[2024] SADC 15

Accused: SM In Person Counsel: MR M ANDERS - Solicitor: MR P DEEGAN Informant: DIRECTOR OF PUBLIC PROSECUTIONS In Person Counsel: MS C DEMERTZIS - Solicitor: OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS Hearing Date/s: 28/08/2023, 29/08/2023, 30/08/2023, 31/08/2023, 01/08/2023 File No/s: DCCRM-22-106 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 SM Criminal Trial by Judge Alone [2024] SADC 15 Reasons for the Verdicts of her Honour Judge Tracey 21 February 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS The complainant married the accused in March 2020 in an arranged marriage - allegations of sexual assault and violence - inconsistencies between what the complainant told police and medical practitioners and her evidence - motive to lie. Verdict: Not guilty on all counts. Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20A, s 48(1), referred to. -- 1 of 32 -- -- 2 of 32 -- R v SM [2024] SADC 15 1 SM (the accused) is charged as follows: First Count Statement of Offence Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence SM on or about the 6th day of June 2020 at Renmark West, engaged or continued to engage in sexual intercourse with PK by inserting his penis into her vagina, without PK’s consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact PK was not so consenting. Second Count Statement of Offence Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935). Particulars of Offence SM between the 1st day of July 2020 and the 31st day of July 2020 at Renmark West, being or having been in a relationship with PK, unlawfully choked, suffocated or strangled PK, without her consent. Third Count Statement of Offence Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935). Particulars of Offence SM between the 1st day of August 2020 and the 27th day of August 2020 at Renmark West, being of having been in a relationship with PK, unlawfully choked, suffocated or strangled PK, without her consent. Fourth Count Statement of Offence Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935). Particulars of Offence SM between the 1st day of August 2020 and the 27th day of August 2020 at Renmark West, assaulted PK. -- 3 of 32 -- [2024] SADC 15 2 It is further alleged that SM committed the offence knowing that PK was a person with whom he was in a relationship. Fourth Count Statement of Offence Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935). Particulars of Offence SM between the 1st day of August 2020 and the 27th day of August 2020 at Renmark West engaged or continued to engage in sexual intercourse with PK by inserting his penis into her vagina, without PK’s consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact PK was not so consenting. Agreed Facts 2 The following facts were agreed: PK’s attendance on Dr Jinia Afrin, Berri Medical Clinic 1. On 4 May 2020, PK attended the Berri Medical Clinic and was treated by Dr Jinia Afrin. The notes show that this was in relation to vaginal pain and itchiness, discharge, fever and mild lower abdominal pain. 2. Dr Afrin treated PK for a Urinary Tract Infection and Bacterial Vaginosis. PK was recommended to avoid sexual contact until healed. 3. On 9 May 2020, PK has a telephone consultation with Dr Jinia Afrin. The reason for this contact was noted as “vaginal candidiasis”. PK’s attendance at the Riverland General Hospital 4. On 5 June 2020, PK attended the Riverland General Hospital. It was noted that she was treated by Dr Zhao Wang in relation to malena (black stools), reflux vaginal pain, discharge and some dysuria (difficulty with urination). 5. Dr Zhao Wang ordered pathology tests and prescribed medication. 6. On 10 June 2020, PK saw Dr Chetan Pradhan, a general surgeon, for a consultation. She was booked in for an endoscopy and colonoscopy. 7. On 7 July 2020, PK attended the Riverland General Hospital again, having been referred by the Duty Doctor, Dr Jacob Mackenzie of Renmark Medical Clinic, regarding abdominal pain, black stools, fever and vomiting. 8. On 6 August 2020, Dr Chetan Pradhan performed an endoscopy and colonoscopy upon PK at the Riverland General Hospital. Dr Chetan discharged PK, as the endoscopy and colonoscopy results were normal. Dr Chetan determined the issue was likely constipation and recommended laxatives. -- 4 of 32 -- [2024] SADC 15 3 9. On 17 August 2020, PK attended the Renmark Medical Clinic and saw Dr Zhao Wang for a follow-up appointment post her endoscopy and colonoscopy. Diet was discussed. The vaginal discharge was reported as having settled and the notes report a likely yeast infection, and that treatment was discussed. 27 and 28 August 2020, hospital attendances 10. On 27 August at 6:15am, PK was taken to the Riverland General Hospital by SA Police. 11. At the time PK was assessed by nursing staff, it was noted she had “no obvious injuries”. 12. PK was seen by Dr Zara Latif, an Indian female doctor who speaks Punjabi. They communicated with each other in Punjabi (Dr Latif Consultation). 