS and at her mother.459
464 In cross-examination, F maintained that the accused had tried to hit her
mother, but that he could not, as she was in the way.460
465 In cross-examination, F was shown some of the footage that was taken by her
mother on her mobile phone on the night of 30 March 2022.461 In the footage shown
to her, the accused can be seen walking towards MS’s room. F agreed that at that
time he was not swearing at MS, however, she said that he had been swearing just
before this. She said, ‘if he was having a normal conversation with her, why would
I run to the room?’462
466 F maintained that what could be seen on the footage was the accused
demanding MS’s help. She disagreed that he was calmly explaining to MS why he
required her help and maintained that his behaviour at that time was aggressive.463
She agreed that he could not be seen in the footage kicking MS’s door.
467 In cross-examination, F was also shown some footage from video files
marked 0985 and 0986 from the footage taken by her mother on 30 March 2022.
She was asked if she could hear what the accused was saying during that recording.
She said that in the first clip he was saying ‘if you want to live here’ or ‘if you
453 T 748.7-749.38.
454 T 750.1-8.
455 T 750.13-19.
456 T 750.21-25.
457 T 751.1-10.
458 T 751.13-14.
459 T 751.18-20.
460 T 757.19-37.
461 Exhibit P8.
462 T 769.30-31.
463 T 769.20-770.3.
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don’t want to live, door is open’ and in another clip he was saying ‘the front door
is open’ and ‘get out if you want’. She explained that what she understood him to
mean was, if you don’t want to stay here and follow my rules, then you can leave.464
468 During examination-in-chief, F was asked how the situation on the night of
30 March 2022 came to an end. She said:465
We knew or I knew for sure that we couldn't stay there at the house, we knew he was going
to, like, hurt us so the only thing I could think of was to just, like, leave the house and just,
like, stand outside basically. I think once we stood outside I thought that maybe we could
have, like, emergency accommodation just to spend the night so I called 1800.
469 The lady on the end of the line had told her that she had to call the police.
The police arrived a little later. She, her mother, MS and IS were standing outside
of the house at that time. The accused had driven off in his taxi and her other
brother, HS, had just run off.466
470 F said she explained to the police what had caused what could be observed
within the house. She had assisted to translate to her mother so that she could
understand what was going on. This was the last time she had seen the accused at
the Smithfield house.467
471 It was in this context that F gave her first statement to the police at 12:14am
the next day, 31 March 2022. She explained that at that time she was very nervous
and very shocked because of what had happened. She did not know what she could
say or what the process would be like. She was also tired.468
Other
472 F was asked during cross-examination if she ever recalled a time when the
accused and FS went out in the car to Ikea together. She recalled the family going
in the vehicle together to Ikea. When asked if there was ever a time when only her
mother and father had gone together without anyone else in the vehicle to Ikea, she
said:469
A. The thing is that's what my dad used to say, so I don't know if they actually went or
not. But it's just that he would tell us to go as a family and me and my siblings didn't
want to go so we would just say no, but as to whether they actually reached Ikea or
not I can't say anything about that.
Q. All right, and when did this occur.
A. From 2019 to 2020 or 2021, early 2021 I can say. Because then he got a job, so then
he wouldn't go to Ikea but he would go to Bunnings instead.
464 T 788.29-789.15.
465 T 751.22-28.
466 T 751.29-752.6.
467 T 752.7-22.
468 T 785.16-23.
469 T 783.4-16.
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Q. And when you say he got a job, do you mean driving a taxi.
A. Yes.
473 F also gave evidence-in-chief that the accused took a lot of medication when
they were living at the Smithfield house. On one occasion she saw him drop a
leaflet on the ground with respect to his medication. She went to pick it up and it
said, ‘horny goat weed’.470
HS’s evidence
Living in Pakistan
474 HS gave evidence that he is now 22 years of age (DOB: 3 April 2002).471
475 He recalled that he was aged only six or seven when the family first moved
from Pakistan to New Zealand.472
476 HS remembered growing up in Sialkot and said he had ‘fond memories’
about specific things growing up but that was it.473
477 He could recall his father coming home from work when he was small but
that was the only thing he could remember in terms of his father’s behaviour
towards his mother when they were living in Pakistan.474
Living in New Zealand
478 HS could remember going to New Zealand but could not say how long they
stayed there or what they did. He recalled them returning to Pakistan at some stage.
479 He remembered his younger brother being born and growing up in ‘weird
housing’ in New Zealand.475
480 When asked as to what he could remember about his father’s behaviour
towards his mother in New Zealand, he gave evidence that the only thing he could
remember related to something that happened to him, namely he got slapped by
his father on his right cheek and as a result, his tooth fell out. He could not
remember what had led up to that incident but remembered that the accused was
‘really mad’ when he got slapped.476
481 In cross-examination, HS denied that he in fact lost his tooth when he fell off
a scooter.477
470 T 752.23-31.
471 T 793.23-25.
472 T 794.19.
473 T 794.27-30.
474 T 794.34-37.
475 T 795.15-18.
476 T 795.37-38.
477 T 819.25-27.
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482 HS did not have any recollection of his father’s behaviour towards his other
siblings during their time in New Zealand.478
Living in New South Wales
483 HS gave evidence that he first moved to Australia in about 2009/2010 and
that he remembered living for a period of time in Melbourne.
484 The family eventually settled in Sydney. He remembered going to school in
Sydney and going to the beach every now and then when they lived in Kogarah.
He said ‘for me it was like enjoying being a kid and just like playing with toys’.479
485 He recalled attending activities organised for immigrant children such as
camping, swimming and attending a park.480
486 HS gave evidence that in 2011 he and his siblings went into foster care and
they remained in foster care for 18 months. He and his older sister were split up
from their younger brother and younger sister. Thereafter they returned to live with
the family in Kogarah before moving to Minto a few months later. From Minto
they then moved to Bathurst.481
487 HS gave evidence that it was when they were living in Bathurst that he first
noticed his parents were arguing. He did not really know what it was about but he
recalled a few times where his mother would just leave the house as a result of the
fighting. He would go into his room and try not to listen to it.482
488 He recalled seeing his father be physically violent towards his mother when
they were living in Bathurst. They would fight. When they were argued, his father
slapped his mother.483 He thought his father had hit his mother in the face.
489 HS gave evidence that his main memory of his father being physical was
towards his little sister in Bathurst in about 2015 or 2016. The accused was not
happy that she had an app called ‘Musically’. He said he hit MS, slapped her and
kicked her when she was on the ground. Either his mother or his older sister had
then intervened.484 HS also gave evidence that he had seen F getting slapped a few
times, albeit he did not clarify precisely when this had occurred.485
490 HS gave evidence that when they were living in New South Wales he was
always scared of the accused. He did not want to mess up anything. He was scared
478 T 796.15-18.
479 T 797.22-24.
480 T 797.28-34.
481 T 798.14-37.
482 T 799.6-17.
483 T 799.27-29.
484 T 799.32-800.4.
485 T 800.8.
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he would be yelled at or put down. He said the accused was always comparing him
to other people and in particular, to his cousins from overseas.486
491 His father would swear at him in Urdu. He would normally communicate
with his siblings in English, but with their parents, they would speak in Urdu.487
492 HS said that he had also heard his father swear at his mother and that he
would curse her family back at home. When asked what kind of things he heard
his father say to his mother, he said:488
He'd just call her like 'stupid' or 'dumb', was like the main thing I remember hearing. But
then more it would be like just related to like family, like how her family is just useless
whatnot, her family. My mum's family is always trying to like argue with my dad's family.
493 HS was asked in cross-examination if he remembered whether his mother
had a telephone when they lived in New South Wales. He said that from what he
could remember, she got a new iPhone in 2016 when they were living in
Bathurst.489 He was uncertain whether this was a phone that his mother shared with
his father.490
494 HS was also asked in cross-examination whether he had a memory of his
father taking the family out when they lived in New South Wales. HS gave
evidence that he could only recall the accused taking them to where he worked as
a security guard in Orange. He said their father would be working and they would
spend time going to Kmart or the other stores nearby.491
Living in Adelaide
Living arrangements
495 HS gave evidence that when they first moved to live in Adelaide, he had his
own bedroom, as IS slept in the same room as the accused and FS. His two sisters
shared a bedroom. His little brother had moved into his room during COVID.492
496 His bedroom, bedroom 2 on Exhibit P2, shared a wall with the main
bedroom.
497 HS gave evidence that from his room he could hear his parents yelling and
cursing at one another from inside the main bedroom. His father’s voice was louder
and it was his voice that he primarily heard.493 He also heard ‘stuff being thrown
around’ from within that room.494
486 T 800.17-34.
487 T 800.37-801.7.
488 T 801.15-19.
489 T 822.21-28.
490 T 829.4-5.
491 T 823.2-7.
492 T 806.27.
493 T 806.33-38.
494 T 807.3-4.
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498 He said that sometimes his mother would sleep in the laundry or in the lounge
room, rather than sleep in the same bedroom as his father.495
Arguments between the accused and his mother
499 HS gave evidence that after the family moved to Adelaide, his parents started
arguing a lot and fighting a lot more, especially after COVID. They would fight
over money and about spending it on ‘useless stuff’. Their arguments were also
‘family related’. Sometimes his parents would not talk to one another.496
500 HS described hearing a lot of arguing at night and he would try to distract
himself, for example by putting on his headphones and playing games.497
501 He remembered that his parents mostly fought at nighttime. He could not
really hear what they were saying but there was lots of swearing. They were
cursing at one another about their families and whatnot.498 He said:499
A. Sometimes it was related over family matter, things like money related and then it
was sometimes, like, my mum would, like, cook something, like, slightly wrong and
my dad would get pissed off because it wasn't cooked perfectly and he'd start yelling
at her.
Q. Was that something that happened frequently.
A. With, like, not cooking that or not it would be, I wouldn't say it was frequent but,
like, every now and then it would be. Like, it would be the little things that will just
trigger him and just, like, make him get pissed off.
Q. Were there other things other than the food not being cooked properly that you saw
him get upset or angry about.
A. Yes, it was if we weren't, like, helping around the house. If, like, someone came,
like, to do something with the house I'd have to, like, stand there, like see him do
everything, make sure they were doing something. Something I normally, like,
record them while they're doing stuff or if they're, like, giving us a quote for
bathroom stuff I would have to get an iPhone and record everything they're saying,
making it very uncomfortable.
Q. Why would you have to do that.
A. Because my dad told me to and I didn't want to upset him.
502 In cross-examination, HS gave evidence that sometimes his mother would be
the first to start the yelling, but not always. They would swear at each other. They
would argue about ‘money and stuff related to family but also over little things’.500
495 T 801.36-38; T 808.12-25.
496 T 801.29-36.
497 T 802.1-803.8.
498 T 803.11-18.
499 T 803.23-804.8.
500 T 816.9-10.
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Physical violence
503 HS gave evidence of an occasion when the family was living in Adelaide and
IS had spent money on the accused’s credit card on a video game, Fortnite. He saw
the accused slapping and kicking IS before F intervened.501
504 He also recalled observing the accused being physically violent towards his
mother. During examination-in-chief, he gave evidence that he remembered one
or two times when the accused had slapped his mother in the Adelaide house.502
505 When asked to describe those two occasions, he referred first to an incident
that had occurred during a family discussion when his mother had said something,
his father had ‘got pissed off’ and had then slapped her.503
506 He also described another occasion when his mother cooked dinner for his
father and that when his father came home from his job, he told his mother the
food was not perfect. His mother had said something and as a result, the accused
had ‘got pissed off’. The accused then slapped his mother, went into his room and
then went off to do another job in the taxi.504
507 In cross-examination, HS agreed that in his first police statement made on
28 November 2023 he had not said anything about the incident when the accused
had allegedly slapped him on the cheek, causing his tooth to fall out. He explained
that he had not told the police about that incident at that time because he did not
think it was important and he thought that what he was being asked was with
respect to his other siblings and not specifically about him.505
508 He also agreed that he had not made any reference in that statement to the
specific occasions when he had observed his father slap his mother. He said he had
not remembered them at the time. He explained that (the police) had ‘just told him
to write down what I remember and not the whole, every tiny little bit’.506
509 HS agreed that he had not made reference to these specific incidents in his
subsequent statement provided to the police on 23 February 2024. He said that he
was not asked to add anything more to his statement at that time, rather he was
there to make sure that the first statement made sense.507
510 In re-examination, HS confirmed that in his first statement made on
28 November 2023, he had said that his father had always been an angry and
abusive person and that he had a memory of his mother being slapped and hit by
his father. He had also said ‘I’ve often seen my father get angry at my mother and
slapping her across the face or hitting her on the back of her head’. He had also
501 T 800.10-16.
502 T 807.3-7.
503 T 807.9-13.
504 T 807.16-25.
505 T 819.15-17.
506 T 821.36-822.1.
507 T 822.2-11.
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told the police, in that statement, the arguments and fighting had increased a lot
after they moved to Adelaide towards the end of 2018.508
General matters
511 HS gave evidence that when he was growing up, he only saw his friends very
infrequently (for example maybe once a year). He said that his parents would say
that his friends were a bad influence, although he later clarified that it was his
father who had the majority say in what he could and could not do.509
512 He described his father placing undue pressure on him to study, rather than
play video games. He said that his father wanted the children to study at university
and become doctors. He had been forced to undertake a university course that he
did not get to choose. In addition, his father had wanted him to drive a taxi, but he
did not want to do a job he did not enjoy in circumstances where he was also
studying a course that he did not choose.510
513 HS said he preferred it when the accused was out of the house, as this made
it easier for him to go for a walk outside or do what he wanted to, for example just
be in his room and watch a movie.511
514 HS was asked how he felt when he as a home and the accused was also at
home. He said:512
A. Like, I'd say - I wasn't, like - like, my dad encouraged us to be, like, ourselves but I
truly never felt I could do my things because I still know there were a few things that
I didn't fully have control over in my life and, like, just even every day thing. Like
my dad was out of the house would just feel like I could do mostly whatever I wanted
to, but if my dad was home I knew there was, like, a schedule, something I could
stick to.
515 Other than a brief time he spent working at Hungry Jack’s when he was in
Year 9, HS confirmed had not undertaken any employment while he was studying.
He explained that his father would give him $50 a week for him to spend, until he
started to receive a study allowance through Centrelink. He was allowed to save
that money, other than contributing towards the cost of the Telstra (wi-fi) bill.
516 HS acknowledged that his father would encourage him to be himself. There
was no obligation on him to pay any board or rent.513 He also agreed with a
proposition put to him that the accused had encouraged him to drive a taxi. He said
he did not have a driver’s licence and his mother had not wanted him to drive a
taxi and had persuaded his father about that.514
508 T 828.10-31.
509 T 804.9-23.
510 T 805.26-30; T 816.20-32; T 817.1-8.
511 T 817.14-17.
512 T 811.1-8.
513 T 805.8-23; T 813.36-815.1.
514 T 815.9-26.
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The fence
517 HS gave evidence about the fence that was erected around the Smithfield
property in about 2021. His father had insisted on a ‘huge fence’. 515
518 HS acknowledged that there had been some crime in the area and that his
father had sought to protect them from people that may have been trying to steal
from them. However, he said that when the fence was erected, this made him feel
weird and cut off from the outside world. Although there was a gate, his father
liked to have it locked most of the time. It was his impression that his father did
not want anyone to see what was happening inside the house.516
Incident on 30 March 2022
519 HS was questioned about his recollection of the events of the evening of
30 March 2022.
520 HS gave evidence that at that time he, his older sister, his mother, father and
younger sister, were part of a WhatsApp chat group. He remembered the accused
and FS had been arguing and the accused had wanted him to remove all of his
mother’s belongings out of the main bedroom before he came home. He said his
mother did not want him to do that, and he did not want to pick a side, so he did
not do it. At this time his mother was sleeping in the lounge room.517
521 When the accused came home from work, he was upset that he had not moved
the furniture out. The accused turned off the wi-fi, came into his room and told
him to ‘get out’ and take all of his mother’s belongings out. He and his little brother
then helped move the belongings. While he and his brother were moving one of
the cupboards out, his mother started recording the incident in the lounge room.
He said:518
And then my dad got pissed off that she was recording so he tried to smash it out.
522 His mother and older sister ran outside. He said, at first that he thought his
mother had called the police and then said that his sister had called them.
523 While his mother and sister were outside, the accused had gone to his younger
sister’s bedroom door and started banging really loudly and telling her to get out
and come and help. He said that she was scared and started yelling and freaking
out and told him to go away.519
524 The accused told him to go outside to tell his mother to come inside and to
not call the police. He went outside and told them that the accused wanted them to
515 T 811.23.
516 T 811.9-813.33.
517 T 810.27-33; T 808.29-38.
518 T 809.12-13.
519 T 809.17-26.
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come inside. F told him that the police were on their way. He went back inside and
told his father that they were not coming back in.520
525 He said that by this time. he had had enough. He grabbed his phone, walked
out and went to the park. He stayed there for about an hour and when he returned,
the police were at the home. His sister had told him to just pack up his belongings
and from there they had gone to the police station at Elizabeth.521
526 HS had not seen his father again at the Smithfield house thereafter.522
527 During cross-examination, HS was shown some of the footage taken by his
mother during that incident.
528 He said the accused had banged on MS’s door after his mother went outside
(and therefore by inference, after she had stopped recording).523
529 When asked what MS could be heard saying in Urdu on the footage, from
behind her closed door, HS confirmed that MS had said ‘why?’524
Expert evidence – Dr Abbas
530 Dr Abbas is a general practitioner, who obtained her qualifications in
Pakistan in 2010 and speaks Urdu. At all relevant times, she was working as a
general practitioner at a clinic in Munno Para.
531 Dr Abbas gave evidence that she first saw FS as a new patient at her clinic
on 25 October 2019. On that day, FS was accompanied by the accused during the
examination. Dr Abbas did a blood test for diabetes. FS told her she had been
referred to the Modbury Hospital ENT clinic for hearing issues by another doctor
at the Europa Medical Centre.525 Dr Abbas was also made aware of FS’s previous
diagnosis of Hepatitis C. She said she intended to obtain records from the
Liverpool Hospital and would then refer her to a liver clinic or nurse.526
532 Dr Abbas gave evidence that she next saw FS at her clinic on 14 October
2020. At that time, FS attended the consultation alone, although Dr Abbas was
uncertain if she had been accompanied by anyone to the clinic. FS told her that her
husband had forced her to have anal sex a few times over the last few years and
that he was also forcing her to engage in oral sex. She said that if she refused, her
520 T 809.29-35.
521 T 809.37-810.17.
522 T 810.34-36.
523 T 825.26-35.
524 T 826.35.
525 Noting although this was hearsay, it was not relied upon as to the truth of what was said the evidence
was relevant and admissible to the Court’s assessment of the reliability and credibility of FS’s evidence
about when and in what circumstances she had seen Dr Abbas.
526 T 428.21-429.15.
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husband would physically abuse her. She had called the police a few days before
and had been given the contact details for domestic violence.527
533 FS presented with rash and discomfort in her anal area. Upon examination,
there were a few small ulcers in the area. FS reported pain upon internal
examination of the anus (which complaint was of itself abnormal) but that
examination did not reveal otherwise reveal any abnormality.528
534 Dr Abbas did a herpes swab of the ulcerated area. She also discussed with FS
the possibility of psychological review and reviewed her for a mental health care
plan for referral to a psychologist.529 Dr Abbas understood from FS that she was
visiting other doctors for other medical issues.
535 FS returned to see Dr Abbas on 21 October 2020, at which time Dr Abbas
confirmed the swab result was negative for herpes. She advised FS to use
Sudocream. She also recommended a referral to a colorectal surgeon to perform a
more thorough internal anal examination, however FS did not wish for such a
referral at that time. She had not seen her since then.530
Police evidence
DBS Poole
Accused’s arrest
536 DBS Poole gave evidence that he was present when the accused was in the
cells following his arrest on 31 March 2022 and was later assigned the task of
being the investigating officer with respect to this matter.531
537 At the time of his arrest, the accused had showed him his mobile phone but
did not provide the PIN number for that phone, meaning a detailed analysis of the
phone was not undertaken. He could not recall seeing any abusive messages
exchanged between the accused and FS on that phone. He did obtain access to
various messages shared between a family WhatsApp group.532
Tasks undertaken as the investigating officer
538 DBS Poole gave evidence that he attended at the Smithfield home on
21 August 2022 at which time he took the photographs depicting the home as
527 T 426.16-26. This evidence was not relied upon as complaint evidence as it was not referrable to any
alleged offending prior to that date. The evidence was relevant and admissible to the Court’s overall
assessment of the credibility and reliability of FS’s evidence, insofar as Dr Abbas conducted certain
examinations, and made observations said to be consistent with FS’s evidence that she was experiencing
anal pain at or about that time, arising from forced anal intercourse.
528 T 426.33-427.21; T 430.10-431.1.
529 T 427.22-24; T 428.8-15.
530 T 427.25-428.7.
531 T 863.1-5; T 845.31-34.
532 T 836.7-20; T 863.9-18; T 867.1-17.
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tendered in the photographs on pages 1 to 18 of Exhibit P3. He returned on
10 October 2022 to take the photographs on pages 19 and 20 of Exhibit P3.533
539 He explained that he was unable to freely speak with FS as she did not speak
English.534 He spoke to F to make appointments but would use an interpreter if he
needed to speak to FS about the allegations.535 Often those interpreters were
assisting via AVL, rather than in person. He could not recall any interpreter
assisting over the phone.536
540 In cross-examination, DBS Poole was asked about various investigations he
had made with respect to the allegations.
541 He had not tried to find any joint bank account records held by the accused
and FS, for example to demonstrate whether there had been any purchase by the
accused of a sex toy using a joint account, or whether any purchases had been made
from Bunnings at either Munno Para West or Gawler or from Spotlight.537
542 However, he had obtained details with respect to the accused’s medical
history and pharmaceutical benefits scheme history. Those records demonstrated
that the accused had never been prescribed any impotency medication or Viagra
but had been prescribed medication for his diabetes.538 He had sought a copy of
FS’s records from the Liverpool Hospital but they were yet to be received.
Incident on 15 March 2022
543 DBS Poole gave evidence that during the investigation, he sought to obtain
information from 13CABS to ascertain the accused’s whereabouts on 14 and
15 March 2022. He explained that this evidence was sought in connection with an
allegation that the accused had assaulted FS on the morning of 15 March 2022.539
544 He collated information received from 13CABS as to the location of the
accused’s taxi at various times on 14 and 15 March 2022.540
545 Exhibit P10 is a map obtained from Google Earth which depicts where the
accused’s taxi was at various times on 14 and 15 March 2022. Exhibit P11
contains the data which stands behind the information in Exhibit P10. It was an
agreed fact that Exhibits P10 and P11 were accurate as to time, location and taxi
identification.541
533 T 836.33-837.18.
534 T 837.9-24.
535 T 837.29-32; T 837.37.
536 T 838.3-7.
537 T 861.37-862.38.
538 T 854.26-38.
539 T 852.20-29.
540 T 839.36-842.34.
541 Exhibit P15 at [8].
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546 Relevantly, the 13CABS records demonstrate that the accused’s taxi was in
or about the Adelaide metropolitan area during the evening of 14 March 2022.
It was near the Smithfield home between 10:00pm and 11:00pm that night and
then travelled north through Port Wakefield.
547 At 6:36am on 15 March 2022, the accused’s taxi was in Whyalla. At about
8:45am that day it was in Port Augusta. It then travelled south towards Adelaide,
passing through Port Wakefield at about 10:42am. The taxi was immediately
adjacent to the Smithfield house between 11:55am and 11:57am on 15 March
2022. It then left the house and did not return to the area adjacent the house until
8:01pm that evening.
Process by which the various statements were obtained from FS
548 DBS Poole gave evidence about the process by which statements were
obtained from FS from time to time and who was used as an interpreter.
549 He was not present when a statement was obtained from FS, with the
assistance of the female interpreter, Nazifa Safi. However, he was later told by F
that her mother was having issues understanding that particular interpreter as she
spoke a different dialect.542
550 DBS Poole then arranged for his colleague, DBS Menon, who spoke Urdu
and in the same dialect as FS, to accompany him when he attended at the
Smithfield house to take the photographs in Exhibit P3. It was his understanding
that FS and DBS Menon understood each other quite well. As such, he decided to
use either DBS Menon or another interpreter from an interpreting centre, to take
statements from FS.543
551 He had himself had some difficulty establishing a level of rapport with FS as
he did not speak her language and that everything was harder through an
interpreter. It was his impression that DBS Menon could build a rapport with FS
because he could speak to her.544
FS’s statement dated 10 February 2023
552 DBS Poole was cross-examined at length about the specific process
undertaken when FS gave her police statement dated 10 February 2023.
553 He gave evidence that the contents of that statement were the result of a
proofing undertaken with FS and the DPP at the DPP’s office. That proofing was
conducted on 15 December 2022. It was a lengthy meeting and the interpreter used
542 T 838.8-27; T 838.36-37.
543 T 838.28-839.13.
544 T 839.14-25.
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at that time was Nazifa Safi.545 It was at this time that he first became aware of the
allegation of three further rapes.546
554 DBS Poole explained that he made a list of his notes from that conversation
which he then transcribed into a statement. He then arranged for DBS Menon to
confirm with FS the accuracy of that statement.547
555 He had received an email from FS on 18 January 2023 wherein she had
requested DBS Menon be an interpreter for her as she could understand him well.
556 On 27 January 2023, FS attended at the Elizabeth Police Station. At that time,
she provided details of the three further rapes, with DBS Menon acting as the
interpreter.548
557 DBS Poole then arranged for the addendum statement to be compiled and
approved and signed by FS. This had occurred on 10 February 2023 at which time
he sat down with FS and DBS Menon. DBS Menon read out line by line the
statement that he had prepared in order for FS to confirm that what he had written
in that statement was accurate. She was provided with an opportunity to add
anything that was not in the statement and to make changes to her statement as that
process went along. Any changes were then included into the statement. It was
only thereafter that FS signed the statement in the presence of him and DBS
Menon.549
558 DBS Poole confirmed that he made an audio recording of that process as DBS
Menon was not an accredited interpreter.550
Attendance at Smithfield home on 10 October 2022
559 DBS Poole gave evidence in cross-examination of an attendance by him at
the Smithfield home and a representative from the DPP on 10 October 2022.
DBS Menon interpreted for FS during that attendance.
560 There was a discussion during which FS indicated that she wanted to
withdraw the charges. He had confirmed with FS that if that occurred, there would
be nothing to stop the accused from taking the children and that his bail conditions
would go away. They did not discuss the details of the charges, rather their
discussion was confined to providing FS with further information and talking
about the future of the case.551 There was no intention to ask FS any additional
545 T 855.6-856.7.
546 T 858.29-31.
547 T 855.32-36.
548 T 857.21-38.
549 T 858.1-28.
550 T 860.6-21.
551 T 858.32-859.30.
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questions with respect to the allegations and the attendance was solely to provide
an update as to the progression of the case.552
DBS Menon
561 DBS Menon is a police officer who speaks the Indian/Pakistani dialect of
Urdu, quite fluently.553
562 Although he has no specific accreditation as an interpreter, he was asked by
Officer Poole to assist to interpret for FS in circumstances where she had
previously had difficulty understanding another interpreter provided for her.554
563 DBS Menon’s first interaction with FS occurred at the Smithfield home on
21 August 2022, when he accompanied DBS Poole for the purposes of taking
photographs of that home.
564 When asked how they were able to interact with each other, DBS Menon said
that he was comfortable with the language and FS was quite comfortable with
communicating to him, but that there were definitely cultural issues which created
a barrier at some point. By way of further explanation, he said that FS came from
a culture where speaking openly to a male person was not that easy. He said,
‘It took a while for her to warm up, yeah’.555
565 The first time DBS Menon spoke in depth with FS about the allegations was
on 27 January 2023, when he assisted to interpret for the purposes of FS providing
a further statement to DBS Poole. On 10 February 2023, he acted as interpreter to
enable that statement to be finalised. DBS Menon said that he read the draft
statement back to FS, line by line, in order for her to confirm that it was accurate.
He gave FS the opportunity to make any corrections and he made any such
corrections prior to her signing the statement. There were times when, rather than
read the statement ‘word for word’ to FS, he would summarise or paraphrase an
entire paragraph (presumably using his own words to explain his understanding of
what was written in that paragraph). He would then ask her if what he had said was
wrong or right and she would correct him if it was wrong.556
566 DBS Menon gave evidence that by then FS was quite comfortable with him
and as far as he was concerned, there was absolutely no language barrier between
them.557
567 DBS Menon was asked if he could recall FS’s demeanour at the time she
gave her statement on 10 February 2023. He could not differentiate his memory of
552 T 866.23-36.
553 T 870.30-31; T 871.8.
554 T 871.10; T 871.17-23.
555 T 871.24-37.
556 T 880.20-30.
557 T 875.26-877.10.
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her demeanour by reference to any specific date but, as to her general demeanour,
he said:558
She has been all calm all through the conversations, all through the interactions that I have
had with her and often being emotional, up and down sometimes. Certain times she would
not speak up because of cultural barriers is what I would assume and then there are times
when she would openly and freely communicate everything to me.
568 DBS Menon was also involved in some other peripheral aspects of the
investigation, such as obtaining medical records from the Kelso Medical Centre
and Concord Hospital.559 He also spoke to one of the other children, he believed it
was a son, who had refused to provide a statement.560
Australian Border Force (ABF) material
569 As part of the prosecution case, two statements made by Amanda Staier were
tendered, relevant to the immigration status of both the accused and FS. Each
statement was dated 25 October 2022.561
570 The accused’s visa history can be summarised as follows:
1. Between 4 April 2008 and 29 April 2008, he held a Business (Short
Stay) Visa (Subclass 456);
2. Between 19 May 2008 and 1 June 2008 he held a Business (Short Stay)
Visa (Subclass 456);
3. Between 31 March 2009 and 5 May 2009 he held a Transit Visa
(Subclass 771);
4. Between 5 May 2009 and 17 June 2009 he held a Tourist Visa
(Subclass 676);
5. Between 3 May 2010 and 3 January 2012 he held a Bridging Visa A
(Subclass 010) granted in association with an application for a
Protection Visa (Subclass 866); and
6. On 3 January 2012 he was granted a Protection Visa (Subclass 866)
lodged on 7 June 2013.
571 Attached to Ms Staier’s statement is a copy of the accused’s application for
Australian Citizenship dated 2 May 2013, made when the accused was living in
Minto. At that time, he described his occupation as being a ‘Supply and
Distribution Manager’.
558 T 874.6-12.
559 These records were not before the Court.
560 T 878.33-879.22.
561 Exhibits P12 and P13.
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572 The accused was granted Australian Citizenship on 28 October 2013 and
acquired Australian Citizenship on 14 April 2014.