13. Dr Latif made notes of the conversation as follows: (a) Got married on 24 March in SA. (b) Lives in a combined family. (c) 2 days after marriage was made to work on capsicum and grape farm. (d) Pushed to work all day and then at home. (e) Husband demanding about sexual intercourse up to 3 times a day. (f) Verbal aggression and then physically abusive, slapping, kicking, pushing her every other day. (g) In past 3 weeks she has had worse physical abuse, and husband forced sexual intercourse which she states as rape, because she was asleep and unwell with fever, had her periods and did not consent to having intercourse. (h) Post sexual activity, bleeding, tear, and abdominal pain. That settled in 2 days. (i) Last intercourse 8 days ago. 14. On 28 August 2020, at 12:20pm, PK attended at the Yarrow Place Rape and Sexual Assault Service at the Royal Adelaide Hospital. A Medical Record for Sexual Assault Examination was conducted by Dr Suzi Pedler. (a) During the perianal examination, no visible abnormalities were noted. -- 5 of 32 -- [2024] SADC 15 4 (b) No strangulation injuries were noted during a limited strangulation assessment physical examination. (c) The injuries otherwise observed were in the nature of small abrasions/soft tissue injuries. (d) No injuries were photographed or recorded via video. AS 15. AS is PK’s father. He generally resides in Punjab, India. 16. If AS were called to give evidence, he would say the following: (a) In 2020, he and PK were staying with his other daughter, HK, in Woolgoolga NSW. (b) He attended the wedding between PK and the accused at the accused’s family home in March 2020. (c) He resided with PK and the accused in the accused’s family home from March 2020 to 5 June 2020. (d) He has not had any conversation with PK during which she has made an allegation about any violence or anything of a sexual nature. SK 17. SK is PK’s mother. She resides in Punjab, India. 18. If SK were called to give evidence, she would say the following: (a) She spoke to PK about four times by telephone on 26 August 2020 and PK told her: (i) The accused strangled her on the morning of 26 August 2020 and that it lasted two to three minutes where she could not breathe. (ii) The accused raped her on 26 August 2020. (iii) The accused strangled her on 25 August 2020. (iv) The accused and PK had sex three times a day, occurring practically every day. (v) She was unwell (physically) over the period of June to August 2020 and the accused would not assist or treat her with medication, save and except for one occasion when taken to the doctor. -- 6 of 32 -- [2024] SADC 15 5 CK 19. CK is PK’s sister-in-law. CK’s brother is married to PK’s sister, HJ. 20. CK speaks both Punjabi and English. 21. If CK were called to give evidence she would say the following: (a) On Wednesday 26 August 2020, CK had a phone conversation with PK during which PK asked her to phone the police on her behalf. 000 Call 22. On 26 August 2020 at 11L48om, CK telephoned “000” and made a report to police in relation to PK. On 27 August 2020 at 12:45am, CK telephoned “000” again as follow up to her earlier call. Agreed Facts – 1st Addendum 3 The following facts were agreed: Complainant’s Prior Inconsistent Statements (Transcript reference – p 102 136) 1. On 31 August 2020, PK provided a statement to police, Brevet Sergeant Naomi Roberts, assisted by an interpreter from Translating and Interpreting Service (TIS National) (31/08/2020 Statement). PK stated: He began kissing me on my body and my breasts, nipples and tummy. As he was kissing me I was saying in and out of consciousness that I do not want this… Every time I tried, he just came back and continuing to kissing me. He opened up my underpants with the string and the top and pulled them down and begin kissing on my skin around the area of my vagina. (Transcript reference p 112) 2. Refer to Dr Latif Consultation (Statement of Agreed Facts 13.1-13.9) (Transcript reference p 115) 3. On 27 August 2020 at the Berri Police Station, PK was interviewed by police Detective Brevet Sergeant Bradley Yeomans and Constable Bianca Schmidt, with the assistance of an interpreter via telephone. (Initial Transcribed Interview). PK told the police that: Constable: I understand that there was an incident where she was locked in her room. Can you please ask her to explain that please? Interpreter: Yes, you had another incident that they locked you in the rom. Tell us more about that? -- 7 of 32 -- [2024] SADC 15 6 PK: Yes, it happened today. I didn’t go to work all day today I was locked in the room and I had my phone with me and all that means they locked me so that I can’t go anywhere, I have to stay at home. I was thinking that if they took my phone then I will go out and will ask neighbours for help, I would go to them and tell them to help me. I don’t know English and so I will ask them for help from the police and then I had my phone, but I would not be able to speak in English, that’s why I thought and contact my sister and she said I will take a decision. (Transcript reference p 121) 4. Between September 2020 – January 2022, PK kept a journal, in Punjabi, relating to these allegations. In January 2022, PK sent a copy to police officer Michael Cartwright. On 2 March 2022 the contents of the journal were translated into English by NAATI Certified Translator Vijay Pal Singh (Journal). 