573 FS’s work visa history can be summarised as follows:
1. Between 19 May 2008 and 1 June 2008, she held a Business (Short
Stay) Visa (Subclass 456);
2. Between 25 August 2009 and 17 June 2010, she held a Tourist Visa
(Subclass 676);
3. Between 3 May 2010 and 3 January 2012, she held a Bridging Visa
(Subclass 010) granted in association with an application for a
Protection Visa (Subclass 866) lodged on 4 November 2013; and
4. On 3 January 2012 she was granted a Protection Visa (Subclass 866).
574 Attached to Ms Staier’s statement is a copy of FS’, Application for Australian
Citizenship dated 5 November 2013. In her application, FS recorded her home and
mobile telephone numbers as being identical to those of the accused, consistent
with them sharing a mobile phone, rather than FS having her own personal phone.
Relevantly, FS also recorded her email address as being that of the accused. She
declared her occupation as ‘housewife’.
575 FS nominated the accused as the person who was authorised to make
enquiries or receive information on her behalf about the application. She also
nominated the accused’s Mastercard as being the credit card from which any
appropriate fee was to be paid.
576 FS acquired Australian Citizenship on 14 April 2014 and was granted
Australian Citizenship on 14 June 2015.
Defence case
Ms O’Brien’s evidence
577 Ms Catherine O’Brien was called to give evidence on behalf of the accused.
578 Ms O’Brien is a social worker who has been employed since 2009 as a family
counsellor at the Jannawi Family Centre in New South Wales. This is a specialist
child protection service which supports high risk families where children have
been removed or are on the cusp of being removed from their care.562
579 Ms O’Brien met FS, the accused and their children in 2012. She confirmed
that the family were referred to the Jannawi Centre by another organisation,
DCJ Community Services and the referral was for a specific purpose of restoring
562 T 953.5-21; T 965.13-21.
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the children to the family. Everyone, including the accused and FS, were aware of
that specific purpose.563
580 Ms O’Brien said that she met with both FS and the accused at the Centre and
undertook either two or three home visits. The purpose of such visits was to
ascertain the state of the home, available resources and the connections between
the children and the parents.564
581 Ms O’Brien confirmed that FS could not speak English and that she was only
able to communicate with her through interpreters. Some of those interpreters were
independent interpreters who assisted over the telephone, noting that this was a
specific request made by the accused (that is, that the interpreter be by phone rather
than in-person). Ms O’Brien confirmed that there would have been an option for
an interpreter to be present if that had been requested.565
582 Ms O'Brien could not confirm if independent interpreters were provided on
every occasion that she spoke with FS, although she said that the only reason they
would not have used an interpreter would have been if it fell through, in which
case the accused would assist. However, she confirmed that the accused would act
as FS’s interpreter during any home visits.566
583 Ms O’Brien was asked questions during examination-in-chief with respect to
a report that she had prepared with respect to the family in 2012. In that report she
had noted that there was a concern raised in relation to potential fighting in the
relationship. She explained that when the family were referred by DCJ to the
Jannawi Centre, one of DCJ’s concerns was that the couple had been fighting.567
Ms O’Brien was then asked if she had had a conversation with FS about that. She
had no specific recollection of that conversation, however she had made reference
to it in the report. According to the report, FS had said, through an interpreter, that
in 13 years of marriage to the accused, they had never had a fight.
584 In the next line of the report, she had written that FS then glanced at her
husband and giggled at the idea and said ‘never’.568
585 Ms O’Brien gave evidence that this conversation would have occurred at the
Jannawi Centre because conversations wherein concerns were raised were always
undertaken at the Centre. They were done through an interpreter as they were
trying to get the best overall responses to any concerns DCJ had around restoration
of the children.569
563 T 953.22-34; T 956.32-34; T 958.27-959.4.
564 T 953.38-954.7.
565 T 954.26-28; T 960.35-37.
566 T 954.30-34; T 955.1-7.
567 T 956.21-35.
568 T 956.36-957.10.
569 T 957.15-20.
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586 In cross-examination, Ms O’Brien agreed that it was possible that the
accused may have acted as an interpreter on this occasion. She said she could not
categorically verify who had acted as the interpreter.570
587 Ms O’Brien was asked what, if any observations she had made as to the
relationship between FS and the accused during her dealings with them. She said:571
It seemed - it appeared close and connected and certainly the concerns that had been raised
prior to coming to Jannawi we were not observing that. There was a lot at stake. A lot of
our work was to run contacts between the children with the parents, looking at their ability
to parent the children, because one of the other issues was neglect and not meeting the
children's needs, so a big focus was were there any child protection concerns that might get
in the way of children being restored to both parents.
588 She said that they appeared to interact well and warmly and there did not
appear to be any flags at that time.572
589 In cross-examination, Ms O’Brien confirmed that both FS and the accused
were very eager to have the children returned to their care.573
590 She further confirmed that when an interpreter was arranged for FS, the only
requirement that was specified was for an Urdu interpreter (with no specific dialect
requested), albeit a preference was for a female interpreter.574
591 Ms O’Brien was asked about the contents of a report prepared by another
agency, SCARBA, which was provided to the Jannawi Centre when they became
involved with the family. In that report dated March 2012, it was stated:575
At times [the accused] appeared to attempt to dominate and control sessions and would
require prompting to allow time for the interpreter to translate the worker’s question to [FS]
prior to responding.
592 She was asked if that aligned with her recollection of her engagement with
the accused and FS. Ms O’Brien said:576
It wasn't our experience but I imagine we proceeded a little bit differently and I think very
quickly both [the accused] and [FS] felt a bit for comfortable with our service and seemed
to be more relaxed and opening up and being a bit more talkative and accepting of the
service, with maybe a little bit more trust than they had prior to us.
593 Ms O’Brien was also directed to a portion of the SCARBA report wherein it
was stated:577
570 T 960.15-16.
571 T 957.28-37.
572 T 958.2-3.
573 T 959.5-7.
574 T 960.21-30.
575 T 962.36-963.2.
576 T 963.7-13.
577 T 963.19-21.
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It is noted that when challenged by the SCARBA worker, [the accused] was observed to
become highly agitated, evidenced by body language and tone.
594 Ms O’Brien was asked whether there were any incidents where she had
observed the accused becoming agitated if he was challenged on anything and she
said no. When asked whether she would have challenged his views, Ms O’Brien
gave the following evidence:578
I'm not sure if 'challenge' is the right word. We explored the issues that had been raised as
to why the children fell into the child protection system and both parents would have been
very aware that our service was the service that was either going to bring children home or
keep them in care. So there was a lot of pressure on the family in one sense but they also
trusted us in another sense because we are very open and honest and upfront about the work
we do and how we do it and if we had any issues we would flag that with them at the time
that we were noticing anything.
595 She gave evidence that both parents were very open about their behaviours
and the motivations that had led to the children going into care. She said they were
both deeply traumatised by it but willing to do anything to bring the children
home.579
Agreed facts
596 The following facts were agreed as part of the defence case:580
1. The accused has no criminal convictions in Australia or New Zealand.
2. In the statement of the complainant dated 10 February 2023, no mention is made of
having returned from Bunnings, Munno Para before being raped at Spotlight, but it
is agreed that this is described in her affidavit dated 23 April 2023 at para.19.
3. Regarding the Bunnings, Munno Para incident, the statement of the complainant
dated 10 February 2023, para.34, contains the following: 'We had filled up the boot
of the caravan - I will withdraw that and start again. 'We had filled up the boot of the
car and the front seat with merchandise. [PSR] asked me to sit in the back seat. He
lowered the tracksuit pants that he was wearing, exposing his penis, grabbed my head
and pushed it towards it. I had closed my mouth tightly shut. He slapped my face
and asked me to open my mouth. I refused, saying "I don't like to do that" and threw
up each time he makes me do it. [PSR] did not listen, slapped me again, pried my
mouth open and put his penis inside my mouth'.
4. On 5/9/2018, the accused reported the theft of copper piping from his home to
SAPOL.
5. On 20/9/2018, the accused reported damage to the side gate of his house to SAPOL.
The accused reported that the cause of the damage was unknown and the accused
stated to police that he wanted the report number for insurance purposes.
578 T 963.36-964.8.
579 T 964.37-965.3.
580 T 971.13-973.10.
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6. On 2/10/2021, the accused reported that his taxi had been damaged and broken into
whilst parked on the street out the front of his home to SAPOL.
7. The accused has been prescribed insulin for diabetes management since 21 May
2010 as per the medical records attached to Officer Poole's affidavit dated 23 January
2024.
8. Medical notes dated from July 2022 indicate that the accused has had his left testicle
removed.
9. Medical records from 2 January 2023 record that the accused has no evidence of past
or current infection with hepatitis C virus.
10. The following are portions of the transcript from the Parramatta Children's Court
dated 21 September 2011, and these relate to questions asked and answered by the
complainant: 'Q. While you were in New Zealand, did you travel back to Pakistan.
A. Yes, that's true. After my kids was - my child was born and the medicine had had
the reaction, I had gas problem, I had liver problem, I couldn't even stand up and that
was the reason my husband took me to Pakistan. Q. How did you afford to travel
back. A. At that time, my husband was working, his salary was 60,000. We had just
started but we were financially all right at that time. The situation was good. Q. While
you were in Pakistan, Ismail became ill. A. Yes. Q. I'll show you a discharge slip
from the children's hospital at Lahore. A. Yes. Q. In the top section it says that the
child was presented after having a fever for 10 days. A. At that time, my child was
vaccinated. Over there in Pakistan, it is told that three or four days fever after the
vaccination is quite normal. Maybe there was something in the vaccination or maybe
the weather was too harsh for him. I had been looking after my child at that time
giving him Panadol, taking him for the doctor's visit. His body was all right, but his
head, I could feel something on his head. I was at Mepore and I took him to
Rawalpindi and eventually I took him to the - as well myself I had taken the child to
Lahore'.
It is further agreed that an interpreter was used in relation to the complainant giving
that evidence. The name of the interpreter was Sandeep Sidhu. The interpreter was
sworn in to interpret both Punjabi and Urdu languages. There is no record of the type
of Urdu dialect spoken by the interpreter on this occasion. There is no record of the
gender of the interpreter.
Medical evidence
597 In addition, the accused tendered as copy of a report from a Cardiologist,
Dr James Wong dated 4 March 2015.581
598 Dr Wong recorded a history that the accused was studying health sciences
and working part time as a taxi driver and security guard. His medical history was
summarised as including diabetes mellitus, for which the accused was on insulin,
hypertension and coronary heart disease, with a history of a coronary stent in 2012,
from which there had been no follow up.582
599 The accused was assessed and undertook a stress echocardiogram. He did not
present with any significant myocardial ischemia, had no angina and did not appear
581 Exhibit D16.
582 Ibid at p.1.
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to have any recurrent significant coronary obstruction. However, Dr Wong noted
that the accused’s risk factors were not under control; he had high blood pressure
and high cholesterol, and his glycaemic control had been sub-optimal. He was
advised to seek the help of the referring doctor, Dr Khan, with risk factor control
(daily exercise, weight loss, lipid control and reducing his blood pressure).583
Closing submissions
Prosecution
600 In her closing address, the prosecutor emphasised the context in which the
alleged offending had occurred and the unique difficulties that FS faced, which
bore not only on the proper way in which it was said the court should approach her
evidence but on why and how the alleged offending was able to occur against a
background of years of physical, emotional and verbal abuse.
601 The court was asked to accept the evidence given by FS that she had always
been scared of the accused, who, from the outset of her relationship, had constantly
belittled her and put her down, using derogatory words and making her feel ‘less
than’.
602 The court was directed to the specific evidence given by FS as to the nature
of that verbal abuse, namely that the accused would call her deaf, refused to call
her by her name and made her feel unworthy of being his wife.
603 FS had given a large volume of evidence about uncharged acts of both
physical and sexual violence and of emotional abuse. That evidence had been led
to explain the overall context in which the charged offending had arisen, that is in
the confines of a relationship categorised by constant physical, verbal and
emotional abuse, directed by the accused both towards FS and the children. Those
uncharged acts also served to explain why it was that FS did not speak up earlier
about the alleged offending and why it was that the accused continued to act the
way he did, knowing that there would be no consequences for his behaviour.
604 The court was directed to the evidence given by FS as to specific cultural
issues at play in this matter. FS gave evidence about the fact that the accused had
beaten her as early as when they lived in Pakistan but that she could not complain
because in her religion and in her culture, this was something that the wives were
required to bear because husbands were perceived to be on a pedestal close to God,
with their behaviour effectively being caused by mistakes made by the wife. As
FS had said, ‘what could a wife do?’584
605 The physical abuse that FS described as occurring in Pakistan had continued
once they moved to Australia. Indeed, she said that she had been punched or
slapped by the accused so many times that she could not count and it was submitted
that this may well explain why the complainant now has difficulty describing, in
583 Ibid at pp 1-2.
584 T 162.7.
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detail, the various incidents that had occurred of this type in New South Wales,
some of which had occurred more than 15 years ago.
606 The court was also reminded of the evidence that was given by F which
supported that of FS, namely that when the family lived in New South Wales, the
accused referred to being told by Satan to harm the family and F’s evidence
corroborating that given by FS about an incident which occurred in Bathurst when
the accused allegedly threw a glass of water at FS in the context of an argument
about family matters in Pakistan.
607 The court was also reminded of the evidence given by FS about how the
accused prevented her from contacting her family in Pakistan and made it difficult
for her to establish any friendships or social connections in Australia. Similar
evidence was given by both F and HS in terms of their ability to socialise and
otherwise effectively assimilate within Australian culture. The evidence indicated
the level of control that the accused had not only over FS but over the family
generally – control which was demonstrated by the accused’s behaviour on the
night of 30 March 2022, immediately prior to his arrest. If the accused wanted the
children (or FS) to do something, they would be expected and required to comply
with his wishes.
608 Ancillary to this evidence was the evidence that was given by FS and both F
and HS about the construction of the tall fence around the Smithfield property. The
prosecutor submitted that irrespective of why the accused erected the fence, the
practical reality was that FS (and the children) all felt as if this further isolated
them from the outside world and outside community.
609 The prosecutor also highlighted other matters unrelated to the accused’s
behaviour which impacted on both how FS gave her evidence in court (and when
she gave statements to police and others) and were important in considering the
extent to which any alleged inconsistencies in her evidence could be properly
explained.
610 It was submitted that FS had had a number of health issues and experienced
ongoing trauma, for example that associated with the removal of her children in
2011/2012.
611 There were clearly issues relevant to her family and her isolation from her
extended family in Pakistan. There were also financial issues in the sense that she
was wholly reliant on the accused for financial support.
612 There were language difficulties in the sense that FS often relied on the
accused to translate for her, particularly in the context of her dealings with health
professionals and the authorities.
613 Further, prior to FS being fitted with a hearing aid, she had significant hearing
difficulties, which may have impacted on the accuracy of any earlier statements
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given by her particularly those relating to the children being removed from their
care while in Kogarah.
614 The prosecutor highlighted those other aspects of the evidence given by FS
which were supported by or corroborated by the evidence given by either F and/or
HS. For example, F had given evidence that the accused was violent towards her
and HS when they were young children in Pakistan, hitting them with broomsticks
and locking them in a room.585 Both HS and F had given evidence of an occasion
when the accused hit HS in the face when they were in New Zealand, causing one
of his teeth to fall out. Both F and HS had spoken of the accused physically
assaulting the two younger children. F had also given evidence corroborating that
given by FS of various occasions when the accused had been physically violent
towards FS.
615 The prosecutor acknowledged that much of the cross-examination was
devoted to identifying potential inconsistencies in the evidence given by FS that
she had outlined in earlier statements.
616 One of these apparent inconsistencies was said to relate to when the accused
had first raped her and the inconsistent evidence given by FS to the effect that she
was first raped in Minto, whereas she had also given evidence about being forced
to participate in sexual activities with the accused in Kogarah.
617 The prosecutor submitted that this apparent inconsistency could be
reconciled by the court interpreting what FS meant in this respect to be that she
was first forced to engage in both anal sex and oral sex with the accused when they
were in Minto. The forced sexual activity that had occurred in Kogarah, was
confined to penile vaginal intercourse.
618 Further it was submitted that FS gave evidence of many occasions when she
had been forced to participate in sexual intercourse against her will while they were
living in New South Wales. It was submitted that this was important when dealing
with any suggested inconsistencies in FS’s evidence with respect to those specific
occasions of uncharged sexual acts, insofar as the acts were so frequent and
commonplace, as to provide an explanation for why FS may now not be able to
accurately distinguish one event from another and/or explain why certain details
were missed or conflated by her.
619 It was submitted that what was clear was that this was a violent relationship
and that the accused had a propensity for violence as against FS, making it more
likely that the alleged offending had occurred.
620 The court was also directed to aspects of FS’s evidence which were said to
be compelling and therefore, indicative of her recounting real lived events. For
example, the explicit detail in which FS described the occasions of forced oral sex
585 Noting the submission erroneously described F’s evidence as a recollection of having been locked in a
cupboard.
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in Minto and how it made her vomit and her gums bleed. She had a clear
recollection of the accused’s penis smelling like urine. These details were said to
give colour to FS’s account and to support her credibility and reliability.
621 Although the evidence of Dr Abbas was not relied upon by way of any
complaint evidence, it was submitted that it did support aspects of FS’s account
insofar as Dr Abbas undertook a physical examination of FS’s anus, during which
she observed ulceration and also assessed her for the presence of sexually
transmitted diseases. It was submitted that the observations of Dr Abbas supported
FS’s account that she was in fact experiencing anal pain at or about the time she
saw Dr Abbas, consistent with her allegations with respect to the uncharged acts
of anal intercourse at or about that time.
622 The prosecutor acknowledged that there were some apparent inconsistencies
in the order of events and the allegations in the various counts, as outlined by FS
in her evidence and in several of her police statements. However, the court was
asked to consider the circumstances in which those earlier statements were
provided, with different interpreters, sometimes being male interpreters and
sometimes being interpreters who spoke a different dialect.
623 The court was reminded of the evidence given by FS about how different the
experience of giving evidence was compared to that pertaining to the processes
adopted at the time each of her police statements were given. Her statements
involved her responding to questions posed of her by police and she was not
pressed for specific details of every topic, compared to the intense scrutiny by
which she was cross-examined over a period of some six days. It was submitted
that it was understandable that in such circumstances, the evidence given by FS
was more detailed than that outlined in her various statements, thus providing an
explanation for why there may be certain omissions in those earlier statements in
terms of peripheral and other details.
624 Further, the evidence given in court by FS had been given, largely, with the
assistance of only one female interpreter, who spoke Urdu with a Pakistani dialect
and with whom FS was able to communicate and appeared to have developed a
rapport and understanding. It was submitted that in those circumstances the court
could be confident that her evidence way reliable and credible, even if it may, at
times, have differed in some ways from that contained in her earlier statements.
Those differences were readily explicable having regard to the circumstances in
which the earlier statements were provided and in particular, cultural difficulties
associated with statements provided by FS to male officers, such as DBS Menon.
625 Insofar as there were said to be inconsistencies in what FS had said in court
about her relationship with the accused and what was set forth in the evidence she
had given in the Paramatta Children’s Court and/or her affidavit, the court was
reminded of the purposes for which those materials were prepared. That is, they
were prepared solely to enable the children to be returned to FS and the accused.
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626 It was submitted that the criticisms that were directed at FS in terms of those
inconsistencies needed to be considered in the context in which FS had made those
prior out of court statements –in the presence of the accused, at a time when she
was endeavouring to have her children returned and in circumstances where there
must have been some uncertainty and distrust associated with the process. Further,
there was uncertainty as to precisely whom had interpreted for FS at various times,
whether the interpreter was a male and/or female, or whether the interpreter spoke
the same dialect as FS. As to the affidavit, that had clearly been written by the
accused and therefore was in his words, not those of FS.
627 As to the allegations themselves, the court was reminded that the alleged
offending in counts 1, 2, 3 and 5 were all said to have occurred within a period of
about two to three months and all in the car, in similar scenarios. This may explain
why there was some conflation in terms of FS’s account and/or errors in terms of
the sequence in which these incidents occurred as outlined in earlier out of court
statements.
628 The prosecutor spent considerable time emphasising how the court should
approach FS’s evidence with respect to count 6. It was submitted that when the
court carefully considered all of FS’ evidence, both as to the circumstances of this
incident and other earlier occasions of forced anal intercourse, it could be satisfied
that what FS was describing was some partial penetration of her anus by the
accused’s penis. This was to be contrasted with FS’ evidence of earlier occasions,
when the accused had anally raped her and fully inserted his penis in her anus. The
court was reminded of FS’s evidence as to how she felt pain during this incident,
consistent with there being some, albeit possibly minimal, penetration, sufficient
to make out the elements of the offence.
629 It was submitted that if the court could not be satisfied beyond reasonable
doubt in that respect, there were alternative offences available, namely the
alternative offence of attempted rape (available as a common law alternative) or
indecent assault, as per s 75 of the Criminal Law Consolidation Act.
630 Although much was made by defence counsel as to alleged omissions in prior
statements made by FS about the circumstances in which she slept in the laundry
at Smithfield, it was submitted that both F and HS had given evidence which
corroborated FS’s account that she did, in fact, sleep in the laundry. The fact that
neither F, nor HS, gave evidence of observing the accused drag FS from the
laundry, was simply consistent with their evidence that they would stay in their
rooms when their parents argued, consistent with them wanting to stay away from
the accused at that time.
631 As to any alleged motive to lie, the court was reminded of the evidence given
by FS wherein she adamantly denied there had been any arrangements for a watta
satta marriage between F and HS and any offspring of her sisters, either in 2010/11
or 2016.
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632 The first alleged watta satta was said to have been proposed more than
10 years prior to the accused’s arrest in any event.
633 Further, the court was reminded as to how in fact the police became involved
and attended at the Smithfield house on 30 March 2022. It was not the case that
FS (or F) rang the police and required their attendance. F had rung 1800RESPECT,
simply seeking their assistance to arrange for alternative accommodation for the
family that night. It was that organisation who were then compelled to report the
incident to police, thus facilitating police attendance.
634 It was submitted that the court could reliably disregard any alleged
suggestion that there was a motive for FS to lie about the alleged offending.
635 Finally, it was submitted that the evidence given by F as to what she had
overheard during her mother’s telephone discussion with an interpreter online
during the 1800RESPECT call in October 2020 properly fulfilled the definition of
‘initial complaint’ as set forth in s 34M.
636 The content of what F heard was consistent with the allegations made by FS,
namely that the accused had sexually assaulted her by using force to engage in
sexual activity, whereby if she refused, he would slap her, pull her hair and abuse
her and then engage in intercourse with her.
637 The court was also reminded that this was effectively the very first time FS
had had the opportunity to speak to someone, in her language, about this abuse –
the accused was not present and there was an interpreter made available for her.
The court was also reminded of F’s evidence that FS was crying and therefore
distressed during that telephone conversation.
638 It was submitted that when all of the evidence was properly considered, the
court could be satisfied beyond reasonable doubt that FS was both a credible and
reliable witness and that it could be satisfied beyond reasonable doubt as to the
elements of each offence as charged.
Defence
639 In his closing address, counsel for the accused commenced by submitting that
almost every event about which FS had given evidence involved either internal
inconsistencies or multiple different versions, with those inconsistencies and/or
omissions going to the heart of her account, rather than simply to peripheral
matters.
640 It was submitted that when the court scrutinised FS’s evidence with great
care, it would find that she was neither a credible nor a reliable witness and that it
could not be satisfied beyond reasonable doubt as to any of the alleged offending.
641 It was submitted that the evidence given by FS as to the timing of the alleged
offending in counts 1, 2, 3 and 5 was so vague as to make it almost impossible to
know when any of that alleged offences had occurred, which could have been
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anywhere between 2018 and 2020. As such, the accused was at a significant
forensic disadvantage insofar as it was impossible for him to obtain evidence
which may provide him with a full alibi with respect to the allegations or produce
other evidence (for example, to confirm what car he had at any relevant date).
642 It was submitted that the reason why FS was so vague with respect to the
timing of those events was that they simply did not happen and that her evidence
as to those events and all of the alleged offending was fabricated.
643 It was submitted that there were numerous examples throughout FS’s
evidence which demonstrated that she was simply prepared to lie and then to
change her evidence if necessary to meet any inconsistencies that were pointed out
to her.
644 As to why she was lying – this was simply to end the relationship, being
something that FS had acknowledged that she had wanted to do since, at least,
2021. It was submitted that fabricating these allegations provided a more culturally
acceptable way for FS to leave the relationship, to maintain custody of the children
and to keep the house at Smithfield.
645 Counsel for the accused then stepped the court through the various topics
upon which FS had given evidence, highlighting what were submitted to be
inconsistencies and omissions in that evidence compared to any prior out of court
statements made by her and/or with other evidence led at trial.
Prosecution opening address
646 It was submitted that the prosecution opening contained major
inconsistencies with the evidence ultimately led at trial and that those
inconsistencies ought be taken into account when assessing the overall reliability
and credibility of FS’s accusations, in accordance with the authority of R v MAS.586
647 Those inconsistencies were said to relate to matters going to the heart of the
facts relevant to the offending in counts 2 and 3, count 1 and count 6.
Paramatta Children’s Court
648 It was submitted that when the Court considered the evidence given by FS
and compared it to what was said by her when giving oral evidence in the
Paramatta Children’s Court, the affidavit sworn by her with respect to those
proceedings and what she said to Ms O’Brien, the Court should conclude that the
evidence reflected poorly on FS as a witness of truth.
649 What FS had told the Parramatta Children’s Court highlighted the accused’s
good qualities and described him as a great family person and provider. It was
submitted that what FS had said at that time, was, in fact, true. She had been sworn
in, had an interpreter when giving her evidence and had acknowledged that she
586 [2013] SASCFC 122 at [91].
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had tried her best to tell the truth. What FS told the Parramatta Children’s Court at
that time was markedly inconsistent with her evidence at trial, such that her
evidence ought be rejected.
650 Conversely, it was submitted that if FS had lied during the Children’s Court
proceedings, to ensure the children were returned to her care, this reflected very
poorly on her. It demonstrated that she was a witness who was prepared to lie on
oath if it served her particular purposes.
651 Counsel for the accused noted that Ms O’Brien had described the accused
and FS as having a warm relationship. He reminded the Court of Ms O’Brien’s
evidence as to the circumstances in which she recorded a note that FS had told her
that in 13 years of marriage, she and the accused had never had a single fight.
It was submitted that the Court should find that there was an interpreter provided
for the purposes of that discussion, as it related to a core concern, namely whether
it was safe for the children to be returned to the family home. It was submitted that
Court should find that FS was telling the truth at that time. However, if FS had lied
to Ms O’Brien in this respect, this was relevant to her overall candour and honesty.
Uncharged acts
652 It was submitted that the evidence given by FS, on every alleged uncharged
act, contained multiple versions and/or inconsistencies.
653 FS gave evidence that the accused had first raped her when they were living
in Minto. However, this evidence was argued to be internally inconsistent with the
other evidence given by FS to the effect that when they were living in Kogarah,
the accused regularly engaged in forceful and aggressive sexual intercourse with
her, with the force being so severe that on one occasion she suffered vaginal
bleeding for a month, requiring her attendance at the Liverpool Hospital.
654 This evidence was also said to be inconsistent with that outlined in a police
statement to the effect that there had been no rape prior to the couple living in
Minto and that the reason for the visit to the Liverpool Hospital (which had
occurred when they were living in Minto) was because FS was suffering from anal
bleeding.
655 When these inconsistencies had been pointed out to FS during cross-
examination, she had then suggested that the bleeding had started in Kogarah but
was still going when the couple moved to Minto, which was said to be indicative
of FS being prepared to change her evidence to suit her, if and when such
inconsistencies were highlighted.
656 Further, it was submitted that DBS Poole’s evidence, namely that the
Liverpool Hospital notes had been requested but the request was still pending, was
incongruent, in circumstances where not only was it the prosecution’s case to
prove but where the evidence given by FS on this topic was demonstrably
inconsistent.
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657 Counsel for the accused also highlighted reported inconsistences in the
evidence given by FS relating to the ‘knife incident’ in Bathurst. In her evidence,
FS had been quite adamant that when they were in Bathurst, the accused had held
a knife to her and told her to recite the kalma. However, it was submitted that what
FS had described to the police was her recital of the bismillah, which she
acknowledged was a different prayer. It was submitted that FS had changed her
evidence to refer to the kalma, rather than the bismillah, as the circumstances of
this incident as described by her were such that the recital of the kalma was more
appropriate. It was submitted that FS had simply changed her evidence to suit the
circumstances and then tried to blame the interpreter for any miscommunication.
658 FS had also described an incident where the accused had thrown a glass of
water at her in Bathurst. In her evidence she described the glass hitting her on the
chest whereas in a police statement made on 31 March 2022, she clearly stated that
the glass did not hit her and gave a reason for why.
659 It was submitted that the evidence given by FS as to her English lessons was
very disingenuous and demonstrative of her changing her evidence over time.
When initially asked what English she had been taught at school, FS was quite
clear in describing that learning being confined to two school years, in Years 6
and 7, whereas by the end of her evidence she had agreed that she had learnt
English in every year level at school until the age of 18.
660 Further, it was submitted that the affidavit sworn by FS in the Children’s
Court proceedings made reference to her learning English for some 11 months with
the assistance of the Sisters of Mercy, whereas in her evidence, FS had attempted
to downplay the extent to which she had in fact engaged in English lessons. It was
submitted that the purpose for this was clear – that is to provide a cover to blame
the interpreter whenever inconsistencies were identified in the evidence she had
given.
661 FS had given evidence of alleged non-consensual sexual intercourse
occurring on a trip to Adelaide to see the house at Smithfield. It was submitted that
this trip morphed into approximately six separate such trips in order to fit her
version of this alleged uncharged act which could only have occurred if the
children were not with them.
662 Counsel for the accused also highlighted what he submitted were numerous
and significant inconsistencies in the evidence given by FS with respect to the
alleged incident which occurred on or about 15 March 2022 at Smithfield, when
the accused was said to have thrown water bottles at the Smithfield home.
663 It was submitted that there were multiple versions of this incident, the first of
which appeared in the first police statement made on 31 March 2022, at which time
FS made no mention of any water bottle throwing incident. In that version, she had
described the accused as coming home in the ‘early hours’ of Tuesday 15 March
2022 and having thrown a glass at her.
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664 In her evidence, FS had confirmed that when she used the term ‘early hours’,
she had meant the time when the children were going to school. It was submitted
this simply could not have occurred, having regard to the records produced from
13CABS which demonstrated that in the early hours of Tuesday 15 March (ie the
school time hours), the accused was in Port Augusta.
665 The second such version of this incident given by FS, had described the
accused attending at the home and throwing water bottles ‘when the children were
leaving for school’.
666 In a police statement made on 23 February 2024, FS had stated that the
children had not yet gone to school when the water bottles were thrown. However,
again, this simply could not be reconciled with the records from 13CABS.
667 It was submitted that it was impossible to actually get a coherent account of
this incident and that was because FS had simply made it up.
668 Further, it was submitted that the evidence FS gave with respect to this
incident and indeed the 13CABS’ records, demonstrated that in fact, the accused
was working very long hours, being inconsistent with FS’s evidence which
otherwise painted him as a lazy man who rarely worked and whose hard work had
had nothing to do with the family’s ability to purchase the Smithfield house.
The charged acts
669 Counsel for the accused submitted that the evidence given by FS as to the
various charged acts was also bedevilled by the same problems and
inconsistencies.
670 As to count 6 on the Information, this was the final alleged rape which had
occurred at Smithfield in January 2022, being an alleged occasion of anal
intercourse.
671 It was submitted that there were multiple inconsistent versions of this event,
starting with what FS had told the police about this incident in her first statement
made on 31 March 2022. At that time, she had told the police that she had been
wearing her pyjamas, that the accused forcefully removed her clothes and threw
them to the side of the room.
672 When she gave evidence in court, FS described wearing trousers (not
pyjamas) and said that rather than her clothes being thrown off, her trousers were
simply pulled down momentarily.
673 In her statement made on 10 February 2023, FS had described this offending
as coming to an end when her son, in the adjacent bedroom, turned on his light.
However, in evidence, FS had described the hallway light being turned on and
encountering HS later in the kitchen. It was submitted that this provided an
explanation as to why FS had changed her evidence to the effect that her trousers
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were not removed, as otherwise she would have been trouser-less when she
encountered HS immediately thereafter.
674 There was a submission made that FS had given evidence-in-chief that it was
a ‘basket of fruit’ that alerted HS to this alleged incident.587 The transcript of FS’s
description of this incident, contains a transcription error. She did not say that she
had a ‘basket of food and that it banged the wall’. She said, she had ‘a back board
and that it banged the wall’.588
675 However, counsel for the accused noted that the most important
inconsistency with respect to this evidence was whether or not the accused in fact
inserted his penis in FS’s anus.
676 In her police statements, FS described the accused’s penis being inserted in
her anus. In her evidence-in-chief, she had similarly described at least part of the
accused’s penis penetrating her anus.
677 However, in cross-examination, FS was quite adamant that there had been no
penetration, ‘he did not insert, but he was trying to insert it and it was touching my
hip’.589 It was submitted that the court could never be satisfied beyond reasonable
doubt on the evidence given by FS that what she had described was the accused’s
penis actually going into her anus. In such circumstances, it was submitted that
similarly, the court could not be satisfied of any potential available alternative
charge of indecent assault or attempted rape. Indeed, it was submitted that the
evidence given by FS as to this count was too different from that as outlined in the
prosecution’s opening that there remained some doubt as to whether what she was
in fact describing was the same alleged incident, or an entirely unrelated event.
If indeed it was the latter, then there would be no basis upon which any alternative
charge could be made out.590
678 It was submitted that there was simply no support from HS as to this alleged
incident or from F (insofar as FS claimed that she had gone into F’s room at around
5:00am after spending most of the night in the lounge room).591
679 The remaining four counts on the Information were said to relate to three
separate occasions when the accused had sexually abused FS when they were alone
together in the family car.
680 Counsel for the accused submitted, at the outset, that the court must have
reasonable doubt with respect to these allegations in circumstances where FS had
maintained in her evidence, on more than one occasion that the accused had only
587 T 1038.27-28.
588 T 187.22-23.
589 T 603.32-33.
590 R v M,JJ, R v CJN [2013] SASCFC 51.
591 Noting F gave evidence that when FS was sleeping in the main bedroom with the accused, she would
often ask to sleep in the room she shared with MS; T 747.6-748.6. FS was sleeping in the main bedroom
at the time of the alleged offending in count 6.
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ever taken her out in the car on two trips, during which he had sexually abused her.
It was submitted that when the evidence given by FS on each of counts 2 and 3,
1 and 5 was carefully assessed, the evidence could not properly be understood as
relating to two trips and must relate to three separate trips, taken by the accused
and FS in the family car.
681 None of this offending was mentioned at all by FS in any of her police
statements until the statement made on 10 February 2023, notwithstanding that in
her very first statement, she had described being raped by the accused. It was
submitted that it was not a coincidence that this statement was only made after FS
had discussed with the police withdrawing the charges and after she had received
advice from the police that if the charges were withdrawn, the accused would be
able to see the children.
682 It was submitted that there were major inconsistencies in the evidence
ultimately given by FS as to the circumstances of each of these four counts and
that which she told the police in that statement.
683 DBS Menon was the interpreter assisting her at that time. On his own
evidence, he had acknowledged that he had a good rapport and good understanding
of FS. FS had the ability to make additions or corrections to that statement and that
in fact that had happened during the process. As such, the court was urged to reject
‘interpretation difficulties’ as being an explanation for the inconsistencies in her
evidence as to those four counts and what she told to the police in that statement.
684 Counts 2 and 3 were all described by FS in her evidence as relevant to an
occasion when she and the accused had gone to Spotlight in the context of
undertaking house renovations.
685 In her statement dated 10 February 2023, FS had described there being ‘lots
of stuff in the back seat’ of the accused’s taxi that needed to be returned to
Spotlight. Further, FS had said in that statement that on the way, the accused had
asked her to move to the back seat so he could put those items in the front seat.
686 It was submitted that it was clear from this statement that this was an
independent trip to Spotlight and had not occurred after the couple had been
shopping at Bunnings Munno Para or Bunnings Gawler.
687 In her evidence, FS explained this trip as being for the purposes of the
disposal of rubbish in the recycling bins at Spotlight. She described there being
rubbish in the front seat of the car and gave evidence that she was always seated
in the back seat, in order for her to both hear the accused better and because he
drove too fast. Importantly, in the statement, FS described the accused as pulling
down her pants and then engaging in penile vaginal intercourse with her. She made
no mention whatsoever of forced oral sex or even attempted oral sex, being
markedly inconsistent with the evidence given by FS in court.
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688 Moreover, in the statement dated 10 February 2023, FS had described an
occasion when she was in a car with the accused and he forced her to perform oral
sex but attributed that to an incident at Bunnings Munno Para and then again, to
another incident at Bunnings Gawler. In her evidence, FS did not describe any
forced oral copulation at either Bunnings Munno Para or Bunnings Gawler.592
689 Counsel for the accused emphasised that in fact, FS only gave evidence of an
attempt at forced oral sex during the occasion at Spotlight.
690 It was submitted that there was no real explanation as to why those
inconsistencies existed, other than claimed difficulties associated with
interpretation (including the fact that DBS Menon was a male). However, it was
argued that the description of the alleged sexual offending in that statement went
further and was more explicit than that as outlined in FS’s evidence, being
inconsistent with there being any difficulty on her part in communicating about
such matters in the presence of the male interpreter.
691 As to count 1, the alleged offending on the occasion the couple visited Munno
Para West, it was noted that FS had given evidence that when they left the
Bunnings car park, rather than turn right onto Frisby Road (which they usually did
to get home), the accused turned in the opposite direction (ie left). He then stopped
the vehicle in front of the gate on the side of the road. 593 This was said to be
impossible having regard to Exhibit P5 which demonstrated it would have been
necessary for the accused to turn right as he exited the car park, onto Frisby Road,
for the alleged offending to have occurred.
692 There was no supporting evidence from either F or HS to the effect that the
accused and FS had ever gone together to Bunnings on their own. This lent further
support for why the court simply could not be satisfied beyond reasonable doubt
of the evidence given by FS with respect to counts 1, 2, 3 and/or 5.
Complaint evidence
693 Counsel for the accused submitted there really was no complaint evidence
insofar as the evidence given by F as to her recollection of any conversation
between her mother and another person at 1800RESPECT, must be hearsay.
694 If the court disagreed with that submission, it was submitted that the evidence
should be disregarded in any event, as it was a third-hand account, meaning the
evidence was more prejudicial that probative.
Dr Abbas
695 Ancillary to this was the evidence given by FS with respect to her attendance
upon Dr Abbas. The court was reminded of the fact that FS was adamant she had
592 See evidence at [247]-[249] and [260]-[265] herein, noting that [34] of the relevant statement described
an occasion of forced oral sex occurring at Bunnings Munno Para.
593 T 220.21-27.
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only ever seen Dr Abbas on one occasion which was clearly inconsistent with the
evidence given by the doctor.
696 It was submitted that FS’s refusal to acknowledge that there were any further
or return visits, did not sit well with her version of events, that is that the accused
continually anally raped her over this period of time. Dr Abbas gave evidence that
the accused had been referred for further investigations and that this was declined.
It was submitted that the evidence given by FS that the accused forbade her from
returning, appeared to have been offered as an explanation as to why she did not
undertake those further investigations. The court was urged to accept the evidence
of Dr Abbas as to her dealings with FS and that having done so, it should be very
hesitant to find that FS was both an honest and accurate witness.
Accused’s health
697 It was submitted that there was a lack of evidence to corroborate FS’s account
and evidence which was also seemingly inconsistent with her account, including
the evidence as to the health problems suffered by the accused. It was submitted
that the uncontradicted evidence demonstrated that the accused had been an insulin
dependent diabetic for many years prior to these alleged events, that he had only
one testicle and that he had had a stent inserted for cardiac issues in 2012.
698 These conditions were said to be inconsistent with the accused being able to
perform sexually in the manner as FS had described.594
699 It was argued that this then provided the explanation for why F and FS had
given evidence to the effect that the accused was taking medication to assist him
to engage in sexual activities. In this respect, it was noted that the police had
investigated whether the accused had ever been prescribed Viagra or medication
for erectile dysfunction and had ascertained that he had not.595
No evidence to support FS’s allegations of bruises/bites
700 Similarly, there was no evidence from F or HS to corroborate the evidence
given by FS that she had been repeatedly hit, slapped and bitten by the accused
insofar as no one gave evidence of ever observing any marks on the complainant,
nor was there any medical evidence or DNA evidence to support those allegations.
Motive to lie
701 It was argued that the evidence given by FS was inherently untrue and that
she was not a witness of truth. It was submitted that it was quite clear that the
couple had been in conflict for many years and that FS was looking to leave the
relationship prior to 2022.
594 There was no expert evidence to support that proposition.
595 At its highest, the evidence given by FS and F on this topic was that the accused was taking tablets of
some kind – F described a pamphlet for ‘Horny Weed’ – not Viagra.
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702 It was submitted that making false allegations of rape provided FS with a
more culturally acceptable way for her to leave the relationship and to both keep
the children and the house.
703 The fact that the couple had been unhappy was demonstrated by the ‘big
argument’ that they had been involved in in October 2020, which subsequently led
to F calling 1800RESPECT and assisting FS to see Dr Abbas.
704 While FS agreed that she had sought to leave the relationship, she denied that
they had ever fought about money, in direct contradiction to the evidence given by
HS.
705 Further, FS’s lack of honesty was demonstrated by her inability to accept that
her family were interested in the concept of watta satta. She denied their interest,
when in fact her sister’s children had been married off to another sister’s children.
Exaggeration/fabrication
706 It was submitted that FS had attempted to paint the accused as being a
controlling and violent person in circumstances where he was not and that
similarly, both F and HS had attempted to do so. An example of this was said to
be the evidence they had each given with respect to the fence.
707 There was no dispute that the accused had reported the theft of copper piping
from his home and damage to the side gate of his home to SAPOL in September
2018. There was also no dispute that the accused had reported damage to his taxi
when it was parked on the street outside his home in October 2021. It was
submitted that there was a volume of evidence from which the court may determine
that the fence was simply put up because of the crime in the street and not because
of any attempt by the accused to isolate FS or his children from the outside world.
708 Of a similar note, it was clear from the evidence given by HS that he preferred
it when the accused was not home because the accused would rather he study than
play video games – not because of the fact the accused was a violent, controlling
man. Further, HS had readily acknowledged that the accused gave him money to
spend ($50 a week) when he first started university and once he had received
money from Centrelink, allowed him to keep that, other than making a minor
contribution towards the Telstra bill.
709 Although F had attempted to paint a narrative that the accused was a violent,
controlling man, she agreed that he had never physically harmed her during the
entire time they were in South Australia, nor had she witnessed the accused be
violent in any way towards her mother during that period.596
596 In fact, F gave evidence that she had observed the accused behave in a violent way towards her mother
in South Australia, insofar as she heard arguments from her parents’ room, involving the accused
smashing the fan, kicking the bed and slamming the door. She described the accused as always acting
violently and aggressively towards her mother, during 2020.
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710 The court was urged to carefully consider the recording made by FS of what
transpired on the evening of 30 March 2022. Rather than this demonstrating the
accused to be an aggressive, violent man, he submitted the recording showed the
accused conversing calmly with his children, who would yell back at him and
refuse to comply with his requests to assist him to move the furniture. In particular,
it was submitted that F’s insistence that the behaviour demonstrated by the accused
in that recording was aggressive, demonstrated the unreliability of her evidence,
which it was argued, had been adversely affected by what she believed she had
overheard her mother telling 1800RESPECT over the telephone.
711 Ultimately it was submitted that FS was a poor witness who was inconsistent
and had demonstrably lied on various occasions, giving multiple versions in
relation to both the charged and uncharged acts.
712 It was submitted that it would be very difficult to find that any of the alleged
offences had occurred beyond reasonable doubt, given all of those difficulties.
Analysis – preliminary observations
713 The defence case was simply put - there were far too many inconsistencies
in so many aspects of FS’s evidence generally and, specifically, in her account of
each alleged offence, and her account of other events, that I could not be satisfied
beyond reasonable doubt of the accused’s guilt as to any of the alleged offences.
714 It was submitted that there was a lack of other reliable evidence to support
critical aspects of FS’s account and reliable evidence from Dr Abbas and the
1300CABS records which was at odds with FS’s account, demonstrating both FS’s
dishonesty and unreliability.
715 FS’s evidence is critical to the prosecution case and as such, I must scrutinise
her evidence with care. I must be satisfied beyond reasonable doubt that FS is both
a credible and a reliable witness. I must not only be satisfied that she is telling the
truth but that there is no reasonable possibility that she could be mistaken, or have
imagined, or have misremembered, in a material way, any of the alleged offences.
716 When undertaking this task, I have carefully considered all of the evidence,
taken as a whole, to determine whether it is (or is not) consistent with evidence
given by FS and how that evidence otherwise impacts on my assessment of FS’s
account of each of the alleged offences. I have also carefully considered whether
the evidence is sufficient to satisfy me of the accused’s guilt of any of the offences
and whether any absence of supporting evidence causes me to have any reasonable
doubt as to the accused’s guilt of any or all counts.
717 I have carefully considered what can be properly identified as inconsistencies
in FS’s evidence and any prior out of court statements, and whether any apparent
inconsistencies can be reconciled or explained. I have also carefully considered
whether any such inconsistencies cause me to have a reasonable doubt as to the
truthfulness or accuracy of the FS’s account of any or all of the alleged offences.
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718 I have considered all of the evidence when making my findings of fact. The
order in which those findings appear in these reasons is simply one of practicality
and not indicative of my process of reasoning. These reasons should be considered
as a whole and not in a piecemeal fashion.
Findings as to background matters
Introduction
719 In considering and assessing the reliability and credibility of the evidence
given by FS, F and HS, it is important to consider their personal background and
the circumstances in which the alleged offending is said to have occurred. This
provides context, not only with respect to the alleged offending (and the alleged
uncharged acts) but as to how each of these witnesses gave their evidence. The
circumstances in which they made their various out of court statements is also
important.
Cultural issues
720 FS was born in Pakistan and is a devout Muslim. Both the accused and FS
were granted Bridging Visas (in association with applications for a Protection
Visa) when they came to Australia, as immigrants, in 2010. They had no extended
family in Australia.
721 FS gave evidence, which I accept, that in Pakistani culture, a husband
assumes a high position, close to God. As a result, if a wife is slapped or punched
by her husband, this was something the wife was expected to endure, and not
complain about, as it was taken to be the wife’s mistake that had caused this. The
wife was expected to ‘face everything’ once married.597
722 FS also gave evidence, which I accept, that the accused never had anal or oral
sex with her in Pakistan, as this was something which was against her religion and
prohibited as per the holy book, the Koran.598 When FS gave evidence about
occasions when she claimed to have engaged in either anal or oral sex with the
accused, her disgust and distress associated with even mentioning such activities
was obvious. She was not putting this on. I am satisfied beyond reasonable doubt
that FS abhors engaging in such sexual activity and that at no time has she ever
provided her consent to engaging in such activity with the accused.
723 FS gave evidence, which I accept, that in Pakistani culture and in her religion,
it was not appropriate for a woman to talk to a man, other than her husband, about
sex and/or sex with her husband. As part of the investigation and prosecution of
this matter, FS has been questioned by men, and in the presence of men, about very
personal matters relating to her sexual relationship with the accused. I accept her
597 T 161.17-162.7.
598 T 171.12-27.
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evidence that having to answer those questions, in such circumstances, was very
difficult for her and emotionally painful and uncomfortable.599
724 This is something which must be taken into consideration in the overall
assessment of FS’s evidence.
FS’s proficiency in English
725 FS’s native language is Urdu, spoken in the Pakistani dialect.
726 Notwithstanding FS learned some English at school, I am satisfied, from all
of the evidence,600 that at all material times, FS has had only a rudimentary
understanding of English. I do not doubt that she has some limited understanding
of basic written English phrases, consistent with her communicating, at times, with
F (and the accused) in English, over WhatsApp and/or text messages. I also accept
FS’s evidence that she was able to memorise the answers to her citizenship test,
conducted in English.
727 Insofar as there was some apparent inconsistency in the evidence given by
FS as to when she studied English at school, I accept her explanation for that. That
is, that she had understood the initial questions on this topic to be directed to when
she first started to learn English.601
728 It was suggested that FS had sought to downplay the assistance she had
received from the Sisters of Mercy to learn English. My impression from observing
FS give that evidence was that she was trying to impress upon the Court that
although she received some such assistance, it had not resulted in her becoming
fluent in English and she still had very little understanding of it.
729 I am satisfied that at all material times, FS’s proficiency in English has been
insufficient for her to either properly understand questions posed to her by a police
officer (or solicitor or social worker or counsellor) in English, and/or to
communicate accurately any intended response, without the assistance of an
interpreter, fluent in Pakistani Urdu. I accept FS’s evidence, supported by that of
Officer Menon, that there are important differences in the various dialects of Urdu,
such that FS does not properly understand Urdu spoken in the Afghani dialect.
730 It must follow, and I find, that when FS made any out of court statements in
circumstances where she was not assisted by an independent interpreter, fluent in
Pakistani Urdu, the accuracy of such statements must be questionable. That is,
I cannot be satisfied that statements said to be attributable to FS, made in such
circumstances, accurately set forth what FS intended to convey at the time she
made such statements.
599 T 685.26-686.15.
600 I will discuss the evidence that otherwise supported this finding, below.
601 Being consistent with the language she used when responding to the question at T 323.5-6 and not
inconsistent with what she said later at T 323.23.
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731 Ancillary to this issue is that as FS could not communicate effectively in
English, she needed to be accompanied by either the accused (or later, F) if she
attended any medical appointments.
732 Counsel or the accused was critical of the absence of medical evidence to
substantiate FS’s claims that she had been slapped or punched by the accused (thus
leaving bruises) and/or bitten by him. However, when the practical difficulties FS
encountered simply seeking medical treatment are considered in the context of her
cultural beliefs (that is, that it was simply the role of the woman/wife to put up
with this type of behaviour), the absence of such medical records is readily
explicable.
FS’s health
733 Both FS and F gave unchallenged evidence that FS has hearing difficulties.
I accept the evidence given by FS that she was first fitted with a hearing aid in
2016, when she was living in Bathurst, which had alleviated, but not resolved,
those difficulties.
734 As a matter of commonsense, if someone cannot hear properly, this impacts
on their ability to properly understand what is being said to them. I am satisfied
and find that when FS was living in Kogarah, and dealing with the authorities,
courts and various agencies with respect to the removal (and return) of the children,
her ability to understand what was being said to her was significantly compromised
not only by her inability to speak English, but by her hearing difficulties.
735 In addition, I am satisfied that FS has had multiple other health issues.
I accept her evidence that she has suffered from anaemia and was subsequently
diagnosed with Hepatitis C when she was living in New South Wales. I accept her
evidence that at times her gums would bleed. She spent some time in a mental
health hospital upon first arriving in Australia.
736 Counsel for the accused was extremely critical of the evidence given by FS
that the accused had given her diabetes which had been transferred via various acts
of sexual abuse. He described this as the ‘nadir’ of what was a multitude of lies,
told by FS, and one which falsely blamed the accused, just as her evidence had
falsely blamed the accused for a multitude of matters.
737 FS gave evidence that she was first diagnosed with Hepatitis C in New South
Wales. This is consistent with the agreed fact that this diagnosis was discussed
with a Dr Levy at the Liverpool Hospital in December 2013. I accept that evidence.
738 At that time, FS was living in Minto. FS gave evidence that she believed,
from what a nurse had said (with the accused acting as an interpreter), that as she
had Hepatitis C, it was important for them to use a condom during sexual activity.
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She believed the nurse had said this was important because the accused’s diabetes
could pass to her.602
739 FS gave evidence that she was living in Minto when the accused first engaged
in anal and oral sex with her. She gave evidence that although later blood tests
showed her Hepatitis C to have cleared, they instead showed diabetes. I note
Dr Abbas also did a blood test for diabetes when she saw FS in 2019, albeit the
results were not in evidence.
740 Any diagnosis of diabetes came after the Hepatitis C diagnosis. I am satisfied
that FS now genuinely, but mistakenly, correlates any subsequent diagnosis of
diabetes with the fact that she engaged in these sexual activities, with the accused,
particularly in circumstances where such activities were forbidden in her religion.
741 As such, I have no doubt that FS genuinely believes that she has diabetes and
that this was caused by her engaging in anal and oral sex with the accused.
Although FS may be mistaken as to the cause of this illness, I am satisfied it is
based upon her genuine misunderstanding of what the nurse told her on the
occasion she recalls.
The accused’s health
742 It was an agreed fact that the accused had been prescribed insulin for diabetes
management since May 2010. FS agreed that the accused had his left testicle
removed (albeit there was no evidence as to precisely when this occurred).
743 I am satisfied from Dr Wong’s report that the accused also has a history of
coronary heart disease and had a coronary stent in 2012. However, at an assessment
conducted in 2015, he was not presenting with any significant myocardial ischemia
or angina. He did not appear to have any recurrent significant coronary obstruction.
744 While Dr Wong noted the accused to have high blood pressure and high
cholesterol, he did so in the context of suggesting he could make some changes to
make himself healthier (and reduce the ongoing risk of cardiac related issues).
745 There was no evidence to support a finding that the accused’s various medical
ailments rendered him incapable of acts such as hitting or slapping FS or the
children. He was clearly physically capable of driving a taxi for many hours a day
as at March 2022.603
746 There was no evidence that the accused was physically incapable of engaging
in sexual intercourse during the relevant period, either because of any alleged
issues with impotency or because of any chronic heart condition.
602 T 679.26-35; T 680.4-14.
603 Exhibit P11.
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747 FS expressly denied the accused was impotent and maintained that he had
never had any problems getting an erection or with ejaculation. I accept that
evidence.
748 I am satisfied beyond reasonable doubt that the accused was physically
capable of the alleged offending.
Living conditions
749 FS, F and HS all gave evidence about the family’s circumstances when living
in Pakistan, New Zealand, New South Wales and South Australia. Some of that
evidence was not challenged.
750 There was no dispute, and I find, that at all material times, the family was
solely financially reliant on income earned either by the accused from his
intermittent employment activities and/or Centrelink benefits.
751 F gave evidence, which I accept, that the family all lived in the one room in
Pakistan. Relevantly, that evidence was elicited from F when explaining how it
was that she saw the accused slap, push and shove FS when they were living in
Pakistan. She saw this as they were all living in one room and it happened right in
front of her.604 This was compelling evidence.
752 In a similar vein, when a proposition was put to F that HS had lost his tooth
when he fell from his scooter in New Zealand (rather than, as she had claimed, as
a result of being hit by the accused), her immediate response was, ‘We were
literally sleeping on mattresses in New Zealand, do you think my dad would have
money to buy us a scooter’.605 Again, that evidence was compelling.
753 There was evidence that the family travelled to and from Pakistan to New
Zealand several times. This was initially a family of five, which became six once
IS was born in New Zealand. FS was never questioned as to how this travel was
funded. Even if the accused had a job in New Zealand earning $60,000 pa,606 after
tax and ordinary living expenses, it is most unlikely that such income could have
funded this travel without at least some assistance from extended family in
Pakistan.
754 I accept FS’s evidence that when they first arrived in Australia the family
were homeless. They were immigrants, who had arrived in Australia with no
organised housing and, at least initially, were wholly reliant on government
assistance.
755 In the Application for Australian Citizenship dated 5 November 2013, made
on behalf of FS, the home phone number, mobile phone number and email address
recorded were those of the accused. The accused’s Mastercard was the source of
604 T 725.9-14.
605 T 760.6-7.
606 See discussion below.
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the funds applicable for that application. The accused was nominated as the contact
person for any enquiries. As such, I consider it likely that as at that date, and I find,
that FS did not have her own mobile phone and/or own email address, and that any
information she learned about the status of her citizenship application was being
provided to her by the accused.
756 The family then lived in rented accommodation in Kogarah, Minto and
Bathurst, funded partially through the accused’s employment activities and
partially funded via Centrelink benefits.
757 There was no dispute that the children were removed from the care of the
accused and FS when the family were living in Kogarah. Although there was no
evidence as to precisely why the children were removed, it is a matter of
commonsense that there must have been significant concerns as to the ability of
FS and the accused to appropriately care for and protect the children, at least at
that time, for such drastic measures to be undertaken. This provides the Court with
an understanding of the challenges the family experienced upon their arrival in
Australia and the particular challenges they experienced when living in Kogarah.
758 The accused purchased the Smithfield house, with a mortgage on that
property. The photographs of that house demonstrate it to be a modest three-
bedroom property, in the northern suburbs of Adelaide. FS gave unchallenged
evidence that the house was damaged when the family moved in and that it
required renovations conducted by the accused over an extended period starting in
2018. There was a time when there was no toilet, meaning the family had to use
the facilities in a nearby shopping centre. At one time there were snakes in the
house.
759 It was not until the end of May 2019 that the accused obtained regular work
as a taxi driver for 13CABS, albeit I am satisfied from the evidence that he worked
as a part time taxi driver prior to this, after the family’s move to South Australia.
Precisely when he commenced and undertook that part time employment is
uncertain.
760 Notwithstanding that at times the accused was employed, I am satisfied and
find that the family lived in impoverished circumstances, both overseas and in
Australia, including when they were living in Smithfield.
Incident on 30 March 2022
761 The recording made by FS of what occurred on 30 March 2022 and the
evidence given by FS, F and HS about that evening, is of some, albeit limited,
assistance in understanding the circumstances in which the family were living in
Smithfield and the family dynamic generally.
762 For reasons I will elaborate on hereunder, notwithstanding the submissions
made to the contrary by defence counsel, I am satisfied that what occurred that
evening as seen and heard on the recordings, is consistent with and corroborates
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the evidence given by FS, F and HS as to the control the accused had over the
family, how he treated FS and the environment in which the family lived.
Importantly, it also supports FS’s evidence that as at March 2022, she was sleeping
in the lounge room, rather than the main bedroom, being relevant to her account
of the alleged offending in count 6.
Forensic disadvantage
763 I have had regard to any forensic disadvantage suffered by the accused due
to the delay between the alleged offending and the trial which commenced in 2024.
764 It was the defence case that none of the alleged offending occurred and that
it and the uncharged acts were all based on lies.
765 As FS was unable to specify the precise date of the alleged offending in
counts 1, 2, 3 and 5, I accept that the accused was deprived of challenging those
allegations, other than by way of a bare denial, by leading evidence to show he or
FS were elsewhere on the occasion(s) as alleged.
766 However, FS was not challenged on her evidence that the Smithfield house
was under renovation for a period from 2018 and/or that there were purchases
made at Bunnings’ stores in either Munno Para West or Gawler for the purposes
of those renovations, or refunds given for returned items. This was an integral
aspect of why FS said she was in the car with the accused on the occasions of the
alleged offending in counts 1, 2, 3 and 5.
767 The accused is not required to prove or disprove anything. However, on the
specific issue as to the extent of any forensic disadvantage he suffered due to
delay, there was no evidence to demonstrate specific forensic disadvantage related
to a loss of any documentary evidence. For example, there was no evidence that
the accused’s bank records were unable to be produced, noting he was solely
responsible for the family’s finances, or that there were no longer any records held
by the Registrar of Motor Vehicles as what cars were registered in the accused’s
name during 2018 to 2020.
768 The accused tendered evidence as to his health,607 being relevant to the
question of whether he was physically capable of committing any of the alleged
offences (and/or the uncharged acts). There was no evidence that other relevant
medical records pertaining to the accused’s health (and specifically his potency or
any lack thereof) had been destroyed or were otherwise unavailable.
769 By making these observations as to the evidence, I am not suggesting that
there was any onus on the accused to disprove the allegations. The prosecution
must prove each offence beyond reasonable doubt. These observations are made
607 Exhibit D16.
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solely in the context of identifying the extent of any forensic disadvantage suffered
by the accused in the circumstances of this specific alleged offending.
Assessment of Dr Abbas’s evidence
770 I have no hesitation in accepting the evidence given by Dr Abbas as being
both honest and accurate.
771 I make findings of fact in accordance with Dr Abbas’s evidence, that is, as to
the dates she saw FS, with whom FS attended at such consultations, what FS
reported to her on each occasion,608 her findings upon any relevant examination
and any diagnosis/advice offered.
772 Relevantly, the accused did not attend the consultation on 14 October 2020.
At that consultation, Dr Abbas observed a few small ulcers in the area of FS’s anus
and also performed a swab for herpes of the ulcerated area. I am satisfied that
Dr Abbas must have undertaken that examination in response to what she had been
told by FS at that consultation (and as recorded by Dr Abbas) and in circumstances
where FS was presenting with complaints of a rash and discomfort in her anal area.
Assessment of police evidence
773 The evidence given by Officers Poole and Menon was largely unchallenged.
I am satisfied that each was an honest witness and that the evidence given by them
was reliable. I accept their evidence.
774 DBS Poole confirmed that he was unable to communicate with FS as she
could not speak English, being consistent with all of the evidence. Indeed, DBS
Poole’s evidence confirms that FS’s inability to communicate with him, in English,
was such that he spoke to F, even to make appointments. This demonstrates not
only FS’s very limited ability to understand English (and to communicate in
English) but her reliance on others (eg the accused or F, once F was older) to
navigate even relatively simple dealings with other members of the community,
such as the police.
775 DBS Poole arranged for DBS Menon to assist to interpret for FS at an
attendance at the Elizabeth Police Station on 27 January 2023 and on 10 February
2023, when FS attended for the purposes of confirming the accuracy of the draft
statement prepared following that earlier attendance. DBS Poole did this as he had
been told by FS (or at least F) that she had had difficulties understanding Nazifa
Safi (an interpreter used previously) and that she could understand DBS Menon
well.
776 This is consistent with the evidence given by DBS Menon, which I accept,
that is, that he did not consider there to be any language barrier between he and
FS. However, DBS Menon did describe certain cultural barriers, which, at least to
his perception, appeared to make it difficult at times for FS to freely and openly
608 This evidence was not admitted as to the truth of what was reported by FS to Dr Abbas.
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communicate with him. I accept that evidence, which is consistent with the
evidence given by FS.