5. PK recorded in her journal: I was feeling so alienated at that time. I did not eat anything on the first day because that situation was very strange. By the night I came to know that wedding will happen on the day after tomorrow (the 25th of March 2020). I was said (sic) from the beginning, and I was said (sic) on my wedding day as well. (Transcript reference 123) 6. In the 31/08/2020 Statement, PK stated: (a) At paragraph 21: On the 27th of March 2020, I started working on my husband’s family’s farm. Generally, in India, Indian brides are not supposed to work for about a month and I assume that this would be the case with me. (b) At paragraph 28: Newlywed is meant to be well dressed with makeup on. During this period the newlywed is not usually working. (c) At paragraphs 22 & 23: I felt tricked into working on the farm because on the morning on the 27th March 2020 SM came to me and said it not good to sit in the house all day and that he wanted to take me for a walk and show me the farm. It took about give minutes to walk there from the house… When we got to the farm he started showing me the different vegetables that they grew. Then he asked me if I wanted to try and pick some. I said that I didn’t really want to do it but ht took me to a Glass House where the capsicums were grown and he told me to pick a capsicum, so I did. He told me that I was doing a good job. He told me to keep picking the capsicum and that he had to go somewhere. I told him that I didn’t want to and that I wanted to go with him. He said that I had to stay there and pick the capsicums that it would make me feel good as it’s better than staying at home and he would be back. About three house he came back. -- 8 of 32 -- [2024] SADC 15 7 (Transcript reference p 129) (d) At paragraph 26: All the female family workers were not given any information apart from what we had to do, so I don’t know what happened after we packed the capsicums. (e) At paragraph 24: I would go to the farm and work with the family. I worked with my sister-in-law, TK. The daughter in laws were only given specified breaks by Nirmal where the boys could have breaks when they wanted to. I would have a break at about 10:00am for ten minutes to have a cup of tea and then ten or fifteen minutes for lunch and then go straight back to work. On slower days I got sometimes 30 minutes for lunch break. TK was allowed to leave when she heard the baby cry, to feed him. (f) At paragraph 29: I was expected to do the household washing and folding of clothes. I would also have to the ironing if required. I also had to sweep and wash the floors of the house. I also had to pickup and clean for all of the family members. (g) At paragraph 30: SM’s parents forced the daughter in laws to do the prayers for everyone in the house. 7. At 5:04am on 27 August 2020 PK spoke with police, Constable Bianca Schmidt and Detective Brevet Sergeant Bradley Yeomans with the assistance of a Punjabi Interpreter. Bianca Schmidt records that PK: Stated that often family members are present for assaults and do nothing to stop her husband. 8. In the Initial Transcribed Interview, PK stated: (At 00:09:26 – 00:10:21) I was beaten three times in two months. First time, I had been slapped in the face during lunch break in front of his family and insulted me in front of everyone and the reason was not even that big. I talking to him normally was asking him to eat his food or something else. He was putting candies and the fell down and I told him not drop them down and then he said how come you are screaming like a bitch and then he slapped me on the face and at that time all the family members were there, and they did not say anything. (At 00:11:18 – 00:12:17) I mean, because I got beaten everyday it became very difficult for me. I mean, they are ok for couple of days and then again beat me, then they persuade me and then again beat me. It was going like this from last two months. (Transcript reference p 155) -- 9 of 32 -- [2024] SADC 15 8 9. On 28 August 2020, PK attended the Yarrow Place at the Royal Adelaide Hospital forensic medical suite. PK was examined by Dr Suzie Pedler. In Dr Pedler’s notes she has recorded that PK told her: (a) Her husband had strangled her twice over the last two months but not during the assault on 25 August 2020. (b) There was no reported loss of consciousness on either occasion. (Transcript reference p 162) 10. During the Initial Transcribed Interview, the following exchange occurred at 00:02:04 – 00:02:06: Constable – Has she got any injuries? Interpreter – have