777 I accept the evidence given by both Officers Menon and Poole as to the
process by which the statement signed by FS on 10 February 2023 was prepared.
That is, that DBS Menon read the statement back to FS carefully and generally
speaking, line by line, albeit he would sometimes paraphrase his understanding of
the contents of a paragraph and ask if it was accurate, rather than read it to her
‘word for word’.
778 One can readily understand why this process was adopted. There are inherent
issues associated with the accurate interpretation of words spoken in another
language, for example, where there is no precise ‘word’ in one language that
replicates the exact meaning of a word used in another language. However, doing
this does create a risk of some potential misunderstanding, particularly in
circumstances where there was a cultural barrier as described both by DBS Menon
and FS. What I mean by this is that while what was ultimately written in that
statement may generally reflect what FS told the police at that time, there must
remain a risk that the precise words ultimately used were those of DBS Menon,
rather than FS. This carries with it the potential for nuances to be missed and/or
subtle misunderstandings in terms of the finished product.
779 I accept DBS Menon’s evidence that FS was given the opportunity at that
time to correct any errors in that statement and that she did, in fact, do so.
Assessment of Ms O’Brien’s evidence
780 Ms O’Brien was clearly an honest witness, who was doing her best to assist
the Court as to her recollection of her dealings with both FS and the accused,
associated with the return of the children to their care, when the family lived in
Kogarah.
781 Ms O’Brien’s involvement with the family occurred in her role as a social
worker and was confined to a short period in 2012. The sole purpose of her
involvement with FS and the accused was to restore the children to their care.
782 While some of Ms O’Brien’s evidence was given without her having been
given permission to refer to her notes, this was in the context of her having read a
report she had written in 2012. Given how many families Ms O’Brien must have
dealt with in her capacity at the Jannawi Centre and the period of time which has
passed since 2012, I have assumed her recollection of events is based largely, if
not solely, off what she had written in that report (which was not before the Court)
and/or her notes.
783 I accept that insofar as Ms O’Brien was able to refresh her memory from her
notes and that report, that the evidence given by her was reliable.
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784 Ms O’Brien gave evidence that the accused spoke English but FS could not
speak English, the latter observation being consistent with all of the other evidence
on this topic. On occasions, the accused acted as an interpreter for FS if no other
interpreter was available. Importantly, Ms O’Brien had a specific recollection that
when interpreters were arranged to assist FS, they were not physically present to
interpret, rather, to her memory, they were only ever available over the
telephone. This was something the accused had specifically requested. Further,
Ms O’Brien gave evidence that although female interpreters were requested, there
was no request for the interpreters to speak a particular dialect of Urdu.
I accept this evidence.
785 I accept Ms O’Brien’s evidence that when the couple were in fact referred to
the Jannawi Centre by DCJ, there was a concern that the couple had been fighting.
I accept that Ms O’Brien specifically raised this with FS at a meeting with the
couple, and that she was told by FS, through an interpreter, that in 13 years of
marriage the couple had never had a fight. I also accept her evidence that this was
accompanied by FS glancing at the accused, giggling and saying ‘never’.
786 Ms O’Brien did not have access to any specific note to refresh her memory
as to whether it was the accused or an independent interpreter who assisted FS on
that occasion. I accept Ms O’Brien’s evidence that having regard to the matters
discussed at that time, it would have been usual practice for an independent
interpreter to have assisted FS. Whether that did, in fact, occur on that occasion
however remains uncertain.609
787 I accept Ms O’Brien’s evidence that from her observations the couple
appeared close and connected. Relevantly, when giving that evidence, Ms O’Brien
acknowledged that there was a lot at stake for the couple at that time. The couple
knew that if there were any inherent child protection concerns, this may impact on
the return of the children.
788 I do not doubt that at that time the couple were doing whatever they could to
present to those at the Jannawi Centre, and others involved in the decision-making
process, in a way which would alleviate any concerns as to their ability to provide
a safe and proper environment for the care of their children. Indeed, Ms O’Brien’s
evidence confirms this. She said the couple were willing to do anything to bring
the children back home.610 I am satisfied that this extended to the couple ensuring
their interactions with each other were such as to present their relationship as being
united and strong, without any obvious signs of conflict.
789 As such, the fact that Ms O’Brien did not observe the accused to be agitated,
or trying to dominate or control sessions, or cut off an interpreter trying to convey
information to FS (being relevant observations of the accused’s behaviour
apparently made by SCARBA during earlier interactions with the couple) is
unsurprising. Ms O’Brien’s observations as to the couple’s interactions with each
609 See discussion below as to why it is not crucial that a specific finding be made on this issue in any event.
610 T 964.37-965.3.
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other does not cause me to have a reasonable doubt about the evidence of FS, F and
HS which is contrary to such observations.
Assessment of HS’s evidence
790 It was submitted that the Court should discount the evidence given by HS
insofar as it portrayed the accused in a negative light. Counsel for the accused
highlighted the fact that HS did not work, had refused to drive taxis (as requested
by the accused) and was being financially supported by the accused. HS was
seemingly more interested in playing video games than studying. It was submitted
that what HS had described in terms of the accused’s conduct, was simply the
accused behaving in a manner consistent with what would be reasonably expected
of a father, concerned about the behaviour and future of his teenage son.
791 HS was still only 22 when he gave his evidence. As the oldest son, in a
Muslim family, it must have been a particularly difficult experience for HS to give
evidence against his father.
792 HS presented consistent with his age, and, in my view, was very honest and
open to the court. He did not seek to exaggerate or embellish his evidence at all,
for example, he acknowledged he only had fond memories of life as a child in
Pakistan. Several of his answers in fact displayed himself in less than favourable
terms (that is, that he really wanted to play video games rather than study, and how
he did not want to be forced to work in a job he did not like when he was already
studying a course not of his choosing).
793 I am satisfied that HS was an honest witness.
794 HS was cross-examined about purported inconsistencies in his evidence and
in his police statements (those inconsistencies being by way of omission).
He agreed that he had not made specific reference in either his first police
statement made on 28 November 2023, or a subsequent statement made on
23 February 2024, to being slapped in the cheek by the accused when they were in
New Zealand and losing a tooth, or to any specific occasions when he saw his
father slap his mother. However, in such statements he had described his father as
an angry and abusive person and said he had a memory of his father slapping his
mother, across the face and the back of the head. He had also told the police in his
first statement, that the arguments and fighting between his parents had increased
after they moved to Adelaide towards the end of 2018.
795 In these circumstances, the fact HS did not specifically refer to these
occasions, in those statements, is not otherwise inconsistent with the essence of
what he described, in terms of the accused’s conduct, at the time he made those
statements. These omissions do not cause me to otherwise doubt the reliability or
credibility of the evidence given by HS.
796 Importantly, there were aspects of HS’s evidence which were consistent with
the evidence given by both FS and F. I am satisfied from the evidence given by
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HS and find that the accused was physically violent towards both FS and the
children. Examples of such violence, outlined by HS in his evidence, included the
accused slapping and hitting FS, the accused slapping F and the accused slapping
HS across his cheek in New Zealand. HS also described seeing the accused slap
MS and kick her when she was on the ground when they were in Bathurst (in the
context of her using the ‘Musically’ app) and of the accused having behaved
similarly towards IS in Adelaide, when IS had spent the accused’s money on a
video game. This evidence is consistent with the accused lashing out violently
when he was upset or displeased by his children’s (or FS’s) behaviour.
797 In addition, HS gave evidence, which I accept, which corroborated FS’s
account that the accused routinely swore at FS and belittled her and call her
derogatory names. He described his parents arguing in Bathurst, and that in
response he would go to his room and try not to listen to it. He described hearing
his parents argue, mostly at night, in Adelaide and had a specific recollection of
hearing them argue in their bedroom, and of hearing things thrown around within
that room. He heard this as the bedroom was immediately adjacent the main
bedroom.
798 Although HS’s recollection was that his parents would fight about money, he
also described them fighting over little things such as whether his mother had
cooked dinner right and over family matters. This evidence needs to be understood
in the context of HS’s evidence that when his parents fought, he would try not to
focus on them or listen to them, and he would try to just ‘do [his] own thing’ and
not intervene or get in the way. Importantly, HS also corroborated FS’s evidence
that there was a time that she slept in the laundry.
799 An aspect of HS’s evidence which was informative was that which he gave
about the accused requiring him to record tradesmen who attended at the home,
both as to the work they were doing and any verbal quotes given by them for work
to be undertaken. He said he felt very uncomfortable doing this but he did this
because his father told him to do this and he did not want to upset him. This
evidence, which I accept, was consistent with that given by F when she described
the accused as being distrusting and paranoid of others/outsiders and their
intentions. It was also indicative of HS being scared of his father such that he
would follow his orders, despite feeling uncomfortable, so as not to upset him.
800 In this respect, it is clear, and I find, that HS did not immediately follow the
instructions given to him by the accused on 30 March 2022, namely, to move his
mother’s belongings out of the main bedroom. However, he explained that his
parents had been arguing at this time and that his mother had not wanted him to do
this. He did not want to pick a side and that is why he had not, initially, followed
his father’s instructions. I accept this evidence. In this respect, HS was put in an
invidious position. He was only 19 at the time. Once the accused returned home
that night, and demanded he move those belongings, he did so. His quiet
compliance with his father’s orders is readily apparent on the recording,
Exhibit P8. I accept HS’s evidence that he was scared of the accused.
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801 HS’s recollection of what occurred on 30 March 2022 was consistent with
that given by F (and FS) and not otherwise inconsistent with the evidence in
Exhibit P8. I have interpreted HS’s evidence that the accused got upset when he
saw FS recording and ‘tried to smash it out’ as meaning, the accused had tried to
smash the mobile phone out of FS’s hand. The fact he said this, rather than saying
he saw the accused try to hit FS, is not, in my view, inconsistent with the evidence
given by F and FS. Rather, it demonstrates that HS was not tailoring his evidence
simply to fit with the other evidence on this topic. I consider his evidence reflects
his perception of what he saw from his vantage point, while he was busy moving
the furniture, that is, the accused responding in an aggressive manner towards FS,
as she was recording what was going on.
802 HS also had a vivid memory of the accused kicking MS’s door, consistent
with what F said, albeit he recalled this had happened after F and FS went outside.
If HS’s recollection is accurate, that explains why this incident is not depicted on
the footage.
803 By way of summary, the evidence given by HS, which I accept, is that the
accused was a controlling man and prone to violent outbursts (both verbal and
physical). HS’s evidence corroborated critical aspects of FS’s account namely that
the accused would slap her, that they argued (particularly at nighttime, in the main
bedroom at the Smithfield home) and that he belittled her and called her ‘dumb’
and ‘stupid’. Importantly, he confirmed FS’s evidence that there were periods of
time when she slept in the laundry.
Assessment of F’s evidence
Preliminary observations/summary
804 Counsel for the accused was highly critical of F’s evidence. He submitted
that she had joined with FS to give a false (and exaggerated) narrative to wrongly
and dishonestly paint the accused as a violent and controlling man, of whom she
and her siblings were scared and that she had done this as she had lost all respect
for the accused after overhearing her mother’s discussion with 1800RESPECT in
October 2020.
805 This narrative was said to be inconsistent with what could be seen in the
recording(s) made by FS on 30 March 2022 and with F’s inability to recall any
occasion where the accused had been ‘violent’ towards FS in South Australia.
806 Counsel for the accused was very dismissive of F and described her as
‘someone who has never worked, never had a job, didn’t contribute to the family
finances’.611 I assume that this submission was directed towards establishing that F
was in no proper position to express an opinion as to her father’s behaviour, as he
was working and supporting the family, whereas she was not. This was a very
unfair portrayal of F. F’s employment status has no impact on her ability to make
611 T 1049.8-10.
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observations as to the accused’s behaviour generally and what she saw and heard
in terms of how he treated her, her siblings and her mother.
807 F’s evidence needs to be viewed having regard to her personal and other
circumstances.
808 F and her siblings grew up in very difficult circumstances, characterised by
disadvantage and poverty. She was the oldest daughter of a family of immigrants
and had experienced the trauma of being separated both from her parents and her
two younger siblings for the 18 months when the children were removed into care
in about 2012.
809 I accept F’s evidence that for some time she blamed herself for their removal.
This was very soon after the family had settled in Australia, after spending brief
periods living in New Zealand and Pakistan. This experience must have had an
indelible impact on all of the children, but particularly on F, given that she was
aged 12 or 13 at the time (a challenging time for adolescents, particularly girls)
and old enough for her to properly remember it.
810 Although F had a good command of English, it was apparent to me that her
understanding was not perfect and was consistent with English not being her first
learned language. She gave her evidence without the assistance of an interpreter.
It was my impression that some of her answers to questions (particularly in cross-
examination), were indicative of her having not completely understood the
question.
811 In my view, F was a very measured witness, who did not seek to either
embellish or exaggerate her evidence, notwithstanding defence counsel’s
submissions to the contrary. I am satisfied that she was giving a truthful
recollection of events, viewed from her perspective, having regard to her lived
experiences. I specifically reject any suggestion that F and FS (and HS) have
somehow conspired together to falsely portray the accused as a controlling and
violent man.
812 Aspects of F’s evidence were compelling. For example, her evidence of
observing the accused’s violent behaviour towards her mother when they were all
living on one room in Pakistan. Similarly, the evidence F gave about the accused
telling the family that Satan had put evil thoughts in his head, was offered
instinctively and by way of response to a question as to whether the accused had
ever apologised for his behaviour. This was important evidence as it corroborated
similar evidence given by FS as to the accused referencing Satan when they were
living in Bathurst. I accept F’s evidence, which, in my view, was not practised or
rehearsed or the recounting of an elaborate lie she had concocted with her mother.
I am satisfied F was telling the truth.
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Purported inconsistencies
813 Counsel for the accused cross-examined F about purported inconsistencies in
her evidence, compared to her out of court statements, being inconsistencies by
way of omission.
814 She was specifically cross-examined about the absence of any reference in
her police statements made on 31 March 2022, 3 April 2022 and 26 May 2022
about the accused being physically violent towards her in either Minto or Australia.
815 I accept F’s evidence that the first statement was made in the early hours of
31 March 2022, and was a summary to explain who they were, how they came to
Australia and what had happened that night. I accept F’s evidence that she was
tired, nervous and in shock at the time she made that statement. One would not
expect F to have gone into specific detail of each and every incident that she could
recall with respect to the accused, either at that time, or when she gave what I
accept was a follow up statement only a few days thereafter.
816 I accept F’s evidence that when she gave her police statements, she was not
asked for details of every occasion she could recall when the accused had been
physically violent towards her, rather they had asked her to give examples of such
incidents, and she had responded accordingly.
817 I also accept F’s evidence that the third statement summarised the accused’s
behaviour focussing on what she had recorded in her diary. The diary was not in
evidence and therefore the Court has no knowledge of its contents, when it was
written or what period it covered.
818 The fact that F did not refer to each occasion of physical violence which she
described in her evidence, in each of her earlier police statements, does not cause
me to doubt either the reliability or credibility of her evidence in this respect,
having regard to the circumstances in which those statements were made.
819 F agreed that the specific incident which she described as having occurred in
Bathurst, when the accused threw a glass of water at FS, was not referred to in any
of her police statements. However, she was adamant that she had told the police
about this incident.
820 F gave evidence that she had seen the accused break plates and glasses and
that he had broken a fan. She was not cross-examined as to any purported
inconsistency in terms of that evidence and what was in her statements. It can be
inferred that there was no such inconsistency. When F gave evidence about the
incident when the glass was thrown, she was responding to a specific question
directed to her recollection of one such incident when the accused had thrown
something. Although there were some differences in F’s account of this incident,
compared to the account given by FS, I am satisfied that what F was describing
was the same incident as described by her mother, being only one of many
instances where the accused had acted violently towards FS during F’s lifetime.
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821 There was no suggestion that this incident had led to the police being called
or any significant injury to FS. The accused was on trial for serious sexual offences
committed against FS. It simply makes no sense for FS and F to conspire together
to make up the fact of this comparatively innocuous incident in Bathurst.
822 F was also questioned about differences in her evidence and her behaviour at
the time she and her siblings were removed from the home by Child Protection
authorities when they were living in Kogarah. F readily acknowledged that at that
time she would write letters to FS and the accused, wherein she told them how
much she wanted to come home and live with them. I accept F’s explanation that
she missed her younger siblings and her mother and that she felt guilty for what
she thought was her role in tearing the family apart.
823 I also accept F’s evidence that she wrote these letters because the accused
had asked her to do this, knowing the letters could be presented to the social
workers. I consider the fact F told one of the social workers that there was nothing
about the accused that she did not like was also said in this context – that is, because
she missed her mother and younger siblings and was desperate to be reunited with
them.
824 This is, on its face, inconsistent with the evidence F gave of her observations
as to the accused’s behaviour. It demonstrates that F has capacity to say what she
thinks others want to hear, even if it is not accurate, to achieve a desired outcome.
However, F’s actions at that time, are readily explicable having regard to her
personal circumstances. They do not otherwise cause me to doubt the reliability
and credibility of the evidence F gave at trial of her observations of the accused’s
behaviour throughout her lifetime, towards her, her siblings and FS.
825 Notwithstanding these apparent inconsistencies, I am satisfied that F’s
account of such observations was reliable.
Isolation/control
826 Although there was evidence that at some unspecified time the accused
bought F a phone, I accept her evidence, supported by both HS and FS that the
accused placed strict controls on the activities and movements of his children (and,
indeed, FS). I accept F’s evidence, supported by that of HS, that they were isolated
from other members of the community and that this was due to controls placed on
them by the accused.
827 Specifically, I accept F’s evidence that the accused would not let the children
leave the house without his permission and that he told them not to interact with
others, including neighbours. I accept F’s evidence that the accused had a fear of
others reporting them to the authorities and wanted them to keep family matters at
home. This is consistent with the accused having gone through the experience with
Child Protection so soon after the family migrated to Australia.
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828 I accept F’s evidence, supported by that of HS, that the accused discouraged
them from establishing and maintaining friendships.
829 The fact the accused installed the high fence around the Smithfield house was
said to be consistent with this. I accept that a factor in the accused’s decision to
erect this fence was his concerns about crime in the area. However, I also accept
the evidence of F (and HS and FS) that the very fact the accused put up such a high
fence around the house, increased their entrenched feelings of isolation from the
rest of the community. The photographs in Exhibit P3 speak for themselves insofar
as they confirm the fence served as a physical barrier, preventing anyone inside
the property from seeing outside, or vice versa.
830 I accept F’s evidence that the accused would use her as a conduit to pass
messages to her mother and that he threatened to deport FS if she did not comply
with his wishes, and to deport the family. When F gave this evidence, she explained
how scared this made her feel because they had nowhere to return to in Pakistan.
This evidence was compelling and, in my view, completely truthful.
831 This evidence is important, insofar as it both supports similar evidence given
by FS and demonstrates another way the accused sought to control the family. It is
clear F thought there was substance to these threats as the accused had told her that
they were only able to live in Australia because of his citizenship.
832 This provides further context as to the nature of the accused’s relationship
with both FS and the children. Not only were they financially reliant on the accused
to support the family but they perceived him to have some sort of control over their
ability to remain in Australia.
833 The very fact both F and FS were prepared to speak up against the accused
and his behaviour, in these circumstances, by reaching out to 1800RESPECT, both
in October 2020 and in March 2022, is telling. It is consistent with them speaking
up because they were genuinely fearful for their safety. It is inconsistent with them
lying about the accused’s behaviour for monetary gain or otherwise.
The 30 March 2022 incident
834 Counsel for the accused submitted that what could be seen and heard on the
recordings made by FS on 30 March 2022 demonstrated the falsity of the narrative
given by F and FS that the accused was a controlling and violent man and that they
were scared of him.612
835 It was also submitted that the fact that F had maintained the accused was
behaving in an aggressive manner and was yelling during those recordings, showed
her bias against the accused. This evidence, coupled with F’s inability to recall any
612 T 1048.34-1049.7.
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occasion where the accused had been ‘violent’ towards FS in South Australia, was
said to demonstrate the falsity of that narrative.
836 As to the latter, as previously outlined, it is inaccurate to couch F’s evidence
in these terms. What F said was that she had not seen her father be physically
abusive towards her mother at Smithfield. However, she did describe him acting
out violently, smashing a fan, kicking the bed in the main bedroom, slamming
doors and generally behaving in an aggressive, threatening and verbally abusive
way towards her mother. I accept this evidence.
837 I have carefully considered the recordings made by FS on 30 March 2022.613
838 The recordings capture only a short moment in the life of the family. I am
satisfied that the recordings do not depict, in full, what occurred during the evening
of 30 March 2022.
839 In my view, contrary to the submissions made by defence counsel, what can
be seen and heard in the recordings is consistent with what FS, F and HS described
in terms of how the accused interacted with them and treated them, both that night
and generally.
840 The dynamic between the children and the accused is readily apparent from
the recordings. What immediately struck me when watching those recordings was
the silence within the household. There was virtually no communication between
the accused and HS and/or IS, both of whom were quietly assisting the accused to
carry items of furniture out of the main bedroom. In colloquial terms, one would
say ‘you could cut the tension in the air with a knife’.
841 I accept F’s evidence, consistent with that given by FS, that at this time, FS
was sleeping permanently in the lounge room. The items being moved out of the
main bedroom were all FS’s belongings. Those items included numerous drawers
from a chest of drawers, at least one large wardrobe (possibly two) and a bedhead.
Although a proposition was put to some of the witnesses that the accused’s
intention, in moving the furniture, was to reposition a computer within that room,
none of the witnesses agreed with that proposition. I reject any such proposition,
it being completely inconsistent with what can be seen in the footage. If the
accused simply wanted to reposition a computer within that room, I am satisfied
this could have been done without the inconvenience of moving out so many items
of furniture from that room.
613 Exhibit P8. The recordings were admitted into evidence as they were clearly relevant to matters in
dispute. However, I received the evidence given by the various witnesses as to what could be heard in
those recordings (spoken in Urdu) de bene esse, in the absence of any agreement accredited translation.
I have ultimately determined to admit that evidence in circumstances where it was given in response to
questions in cross-examination, appeared consistent with what could be seen on the accompanying video
and was not otherwise challenged; T 788.29-789.15; T 826.35. This was in circumstances where the
accused was assisted by an interpreter throughout the trial and both he and the interpreter regularly
interjected when they considered anything was being incorrectly interpreted.
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842 I am satisfied, having regard to all of her evidence, that FS did not wish her
belongings to be removed from that room and that she was embarrassed by the fact
that her children were being asked to move her personal items in this way. I am
satisfied that what the accused was doing on this night was demonstrating his
control over both FS and the children and was indicative of the way he treated FS,
that is, he belittled her and demeaned her, including in front of the children.
843 The footage shows that the accused, as the head of the family, expected the
children to obey him, even when what he was asking them to do was otherwise
disrespectful of and dismissive of FS. It demonstrates his interactions with family
members as clinical and authoritarian, rather than loving and embracing.
844 I accept F’s evidence as to what the accused can be heard saying, on the
recordings, in the vicinity of MS’s room, that is, words to the effect of, ‘if you
don’t want to live here, there’s the door’. Although the accused was not yelling
when he said this, he spoke in a loud and forthright manner and used a particular
tone. He was clearly angry. He said this while demanding his children perform a
task intended to humiliate their mother.
845 The way in which IS and HS can be seen on the footage, silently following
the accused’s commands, is telling, notwithstanding they had previously
disobeyed his demand that they do this task before he came home from work. This
was a task HS knew his mother did not want him to do. As previously stated,
I accept HS’s evidence as to why he did not initially comply with the accused’s
demands.
846 I consider it likely and find that as the children got older and became more
aware of how other families were living, that they did ‘push back’, at times, against
the accused. The children’s initial non-compliance with the accused’s demands to
move their mother’s belongings is an example of this. The fact MS continued to
disobey the accused and stay in her room is consistent not only with the children
‘pushing back’ against their father as they got older, but likely something which
contributed to F’s concern that the accused may also try to slap MS.
847 It was submitted by defence counsel that FS made the recordings to ‘set up’
the accused. That submission is inconsistent with the submission that the
recordings showed nothing untoward regarding the accused’s behaviour.
848 The very fact FS made the recordings, and that F thought it necessary to
remove both herself and her mother from the house and to call 1800RESPECT
seeking alternative accommodation for her mother and siblings that night, is
consistent with both F and FS having significant concerns arising from the
accused’s behaviour that evening.
849 I accept that F called 1800RESPECT that night as she was so concerned, at
that time, about the accused’s behaviour, that she thought it unsafe for them to stay
at the Smithfield house that night.
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850 When F was shown the recordings during her evidence, she maintained that
what could be seen and heard in the recordings was the accused being
‘aggressive’.614 I have carefully considered that evidence, both in the context of
what can be seen on the recordings and in the context of the other evidence given
by F. Having done so, I disagree with the submission that this evidence is at odds
with what can be seen on the recordings.
851 I am satisfied that when F described the accused as being ‘aggressive’ on
30 March 2022, she was describing not only the conduct that can be seen on the
recordings, but other conduct that was not recorded.
852 I am satisfied that F’s description of the accused’s behaviour as ‘aggressive’
was based on her years of having lived with the accused and having seen his
behaviour and, specifically, patterns in that behaviour, over many years. She had
seen the accused be physically violent in the past and what had led up to him acting
in that way.
853 I accept F’s evidence that she saw the accused try to hit her mother but was
prevented from doing so, as she stood between them. I accept F’s evidence that
she was concerned for MS’s safety and that is why she ran to her room. I accept
F’s evidence that the accused kicked MS’s door during the incident (consistent
with HS’s evidence) and that this was what prompted F to run to MS’s room,
notwithstanding such conduct is not apparent on the recordings. I accept this
evidence, notwithstanding the police did not record having made any observation
of damage to MS’s bedroom door when they attended that night. The police did
not undertake an extensive examination of the premises at that time and if there
was any damage caused by such action, it may not have been readily apparent.
854 I accept F’s evidence that from her observations of the accused’s behaviour
that night (informed from her exposure to his patterns of behaviour for years before
that), that she was afraid for the family’s safety and that is why she rang
1800RESPECT seeking their help.
855 The fact the accused is not seen to be physically violent in the recordings is
not otherwise inconsistent with the evidence given by F, HS and FS with respect
to this occasion, or their evidence generally as to how the accused behaved.
856 Relevantly, neither F nor FS rang the police on 30 March 2022. I reject any
suggestion that this incident was somehow a set-up, intended to result in the
accused being arrested on some falsely based premise.
Violence towards F, the siblings and FS
857 Both F and HS described the accused as being physically violent, at times,
towards them, their siblings and their mother. I accept that evidence.
614 T 770.2-3.
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858 Although F was cross-examined at length about a purported failure to tell the
police, in any of her statements, about her being physically abused by the accused
in Minto, F gave no evidence-in-chief of any such occasion in any event. The only
evidence she gave of the accused being physically abusive towards her in Minto
was in response to a question about the last time the accused had physically abused
her. She said it was either in Minto or Bathurst.
859 F then described an incident when the accused slapped her across the face
when she was about 13 when he was trying to teach her something. I accept F’s
evidence about this incident. This evidence was responsive and given in a very
straight forward manner. What she described had a distinct ‘ring of truth’ about it.
It was not the type of incident one would expect F to have ‘made up’.
860 Contrary to the submission that F was painting an exaggerated and false
narrative about the accused’s behaviour, I find that F did not seek to embellish the
extent of the accused’s physical violence towards her. Rather, I am satisfied that F
(and HS) only described incidents of physical violence that she could actually
recall happening. She did not exaggerate or embellish or simply make things up to
make the accused look bad.
861 I accept F’s evidence that she recalls an incident which occurred in Pakistan
when she was aged about six or seven and the accused hit her and HS with a
wooden broomstick and locked them in a room. F’s explanation for the accused
behaving this way was that he blamed her and HS for a large phone bill having
been incurred.
862 Although I agree with the submission of defence counsel that this explanation
seems unlikely, given how young F and HS were at the time, I disagree that this is
indicative of F’s account being untrue or unreliable. I accept F’s evidence about
this incident. I consider it likely and find, that what occurred on this occasion was
that the accused was upset about a bill (such as a phone bill) and then took that
anger out on the children. This is a simple and likely explanation as to why F
thought she and HS were being blamed for the bill. HS would have only been
about four at the time which explains why he did not give evidence about this
incident.
863 I accept F’s evidence, consistent with that given by HS, of the occasion when
the accused slapped HS in the face, when they were living in New Zealand, causing
his tooth to fall out.
864 Importantly, I accept F’s evidence that she saw the accused slap, push and
shove FS when they were all living in the one room in Pakistan, and that he would
swear at FS. As previously stated, I accept her evidence that the accused would
break things such as plates and glasses and that there was a time she saw the
accused throw a glass of water at FS in Bathurst.
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865 F gave important evidence that corroborated that given by FS (and HS) in
terms of how the accused disrespected FS. I accept F’s evidence that when they
were living in Smithfield, the accused would belittle FS in front of her and the
other children (by calling her deaf and telling her he had done her a favour by
marrying her) and that he would regularly threaten to deport both FS and the family
if they did not do as he said.
866 I accept F’s evidence that she had helped her mother set up the laundry so
that her mother could sleep in that room. I further accept her evidence, that at that
time, the accused and FS were not talking to each other and the accused would use
F to send messages to FS.
867 The evidence that both F and HS gave about their mother sleeping in the
laundry was important evidence. The laundry was a very small room. It must have
been physically uncomfortable for FS to sleep there, on the floor, on a mattress, in
that confined space. The fact she did this is consistent with her taking whatever
steps she could to try to physically distance herself from the accused, to try to
prevent him from forcing her to participate in sexual acts that she found abhorrent.
868 F also gave important evidence about what she could hear coming from the
main bedroom in the Smithfield home. She said:615
A. … with mum I used to always hear things from their room as well. I would always
hear that he's smashed the fan that was in their room and he was always, like,
slamming the door shut as well and he was kicking her bed.
Q. What would you do when you would hear things like that.
A. I was very afraid, so all of us would just freeze in our rooms and, like, listen really
closely to what's going to happen next.
869 I accept this evidence, being consistent with similar evidence given by HS to
the effect he heard arguments between his parents and rather than do anything to
intervene, he would put on his headphones and play games (presumably on his
computer, in his bedroom).
870 I also accept the evidence given by FS that when they were living at
Smithfield, and FS was sharing the main bedroom with the accused, FS regularly
asked to sleep in the room F and MS shared, and that this was often preceded by
her having heard arguments emanating from the main bedroom. F was not
specifically questioned about whether she recalled an occasion in January 2022,
when FS came into her bedroom, at around 5:00am (consistent with what FS said
about the offending in count 6). However, having regard to this evidence, it is
unlikely F would have had a recollection of any specific occasion when this had
occurred, given the regularity with which it occurred.
615 T 732.1-9.
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October 2020 (the complaint evidence)
871 I accept F’s evidence as to the circumstances which led to her being provided
with the telephone number for 1800RESPECT and then ringing them, on behalf of
FS, in October 2020.616
872 Relevantly, F agreed that when she had called the police to attend at the
home, she had not done this in response to seeing the accused act in a physically
violent manner, rather she had rung them because she was concerned about her
parents fighting. This was at a time when FS was sleeping in the laundry and the
accused was using her to pass messages to her mother to tell her she had to oblige
with his wishes.
873 I accept F’s evidence as to what she heard FS say during the call to
1800RESPECT. That is, I accept her evidence that she heard FS say that the
accused had been sexually assaulting her forcefully and that she could not tell
anyone about this, as there was no one and that she did not know what to do. I also
accept F’s evidence that she heard FS say that she could not say ‘no’ to the accused
and that if she refused, he would slap her, pull her hair, abuse her and then have
intercourse with her.
874 I am satisfied that as F heard FS say these words, at this time, that is, after
the alleged offending in counts 1, 2, 3 and 5, and in the absence of any other
evidence of complaint by FS during the period of the alleged offending in counts 1,
2, 3 and 5 and this phone call, that F’s evidence is properly to be regarded as
evidence of initial complaint for the purposes of s 34M Evidence Act.
875 Insofar as there are differences between F’s and FS’s recollection of what
was said during this conversation, when this conversation occurred and what was
said by FS during such conversation, I prefer and accept F’s evidence. This was a
very important incident in F’s life. It was the first time she realised and understood
what had been happening between her parents. She readily acknowledged that
hearing this caused her to lose all respect she had for the accused. Importantly,
what she heard prompted her to take her mother to see Dr Abbas on 14 October
2020, notwithstanding the fact she was not observing any physical violence being
perpetuated against her mother, by the accused, at that time. I am satisfied that F’s
recollection of this conversation is both honest and accurate.617
Assessment of FS’s evidence
Preliminary observations/summary
876 As previously outlined, it was the defence case that FS had fabricated the
allegations, to make it more culturally acceptable for her to leave the marriage, to
retain custody of the children and to keep the family home at Smithfield.
616 As outlined at [440]-[448] herein.
617 See discussion below as to why I consider FS’s recollection of this conversation is likely inaccurate.
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877 The defence case was that a source of disharmony in the marriage was the
accused’s refusal to allow his children to participate in any ‘watta satta’ arranged
marriage with members of FS’s extended family, something which FS had
encouraged and desired for her children. Other potential causes of disharmony
were said to be FS’s resentment at the long hours the accused worked and the
disparity in terms of the income he (and therefore the family) received from the
accused driving taxis, compared to the total takings he generated from that
employment.
878 FS categorically denied she was lying about the alleged offending (or any of
the uncharged acts). She denied she had proposed a ‘watta satta’ marriage for her
children in the terms as suggested to her in cross-examination, either in 2011, 2016,
2018 and/or 2020. For reasons I will explain hereunder, I accept FS’s evidence to
this effect. I am satisfied beyond reasonable doubt, from all of the evidence, that
FS has not fabricated the allegations as revenge or in response to the accused’s
refusal to allow any of his children to be participants in any ‘watta satta’ as
otherwise sought by FS.
879 FS acknowledged that in 2021, she told a NDIS worker that she wanted to
leave the accused, however, she maintained that this was because of his behaviour
towards her (including the alleged offending). Rather than being angry with the
accused for working long hours driving taxis, she spoke, in what I considered to
be very genuine terms, about how the only peace she and the children had was
when the accused was out of the house, albeit even then he would be constantly
messaging her with demands. I accept FS’s evidence, it being consistent with the
evidence given by F and HS on this topic.
880 FS categorically denied she had concocted the allegations for financial gain.
For reasons as outlined hereunder, I accept her evidence to this effect, beyond
reasonable doubt.
881 FS gave the following very raw evidence, which I accept beyond reasonable
doubt, to explain why she was not lying, namely:618
... how could I say all this? You haven’t seen the fear that we have lived through when he
was staying with us at home. Now we are a little better. We have seen the face of life now,
how to breathe.
882 I had the opportunity to watch FS give her evidence over some nine sitting
days. She was far from the perfect witness. There were multiple inconsistencies in
her evidence, both internally and when compared to out of court statements.
Aspects of her evidence were vague. Other aspects were confused. At times, it was
difficult to follow what FS was trying to tell the Court.
883 Indeed, when watching FS give evidence, it was my impression that there
were many occasions when she was frustrated at her inability to be properly
618 T 417.30-33.
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understood by the Court, notwithstanding the best efforts of the interpreter. This is
borne out by a careful review of the transcript, where many of FS’s responses
appear to not ‘fit’ accurately with the question asked, or the meaning of the first
part of an answer has changed somewhat by the end of that answer. The same
applies to several of the passages put to her from earlier out of court statements.
884 I am satisfied that because of cultural reasons, recounting the alleged
offending to the Court was even more painful and difficult for FS than for other
witnesses disclosing similar allegations. At trial, FS tended to rush her description
of certain events, particularly those relevant to sexual activity. It appeared to me
that she wanted to finish talking about these events as quickly as she could. She
needed to be returned to these events by counsel, both in chief and in cross-
examination, and asked specific questions, for particular details to be elicited.
885 I am satisfied that this was not because FS was making these things up, such
that she was deliberately trying to be vague or succinct about what she said to
cover the fact she was lying. Rather, this was because, as a Muslim woman, for her
to describe these intensely personal sexual matters in the presence of men who
were not her husband, was very emotionally painful and uncomfortable for her.619
She simply did not want to have to tell the court (or the police) about these deeply
personal matters, and it was intensely painful for her to do so.
886 Not only did she have to do this once, but multiple times, over several years.
Having to recount the alleged offending, and the uncharged sexual offending,
obviously upset FS.
887 I reject, as it not being a reasonably possibility, that FS has made up these
allegations, either as a more culturally acceptable way to leave the marriage and/or
for financial gain and/or by way of some personal revenge for the accused’s failure
to agree to watta satta marriages for his children, or for any other reason.
888 I am satisfied beyond reasonable doubt that any proven inconsistencies in the
evidence FS gave in court, compared to her earlier out of court statements, and any
internal inconsistencies in her evidence, are not the result of FS having fabricated
the allegations and therefore indicative of her being unable to remember the many
details of a sophisticated lie.
889 Rather, I am satisfied such inconsistencies are the product of many different
factors and in some cases, a combination of factors.
890 I refer to my previous observations about FS’s limited understanding of
English (and hearing difficulties) and the potential for misunderstanding insofar as
she did not receive assistance from an interpreter, fluent in Pakistani Urdu and
619 Noting defence counsel was a male, the interpreter who assisted the accused throughout the trial was a
male and male sheriff’s officers were often in the courtroom.
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physically present, when she made her various out of court statements. I will
outline those circumstances and my findings in that respect, hereunder.
891 It is difficult for any witness to recount to strangers deeply personal and
sensitive matters such as sexual abuse. The challenges faced by FS in this respect,
were far greater than those faced by most such witnesses, having regard to her
language and hearing difficulties, health issues and the personal challenges she has
encountered during her marriage to the accused. The difficulty of giving evidence,
over some nine days, through an interpreter, in front of several men, cannot be
under-estimated.
892 I have carefully considered the many apparent inconsistencies in FS’s
evidence as discussed hereunder.
893 I am satisfied that some of the purported inconsistencies or omissions are not,
in fact, inconsistencies or omissions.
894 However, I am also satisfied that there are aspects of FS’s evidence where
she has likely confused certain events and/or her memories of events have merged
such that she is now unable to accurately recall all of the details of the occasions
of the alleged offending, and, as to the offending in counts 1, 2, 3 and 5, to
differentiate aspects of that alleged offending. This is obviously relevant to my
overall assessment of the reliability of FS’s account of the alleged offending.
895 After carefully considering all of the evidence, I am satisfied beyond
reasonable doubt that FS is not lying about the occasions of the alleged offending,
nor is she lying about the accused’s behaviour towards her, in general terms, over
the course of their marriage. By occasions, I mean, she is not lying when she told
the Court that there were four separate occasions when the accused had forced her
to have sexual intercourse without her consent. As to each such occasion, I am
satisfied beyond reasonable doubt that she is not mistaken about the fact of the
occasion, nor has she dreamt the occasion, nor is the occasion a product of her
imagination.
896 I accept beyond reasonable doubt FS’s evidence that there were three
occasions when the accused forced her to have vaginal intercourse with him,
without her consent, in the back seat of the family car. Those three occasions were
in the carpark at Spotlight, in the car near Bunnings at Munno Para West and in
the car near Bunnings at Gawler, during the summer of either 2018/19 or 2019/20.
On each occasion, FS and the accused were alone in the family car, purportedly
for purposes associated with the renovation of the Smithfield home.
897 For reasons I will outline hereunder, I consider it likely that FS is now unable
to clearly differentiate precisely what happened on the occasions the accused took
her to Spotlight and to Bunnings, Munno Para West, albeit I accept beyond
reasonable doubt her evidence that on each of these occasions, the accused had
vaginal intercourse with her, without her consent.
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898 As such, while I consider it likely that on at least one of these occasions, the
accused also tried to force FS to perform fellatio on him, given the inconsistencies
in FS’s evidence (compared to her out of court statements) as to precisely when
and where this occurred, I am unable to accept beyond reasonable doubt her
evidence that this occurred at Spotlight.
899 I also accept beyond reasonable doubt FS’s evidence that there was an
incident which occurred in the main bedroom at the Smithfield house, in January
2022, when the accused attempted to have anal intercourse with her, without her
consent. There were apparent internal inconsistencies in FS’s account as to
whether the accused’s penis did penetrate her anus on this occasion. Given those
inconsistencies, while I consider it likely that the accused’s penis did slightly
penetrate FS’s anus on that occasion, I cannot accept her evidence to this effect,
beyond reasonable doubt.
The prior out of court statements
Parramatta Children’s Court proceedings
General Observations
900 There were purported inconsistencies between FS’s evidence at trial, and
earlier ‘statements’ attributed to her, made during the Parramatta Children’s Court
proceedings. Those purported inconsistencies relate to what FS deposed to in an
affidavit sworn by her on 8 April 2011 (the affidavit), the oral evidence given by
her in court and what she had apparently said to Ms O’Brien about the nature of
her relationship with the accused. I will deal with these in turn.
901 I accept FS’s evidence, supported by the ABF material, that she first came to
Australia to live in about 2009. I accept FS’s evidence that when she first arrived,
she spent a period of time in a psychiatric hospital. The family were initially
homeless before settling at Kogarah, where they lived for around two and a half
years before moving to Minto.
902 It was an agreed fact that a bond was lodged by the accused and FS with
NSW Rental Bonds on 1 February 2013 for the house at Minto. Having regard to
the date the affidavit was signed (8 April 2011) and the evidence given by F, I find
that the children were removed from the care of FS and the accused shortly after
they settled in Kogarah.
903 The evidence given by FS about matters relevant to what occurred of and
incidental to the children being removed, and what steps were taken by them to
enable their return, demonstrated, and I find, that she had only a rudimentary
understanding of that process. FS had only recently arrived in Australia from
Pakistan, hoping to start a new life. Her children had been taken from her. The
children were not only separated from FS and the accused, but the older and
younger children were separated from each other, living with strangers, in a foreign
land.
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904 This must have been a particularly confusing and traumatic time for FS.
905 At this time, FS was a recently arrived immigrant, in Australia with no family
support. Although FS had a rudimentary understanding of very simple English, she
could not properly understand or communicate in English. She had a substantial
hearing disability. She was solely reliant on others to explain to her what was
happening at each step of the process, why the children had been removed and
what she needed to do to facilitate their return.
906 Insofar as the accused acted as FS’s interpreter during this period, I cannot
be satisfied as to the accuracy of such interpretation. He was not an accredited
interpreter. There was no evidence before the Court at trial as to his English
language skills. I am satisfied from all of the evidence that the accused considered
himself the head of the family and that he had very little respect for FS who he
routinely dismissed as deaf and stupid. In these circumstances, I consider it is likely
and I find that the accused only told FS what he considered necessary to tell her,
when performing the role of interpreter and/or generally.
907 It is likely and I find that FS knew from what she had been told by the
accused, whether acting as her interpreter or otherwise, that it was important they
present in a manner, both to the Court (and the authorities), to support a finding
that they that they were in a united and stable relationship and that they were
capable of providing a caring and appropriate environment for their children to be
raised in.
The affidavit
908 I refer to my discussion of the contents of the affidavit at paragraphs 162-165
herein. I have no hesitation in finding that the statements contained in the affidavit,
purportedly attributable to FS, in fact derive from the accused.
909 I accept FS’s evidence that the affidavit was written by the accused on her
behalf. Indeed, the language used in the affidavit is particularly informative and
gives an insight into the accused and his personality.
910 The accused acted as the interpreter for FS at the time she signed the affidavit.
911 It is likely and I find that the accused did not properly read the contents of
the affidavit to FS, in Pakistani Urdu, prior to her signing the affidavit, to confirm
that she agreed with the truth of such contents. I accept FS’s evidence that she
simply signed the affidavit, as this is what she was told to do. I consider it likely
that when she signed the affidavit, FS did not have a full and proper understanding
of the importance of what she was signing, albeit she must have known the
affidavit would be considered as part of the process relevant to whether the
children would be returned to their care.
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912 FS readily acknowledged that she was desperate for the children to be
returned. She said, ‘I had got my children from Pakistan here, and as I came, they
were taken away’.620
913 I accept FS’s evidence that she understood, from what the accused and her
lawyer told her, that she needed to sign this document to get the children returned
to their care. I accept FS’s evidence that when she signed the document, she did
not know what was in it and/or whether its contents were true. Insofar as there are
aspects of that affidavit which were disputed in terms of their truth by FS at trial,
I am satisfied that what is contained in the affidavit is untrue.
914 However, the fact that FS was prepared to sign the affidavit, not knowing (or
caring) of the truth of its contents, is relevant to my overall assessment of FS as a
witness of truth. It is a factor I have taken into account, when carefully scrutinising
both the truthfulness and accuracy of the evidence given by FS at trial, as to the
alleged offending.
Oral evidence
915 It was an agreed fact that FS gave oral evidence during the Parramatta
Children’s Court proceedings which was different to the evidence she gave at
trial.621 FS was provided with a male interpreter at that time, although it is uncertain
whether he was fluent in Pakistani Urdu.
916 The evidence FS gave at that time included evidence that the accused had
been working in New Zealand, earning around $60,000 and that ‘the situation was
good’.622
917 The evidence FS gave about what she said in court, at that time, was difficult
to follow. I perceived that she had trouble fully understanding what was being
asked of her. She recalled being shown some reports at that time. I have interpreted
her evidence to mean that she could not remember telling the court, at that time,
that the accused had a job when they lived in New Zealand, earning $60,000 pa
and that the situation was good. FS maintained that the situation was not good and
that they were refugees. The evidence she gave at that time about the family’s
movements in Pakistan when they returned there, after IS was born, was also
slightly different to the evidence she gave on that topic at trial.
918 I do not doubt that FS now has very little recollection of the specific evidence
given by her during those proceedings. She was not shown a transcript of the
evidence. It is unclear how well she understood the interpreter provided on that
occasion (or how well he understood her). It may be that there was some subtle
misunderstanding which contributed to her oral evidence being less than fully
accurate.
620 T 530.19-21.
621 For particulars of that evidence, see discussion at [153]-[158] herein.
622 T 618.36-37.
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919 FS was cross-examined about this evidence during her final day of nine days
on the witness stand. She was clearly tired and struggling. The fact that FS would
not concede she had given this evidence must be considered having regard to these
factors.
920 As to the specific evidence said to demonstrate inconsistency, FS’s
knowledge and understanding of the family’s financial situation is likely to have
been largely, if not solely, derived from what the accused had told her about it.
I am not satisfied of the accuracy of what she told the Parramatta Children’s Court
about the family’s financial circumstances at that time.
921 Even if, at a time when the family lived in New Zealand, the accused had a
job earning $60,000 pa, the fact is, when the family arrived in Australia, they were
homeless. Neither the accused nor FS had employment immediately available to
them. They were solely reliant on welfare. The authorities were so concerned about
their ability to care for their children that they removed the children from their
care. The situation was clearly not good.
922 As such, any inconsistencies in this evidence, or any minor differences in
what FS told the Parramatta Children’s Court and her evidence to this Court about
the family’s movements in Pakistan in about 2009, does not otherwise cause me to
have a reasonable doubt as to the reliability and credibility of FS’s evidence as to
the alleged offending.
Interactions with Ms O’Brien
923 The third ‘group’ of out of court statements from this period, said to
demonstrate inconsistencies, relate to what FS said to Ms O’Brien and specifically
to the comment attributable to her, namely that in 13 years of marriage the couple
had never had a fight (the comment).
924 I refer to my findings at paragraphs 785-786 herein and my observations and
findings at paragraph 905 herein.
925 If an independent interpreter was provided for FS on the occasion she made
the comment, it is likely, and I find, that the interpreter would have assisted via
telephone, rather than in person, as this is what the accused had specifically
requested occur.
926 As a general proposition, there is always an increased risk of
misunderstanding and miscommunication in circumstances where the person
interpreting cannot see the person for whom they are interpreting. Facial
expressions and gestures can facilitate in the understanding of words said. The
potential for misunderstanding was increased because of FS’s considerable hearing
disability. If the interpreter organised did not speak Urdu in the Pakistani dialect,
that potential for misunderstanding was even higher.
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927 In these circumstances, the fact the accused made a specific request that an
interpreter only be made available over the phone, is extremely unusual. As I said,
FS was wholly reliant on others to explain to her the process, what was going on
and why. If the accused wanted FS to have a complete understanding of the
process, and why certain steps were being taken, it is extremely unusual that he
specifically requested an interpreter only be available by telephone, rather than be
physically present, noting the latter option was far more likely to enable FS to
properly understand and participate in the process.
928 The very fact of the accused’s request is consistent with him seeking to
maintain control over FS – control over what she understood and control over how
she personally contributed to the outcome of that process. The fact FS did not have
proper access to interpreters, in person, who spoke Pakistani Urdu, during this
process, necessarily increased her reliance on the accused to explain to her what
was going on, what they needed to do (and to say) to get their children back and
why.
929 It is likely, and I find, that FS knew from what the accused had told her that
it was necessary for the couple to appear united, in their interactions with
Ms O’Brien and those at the Jannawi Centre, to negate any concerns as to the
stability of their relationship and/or appropriateness of the environment to which
the children were to be returned.
930 The ‘comment’ is couched in terms which bear remarkable resemblance to
the contents of the affidavit sworn by FS in the Parramatta Children’s Court
proceedings. The words that appear in that affidavit are, in fact, the words of the
accused. It is therefore possible that the ‘usual practice’ as described by
Ms O’Brien (that is, for an independent interpreter to be provided) was not
followed on the occasion the comment was made, and that the accused was acting
as FS’s interpreter.
931 It was suggested that the fact FS turned to her husband, giggled and said
‘never’, when she made the ‘comment’, lent support to a finding that she knew
precisely what she had said and intended for the words attributed to her, to be
conveyed to Ms O’Brien. I agree that the described conduct is consistent with this.
However, it is equally consistent with FS laughing in the context of something
else, funny, that had been inaccurately interpreted to her.
932 Irrespective of whether the comment was made by FS with or without an
independent interpreter’s assistance, it is likely, and I find, that FS was simply
saying what she had been told to say by the accused.
933 The ‘comment’ is inherently inconsistent with FS’s other evidence and,
indeed, the evidence of both F and HS, as to the nature of her relationship with the
accused. It is also inherently inconsistent with the prior concerns raised by DCJ.
I am satisfied the comment was untrue and that it is not the case, that as at 2012,
in their 13 years of marriage, the couple had never had a fight.
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934 Of course, if FS did intend to make the comment, (and, if it was made by her
in response to a question, that she properly understood), it demonstrates that she
was prepared to lie to Ms O’Brien, for the purposes of facilitating the return of the
children, albeit in the circumstances as they were at that very difficult time and in
the context of her limited understanding of the process. I have borne this in mind
in my overall assessment of the credibility of FS’s evidence, necessarily informed
by the surrounding circumstances.
Police statements
General observations
935 FS gave evidence that she had been assisted by many different interpreters
when giving her police statements. When asked if this had any effect on how she
had given those statements, she said:623
A. Yes, it does affect sometimes language and some words can't understand.
Q. And if the person is a male, or if a male is asking you questions, that might make
you feel uncomfortable.
A. Yes, I feel shy.
936 I accept this evidence, it being consistent with the evidence of DBS Menon.
Cultural and language issues are clearly relevant considerations to be taken into
account when assessing the reliability and credibility of the evidence given by FS
at trial and in particular when ascertaining what weight should be given to any
proven inconsistencies in that evidence, either internally, or when compared to
prior out of court statements.
937 FS also explained that when giving her police statements, the process was
different to the process of cross-examination. When asked to explain what she
meant by that, FS gave the following evidence:624
A. I was just answering them as they were asking me questions but not like how he was
asking me about word by word.
Q. Yes. Has this process of being asked questions in court been different to how you've
been asked questions when you've given your statements.
A. Yes. Very.
Q. Have there been lots more questions asked of you during the court process.
A. Yes. Yes, lots of questions and difficult questions, many questions which I could not
understand as well.
938 When giving this evidence, FS was referring to how she had been cross-
examined by the accused’s counsel, over six separate days, at trial. As is often the
623 T 690.38-691.4.
624 T 691.33-692.5.
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case in such proceedings, this was in a random, piecemeal fashion, jumping from
one topic or incident to the next and then back to a topic previously discussed, to
ask further detailed and specific questions.
939 In these circumstances, there was always the very real likelihood of FS giving
evidence which included more details about a particular topic or incident than
what she had previously told the police about that topic or incident. Further, as
previously outlined, there were times during the trial when my perception was that
FS was either struggling to understand questions posed of her (particularly when
she was tired) or appeared frustrated as she perceived she was not being fully and
accurately understood.
940 I disagree with the submission that FS was willing to lie, and to change her
story, when confronted with an apparent inconsistency or anomaly in her evidence,
as compared to what she said in earlier statements. Rather, on many such occasions
she was simply trying to explain how her recollection now was different from what
she purportedly said earlier and to ensure the court understood that. I have
considered why there may have been such differences or anomalies, in my reasons
below.
First police statement made 31 March 2022
941 FS gave evidence that this statement was made in the early hours of 31 March
2022 at the Elizabeth Police Station. She had been taken there by the police after
they attended at the Smithfield house late on 30 March 2022. When asked how she
was feeling at that time, FS said that she was in pain, very tired and emotional. She
was in fear and scared of the accused – so much so that the police organised for
her and the children to go to a safe place (a motel) thereafter. This was the first
time she had ever given a statement to police.625 I accept this evidence.
942 FS explained that she had no idea what to say to the police at that time. They
had asked her what had happened and how it had happened, so she started telling
them. She was interviewed by a female police officer, assisted by a male interpreter
who was over the phone (not present in person). She described the interpreter as
being a bit fast and had an accent ‘towards Punjabi’. She explained that accents
could make understanding a little difficult. She said, ‘but I had to tell, so I did.’626
I accept this evidence.
943 These were the circumstances in which FS made her first police statement,
that is, in the very early hours of the morning after the traumatic events of the
preceding hours. FS was tired and scared. The interpreter provided was not
physically present and did not speak the same dialect fluently. These circumstances
combined to create the very real risk that aspects of that statement were inaccurate.
625 T 682.11-683.29.
626 T 684.10-19.
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944 Further, it is completely unrealistic to have expected FS to tell the police, at
that time, every incident which had occurred during their over 20-year marriage,
or as to the incidents she did describe, to give a full and detailed account of such
incidents.
945 In all of the circumstances, the fact she disclosed the alleged offending in
count 6 (said to have happened about two months prior) but did not disclose details
of the alleged offending in the car, is readily explicable.
Second police statement made 8 June 2022
946 FS gave evidence that her second police statement was made before a
different police officer and with the assistance of a female interpreter who had an
Afghani accent. She said she could not understand that interpreter.
947 When shown a copy of that statement, FS identified obvious errors in it,
including that she was recorded as having the name ‘[SR]’. She explained that this
was the accused’s given name, and that he had taken the name that he now used,
‘Prince’. Throughout the statement where she had been referring to the accused,
her name appeared instead of his (and vice versa).627
948 The fact the interpreter did not understand that she was speaking to FS about
her husband, ‘[SR]’, demonstrates the level of misunderstanding between FS and
the interpreter.
949 In these circumstances, insofar as FS disputed the truth of statements said to
be attributable to her contained in this statement, I accept her evidence to that
effect. I am not satisfied that the contents of that statement can be properly
attributed to FS, given the significant number of obvious anomalies in it. I cannot
be satisfied either that FS properly understood the questions posed of her at that
time, or that the interpreter properly understood the responses given by FS.
950 Again, given the circumstances in which that statement was made, the fact
the statement does not refer to the alleged offending in the car, is explicable.
FS could not properly understand the interpreter and quite evidently, the interpreter
could not understand her.
951 It is also important to consider FS’s personal circumstances. I consider it
likely and find, that FS did not appreciate, when giving this interview, that it was
important for her to disclose every detail of every time she recalled the accused
having sexually (or physically) abused her. I consider it likely and find, consistent
with her evidence, that she only answered the specific questions posed of her, at
that time, particularly given the difficulties she experienced understanding the
interpreter.
627 T 684.20-685.11.
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Police statement made 10 February 2023
952 I refer to my earlier findings made with respect to this statement and the
circumstances in which it was made, as outlined at paragraphs 777-778 herein.
953 It is important to note, that the statement was based on proofing notes which
were made, initially, at a proofing conducted with FS in December 2022. At that
time, Nazifa Safi was the interpreter who assisted FS. Nazifa Safi was the same
interpreter who assisted during the provision of the statement on 8 June 2022.
I accept FS’s evidence that she had difficulty understanding her.
954 There were then two subsequent occasions when FS met with the police, with
DBS Menon interpreting to properly prepare and finalise that statement.
955 DBS Menon is a male. FS gave the following evidence, which I accept:628
Q. What difference does it make if a man's asking those questions as opposed to a
woman.
A. It is easy to tell a woman if such a question is asked. If a man is asking, it is difficult
to answer. They- they also understood that it is difficult for me to tell. So they said
that 'Whatever you wish to tell, how far you want to tell'.
Q. Would it be appropriate in Pakistani culture for a man to ask you questions about
sex.
A. No, it is very difficult and it is not possible.
Q. Would it be appropriate, in Pakistani culture, for you to talk to a man about sex with
your husband.
A. Not only Pakistani culture, but even the religion doesn't say this, and it was a
situation such that I had to.
Q. Did you have any concern or any worry about the interpreter being male on this
occasion.
A. Yes, it was, and it was difficult to tell, and you tell all your things to a man.
Q. Did it make you feel uncomfortable.
A. A lot of - a lot uncomfortable.
Q. You told police on this occasion -sorry.
INTERPRETER: She just said it was painful too.
REXN
Q. Painful. It was painful.
628 T 685.26-686.15.
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HER HONOUR: As well as uncomfortable.
A. Emotionally painful. Uncomfortable, emotionally painful.
956 Although DBS Menon read the statement back to FS carefully and, generally
speaking, line by line, to determine if she agreed that it was accurate, he
acknowledged that at times he would simply paraphrase his understanding of the
contents of an entire paragraph and ask if it was accurate, rather than read it to her
‘word for word’. As such, while I am satisfied the statement generally reflects
what FS told Officer Menon, it likely contains some differences to what FS
intended.
957 FS was prepared to freely disclose significant abuse in this statement. This
suggests that the impact of any cultural barriers on her ability to be frank when
giving the statement were unlikely to have impacted her any more than they did
during the trial, where she faced similar cultural barriers.
958 This was the first statement wherein FS disclosed the alleged offending in
counts 1, 2, 3 and 5. When asked why it was that she told the police about these
three incidents on that occasion, she said:629
A. When they ask me if he had done it somewhere else or any place, somewhere where
you did not have consent, and he did. So I had these three incidents I told them.
Q. So there was specific questions asked of you about things happening at other places,
is that right.
A. Yes.
959 I accept this evidence. FS and the accused had been married for over 20 years.
She described a relationship where the accused routinely forced her to have sexual
intercourse (whether it be anal, oral or vaginal) without her consent. In such
circumstances, it is likely, and I find that it was very difficult, if not impossible for
FS to correctly remember and differentiate discrete occasions when the accused
had forced her to engage in sexual intercourse and the details of such occasions.
960 FS gave evidence, which I accept, that she simply answered the questions
posed of her by police, when making her statements. I note my observations about
the challenging circumstances in which FS made her earlier police statements.
Having been asked during this interview, about whether the accused had sexually
abused her at other places (that is, away from the home), FS responded by telling
the police about the alleged offending in counts 1, 2, 3 and 5. In the circumstances
that I have described, it is completely understandable why FS first disclosed those
occasions of alleged offending at that specific time, in response to that specific
question.630
629 T 686.23-28.
630 See also findings below at [1240]-[1243] herein.
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Inconsistencies/omissions – uncharged acts
Evidence as to first occasion of rape
961 FS gave evidence that she was first ‘raped’ by the accused when they were
living at Minto.631 When providing details of what occurred on that occasion, FS
described the accused pushing his penis into her rectum, that is, engaging in anal
intercourse with her. Relevantly, she said:632
So when he inserted his penis in my rectum I screamed and I was in pain so he pushed my
face in pillow so that I cannot scream. That was the first time he did it. (my emphasis)
962 It is quite clear that what FS was endeavouring to tell the Court was that the
first time the accused had ever engaged in anal intercourse with her was in Minto.
This was something she was very much opposed to and had told the accused was
forbidden in their religion. She did not consent to participating in this type of
sexual intercourse under any circumstances.
963 FS also gave evidence that the first time the accused ever had oral intercourse
with her occurred when they were living in Minto. Oral intercourse was also
something she was very much against and had told the accused that it was not
allowed in their religion. She described bleeding from the mouth and vomiting.
She told him to stop but he would not. She recalled the smell of urine.
964 I accept FS’s evidence that the first time the accused ever engaged in both
anal intercourse and oral intercourse with her was in Minto and her evidence as to
how he forced her to participate in such acts. I accept FS’s evidence that she has
never consented to engaging in either oral or anal intercourse with the accused
because it is against her religious beliefs.
965 The accused knew she did not consent to such activities because it was
against her religion. I accept FS’s evidence that she also made her opposition to
anal intercourse clear as during such acts she would scream in pain and saying ‘no,
no’ but he would not stop. I accept FS’s evidence that she made her opposition to
engaging in fellatio clear as the accused was required to force her mouth open, by
holding her hair and slapping her.
966 The evidence given by FS of these occasions was compelling in terms of her
recollection of how the accused held her, the pain she felt, her face being pushed
in the pillow during anal intercourse and the smell of urine during oral intercourse.
967 Counsel for the accused submitted that FS’s evidence, that the accused first
raped her in Minto, was inconsistent with her evidence that when they had been
living in Kogarah (that is, before they lived in Minto), the accused had forced her
631 T 167.31.
632 T 168.13-15.
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to have vaginal intercourse with him. It was submitted that by that evidence,
FS must have been describing occasions of rape, that is, forced sexual intercourse.
968 Similarly, he submitted that the evidence FS gave that the accused had
‘forced’ her to have vaginal intercourse in Kogarah, was inconsistent with what
she told the police in a statement that there had been no ‘rape’ prior to Minto.
It was also an agreed fact that there is no reference in any of FS’s statements to
any non-consensual sexual activity having occurred at the house in Kogarah.633
969 The alleged inconsistency in the evidence relates to what FS understood to
be ‘rape’ and the meaning of that word. FS clearly correlated the term ‘rape’ with
anal intercourse, being an activity which she steadfastly refused to give her consent
to, as it was not allowed in her religion. Although FS used the word ‘rape’ in her
statement made on 10 February 2023 to describe the three activities in counts 1, 2
3 and 5, I cannot be satisfied that this was a word she used, in circumstances where
DBS Menon acknowledged that he paraphrased parts of that statement, when
reading it back to her. It was the word he used in the statement, albeit it was
attributed to FS. I am satisfied that what FS had described as having occurred on
those occasions, was non-consensual sexual intercourse, which DBS Menon
understood to be, by definition, ‘rape’. FS was never questioned as to what she
understood the term ‘rape’ to mean. She was not a lawyer.
970 After carefully considering the evidence, I am satisfied that when FS said she
had first been raped by the accused in Minto, what she meant was that it was when
they were living in Minto that the accused first had anal intercourse with her.
971 As such, the technical inconsistencies apparent on the face of this evidence
do not otherwise cause me to doubt the reliability and truthfulness of FS’s account
of the alleged offending.
Bleeding – Liverpool Hospital
972 As stated, FS gave evidence that when she was living in Kogarah, and the
children were living elsewhere in the care of child protection, the accused would
often force her to have aggressive vaginal intercourse. She said that on one
occasion, the force was so severe that she suffered vaginal bleeding for a month,
as a result of which the accused took her to see a doctor at the Liverpool Hospital.
The doctor gave her some medicine which was of some benefit. He had also
suggested some tests but she did not undertake them. FS did not give any evidence
that she had attended at the Liverpool Hospital for bleeding of the anus caused by
anal intercourse with the accused.
973 There was no dispute that in her first police statement, FS is recorded as
saying that when they were living in Minto, the accused penetrated her so badly
633 Exhibit P15 at [14.a.i].
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that she was bleeding from the anus for about two months, such that she had gone
to the Liverpool Hospital for treatment and medication.
974 DBS Poole requested the provision of the Liverpool Hospital notes but they
were not in evidence as they had not been returned by the time of trial. Obviously,
the provision of those notes would have assisted the court to determine the
accuracy and honesty of the evidence given by FS as to this alleged visit.
975 The circumstances in which FS made her first police statement are as outlined
above. There is every possibility that there was some misunderstanding between
FS and the interpreter (who was not physically present) given those circumstances.
976 FS gave quite detailed evidence about the circumstances in which the accused
engaged in forceful and aggressive sex with her in Kogarah. Her evidence that this
increased in frequency when the children were removed had a distinct ring of truth
to it. Not only would the absence of the children have made it easier for the couple
to engage in sexual intercourse without being disturbed or heard by the children,
but this is also consistent with the accused being frustrated and upset about the
children having been removed and taking out his frustration in this way. I believed
FS’s evidence on this topic.
977 When FS gave this evidence, she was quite certain that she was suffering
from vaginal bleeding and she had gone to Liverpool Hospital as a result. She said,
‘in this house I went only once’ (to the hospital).634 She said the bleeding had lasted
longer than a month.
978 When cross-examined about the differences in her evidence
(Kogarah/vaginal bleeding) compared to what was recorded in the first police
statement (Minto/anal bleeding) she maintained the bleeding was from her vagina
not her anus and that what she had told the police about going to the Liverpool
Hospital related to the vaginal bleeding in Kogarah. She said the bleeding started
in Kogarah but did not stop until they moved to Minto. 635
979 Counsel for the accused submitted that when FS said that she was still
bleeding when they moved to Minto, this was indicative of her being prepared to
change her evidence when it suited her.
980 However, FS did not change her evidence to say she was living in Minto
when the accused took her to the hospital. She maintained it was vaginal bleeding.
Her evidence was that she bled for over a month – in her statement she said ‘about
two months’. This minor difference is readily explicable because of the passage of
time. The family moved from Kogarah to Minto. It is possible that FS was still
bleeding when they moved to Minto, after such bleeding had started in Kogarah
and after attending at the hospital.
634 T 165.14.
635 T 486.17-23.
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981 If FS was lying about this, this would have become apparent if the Liverpool
Hospital records were provided to DBS Poole prior to him giving his evidence.
FS could not have known whether the notes would be provided in time. If she was
lying, the most obvious thing to do, when challenged with the inconsistency, was
to say that she went to the Liverpool Hospital twice – once for vaginal bleeding in
Kogarah and once for anal bleeding in Minto. She did not do this.
982 I believe FS’s evidence about the fact she suffered vaginal bleeding due to
the accused having forceful and aggressive vaginal sex with her and that as a result
she bled from the vagina for over a month. I believe and accept her evidence that
the accused took her to the Liverpool Hospital for this vaginal bleeding and that
she received medicine for it. If, in fact, she is now mistaken in her recollection of
this, and she attended the hospital for anal bleeding as outlined in her first police
statement, this is still consistent with her evidence that the accused forced her to
participate in sexual activities against her will. I am satisfied beyond reasonable
doubt that FS did not lie when she gave evidence that she had bled as a result of
forced sexual intercourse with the accused, in New South Wales, and that as a
result the accused took her to the Liverpool Hospital.
983 Notwithstanding the apparent inconsistencies in FS’s evidence with what she
told the police in her first statement; this does not cause me to have a reasonable
doubt about the truthfulness and accuracy of her account of the alleged offending.
Glass of water thrown – Bathurst
984 There was an apparent inconsistency in the evidence given by FS about the
occasion when the accused allegedly threw a glass at her, when they were living
in Bathurst, and what she said in her first police statement.
985 In evidence, FS said the glass had hit her in the chest. In her first police
statement, FS is recorded as saying that thankfully the glass had missed her, it had
only missed her head because she ducked and that she hit her head on the wall
when he threw it.
986 FS maintained that she had said, at the time she made that statement, that the
glass had hit her on the chest, causing her to be thrown backwards, such that she
hit the wall.
987 I refer to my previous findings as to the circumstances in which that statement
was made. It is certainly possible that the words that appear in that statement are a
product of miscommunication between FS and the interpreter, who was not
physically present.
988 F gave evidence about an incident when she saw the accused throw a glass at
her mother when they were living in Bathurst. She said she was standing at the
door and that she was fairly sure that the glass hit her mother. She thought she had
told the police about this although it was not referred to in any of her statements.
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989 It was submitted that both F and FS were simply making this up.
990 I have carefully considered this evidence. In addition to the issues already
identified, there was an inconsistency between F’s evidence and that given by FS
insofar as FS said three of her children were sitting on the bed when this happened
and that HS was nearby.
991 I am satisfied that F and FS were referring to the same incident. FS said this
happened after the accused had taken a phone call from family in Pakistan.
Unprompted, F said this had occurred over something the accused had found out,
being consistent with FS’s evidence.
992 The family lived at Bathurst from about July 2015 and mid/late 2018. This
incident, if it occurred, must have occurred at least seven years prior to FS and F
giving evidence a trial. Any inconsistency in their evidence as to precisely where
F was (that is, either on the bed or standing at the door) may be explained by the
passage of time.
993 While I am very mindful of the apparent inconsistencies in this aspect of the
evidence, I am satisfied that FS and F have not conspired together to make this up.
FS did not suffer any injury from this incident. Given the many other traumatic
incidents FS described, this incident is relatively minor. It simply makes no sense
for her and/or F, to make this up.
994 For these reasons, these inconsistencies do not otherwise cause me to have a
reasonable doubt about the credibility and reliability of the account given by FS as
to the alleged offending.
Bite marks and bruises
995 FS gave evidence that when they lived in Bathurst, the accused would come
home from work, wake her up and force her to have sex with him. She described
him biting her.
996 In cross-examination, FS was asked where the accused would bite her and
she said, ‘in the beginning’ on the cheeks and at times on her back. She said no
one ever saw these bite marks. It was submitted that if FS was telling the truth, one
would expect either F or HS to have seen these marks (or for there to be medical
evidence to this effect).
997 It was submitted that, similarly, there was a lack of evidence to corroborate
FS’s claim that she had been slapped (and/or punched) and bruised by the accused.
998 FS dresses very modestly as a Muslim woman. I consider it most unlikely her
children would have had the opportunity of observing any bite marks on her back
or bruises on parts of her body which would otherwise ordinarily be covered by
clothing.
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999 FS was quite clear she would not deliberately show any such bite marks to
her children. I accept that evidence and her evidence that she did not share these
things with her children.
1000 FS did not say how deep any bite marks were. If there were significant bite
marks on FS’s face, it is unusual that no one made any observation of them.
However, FS said the accused bit her on the face ‘in the beginning’.636 It is unclear
precisely how old F and HS were ‘in the beginning’. They may well have observed
their mother with marks on her face and thought nothing of it, such that they now
have no memory of this.
1001 Had F or HS given evidence that they had seen bite marks on their mother,
or if there was medical evidence tendered which confirmed the presence of such
marks, this would have supported FS’s evidence on this topic. However, the fact
that there was no such evidence does not cause me to otherwise doubt both the
truthfulness and reliability of FS’s evidence on this topic or her account generally.
1002 It was an agreed fact that in her first police statement, FS made no mention
of suffering any bruises or marks.637 It is unclear from the wording of this agreed
fact whether this meant it was agreed that in that statement, FS made no reference
to ever having suffered bites or bruises because of something the accused had done
to her, or if it meant that she had not made any reference to currently suffering
from any bites or bruises because of anything done to her by the accused.
1003 In cross-examination, a proposition was put to FS that when she made her
first police statement, she told the police that she did not have any marks or bruises
on her from anything the accused had done to her. She agreed with this. She said
she did not have any such bruises or marks at that time, arising from the events
immediately preceding this. However, FS said that she had told the police that
when the accused assaulted her, she would have bruises or marks on her body,
which would last for many days.638 I accept that explanation. Although FS said the
accused hit her hand, during the incident on 30 March 2022, causing her phone to
fall from her hand, she did not otherwise describe him as physically assaulting her
during that incident (or immediately prior thereto) and there was no other evidence
to that effect. There was no evidence that the accused had bitten FS during the
incident on 30 March 2022 (or immediately prior thereto).
1004 As to the issue of bruises, both F and HS gave evidence that they had seen
the accused hit or slap their mother.
1005 F gave evidence that she had seen the accused slap, push and shove her
mother in Pakistan. HS also gave evidence of having seen the accused slap his
mother when they were living at the Smithfield house, once in the context of one
of their regular family discussions (in response to something FS had said which
636 T 654.35-38.
637 Exhibit P15 at [14.b.iii].
638 T 654.4-6.
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upset him) and once in the context of the accused being unhappy with the food she
had provided him. I accept that evidence.
1006 FS described being slapped by the accused on her face when he forced her to
perform oral sex, and on her hands when she was trying to keep her pants on and
he was endeavouring to have sex with her.
1007 The evidence that FS gave of how the accused forced her to submit to sexual
acts (many of which were uncharged acts of anal and/or oral intercourse) was
compelling. It was given in a very matter of fact way. Her description of how she
was held and slapped was vivid. I believed her evidence.
1008 Again, had F or HS given evidence that they had seen bruises on their mother,
consistent with her evidence, or if there was medical evidence tendered which
confirmed the presence of bruises on her face or hands from time to time, then this
would have lent further support to FS’s evidence on this topic. However, the fact
that there was no such evidence, given the particular circumstances of this case,
and the other evidence given by HS and F, this does not cause me to otherwise
doubt both the truthfulness and reliability of FS’s evidence on this topic or her
account generally.
Knife incident - Bathurst
1009 Counsel for the accused submitted that the evidence given by FS that she had
said the ‘kalma’, when the accused pointed a knife at her chest in Bathurst, was
inconsistent with what she had earlier told the police and indicative of her simply
tailoring her evidence to make it ‘fit’ with the narrative.
1010 FS remained adamant that she had recited the kalma at the time of this
incident and not the bismillah.
1011 In her first police statement, FS is recorded as having said:639
I could feel the blade resting on my chest. My husband told me to start reciting the holy
Arabic words in the name of God which is something our people say when they’re about
to die. (my emphasis)
1012 The words I have highlighted in bold are important. They clearly demonstrate
that what FS was describing in her first police statement, was a prayer that was
intended to be recited when someone thought they were about to die, which is
consistent with FS’s evidence.
1013 FS’s evidence was that this prayer was the kalma, not the bismillah, and that
this was the prayer she recited at the time of this incident. She was adamant she
did not recite the bismillah.
639 T 496.19-34.
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1014 As a practicing Muslim, FS clearly knew the difference between these
prayers and when (and why) certain prayers were recited (or meant to be recited).
I am satisfied that she would not have ‘mixed these up’ when giving her statement
because she was lying about the incident having occurred. I accept the explanation
given by FS as to what she said when she made her first statement and that she did
not, in fact, mix up the prayers.
1015 I accept her evidence that the prayer she said, during this incident, started
with the words, ‘there is no God but Allah’ and that what she in fact described
when she made her first statement, was the kalma, and not the bismillah, despite
the statement using the words, ‘in the name of God’.640
1016 I accept FS’s evidence as to this incident. Importantly, FS was quite clear
nothing like this ever happened again, being inconsistent with her embellishing
or exaggerating her evidence. However, she explained she was always scared that
it could happen, as the accused had threatened to do it again. I accept this evidence.
It is well known to me from my professional experience, that those who perpetuate
domestic violence often demonstrate to their victim that they have the capacity to
harm them in a certain way and then threaten to harm them again, in that way, as
a form of coercive control.641 I am satisfied from all of the evidence that the accused
controlled most aspects of FS’s life and that this was particularly the case at the
time they lived at Bathurst, when the children were younger.
1017 I accept the evidence given by FS as to this incident.
Satan comment(s) - Bathurst
1018 FS gave evidence that when they were living in Bathurst, the accused would
often threaten her by saying to her that Satan was telling him to kill her and the
children. It was agreed that there was no reference in any of FS’s police statements
to the accused having told her that Satan was telling him to kill the children.
1019 However, F gave evidence that when they lived in Bathurst, after acting
aggressively, the accused would explain his behaviour by saying that Satan had
put evil thoughts in his head. She also recalled him saying that Satan was telling
him to strangle all of the family members, when they were living in South
Australia.
1020 F’s evidence on this topic unfolded naturally and in response to a question
about whether the accused would ever apologise for his behaviour. I accept F’s
evidence, which supports the evidence FS gave on this issue. As such, the fact this
is not recorded in FS’s statements does not otherwise cause me to doubt the
accuracy or honesty of the evidence FS gave about the accused claiming to having
been told by Satan to harm the family, or her account of the alleged offending.
640 Noting my earlier findings as to the circumstances in which this first statement was made.
641 As a judicial officer with over 14 years’ experience hearing matters involving domestic violence and
coercive control.
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Forced intercourse when travelling to South Australia to look at houses
1021 The prosecutor submitted that FS’s evidence about travelling to SA for
purposes associated with buying the Smithfield house was littered with
inconsistencies. He submitted that what was originally one trip to Adelaide
morphed into approximately six separate such trips, to otherwise fit with FS’s
evidence that the accused had forced her to have sexual intercourse on a trip when
the children were not with them.
1022 During examination-in-chief, FS was asked, ‘Did you and [the accused] go
to SA before you bought this house’. She replied, ‘Yes, once. I and the kids have
come to see the house’.642 She then went on to describe the accused forcing her to
have vaginal intercourse in a hotel at Hay ‘during the trip’.643
1023 On its face, by this evidence, FS appeared to be describing the accused
forcing her to have vaginal intercourse during the one trip they had taken to see
the house at Smithfield, being a trip when the children were with them.
1024 FS went on to say that the same thing had happened when they were staying
at a hotel in Elizabeth. My impression from hearing that evidence was that FS was
describing something else that had happened on the same trip, but at a different
location.
1025 When asked where the children were during this occasion of forced sexual
intercourse, FS said they were in Bathurst. She then explained that the first time
they (she and the accused) came to see the house alone and the second time the
children came with them. The forced intercourse had occurred on the first trip, not
the second.644 On its face, this evidence is inconsistent with that initially given by
her.
1026 FS was not asked during examination-in-chief whether she and the accused
(with or without the children) visited SA on any other occasions to look at any
other houses. It was certainly my impression that when FS gave the
abovementioned evidence about the occasion of forced vaginal intercourse, that
she was referring to a trip to SA to see the Smithfield house that they ultimately
purchased.
1027 In cross-examination, FS agreed with a proposition put to her that they made
a number of visits to Adelaide before ‘moving into’ the house at Smithfield. FS’s
response was:645
A. Yes, I have told you earlier we came multiple times alone and with kids as well to
see the houses.
642 T 181.27-29.
643 T 181.32-33.
644 T 183.13-19.
645 T 512.8-19.
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Q. And in fact you signed a contract for a house at Murray Bridge, you and [the
accused].
A. Yes, I told earlier that it was expensive. We could not buy that and we had come
with children.
Q. You also signed a contract for a 9 Berryman Street.
A. Yes, as I told earlier that we had come a number of times. We had seen multiple
number of house, but as I told earlier we could not arrange for money because loan
was not sanctioned. Then we took Smithfield affordable house.
(my emphasis)
1028 FS agreed with a proposition put to her by counsel for the accused that she
signed the contracts on the houses at Murray Bridge and Berryman Street ‘on
separate occasions’.646 Without factoring in language difficulties, the proposition
put can be interpreted in two different ways. That is, that they simply signed those
two contracts on separate dates or times but during the same trip, or that they made
two separate trips to SA, one to sign the contract for the house at Murray Bridge
and one to sign the contract for Berryman Street.
1029 Although FS described seeing multiple houses on the same day, she also
described seeing houses at Whyalla and Port Pirie. Simply from a practical
perspective, it is most unlikely that there was only ever one trip to SA for the
purposes of looking at houses before the couple bought the Smithfield house.
Similarly, for practical reasons (not the least of which there were six of them in the
family and, on FS’s unchallenged evidence, a family car – a Toyota Camry - that
presumably seated five), it is more likely than not that the accused and FS made at
least one trip alone, and that they only brought the children with them to see a
house (or houses) they were genuinely interested in purchasing.
1030 Counsel for the accused endeavoured to get FS to identify during which trip
(of what I am satisfied was likely to have been several) the forced vaginal
intercourse at Hay and Elizabeth had occurred. FS then described multiple trips to
Adelaide to see houses, two with the accused and two when the children came. She
said the forced intercourse had occurred on the trip when she and the accused came
to see the house in Berryman Street.647
1031 The way this evidence unfolded was somewhat indicative of FS’s evidence
as a whole. I have no doubt that there were multiple trips to SA to see houses, some
with the children and some without. I reject the submission that FS was making up
the fact of additional trips, to tailor her evidence to ‘fit’ with her allegation of
forced intercourse during one such trip (noting this was uncharged conduct).
1032 FS often rushed when giving her first response to a question on any particular
topic and did not think properly about the question before answering it. This
646 T 512.20.
647 T 538.1-539.15.
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necessarily meant that her later answers included more detail, as more precise
questions were asked of her and she was required to go over specifics. Of course,
this observation is relevant to my assessment of her reliability, in general.
1033 In my view, the apparent inconsistencies in FS’s evidence on this topic were
due to several factors. FS was asked questions relating to trips to see the Smithfield
house (that is, simply to see that house) and trips before buying the Smithfield
house (that is, all trips before they bought the Smithfield house). Unfortunately,
the language used during some of this questioning was imprecise and therefore
prone to misunderstanding, as to whether she was being asked about the former or
latter concept. It was apparent that the subtle difference in these questions was not
fully understood by FS, whether that was due to issues relevant to the use of an
interpreter, hearing issues or otherwise.
1034 As such, I consider that some of the apparent inconsistencies in this evidence
were the product of FS not fully grasping an understanding of the precise question
she had been asked, before responding.
1035 I am satisfied that FS was not lying when she described multiple trips to
Adelaide to see houses, some with the children and some without. I am also
satisfied she was not lying when she described the accused forcing her to have
vaginal sex with him on one of those trips in a hotel in Elizabeth and a motel in
Hay. Given the way her evidence unfolded, I cannot be satisfied of the accuracy
of her recollection whether this occurred during a trip to see the Smithfield house
or a trip to see the Berryman house. It may be that the couple saw both the
Smithfield house and the Berryman house during the same trip, meaning her
evidence, which on its face appears inconsistent, is not.
1036 It is also possible that FS is now simply mistaken in her recollection as to
which trip was the subject of these occasions of forced vaginal intercourse.
However, the fact she may not now accurately remember which trip it was, does
not cause me to doubt the truthfulness and reliability of her evidence that there was
such an occasion.
The laundry
1037 FS gave evidence that she would sleep in the laundry at the Smithfield home
to try to prevent the accused from continuing to have oral and anal sex with her.
She said that the accused would still drag her from the laundry back to their
bedroom and have sex with her on the floor there. She described moving a chest
of drawers in front of the laundry door to try to stop the accused getting into the
room.
1038 Counsel for the accused highlighted that there was no mention in any of FS’s
police statements about being dragged from the laundry to have sex and/or putting
a chest of drawers in front of the door. Neither F nor HS gave evidence that they
had seen the accused drag FS from this room. It was submitted that this was
because FS was lying about this.
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1039 As previously stated, both F and HS corroborated FS’s account that there
were times that she slept in the laundry at Smithfield. The accused was driving
taxis during the day. I have interpreted FS’s evidence on this topic as describing
this as occurring after he came home from work. There was no dispute that the
accused would work long hours. FS said after work the accused would go and look
at women (I have presumed she means at strip clubs). It was in this context that
this allegedly occurred.
1040 As such, the fact that neither F nor HS saw the accused dragging FS from the
laundry is readily explicable by the fact they were otherwise in their bedrooms.
It was nighttime HS gave evidence that he spent much of his time in his bedroom
in any event, trying to stay out of the accused’s way.
1041 I refer to my earlier findings and observations at paragraph 867 herein.
FS’s failure to include in her statements the extra detail about moving the cupboard
or chest of drawers in front of the laundry door, does not otherwise cause me to
doubt the veracity of her account on this topic.
1042 The evidence that FS tried to hide from the accused by sleeping in the laundry
was compelling evidence. Similarly, her recollection of feeling the tiles on the
floor hitting her, when he forced her to have sex on the bedroom floor, after
dragging her there from the laundry (where her mattress was) was compelling.648
Accused urinating on FS
1043 FS gave evidence that the accused urinated her on three or four occasions in
the main bedroom at the Smithfield house. There was nothing in her police
statements about this.
1044 FS maintained that she told this to the police. It is possible that she did
mention it, but what she said was misunderstood by the interpreter, noting that FS
described occasions when the accused smelt of urine when they engaged in oral
sex. Of course, it is also possible that FS is mistaken and that she never mentioned
this at the time of giving any of her statements.
1045 However, these alleged acts clearly repulsed FS. She only mentioned this in
the context of giving evidence about occasions of uncharged acts of oral sex. She
had said the accused would ‘spill it’ (semen) on her body. The prosecutor misheard
and asked FS if she had said that the accused would ‘spit’ on her. FS corrected the
prosecutor and said he would urinate on her when they were living in their current
house (Smithfield).649 Later, she gave further detail of these occasions, again in the
context of being forced to perform oral sex on the accused.
1046 If FS did not mention these occasions earlier, I am satisfied that this was not
because FS was lying about these occasions in her evidence, such that they were
recently invented in the witness box. Rather, I am satisfied that any such omission
648 Photographs 11, 12 and 13 of Exhibit P3 depict the tiled floor in the main bedroom.
649 T 175.3-16.
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is the product of a combination of cultural issues associated with speaking openly
about such embarrassing and highly personal matters and/or simply because this
had occurred during occasions of uncharged acts, and were ancillary background
details, rather than details relevant to separate occasions of alleged offending.
Water bottle throwing incident – Smithfield
1047 I refer to the submissions made by counsel for the accused as outlined at
paragraphs 663-667 herein.
1048 I have carefully considered the evidence on this topic.
1049 There were three components to this aspect of the evidence.
1050 The first was FS’s evidence about the text message received on 14 March
2022.650 This text message was relevant for two purposes. The first was as an
example of the things the accused would say to FS to get her to go from the house
and see him in his taxi. That is, that there was a Pakistani girl who wanted to meet
her. FS said she did not go as she thought that the accused was simply using this
as a pretext for her to go out to see him in his taxi, so that the accused could have
sex with her, in the back of the taxi, as he had done in the back of the family car.
1051 I accept the evidence FS gave on this topic. Simply put, I consider that it is
not reasonably possible that FS has now fabricated this component of her evidence,
to fit with what is written in that text message, with a view to bolstering what was
already a complicated litany of lies. I accept her evidence that she thought the
accused was trying to trick her to be away from the house, alone with him, in order
to facilitate him having sexual intercourse with her.
1052 The text message also helped FS pinpoint the date of the incident when she
alleged the accused threw a glass of water at her when he came home after staying
out all night. The 13CABS data is consistent (to a degree) with what the accused
said in that text message, namely that he would be driving his taxi from Adelaide
to Whyalla on the evening of 14 March 2022 and would not be returning to
Adelaide until the next day.
1053 The second component of this is FS’s evidence that on the occasion the
accused sent this message, he stayed out all night and did not come home that
night. She gave evidence that he came home ‘around school time for the kids’651
and instead of coming inside the house, he simply threw multiple empty water
bottles at the house, which she and F collected and refilled.
1054 She then gave evidence that the accused returned to the Smithfield house later
that night, at which time she had asked him where he had been and he had reacted
by abusing her and throwing a glass of water at her. It was this later incident (‘the
glass throwing’) which was the focus of FS’s evidence-in-chief, not the earlier
650 Exhibit P7.
651 T 247.10-11.
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‘empty water bottle throwing’ which was merely ancillary and peripheral to this.
The empty water bottles were thrown at the house, not at FS.
1055 In cross-examination, counsel for the accused highlighted that when FS
spoke about the ‘glass throwing’ to police on 31 March 2022 and then again on
24 February 2024, she had said nothing about the earlier ‘empty water bottle
throwing’. FS’s first police statement included the following:652
Since moving to Adelaide in 2018 the verbal, physical and sexual abuse from my husband
has continued. On Monday 14 March 2022 my husband left home at about 10.30 pm and
did not come home until the early hours of Tuesday, 15 March. I asked him where he
was because I was worried about him and he started assaulting me by throwing a glass of
water at me. The glass did not hit me but the water was thrown all over me. He was very
angry about me asking where he was and continued to verbally abuse me.
1056 FS gave evidence that the ‘glass throwing’ had occurred at nighttime, in the
context of FS asking the accused where he had been because she was worried about
him. The text message sent by accused to FS stated he was going to Whyalla and
would be back ‘tomorrow morning’. If he had in fact ‘come home’ in the morning,
this was consistent with what was I the text message. It is unlikely that there would
have therefore been any cause for FS to be worried about where he was or question
him about it. She knew the answer from his text message, that is, he had been doing
a job in Whyalla.
1057 I refer to my earlier findings as to the circumstances in which FS made her
first police statement. It is certainly possible that what FS was trying to explain to
the police, albeit imperfectly, was that the accused had not come back home until
very late the next day. Again, there may well have been some misunderstanding
between FS and the interpreter.
1058 I note that counsel for the accused asked FS what she meant in that statement
by the phrase, ‘the early hours of Tuesday 15 March’. FS answered that she had
meant ‘the children going to school time’.653 However, the ‘early hours’ would
ordinarily connote 1:00am or 2:00am in the morning, not 8:00am or 9:00am.
1059 This response was given during lengthy cross-examination focussed on the
timing of the ‘empty water bottle throwing’ incident, not the ‘glass throwing’
incident. FS had earlier been asked whether the accused had returned the next day
before the children had gone to school. By her response, it is clear she was thought
this question to be directed to the time the accused ‘returned’, briefly, and threw
the empty water bottles at the house. She said the younger children had left for
school at this time, and she was home with F. When a proposition was put to her
that the accused had come home at around 8:00am to 9:00am, she said, ‘maybe’
as it was in the morning and she had not looked to see the time.
652 T 486.34-487.31.
653 T 487.14-488.33.
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1060 I am satisfied that FS’s evidence about ‘the early hours’ in response to
defence counsel questioning, related to her misunderstanding that the question
related to the time of the ‘empty water bottle throwing’ not the time of the later
‘glass throwing’.
1061 However, FS was also cross-examined about what she said in her police
statement made on 24 February 2024 to clarify what she had earlier said about the
accused not coming home on the night of 14 March. In that statement she said,
‘The next morning I believe the time he came home was around 8:00am to 9:00am.
This is an estimation and I base the time on the fact that children had not gone to
school yet and they usually start school at 9:00am’.
1062 If, in this statement, FS was talking about the time of the ‘empty water bottle
throwing’, this is inconsistent with the evidence FS gave, namely that the younger
children had left for school when this occurred. It is unlikely this was her intention,
as she had not mentioned the water bottle throwing incident in that earlier
statement. If she was intending to explain what time the accused had come home
and thrown the glass of water at her, it was inconsistent with her evidence that this
had occurred at night.
1063 FS maintained, in her evidence, that the glass throwing incident occurred at
nighttime. I have taken this inconsistency into account in my overall assessment
of FS’s evidence.
1064 Although counsel for the accused highlighted the 13CABS data as
demonstrating the fallacy of FS’s evidence on this topic, in fact, her evidence was
entirely consistent with the 13CABS data.
1065 The 13CABS data demonstrated that the accused’s taxi left the Smithfield
Plains area at about 10:45pm on 14 March 2022. It then travelled north via Angle
Vale Road and the Port Wakefield Highway and the Augusta Highway.
1066 At 6:36am on 15 March 2022, the accused’s taxi was in Whyalla. At about
8:45am that day it was in Port Augusta. It then travelled south towards Adelaide,
passing through Port Wakefield at about 10:42am. The taxi was immediately
adjacent to the Smithfield house between 11:55am and 11:57am on 15 March
2022. It then left the house and did not return until 8:01pm that evening.
1067 The 13CABS data is therefore consistent with the accused being out and
away from the Smithfield house for the entirety of the night of 14/15 March. It is
consistent with him then pausing, momentarily, at the Smithfield house at about
11:55am, that is, after the younger children had left for school, to throw his empty
water bottles at the house. These were water bottles the accused took with him
when he went to work driving taxis. He had been out all night driving north. It was
March. His actions are entirely consistent with him having drunk multiple bottles
of water that day and night and wanting them to be refilled.
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1068 FS gave evidence that the ‘glass throwing’ occurred at nighttime, after she
had left out the accused’s food for him. This evidence is also consistent with the
13CABS data which demonstrates the accused’s taxi was next in the vicinity of
the Smithfield home around 8:01pm that night, that is, somewhat late for dinner
and much later than what the accused had originally told FS in the text message,
namely that he was going to be home that morning.
1069 While this evidence was confusing and confused, I believed FS about the fact
of the ‘empty water bottle throwing’. None of these empty water bottles were
thrown at her – they were thrown at the house.
1070 F also gave evidence that she had seen the accused throw empty water bottles
at the house on multiple occasions, consistent with this. This was innocuous
evidence. FS said she and F simply went out, collected the bottles and refilled
them. That was it. There was no reason to make this up as part of any elaborate lie.
1071 I have carefully considered the evidence given by FS about the accused
throwing the glass of water at her.
1072 FS described this incident as having scared her so much that when the
accused went out to the car, she went into the kitchen and hid the knives. This
additional detail was not included in any police statement. However, FS did tell
the police about the glass throwing incident when she made her first statement.
That statement was made when FS was also scared, that is, following the accused’s
behaviour on 30 March 2022, notwithstanding he did not physically harm her at
that time.
1073 The fact FS disclosed the glass throwing incident to the police at that time is
consistent with it being relatively fresh in her mind, as another occasion when she
was also scared of the accused, notwithstanding he had not physically hurt her.
The glass did not hit her, nor did the accused hit her. However, I accept FS’s
evidence that she was so scared by what had occurred that she was fearful the
accused might do something worse. The accused had threatened FS with the knife
in Bathurst and she was scared he would do that again. Her running to hide the
knives is consistent with her being scared the same thing that had happened in
Bathurst, may happen again. I accept FS’s evidence that she ran to hide the knives
after the accused threw the glass of water at her that night.
1074 I pause to note that if FS was lying about this incident, one may have expected
her to embellish and claim the glass had hit her or that the accused had hit her or
that the accused had threatened her with a knife.
1075 I am satisfied that FS was telling the truth when she gave evidence about the
‘empty water bottle throwing’ incident and the ‘glass throwing incident’. Her
evidence is supported, at least to some extent, both by F’s evidence and the
13CABS data.
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1076 Although FS may now be uncertain as to precisely what time these incidents
occurred, as demonstrated by the abovementioned inconsistencies, I accept her
evidence these two (uncharged) incidents did occur, and am satisfied that they
occurred on 15 March 2022.
Potential inconsistencies with other evidence
HS’s evidence – fighting about money
1077 HS gave evidence that the accused and FS argued about money, particularly
after COVID. He said they would fight over money and about it being spent on
useless stuff. However, he did not say that FS initiated these specific arguments,
albeit she did initiate some arguments.
1078 FS denied arguing with the accused about money in 2022, which, on its face,
is inconsistent with HS’s evidence. FS gave that evidence when she was being
cross-examined about lying about the allegations for financial gain.
1079 I am satisfied that there were times when money, or perhaps more accurately,
a lack of money, was a source of tension in the household and something that FS
and the accused did argue about.
1080 However, I am satisfied from all of the evidence and in particular, the
evidence given by F and HS, that many such arguments had, as their source, the
accused’s frustration at the fact that he was the only one in the household who
was working. He was the only one responsible for paying the bills and the
mortgage.
1081 In other words, I am satisfied that these were not arguments fuelled by FS’s
desire for more money, rather they were part and parcel of the environment in
which the family lived – where the accused regularly expressed his frustrations
associated with the fact that he bore the financial responsibilities of the family.
F’s evidence about how the accused had slammed IS’s face into the table, as he
was mad that IS was not contributing to the household finances, was indicative of
this.
1082 I accept the evidence given by HS that he expected the children to become
doctors so that in time, they could contribute financially towards the family and/or
‘repay’ him for what he had spent raising them. This was abundantly clear from
the evidence given both by HS and F.
1083 When FS denied arguing with the accused about money, I interpreted her
response to mean she had not argued with the accused about any concerns she may
have had about lack of money or money issues, as this was the context in which
these questions were asked of her. FS’s evidence on this topic must be viewed in
its proper context.
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Dr Abbas’ evidence – three consultations
1084 I accept Dr Abbas’ evidence that FS consulted her on three separate
occasions, namely:
• On 25 October 2019, at which time she was accompanied by the accused
during the examination. FS underwent a blood test for diabetes and spoke
to Dr Abbas about her hearing issues and prior diagnosis of Hepatitis C.
• On 14 October 2020, at which time FS attended the consultation alone.
FS described the accused as having forced her to participate in anal and oral
sex and that if she refused, he would physically abuse her. She presented with
a rash and discomfort in her anal area where a few ulcers were observed and
a swab was taken to test for herpes. Dr Abbas also discussed with FS a
referral to a psychologist.
• On 21 October 2020, when FS attended for the results of the herpes test,
which was negative. Dr Abbas recommended she use Sudocream and
suggested a referral to a colorectal surgeon, but FS did not want such a
referral.
1085 In cross-examination, FS maintained she had only ever seen Dr Abbas once
and denied that the accused had ever taken her there. Obviously that evidence is
inconsistent with that given by Dr Abbas. FS is clearly mistaken about this.
1086 Relevantly, Dr Abbas’ evidence was consistent with other evidence given by
FS, namely that FS did complain to her about forced anal and oral sex with the
accused, that she was given ‘oil’ (Sudocream) for the pain and that she had
discussed referral to see another doctor (a colorectal surgeon) and a psychologist.
1087 When FS gave her evidence-in-chief about consulting with Dr Abbas, it was
in the context of her describing a deterioration in her mental health arising from
the accused forcing her to engage in anal and oral sex and whether she had ever
sought medical attention as a result.
1088 In cross-examination, FS acknowledged she had previously been to the
clinic, and seen Dr Abbas, who she knew spoke Urdu. She said this was for matters
relating to the children. Clearly, she was mistaken about that. It is likely and I find
that she simply forgot about the earlier consult, when she was seen about other
health issues. This is understandable given FS has suffered from a myriad of health
issues over the years and must have seen numerous doctors and many different
consultations for such issues.
1089 What she did remember, accurately was seeing Dr Abbas and telling her
about what the accused was doing to her sexually. This was memorable because at
that point in time she had not told anyone about the uncharged acts (or the alleged
offending).
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1090 I accept the evidence given by F that it was she who took FS to see Dr Abbas
on that occasion – not the accused. When FS denied a proposition that the accused
had accompanied her to see Dr Abbas, I am satisfied that this is what she was
referring to when she denied this – he did not take her to see Dr Abbas on the
occasion which she remembered, being that in October 2020.
1091 I am satisfied that the fact that the accused was not in the doctor’s room,
sitting next to FS, acting as an interpreter (as he often did) meant she could finally
talk freely to someone about this issue that had been of concern to her for several
years.
1092 FS said she did not return to see Dr Abbas because the accused found out that
she had seen her and she did not dare go back again. I consider that FS has merged,
in her mind, the second and third consultations with Dr Abbas, such that she now
only recalls one further visit. However, she never returned to see Dr Abbas
thereafter, nor did she take up the suggestion of seeing either a specialist or a
psychologist.
1093 Although there was no evidence as to the latter, it would have been very
difficult from a practical perspective for FS to do this. She would have needed
someone to accompany her as an interpreter. One can readily understand why she
may have been reticent for F to accompany her, given what would likely be
discussed at any such consultations. The accused was not an appropriate option.
1094 Insofar as there were minor differences in the evidence given by FS and
Dr Abbas, they do not impact, negatively, on my assessment of FS’s evidence.
Indeed, the evidence given by Dr Abbas supported FS’s account that she had
sought medical attention arising from her allegations of unwanted (but uncharged)
anal and oral sex with the accused, and that Dr Abbas made observations of ulcers
in her anal area that she saw fit to swab for herpes, observations which were
therefore at the very least consistent with FS’s concerns at that time.
DBS Poole’s evidence – discussion October 2022
1095 FS agreed that in October 2022, she spoke to the police about dropping the
charges. She said she did this as she was being pressured by the accused (and his
brother) to do so and that the accused’s brother was also placing pressure on her
brother. I accept that evidence. She acknowledged that the police told her that if
the charges were dropped, the accused would be free.
1096 However, FS disagreed that she had also been told, at that time, that this
meant ‘there would be nothing to stop the accused taking the children’. This is
contrary to the evidence given by DBS Poole, who agreed with a proposition that
this topic was discussed at that time.
1097 I am uncertain what bail conditions were in place for the accused at that time
but if they included non-contact conditions covering the children, then obviously
those conditions would no longer apply once the charges were withdrawn, and the
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accused was no longer on bail. It is standard procedure for the police to explain
this to FS.
1098 As such, I prefer and accept DBS Poole’s evidence on this issue. However, I
also accept DBS Poole’s evidence that this was in the context of explaining to FS
the future of the case and further information about the process.
1099 DBS Menon interpreted for FS during this discussion. Although he had not
spoken to her in depth before this, FS did understand him better than she
understood other interpreters.
1100 I do not consider FS is lying about her recollection of this discussion.
I consider it likely that she has simply forgotten aspects of the discussion, or,
alternatively, that when the police spoke to her about ‘bail conditions’ at that time,
this was a topic about which she lacked a full understanding in any event.
FS demonstrated confusion about the concept of bail when giving her evidence on
this topic.
1101 This evidence likely demonstrates an inaccuracy in FS’s recollection of this
conversation, being relevant to my overall assessment of the reliability of her
evidence. I have taken this into consideration when making my ultimate findings.
Inconsistencies/omissions – alleged offending
General
1102 There were numerous apparent differences in the evidence given by FS about
the alleged offending, and what she told the police in her various statements. It was
submitted that this was a product of the allegations being untrue and/or, at the very
least, the Court could not be satisfied beyond reasonable doubt as to the accuracy
of the evidence given by FS as to each alleged offence. There were also internal
inconsistencies in aspects of FS’s evidence as to the alleged offending.
1103 I repeat my observations as to the circumstances in which FS made her police
statements on 31 March 2022, 8 June 2022 and 10 February 2023. Those
circumstances have impacted the weight I have attributed to any proven
inconsistencies or omissions.
Counts 1, 2, 3 and 5
Not mentioned in statements made on 31 March 2022 and/or 8 June 2022
1104 Although FS disclosed the alleged offending in count 6 in her first police
statement, she did not disclose the alleged offending in counts 1, 2, 3 and 5 until
her statement made on 10 February 2023.
1105 As previously outlined, I accept FS’s explanation as to why she first
disclosed those alleged offences at that time and not during her statements made
on 31 March 2022 or 8 June 2022. When making her statement dated 10 February
2023, FS was specifically asked if the accused had sexually abused her at other
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places, that is, away from the home. It was in that context that she described the
alleged offending in counts 1, 2, 3 and 5.
Were there two or three such car trips?
1106 As outlined at paragraphs 228-229 herein, FS gave evidence, that the accused
had taken her out in the car twice to have sex with her. On its face, this evidence
is clearly inconsistent with FS’s other evidence wherein she gave a detailed
description of three separate occasions (or times) that the accused had taken her
out in the car and then had sex with her, at three different places.
1107 I have carefully considered this evidence in the context of all of FS’s
evidence. I note also FS’s evidence given with respect to the timing of the incident
she had described in count 1, compared to the incidents in counts 2 and 3 at
Spotlight, namely:654
Q. Do you know how long in between the Spotlight one and this Bunnings, one how
long was the time between those two.
A. Approximately a month because they were renovating the house. I went only twice,
once to Bunnings Munno Para and once to Bunnings Gawler otherwise after that I
did not go with him. And after that I did not go at all anywhere.
1108 FS clearly described three separate trips when the accused allegedly took her
to places away from the home to engage in sexual intercourse with her. The fact
she had described three separate trips must have been readily apparent to FS.
1109 I am satisfied that the fact FS used the word ‘twice’, in these circumstances,
is the result of some misunderstanding as to the meaning of that word, either on
the part of FS or the interpreter. It simply makes no sense for FS to use that word
and then shortly thereafter give detailed evidence describe three separate times the
accused took her in the car to have sex, and never seek to correct her earlier
evidence, if, when she used the word ‘twice’, she knew it meant ‘two times’.
1110 The fact she used this word does not cause me to have a reasonable doubt
that there were three separate trips, as detailed by her. It does not otherwise cause
me to doubt the truthfulness of FS’s account of the alleged offending or impact on
my findings as to the extent to which her evidence of the alleged offending is
reliable.
Counts 2 and 3 (Spotlight)
1111 It was an agreed fact that in her first statement made on 31 March 2022,
FS made no reference to any acts of non-consensual oral sexual activity noting
count 2 is such an act. I refer to and repeat my previous findings in which that
statement was made. The fact FS did not mention such activity in that statement is
654 T 235.1-8, given on day 3, when FS described, in detail, the alleged offending near Bunnings Munno
Para, and the alleged offending near Bunnings, Gawler, after having previously give detailed evidence
on day 2, as to the alleged offending at Spotlight.
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understandable, given those circumstances. It does not cause me to otherwise have
reasonable doubt about the credibility and reliability of her account, generally.
1112 FS gave evidence that these offences occurred in the family car, whereas the
statement made on 10 February 2023 records them having occurred in the
accused’s White Toyota Camry taxi. FS maintained that this offending (and that
in counts 1 and 5) occurred in the family car. I accept her explanation for this
inconsistency.655
‘Mixed account’ – counts 2 and 3 (Spotlight) and count 1
1113 FS gave evidence that she had been in the back seat of the car throughout
the journey, the premise of which was to return items to Bunnings and to dispose
of bags of rubbish (associated with the renovations) in the bins at Spotlight. In the
statement, FS said there were items to be returned to Spotlight in the back seat,
and the accused stopped on the way, and asked her to move from the front seat to
the back, so he could put those items in the front seat. FS said what was in the
statement was a mistake and she must not have remembered correctly.
1114 It was also agreed that there was nothing in that statement about FS and the
accused having returned from Bunnings, before the alleged rape at Spotlight.656
1115 As it transpired, the statement did include the following:
[34] The same thing happened again by returning from Bunnings Munno Para. We had
gone there to exchange items that [the accused] had purchased earlier. He had filled up the
boot of the car and the front seat with merchandise. [The accused] asked me to sit in the
back seat. I sat on the rear passenger side.
1116 However, thereafter the statement had described the accused turning right
from Bunnings and stopping in an isolated rural area near a gate (being the location
of the alleged offending in count 1).
1117 The statement did not refer to the accused attempting to have oral sex with
her, in the car, on the occasion they went to Spotlight. Rather, the statement
described the accused as forcing his penis inside her mouth at the location of the
alleged offending in count 1.
1118 FS gave evidence that what was written in the statement about what had
happened at Spotlight, and what had happened at Munno Para West, was all mixed
up. She maintained that these were two separate incidents. She maintained that it
was when they were at Spotlight that the accused had tried to force his penis into
her mouth, and she was quite adamant that she had pursed her lips shut tight, such
that the attempt was unsuccessful.657
655 See discussion at [245] herein.
656 T 971.15-18.
657 See discussion at [256] herein.
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1119 On its face, this ‘mixing up’ constitutes a significant inconsistency.
1120 As previously stated, I am satisfied from FS’s evidence that she was
describing two separate occasions (that is, two separate trips in the car, with the
accused) when she referred to the offending in counts 2 and 3 and the offending in
count 1.
1121 I refer to my earlier observations and findings as to the circumstances in
which the statement dated 10 February 2023 was made. There is therefore every
possibility that DBS Menon did ‘mix up’ aspects of FS’s account, as FS claimed,
particularly in circumstances where there was such similarity in aspects of her
account.
1122 FS described years of sexual abuse at the hands of the accused. Although
each of the three trips FS described contained peripheral details which enabled
FS to differentiate them (as to the location and, as to count 5, the showing of the
‘hairstyler’), what FS described as to each occasion, contained many similarities.
1123 That is, on each of these three occasions, she had been coerced to go out alone
with the accused, in the family car, as an opportunity for him to have sex with her.
Each occasion occurred after the couple had attended a Bunnings store, and within
the space of around three to four months, during a period when the renovations at
the Smithfield house were being undertaken. Each occasion involved FS being
pinned in a tight space in the back of the car with the accused on top of her forcing
his penis in her vagina. FS also described the accused wearing the same clothing
(red polo top and black trousers) during the offending in counts 1 and 5.
1124 I am satisfied that FS now has a genuine recollection of the alleged offending
in count 2 as having occurred in the carpark at Spotlight. I am further satisfied that
she now has a genuine recollection of being in the back seat of the car for the
entirety of that journey. She may well be accurate in that recollection. It is possible
that the 10 February 2023 statement does ‘mix up’ and intertwine the details of
these two separate trips and incidents, due to initial errors made at the proofing in
December 2022, being carried through and not corrected when DBS Menon sat
down with FS to finalise that statement.
1125 I am mindful that DBS Menon described a process wherein he was careful to
read that statement back to FS and ask her to correct any errors. Although he may
have paraphrased at times, if details of those incidents were ‘mixed up’ in that
statement, I consider it likely that FS would have corrected him about such details
– as she did during cross-examination - when portions of those statements with
which she disagreed, were read back to her.
1126 I consider it is reasonably possible that although FS now genuinely recalls
that the accused tried to force her to perform fellatio on him, on the occasion in the
carpark at Spotlight, that she is mistaken about that. It is possible she is mistaken
about where that specific offending occurred, and that, as she said in her statement
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dated 10 February 2023, it did, in fact, occur on the side of Frisby Road, near the
gate, not in the Spotlight carpark.
1127 Alternatively, FS may be mistaken about this because, on her account, what
the accused usually did, when he forced her to have sexual intercourse with him,
would include him grabbing her head, slapping her, and trying to force his penis
in her mouth. Indeed, in re-examination, FS gave as an explanation that what she
had meant in her statement dated 10 February 2023, when she said the accused had
grabbed her face so it was near his penis, slapped her face and then asked her to
open her mouth, on the occasion off Frisby Road, was that this was something he
would usually do and had done many times.658 I cannot exclude as a reasonable
possibility that what FS now recalls as having occurred in count 2, is something
she genuinely believes occurred, on that occasion, as it was something that usually
happened, albeit she is mistaken about that.
1128 It follows that I cannot be satisfied beyond reasonable doubt that the accused
is guilty as to count 2.
1129 In addition, I consider it likely that the fact these trips occurred in similar
circumstances has meant that FS is now genuinely mistaken about some of the
peripheral details of what occurred during those trips (for example, whether she
was sitting, initially, in the back or front seat of the car and where items were
placed in the car).
1130 I am satisfied, from all of the evidence, that this is not because she is lying
about the alleged offending in counts 1 and 3. Similarly, the fact she has confused
some of those details does not otherwise cause me to have a reasonable doubt as
to the reliability of the evidence she gave that on each of these trips, the accused
forced her to engage in penile vaginal intercourse with him, in the back seat of the
car.
Count 1 (Munno Para West)
1131 There was another inconsistency in FS’s evidence as to count 1, with what
she had said previously in her statements, relevant to the direction the accused had
turned the car, to get to the location off the side of Frisby Road, after leaving
Bunnings.
1132 In her evidence, FS initially said:659
A. First he was shopping at Bunnings and when it was time for Bunnings to close then
we headed home, rather going home he turned the other side. And then I asked
'Which side are you going to'. So when we used to go home we used to turn right
and there used to be a bridge but here he turned the other side, turned the car the
other side. (my emphasis)
658 T 688.35-689.6.
659 T 220.21-27.
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1133 It is implicit from this evidence that ‘the other side’ must have been left.
1134 This was the only evidence FS gave as to which direction they turned when
leaving the Bunnings car park on this occasion. However, throughout her evidence,
FS maintained that the accused had turned the car in the opposite direction from
the direction they would usually take to get home.
1135 By reference to Exhibit P5, counsel for the accused submitted that the alleged
offending in count 1 simply could not have occurred, if the accused had turned left
upon leaving the Bunnings car park, as, in those circumstances, he could not have
ended up parked on the side of Frisby Road, adjacent to any gate. He would have
had to turn right, not left, to get to the location described by FS.
1136 Exhibit P5 demonstrates that there is only one way to exit the carpark at
Bunnings Munno Para West, and that it via Frisby Road. If a driver turns left onto
Frisby Road when leaving the carpark, they almost immediately encounter a
junction with Curtis Road. I agree with the submission that to get to the location
of the offending as described by FS, it was necessary for the accused to have turned
right, not left, upon exiting the car park.
1137 It is of note that this was not put to FS during her cross-examination, rather
it formed the basis for an extensive submission in the accused’s closing address.
1138 There is an inconsistency in FS’s evidence on this issue when compared to
what she previously told the police. In her statement made on 10 February 2023,
FS said, at [25]:
... On exiting the car park instead of turning left to head towards home [the accused]
turned the car right on Frisby Road. Drove a short distance and parked the car in an
isolated section. I couldn’t see what was outside except a gate leading to a rural property.
(my emphasis)
1139 FS gave evidence that she was shown an aerial photograph depicting
Bunnings at Munno Para West when she made a subsequent statement on
23 February 2024. At that time, she said, in reference to that photograph:
[24] I confirm that when [the accused] exited the car park, he turned right. I believe he
pulled over in the first driveway ...
1140 Importantly, when cross-examined about what she had told the police, about
that incident, in that paragraph, FS gave evidence that the paragraph was both true
and accurate.660 In other words, she adopted as her evidence what she had said
previously to the police, namely that the accused had turned right, not left, when
leaving the car park.
1141 When FS’s evidence is considered, in its entirety, I consider it likely that what
she said, at first, in her evidence to the effect that the accused would usually turn
660 T 639.2-6.
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right to get home from that carpark was an error. It is possible this was a
misunderstanding on the part of the interpreter.
1142 However, even if the interpretation of that initial evidence was accurate, what
was important about FS’s evidence was that she recalled the accused turning in the
opposite direction from usual after leaving the car park and ending up off the side
of the road in front of a gate, in a rural area. The area and gate depicted in
Exhibit P6 is off Frisby Road and fits FS’s description of the site of the offending.
I accept FS’s evidence that she had not seen Exhibit P6 when she gave her
statement to police on 10 February 2023.
Count 5 – Bunnings Gawler
1143 When FS was first asked during her evidence-in-chief about what happened
at Bunnings Gawler, she gave a very lengthy response wherein she described the
entirety of that alleged offending.661 During that lengthy response, she said that the
accused ‘had sex with me from the front and back ...’.662
1144 The prosecutor then carefully returned to each of the many parts of the
evidence given by FS as to what had occurred on that occasion. During that further
evidence, FS explained that after the accused had shown her the gadget that looked
like a hairstyler he ‘did it from the front ... from the front he had sex’.663 She
explained that the accused had sat next to her in the back seat, and pulled down
her trousers, before having sex with her.664
1145 Later, FS gave the following evidence-in-chief:665
Q. [FS], I thought you may have said earlier that he did it in the back as well, is that
right.
A. He used to do it from the back at home but he tried to do the same in Munno Para,
Bunnings, 'You turn back and I would like to do'.
Q. And you would like to do.
A. He would like to do, 'Turn back, I would like to do', that's what he said.
Q. And did that also happen at Bunnings, Gawler or no.
A. At Gawler he first tried to show me, that time I started to cry and then he did it from
the front only, all three. All three times he did it from the front.
Q. When you say 'all three times', is that Spotlight, at Bunnings, Munno Para and
Bunnings, Gawler.
661 T 235.34-236.15.
662 T 236.8.
663 T 237.28-29.
664 T 238.6-11.
665 T 241.38-242.14.
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A. Yes.
1146 I am satisfied from this evidence, that FS was not claiming that the accused
had anal intercourse with her on that occasion, rather he had only had penile
vaginal intercourse with her. This is notwithstanding her earlier evidence,
apparently to the contrary. That earlier evidence was one part of a very lengthy
response to a question, communicated through an interpreter, at rapid pace. It is
certainly possible that what was interpreted was not entirely accurate, given how
this answer unfolded. This is by no means meant as a criticism of the interpreter.
She did an excellent job under difficult circumstances. However, whenever a
witness gives a lengthy response to a question, there is a very real risk that part of
that response is either forgotten, or conflated, or summarised incorrectly by the
interpreter. I consider this is likely what happened on this specific occasion.
1147 When describing this alleged offending in her statement made on
10 February 2023, FS said, ‘... He put the box back into the centre console and
continued to sexually abuse me in the exact same manner as detailed in
paragraph 34 ...’.666
1148 Paragraph 34 of that statement described the accused both forcing FS to
perform fellatio on him and to have penile vaginal intercourse with him, on the
side of the road, after attending Bunnings at Munno Para West.667
1149 FS did not give evidence that the accused forced her to perform fellatio on
the occasion of the alleged offending in count 5.
1150 Although DBS Menon gave FS the opportunity to correct errors in that
statement, he acknowledged that at times, he simply paraphrased or summarised
what was written therein, when interpreting, rather than taking FS through what
was written, word for word. Simply referring to what as in the earlier paragraph
when describing what had occurred on that occasion, added to what was already a
risk for there to be some inaccuracy in what was recorded and what FS had in fact
said.
1151 It is unusual that FS was not asked to specifically state what exactly had
occurred by way of sexual activity during this incident. The fact the statement was
abbreviated in this way is consistent with FS having some difficulty having to
communicate to a male (DBS Menon), the details of sexual activity with the
accused, which as something culturally difficult for her.
1152 It is certainly possible that when FS was recorded as referring to ‘the exact
manner as detailed in paragraph 34’, what she meant was penile vaginal
intercourse, in the back seat of the car, in the exact same way as she had described
at the end of paragraph 34.
666 T 481.20-21.
667 See [254] herein.
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1153 I am satisfied that that this apparent inconsistency can be explained on this
basis.
Count 6
1154 Counsel for the accused submitted that the evidence given by FS as to count 6
contained both significant internal inconsistencies and inconsistencies when
compared to her earlier police statements.
1155 When giving her evidence-in-chief about this incident, FS said that she was
in bed, lying on her side, when the accused came home, grabbed her from the sides,
pulled her trousers down and held her tight. She was asked where the accused was
positioned. She said, ‘(h)e was behind. He was trying to do it from the back’.668
When asked if she felt his penis go in anywhere she said, ‘A bit of it - a bit of it
had gone in but he was trying to put it in’.669 When asked to clarify where his
penis had gone in, she said it had gone in the rectum and she felt pain.670
1156 FS gave evidence that the incident stopped because during the commotion,
the bed headboard banged on the wall, and a light was switched on in the corridor
(hall). The accused then when back to his bed and she got up and went out to the
kitchen, where she saw HS. FS said she remained in the lounge room praying, until
she went into F’s bedroom at around 5:00am.
1157 FS disclosed the alleged offending in count 6 in her first police statement on
31 March 2022 and gave a further account of that alleged offending in her police
statements made on 8 June 2022 and 10 February 2023.
1158 In her first statement, FS said that during this incident, the accused
‘proceeded to put his penis in my anus’.671 When this portion of the statement was
read to FS in cross-examination, she immediately interjected to correct what she
said was an error in the statement and said that the accused had not inserted his
penis in her anus. She said, initially, that he was trying to insert it but it was
touching her hip.672 She subsequently reiterated that the accused’s penis ‘did not
go in’ and that although he tried, he was not able to insert it. She explained that
she had pushed the accused backwards on the bed to create a gap between them.673
1159 In her statement made on 8 June 2022, when referring to this incident, FS had
said that the accused ‘tried to rape me’ and that he ‘tried to push his penis into
my anus’. In her statement made on 10 February 2023, she had said, that he ‘tried
to guide it into my anus’ and then said, ‘I could feel the tip of his penis go a little
bit in my anus’.674
668 T 188.11.
669 T 198.33-34.
670 T 199.1-7.
671 T 607.14-20.
672 T 603.32-33.
673 T 604.28-38.
674 T 612.7-12.
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1160 On its face there is both an internal inconsistency in FS’s evidence and an
inconsistency between her evidence and some of what FS told the police in her
first statement in terms of whether the accused inserted some of his penis in her
anus.
1161 After carefully considering the evidence, I am not satisfied that there is a real
inconsistency in the evidence on this topic. Throughout her evidence, FS was
adamant that what the accused had tried to do to her, sexually, during that incident
was interrupted from the noise of the headboard banging the wall and rousing HS.
The effect of her evidence was that she felt a little bit of the accused’s penis go
into her rectum, but he did not ‘insert’ it. It did not ‘go in’. I am satisfied that by
this evidence, FS was describing the fact that the accused was not successful in
fully inserting his penis in her anus on that occasion, albeit she felt the tip of his
penis in her anus, during this incident. This can be contrasted to other uncharged
occasions, when the accused had fully inserted his penis in her anus during sexual
intercourse.
1162 When describing this incident in her first statement, FS was also clear this
act was interrupted by her son hearing the commotion. She said this caused the
accused to stop. While that statement uses words which refer to penetration,
I consider it likely this inconsistency is the product of the statement being given
with the assistance of an interpreter over the phone and a likely misunderstanding
by the interpreter as to what FS was trying to tell him.
1163 In this first statement, FS is recorded as saying that the was wearing pyjamas
but no underwear, and said the accused had ‘forcefully taken her clothes off and
threw them to the side of the room’. In her evidence, FS described her trousers
being pulled down (but not off).675
1164 As to the use of the word ‘pyjamas’, FS never clarified in her evidence
whether the ‘trousers’ she said she was wearing were, in effect, her sleepwear (or
pyjamas). There may well be no inconsistency insofar as these two different words
were used to describe what FS was wearing. In this respect, in her statement made
on 10 February 2023, FS is recorded as saying, ‘he lowered the bottom of my dress
to my thigh’. At times during her evidence, when clearly describing ‘trousers’, FS
(through the interpreter) also used the word ‘dress’, as if they were
interchangeable. On such occasions, it was clear the intention was not to describe
‘a dress’ but rather to refer to ‘what she was dressed in’. I consider I likely that
that was what was intended when the word ‘dress’ was used in that statement.
1165 Counsel for the accused placed significant emphasis on the fact that in her
first statement, FS was recorded as saying her clothes were taken off. It was
submitted that the fact that this evolved to her trousers merely being pulled down,
675 T 592.3-6.
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was simply to explain how FS came to be clothed when she claimed to have
encountered HS in the kitchen thereafter.
1166 There was simply no need for FS to change her account as to whether her
clothes were removed or not, to fit with the narrative. HS did not come into the
bedroom. There was no evidence as to how much time passed between the light
coming on, the accused stopping what he was doing and FS leaving the room.
If her clothes were off, she could have simply put them on before leaving.
1167 I consider it much more likely that this inconsistency is again the product of
miscommunication caused by the interpreter not being physically present when the
first statement was made.
1168 Finally, in her statement made on 10 February 2023, FS is recorded as saying
the incident came to an end because her son ‘turned on his light’ (rather than the
hallway light).676 Which light was turned on is a peripheral detail of insignificance.
What was important in FS’s account was that the incident ended because someone
turned on a light. She subsequently left the room and saw HS in the kitchen. The
fact her statement was worded to the effect that HS turned on the light is, in my
view, simply indicative of her assuming that to be the case, given that she saw HS
in the kitchen shortly thereafter. It was not, in my view, intended to convey to
anyone the fact that FS saw HS turn on a light.
Prosecution opening
1169 There were differences in the alleged offending as described by FS in her
evidence, and what was outlined by the prosecutor in her opening address, as to
the details of the evidence to be given by FS.
1170 From the way the prosecutor opened, it was implicit that she anticipated that
the evidence given by FS as to count 1 reflected the first alleged offence in time,
rather than that offence having occurred after the offending in counts 2 and 3.
1171 The prosecutor described the accused asking FS to move from the front seat
to the back seat of the car, on the occasion of the alleged offending at Spotlight,
whereas FS gave evidence that she had always been in the back seat during that
trip. The prosecutor also described the offending in count 2 as a completed act of
fellatio, rather than an unsuccessful attempt at fellatio.
1172 As to count 6, the prosecutor described the alleged offending as involving a
completed act of anal intercourse, which came to an end when their son, in the
adjoining room, turned his light on.
1173 Some of what the prosecutor said in her opening address as to the details of
counts 2, 3 and 6, reflected an intermingling of parts of FS’s evidence and parts of
the contents of the 10 February 2023 statement.
676 T 612.22-23.
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1174 Counsel for the accused submitted these inconsistencies were relevant in my
consideration of the overall credibility and reliability of FS’s evidence as to the
alleged offending.
1175 In R v MAS,677 the Court of Criminal Appeal confirmed that the use of a
demonstrated inconsistency between a prosecutor’s opening address and a
witness’s evidence to test the credit of that witness is a traditional and well-known
process. That is, the fact of such inconsistencies supports the making of an
inference that the witness has previously said something different, on an earlier
occasion, about the circumstances of the alleged offending.
1176 In R v A, GP,678 the Court of Criminal Appeal recognised that a prosecutor’s
opening address was not evidence, and not necessarily indicative of an earlier prior
inconsistent statement, albeit that was something that may well be explored in the
evidence. That is, in fact, what occurred in this case. FS was cross-examined at
length about the differences in the way the prosecutor described the details of
counts 2, 3 and 6, and what FS said in her evidence, insofar as those differences
were also reflected in the contents of her statement made on 10 February 2023.
I refer to my discussion in these reasons about those various inconsistencies and
what I have said below as to how they have impacted on my assessment of FS’s
credibility (and reliability).
1177 I disagree with the submission made by defence counsel, that from what the
prosecutor said in opening as to count 6, that it was unclear if she was describing
the same occasion as that described by FS. As to that count, the prosecutor
described FS’s anticipated evidence in the following terms:679
… I expect you'll hear that the accused came home after work and forcefully took the
complainant's clothes off. The complainant told him she did not want to have sex, she told
him to stop and tried to push him away. He then put his penis into her anus. That is count
6. The accused stopped when their son in the room with the adjoining room turned his light
on, and the accused became angry and pushed the complainant away, causing her to hit her
head. …
1178 This was clearly the same incident as described by FS in her evidence as that
comprising count 6.
1179 As to the timing of count 1, what the prosecutor said in her opening was that
FS would tell the court about four specific incidents which had occurred after the
couple had moved to live in South Australia and that ‘the first of these I expect
your honour will hear about’ was the alleged offending in count 1.680 She went on
to say, that counts 2 and 3 occurred, ‘some time around the same period’.681
677 [2013] SASCFC 122 at [91].
678 (2012) 113 SASR 146 at [29].
679 T 130.25-33.
680 T 128.27-29.
681 T 129.2-3.
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1180 FS was not cross-examined as to any potential inconsistency between her
evidence, and any earlier statements, as to the timing of count 1 vis a vis counts 2
and 3. As such, insofar as there may have been an inconsistency in FS’s evidence
and the prosecutor’s opening address on this particular issue, I do not consider it
of any weight in terms of my overall assessment of FS’s evidence.
Other evidence to support FS’s account682
1181 Counsel for the accused submitted that there was a lack of evidence to
support FS’s account.
1182 I have already discussed those submissions insofar as they relate to the
medical evidence, and the fact that there was no evidence from either F or HS that
they had observed FS to have bite marks or bruises on her body.
1183 It was submitted that in addition, neither F nor HS had given evidence of any
occasion when the accused and FS had gone alone, in the car, to Bunnings.
1184 F was cross-examined as to whether she was aware of any occasion when the
accused and FS had gone alone together in the car to Ikea (not Bunnings). She said
that her and her siblings would not want to go with the accused to Ikea and that
they would say no. She went onto say that she did not know if ‘they actually
reached Ikea or not’. I have inferred from this evidence that what she meant was,
as she was not in the car with FS and the accused when the accused said they were
going to Ikea, she did not know if they had gone there, after they left home.
1185 F went on to say that when her father got a job driving taxis, he used to go to
Bunnings (not Ikea). It was an agreed fact that the accused was employed by
13CABS from 31 May 2019 through to the time of his arrest.683
1186 Although F gave no evidence that the accused and FS ever went alone
together, in the car to Bunnings, she certainly gave no evidence to the contrary.
Further, her evidence supported, at least to some extent, FS’s evidence that the
accused would purchase items for Bunnings for the renovations.
1187 I am satisfied from FS’s evidence that those renovations occurred over the
summer of 2018/19 and the summer of 2019/20. When the accused was working
as a taxi driver with 13CABS, this would have increased his disposable income,
and therefore his ability to fund those renovations (and make ancillary purchases
from places such as Bunnings), consist with FS’s evidence.
1188 The absence of specific evidence from either F or HS that they recalled an
occasion or occasions when FS and the accused went, alone, together to Bunnings,
is not unusual. Any such trips would have been of little consequence to them.
It would, in fact, have been surprising to me, if they had given such evidence.
682 In addition to evidence which supported FS’s account as previously referred to in these Reasons.
683 Exhibit P15 at [9].
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1189 During cross-examination, FS agreed with a proposition put to her that it was
not appropriate in Pakistani culture to have sexual relations in the house when
other adults were in the home.
1190 F had turned 18 by the time the family moved to Smithfield and was therefore
an adult. The offending in counts 1, 2, 3 and 5 is all alleged to have occurred
outside of the home, consistent with the accused seeking to have sex with FS away
from the home, in such circumstances. Of course, FS also alleged the accused
regularly had sex with her at the Smithfield home, including when her adult
children were home, contrary to this custom and had both oral and anal sex with
her regularly, notwithstanding this was not allowed in their religion.
1191 However, the existence of this custom is a piece of circumstantial evidence
which makes it more likely that the accused would choose to engage in sexual
activity with FS away from the home once any of the children turned 18, being
consistent with FS’s account of the alleged offending in counts 1, 2, 3 and 5.
1192 As to count 6, HS did not give evidence about a time he saw his mother in
the kitchen after hearing noise from the main bedroom. F did not give specific
evidence about any occasion when FS came into her bedroom at around 5:00am in
January 2022. However, this is unsurprising. There would be no reason for HS to
recall this, it being of no importance or significance to him. In circumstances where
F gave evidence that FS routinely asked to sleep in her room at Smithfield, the fact
she gave no evidence of this specific occasion is again simply consistent with that
occurrence being of no moment to her. It would not have been out of the ordinary.
1193 In fact, there was important evidence which did support FS’s account of how
the accused treated her.
1194 That included the evidence given by F and HS of their observations of the
accused slapping and/or hitting FS, of the accused routinely calling FS derogatory
names and belittling her and the children and, importantly, of the fact FS slept in
the laundry, at times, at Smithfield.
1195 It included F’s evidence that the accused was regularly threatening to deport
FS and the children to Pakistan. HS would often hear the accused and FS fighting
in their bedroom at night and things being thrown around in that room. F gave
evidence that the accused had smashed a fan in the main bedroom, had kicked the
bed in that room and that he would slam the bedroom door. I accept this evidence.
1196 As previously stated, it was my impression that rather than telling lies about
their father, or exaggerate the negative aspects of their father’s conduct, both F and
HS were very careful to only tell the court what the remembered. I am satisfied
beyond reasonable doubt that neither F nor HS were lying when they described to
the court their observations of their father’s behaviour generally or how he treated
their mother; nor were they mistaken about this. I am satisfied such evidence was
both credible and reliable.
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Initial complaint
1197 I refer to my previous findings at paragraphs 871-875 herein.
1198 Although there were differences in the evidence given by FS and F as to the
circumstances in which this complaint was made, I am satisfied that F’s
recollection is both truthful and accurate. I consider it likely, and find, that FS is
now genuinely mistaken in her recollection that during the conversation with
1800RESPECT on 12 October 2020, she did not disclose any details of the
offending and had only disclosed such details in a later conversation, in 2021.
1199 I am satisfied that when FS gave evidence about a conversation with
someone, over the phone, in 2021, wherein she had provided some of the details
of the offending, she was instead recalling the conversation with 1800RESPECT
in October 2020. FS’s recollection of the conversation which she thought had
occurred in 2021, included that F had to make the call for her, that she (FS) was
crying on the phone, that she told the person the accused forced her to do ‘sex in
the mouth’ and that she had no one to tell.
1200 It was the very fact that F overheard the conversation with 1800RESPECT
which prompted her to take FS to see Dr Abbas on 14 October 2020. It was this
conversation which caused F to lose respect for the accused as she finally
understood what had been happening. This was a very significant event for her.
1201 As the conversation occurred after the summers of both 2018/19 and 2019/20,
and I am satisfied that it occurred after the alleged offending in counts 1, 2, 3
and 5. Having regard to my earlier findings, I am satisfied that there is no other
reliable evidence of any earlier ‘complaint’ of that alleged offending. I am
therefore satisfied that the evidence given by F as to this conversation is evidence
of initial complaint within the meaning of s 34M of the Evidence Act.
1202 The complaint was made after F and FS had been given the number for
1800RESPECT and therefore FS had information, for the first time, about an
organisation she could contact to help her with respect to the accused’s behaviour.
1203 I am therefore satisfied that the timing of the complaint demonstrates
consistency of conduct on the part of FS.
1204 The content of what FS said during that phone call also demonstrates a
degree of consistency of conduct. That is, that the accused had been sexually
assaulting her forcefully, that she could not say ‘no’ or tell anyone about it and that
if she refused, he would slap her and pull her hair and then have intercourse with
her. This is consistent with FS’s description of what the accused did to her in the
back of the car at Spotlight, on the side of the road near Bunnings, Munno Para
West and on the side of the road near Bunnings, Gawler.
1205 F gave evidence that during the conversation, FS was crying. I accept that
evidence. It may well explain why FS is now mistaken in her recollection of when
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that conversation occurred. It must have been distressing for FS to finally disclose
the fact of this abuse to someone. FS’s distress at the time she made her initial
complaint is also relevant to her credibility (and consistency of conduct), albeit
such evidence cannot be used as circumstantial proof of the alleged offending and
I have not used it as such.684
Compelling account
1206 There were many aspects of FS’s account which were compelling. It was my
impression from observing FS give evidence of both the alleged offending and the
uncharged acts, that was she was describing real, lived experiences.
1207 When FS described being in the back seat of the car at Spotlight, she gave a
vivid description of falling into the footwell and being hit against the door and
window. Her description of being stuck, in this confined space, in the back of the
car, scared that people from outside could see what they were doing, was
compelling. I believed her.
1208 FS also had a distinct recollection of the car being parked in the Spotlight
carpark, next to the large recycling bins, being a particularly unusual detail.
FS identified these recycling bins on Exhibit P4. I accept her evidence to that
effect, which was not challenged.
1209 As to count 1, FS gave a description of the accused pulling off the side of
Frisby Road, in a rural area, a short distance from Bunnings at Munno Para West.
She could see a gate in the car’s headlights. Her description of this location
matched the area, off the side of Frisby Road, a short distance from that Bunnings
store, as depicted in Exhibit P6. I accept FS’s evidence that when she described
the location of this offending, in her statement made on 10 February 2023, she had
not seen that photograph.
1210 As to count 5, FS described the accused showing her a device that looked like
a hairstyler and then telling her this was something women used to want them to
have sex. She specifically recalled this as she could not believe the accused had
stooped so low that he would want to use this on her. The fact the accused showed
her this device, on that occasion, distinguished this occasion of forced vaginal
penile intercourse from the other two occasions it had occurred in the car.
Relevantly, FS gave evidence that the accused did not use this device on her, being
indicative of her not embellishing or exaggerating the extent of that offending.
1211 As to count 6, FS had a distinct recollection of the bed headboard hitting the
wall during this offending and that thereafter, a light was turned on outside the
room, and the accused was forced to stop what he was doing. The bedhead was
positioned such that it was on the wall adjacent to HS’s bedroom. That noise may
684 Fergusson v The King [2024] SASCA 63 at [43]; Nelson (A Pseudonym) v The King [2025] SASCA 79
at [189].
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well have roused HS, as FS described. The bedhead hitting that wall was a unique
detail, consistent with FS remembering her actual experience of that offending.
1212 The bedhead was identified by FS in photograph 12 of Exhibit P3 and was
positioned against the wall which was adjacent to HS’s bedroom. In Exhibit P8, a
wooden bed head is seen as one of the items being carried out of the main bedroom.
1213 In addition, FS recalled this occasion as the last time the accused had tried to
have anal intercourse, because this was the last time she slept in the main bedroom
with him at Smithfield. Thereafter she slept in the laundry or the lounge room. The
evidence given by F and HS (and Exhibit P8) confirmed that FS was sleeping in
the lounge room as at March 2022. I am satisfied that although FS may have used
the fact that the accused (and later her) had COVID, as an excuse to sleep in the
lounge room and separate from him, she continued to sleep in that room to try to
prevent him from continuing to sexually abuse her.
Motive to lie
1214 There were various reasons put forward which were argued to be motives for
FS to lie about the alleged offending. The accused’s counsel’s closing address
emphasised the primary motive for FS to lie was simply to facilitate her leaving
the marriage in a culturally appropriate way.
1215 Throughout cross-examination, significant emphasis was placed on the
accused’s refusal to agree to ‘watta satta’ marriages for F and HS to the children
of FS’s sisters, as being a major source of discord in the marriage, culminating in
the argument in October 2020, which resulted in the call to 1800RESPECT (and
the initial complaint being made).
Watta satta
1216 Counsel for the accused cross-examined FS about several different claimed
proposed watta satta marriages for both F and HS, which FS had purportedly
supported and the accused had refused.
1217 Each of the proposed watta satta marriages was said to involve F and HS
marrying their first cousins. The defence case was that FS and her family were
strong proponents of watta satta marriages involving first cousins, but that the
accused was against this because of the prospects of the offspring of first cousins
inheriting diseases.
1218 It was suggested to FS that the fact her sisters were involved in such watta
satta marriages demonstrated that this was very important or significant in her
family. FS denied this. She acknowledged that Z (K’s daughter) had married
another sister’s son. However, FS said this was the only example of watta satta
marriage in her family involving first cousins. There was no evidence to the
contrary.
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1219 Further, FS gave evidence that although this used to be common in Pakistan,
it was now discouraged because of the possibility of diseases.
1220 FS denied that any watta satta marriage had been discussed or proposed for
either F or HS. I accept her evidence.
1221 The first such proposal related to a watta satta marriage said to be for F to
marry FAH (the son of FS’s sister, K) and for HS to marry S (K’s daughter). This
was variously said to have been discussed in 2010, when the family first moved to
Kogarah, and/or in 2011. When denying any such proposal, FS initially said F
would have only been aged seven at that time. That is incorrect, noting F was born
on 10 December 1999. F would have been aged about 10.
1222 FS gave evidence that S was only five years younger than her and had married
in 2009. She said that in 2010, S would have been aged 29 or 30 and FAH was
aged about 24 or 25. FS was not challenged on that evidence and there was no
evidence to the contrary. FS was quite adamant that she would not have been a
party to any such watta satta involving her young children being married off to
these much older cousins.
1223 In 2010, HS was aged about eight and F was aged about 10. Even if FS’s
evidence as to the ages of S and FAH is slightly inaccurate, the disparity in the
ages of the children is such that it simply makes no sense for a watta satta marriage
to have been proposed in these terms at that time.
1224 The second purported watta satta marriage was said to have been proposed
in 2016, to involve F marrying K’s younger son, AH and HS marrying K’s younger
daughter, Z. There was no evidence as to the ages of either AH or Z. This would
have been when the family were living in Bathurst. F was aged about 16 at the time
and HS was aged about 14.
1225 The third purported watta satta marriage was said to have been proposed after
the family arrived in Adelaide (ie about 2018), involving the children of FS’s
brother, IR. Again, there was no evidence as to the ages of the proposed spouses.
F would have been about 18 and HS about 16.
1226 At the time of trial, around two and a half years had passed since the
accused’s arrest. F was aged 24 when she gave evidence and HS was aged 22.
As such, they were both adults and of potential marrying age. In re-examination,
when asked if she had tried to arrange any watta satta marriages for her children
with her family in Pakistan since the accused’s arrest, FS said that there was no
one there to arrange it and ‘the main thing is I do not like this’.685 I accept her
evidence.
1227 FS explained that her children were living in Australia and were used to the
Australian system. She said these types of discussions occurred in happy families
685 T 702.18-19.
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where there were adult children and the family relationship was good. This had not
been the case for her family. I accept this evidence.
1228 I accept FS’s evidence, and her explanation for why she was not a party to
any of these purported proposals for watta satta marriages. She seemed genuinely
shocked when each of these propositions were put to her. I do not consider that
shock was feigned.
1229 I reject any proposition that FS has lied about the allegations because of
lingering unhappiness (and/or revenge) against the accused for his failure to
approve his children participating in any watta satta marriage with members of
FS’s extended family.
Financial reasons
1230 Another alleged source of discord between the couple was said to be financial
concerns.
1231 As previously stated, although HS gave evidence that the accused and FS
argued about money, contrary to FS’s evidence, I am satisfied that that many such
arguments were the product of the accused’s frustration at the fact that he was the
only one in the family who was working, rather than arguments fuelled by FS’s
desire for more money.
1232 When being questioned about arguments about money, FS gave the following
evidence in response to propositions insinuating that she was lying for financial
gain:686
He has made only one house and we don't want this house. Give to him. There is no peace
in this house. We don't want it. Where there's no safety, there is no peace. Why do we need
such things?
1233 This evidence was compelling and I accept it.
1234 I am satisfied beyond reasonable doubt that FS has not made up these
allegations for financial gain.
Divorce/custody of children
1235 FS agreed that that she had told a NDIS worker in 2021 that she wanted to
leave the accused but explained that this was in the context of his abusive
behaviour towards her. The fact she wanted to leave the marriage is readily
explicable having regard to what FS, F and HS described in terms of the accused’s
behaviour towards her.
686 T 559.28-31.
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1236 Although FS acknowledged she had spoken to a solicitor about a divorce,
there was no evidence before the Court as to when that had occurred, or if FS had
either commenced divorce proceedings or any property settlement proceedings.
1237 On 30 March 2022, F was aged 22, HS was aged 19 (nearly 20), MS was
aged 16 (nearly 17) and IS was aged 13. By the time of trial, only IS was a child,
aged 15.
1238 Although FS acknowledged she would like full custody of the children,
I reject, as it not being a reasonable possibility, that she has fabricated these
allegations and continued to maintain this detailed and complex lie, to ensure that
she retained full custody of IS, for the few remaining years until he turns 18.
1239 Similarly, I reject beyond reasonable doubt that FS has simply made up the
allegations as a basis upon which she could leave the marriage in a culturally
acceptable way. I accept F’s evidence that the accused regularly threatened to
deport both FS and the family and that they were genuinely fearful that he had the
ability to do this. It simply makes no sense for FS to make these allegations up if
she thought she and her children were only able to stay in Australia because of the
accused.
1240 A proposition was advanced by the defence that the fact FS had a discussion
with the police in October 2022 about withdrawing the charges, was consistent
with her having lied about the allegations in the first place. Further, it was
submitted that as FS only told the police about the alleged offending in the car after
this discussion, this was a product of her wanting to bolster her account, having
been told that if the charges were withdrawn, there would be nothing to stop the
accused seeing or taking the children.
1241 I note that there was no evidence that either the police or prosecution had told
FS, during that discussion, that she should withdraw the charges. Rather, the
questions were framed in a way to demonstrate this was something FS had raised
as an option. FS agreed that she had done so. She explained that she did not want
to drop the charges, but that at that time, she was being placed under considerable
pressure and stress to withdraw the charges, and pressure was also being placed on
her brother. I accept FS’s evidence that this was the context in which she spoke to
the police about potentially withdrawing the charges at that time.
1242 By October 2022, F and HS were adults. MS was 17 and was to turn 18 in
April 2023. IS was aged 13. Any potential motive for FS to lie about the allegations
and maintain (and bolster) the lie, for matters relating to the children and their
custody, must, in effect, have related only to IS.
1243 Having regard to all of the evidence, I reject beyond reasonable doubt the
proposition that FS spoke with the police in October 2022 about withdrawing the
charges, as what she had said to the police about the accused’s offending was not
true.
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1244 As previously stated, I accept FS’s explanation as to why it was that she first
disclosed the offending in counts 1, 2, 3 and 5 when she made the statement on
10 February 2023.
1245 The fact that FS made the enquiry of police in October 2022, does not
otherwise cause me to have a reasonable doubt the truthfulness and reliability of
her account of having been the victim of years of sexual abuse inflicted upon her
by the accused.
Other
1246 It was suggested that all of this came to a head in October 2020.
1247 A proposition was put to FS in cross-examination that the fight between her
and the accused in October 2020, which had led to F calling the police, occurred
when the accused came home from work and told FS that he refused to allow the
children to be married in such a watta satta and that he demanded they choose their
own spouses. It was suggested that at that time FS threatened to put him in prison
and that thereafter the couple continued to argue over this, culminating in the
incident on 30 March 2022 and the accused’s arrest. FS categorically denied this I
accept her evidence.
1248 I refer to my previous findings wherein I have accepted F’s evidence about
the occasion in October 2020 which led to her call the police at that time. This was
at a time when the accused was threatening to deport the family to Pakistan, FS was
sleeping in the laundry and F was being used by the accused as a conduit to pass
messages to FS to the effect that she must abide by his wishes. I am satisfied that
when F called the police at that time, she was concerned for her mother’s safety,
and the safety of the family in general, not the safety of the accused.
1249 If FS was making up these allegations to ensure the accused was sent to
prison, the obvious time to make such allegations was when the police arrived at
the house in October 2020 in response to F’s phone call. This did not occur.
1250 As previously stated, the police only attended at the Smithfield house on
30 March 2022 at the behest of 1800RESPECT. It was in this context that the
police arrived, and FS finally had the opportunity to speak to them, with an
interpreter, away from the accused, and start to explain the years of abuse she had
suffered at his hands.
1251 This was not the culmination of some well-orchestrated plan to send the
accused to jail on the basis of false allegations.
1252 I reject the proposition that there was any specific motive for FS to lie about
the allegations. I am satisfied beyond reasonable doubt that FS is not lying about
the alleged offending.
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Further findings
1253 I accept the evidence given by FS, supported by that of F and HS, that for the
duration of their marriage, the accused has subjected FS to verbal and physical
abuse. He has routinely called her deaf and stupid, including in front of the
children. He has threatened to deport both her and the children. He has thrown
things at her, slapped and hit her. He has subjected her to ‘coercive control’ that
is, he has controlled aspects of her life such as who she can see and communicate
with and taken advantage of the fact that she has been heavily reliant on him, as
her interpreter, in their dealings with the authorities and others in Australia.
1254 I accept FS’s evidence that as a Pakistani woman of the Muslim faith, she
thought that she simply had to accept being treated this way, as the accused, as a
male, was ‘close to God’ and if he was upset, this was her responsibility.
1255 I find that the accused asserted physical, verbal, financial and emotional
control over FS and the family.
1256 I accept the evidence given by FS that from as early as when they lived in
Kogarah, the accused would force her to have penile vaginal intercourse with him,
such that on an occasion, she suffered significant vaginal bleeding.
1257 I accept FS’s evidence that when the family were living in Minto, the
accused, for the first time, forced her to engage in anal intercourse with him and
to perform fellatio on him and that thereafter, the accused continued to force her
to engage in such activities, notwithstanding he knew she was opposed to doing so
on religious grounds and was not consenting. I accept the evidence FS gave that
on such occasions the accused would physically assault her, by forcing her head
into the pillow during anal intercourse and pulling her hair and slapping her face
to force her mouth open, to force her penis in her mouth.
1258 The accused therefore had a propensity to engage in forceful penetrative
sexual activity without FS’s consent.
1259 I am mindful of the many apparent inconsistencies in FS’s evidence,
including as to the alleged offending.
1260 However, after having carefully considered all of the evidence and having
scrutinised FS’s account, I am satisfied beyond reasonable doubt that she is not
lying, nor mistaken nor confused when she described the accused forcing her to
have penile vaginal intercourse with her in the back seat of the car, without her
consent, in the carpark at Spotlight, off the side of Frisby Road near Bunnings
Munno Para West and off the side of the road near Bunnings at Gawler. I accept
her evidence to that effect.
1261 After carefully considered FS’s evidence, and all of the evidence, I am
satisfied beyond reasonable doubt that her evidence as to counts 1, 3 and 5 is not
only truthful, but is reliable, save and except her memory of some of the peripheral
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circumstances insofar as she may now have merged some of the peripheral details
of what occurred in count 3 with what occurred in count 1. My findings on this
latter issue do not cause me to otherwise have a reasonable doubt as to the
reliability of FS’s evidence with respect to the allegations.
1262 I accept FS’s evidence that on each of the three occasions she described, the
couple were in the car together, alone for purposes apparently related to the
renovation of the Smithfield house. I am satisfied from FS’s evidence that those
renovations occurred in both the summer of 2018/19 and 2019/20. I accept FS’s
evidence that on each of these three occasions, the accused inserted his penis in
her vagina and that he did so when she made it apparent, from both her actions and
what she said, that she was not consenting.
1263 As to count 1, I am satisfied beyond reasonable doubt that on an occasion
between 1 December 2018 and 31 March 2020, after the couple had gone alone in
the family car to Bunnings at Munno Para West, instead of driving straight home
thereafter, the accused turned the opposite direction as he exited the carpark, drove
a short distance and pulled off the side of the road, near a gate.
1264 The accused then got into the back seat of the car with FS, he pulled down
her trousers and held her tight. FS was unable to move in the confines of the back
seat. She screamed no, but the accused inserted his penis in her vagina in any event.
The accused knew that FS was not consenting to engage in sexual intercourse, or
at the very least, he was aware, from what she said to him and her screams, that
there was a possibility FS might not be consenting to sexual intercourse, but he
proceeded regardless of that possibility.
1265 As to count 3, I am satisfied beyond reasonable doubt, that on an occasion
between 1 December 2018 and 31 March 2020, the accused and FS drove alone in
the family car together to a Bunnings store, and thereafter, the accused parked the
car in the carpark of Spotlight, next to some large recycling bins. After putting the
rubbish in those bins, the accused got into the backseat of the car with FS.
He grabbed her and pulled her onto the seat. He pulled her trousers down as she
tried to crawl away from him. The accused then inserted his penis in FS’s vagina.
At the time FS was crying and telling the accused that she did not want to do it and
wanted to go home. Because of what FS said and how she reacted at the time, the
accused knew she was not consenting to engage in sexual intercourse with him, or
at the very least, he was aware of the possibility that FS might not be consenting
to sexual intercourse but proceeded regardless of that possibility.
1266 As to count 5, I am satisfied beyond reasonable doubt that on an occasion
between 1 December 2018 and 31 March 2020, the accused and FS went alone in
the family car to Bunnings at Gawler. On the way home, the accused stopped the
car on the side of the road. He showed her an item which I am satisfied was a
vibrator but did not use the item on her.
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1267 The accused then got into the back seat of the car and sat next to FS. He got
on top of her and pulled her trousers down to her knees. He used his hands to put
his penis forcefully in her vagina. Before the accused did this, FS told him she
wanted to go home. As he was doing this, she tried to move herself away from him
so he would lose hold of her legs.
1268 I am satisfied beyond reasonable doubt that from what FS said and how she
tried to physically get away from him, the accused knew FS was not consenting to
engage in sexual intercourse with him, or at the very least, he was aware of the
possibility that she might not be consenting to sexual intercourse but proceeded
regardless of that possibility.
1269 I refer to my discussion as to the apparent inconsistencies in FS’s account of
count 6.
1270 I accept FS’s evidence beyond reasonable doubt that on an occasion in
January 2022, when she was still sleeping in the main bedroom at Smithfield, she
was lying on her side in her bed, when the accused came home from work and got
on her bed. He grabbed her and tried to force his penis in her anus, as she was
trying to move forward and away from him. While it is likely that FS is accurate
in her recollection of feeling pain associated with the tip of the accused’s penis in
her anus, having regard to how her evidence unfolded, I cannot exclude as a
reasonable possibility that there was no penetration as such.
1271 I accept FS’s evidence that the accused only stopped trying to insert his penis
in her anus because the physical struggle on the bed led to the bedhead knocking
the wall, thus disturbing HS in the adjacent bedroom.
1272 I am satisfied beyond reasonable doubt that but for this, the accused would
have continued to push his penis against FS’s anus and then penetrate her anus
with his penis. I am satisfied beyond reasonable doubt that the accused must have
known that FS was not consenting to this activity, both because of her actions at
the time and what he knew of her fundamental objection to anal intercourse on
religious grounds. At the very least, the accused was aware of the possibility that
FS might not be consenting to anal intercourse but decided to proceed regardless.
1273 I am satisfied beyond reasonable doubt that the accused had embarked upon
the commission of the offence of rape and taken a step towards its commission.
If his actions had not been interrupted, they would have culminated in the offence
of rape.
1274 I am therefore satisfied beyond reasonable doubt that on this occasion, the
accused committed the offence of attempted rape, being a common law alternative
to the offence charged.
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Orders
1275 As to each of counts 1, 2, 3 and 5, the Information specifies the date of the
alleged offending as being between 1 December 2018 and 31 March 2019. Having
regard to the evidence, and my findings, the alleged offending may have in fact
occurred later in 2019, and/or the start of 2020.
1276 Given the circumstances of this matter, the date of the charged offending is
not a material particular.
1277 Pursuant to s 128(2)(b) of the Criminal Procedure Act 1921, subject to sub-
s 3, the Court may, at any stage of a trial, make an order to amend an Information
as the Court thinks necessary if there is a variation between a particular stated in
the information and the evidence offered in proof of that particular. I am satisfied
that this covers the period prior to the delivery of my verdict.
1278 I am satisfied having regard to the merits of this case, and the issues in
dispute, that amending counts 1, 2, 3 and 5 on the Information, to particularise the
alleged offending to have occurred between 1 December 2018 and 31 March 2020,
will not cause injustice to the accused. I make the following order:
• Pursuant to s 128(2)(b) of the Criminal Procedure Act 1921, counts 1, 2, 3
and 5 on the Information are amended to particularise the alleged offending
to have occurred between the dates of 1 December 2018 and 31 March 2020.
Verdict
1279 I find the defendant not guilty of count 2.
1280 I find the defendant guilty of counts 1, 3 and 5.
1281 As to count 6, I find the accused not guilty of the charged offence of rape,
but guilty of the alternative charge of attempted rape, pursuant to s 270A and
s 48(1) of the Criminal Law Consolidation Act 1935.
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