you been injured? PK – No, I got light bruises like this (showing to the police officer) (Transcript reference p 162) 11. During the Initial Transcribed Interview, the following exchange occurred at 00:09:24 – 00:10:32: PK: I had a check-up for constipation on 6th August. They needed to put the camera in the back and front to have a look. After that when I got discharged from hospital I was feeling very dizzy. Interpreter: What was you feeling? PK: I felt very dizzy as they had given me a medicine and when I came home and next day, he forced me too much, I had a lot of pain inside because of the camera. I refused then and said I don’t want to do anything. He didn’t do sex at that time but slapped me in the face many times, beaten me during the day after getting me inside my room. (Transcript reference p 164 & p 165) 12. At about 1:30am on Thursday 27 August 2020, Constable Bianca Schmidt attended 134 Tapalin St, Renmark West, SA, and collected PK. With the assistance of CK interpreting, Constable Schmidt records that PK states: (a) She is often forced to have sex with her husband, sometimes 3 times per day, she says no to the sex but he forces her. (b) About 2 days ago, she was lying in bed, her husband had got on top of her and sat on her stomach, he then choked her (at this time the victim showed police how this occurred by placing her 2 hands around her throat and squeezing), she could not breathe at all and thought she was dead. -- 10 of 32 -- [2024] SADC 15 9 (c) Sometimes she did not let out of a room for a day at a time. (d) She is not allowed to use her phone without permission. (e) Forced to work when she is sick. (f) Family of husband often see what her husband does to her but won’t intervene. (Transcript reference 167) 13. At 08:11 on 27 July 2020, an email was sent from an email address [email protected] to [email protected] with subject “Cancel enrolment”, stating: Hi I had a conversation with Aman last month informing her that I would no longer like to study. My student visa has expired. Please see the attached file. Thanks. Prosecution Case 4 The accused is alleged to have offended against PK during their marriage. PK was born in India in 2000 and at the time of trial was 23 years of age. She had moved to Australia in July 2018, on a student visa and studied horticulture through Brisbane College. Initially she lived with her sister in NSW. 5 In 2019 PK’s father had travelled to Australia and participated in the introductions between PK and the accused. He attended the marriage that had been agreed upon by PK and the accused’s families. The marriage was initially scheduled to occur in April 2020, but due to the Pandemic the wedding was held on 25 March 2020, and involved a small ceremony with PK’s father in attendance. 6 After marriage, PK lived with the accused and his family on a farming property close to Renmark. Early in the marriage PK started working on the family farm, with her workday beginning at around 6.30am, concluding at around 5:00pm, with short breaks during the day. PK was also expected to attend to household tasks and to say morning and evening prayers over a microphone and speaker system. 7 PK’s father stayed in Australia with the accused’s family until early June 2020. PK alleged that the accused’s offending against her commenced after her father had returned to India. 8 PK became unwell and had difficulty undergoing her required daily tasks. -- 11 of 32 -- [2024] SADC 15 10 9 On 5 June 2020, she attended the Riverland General Hospital. The prosecution alleges that the next day the accused climbed on top of PK whilst they were in bed together. She tried to tell the accused she was not feeling well and asked him to stop, but he pinned her down and inserted his penis in her vagina. (Count 1). 10 In July 2020, on an occasion when PK had returned from work, she was followed by the accused into the shower. When PK declined the accused’s request for sex, he is alleged to have caused PK to fall to the ground, laying on top of her and putting his hands around her throat and squeezing. (Count 2). 11 It is alleged PK continued to have ongoing health issues. She attended a medical appointment on 6 August 2020 and bed rest was recommended. When she conveyed this to the accused, he was abusive. 12 Soon thereafter there was an incident where the family were having lunch. PK later confronted the accused regarding the way in which he had spoken to her. The accused asked her to have sex and she refused. The accused then “straddled” her, placed his hands around her neck and squeezed. When PK questioned the accused regarding his behaviour, it is alleged he slapped her across the face. (Count 3). 13 An hour later the accused told PK to take a shower. The accused grabbed both of her wrists, while she continued to say no to his requests for sex. The accused dragged her along the floor towards the bathroom, causing scratches to her arm. (Count 4). 14 Early on 25 August 2020, the accused’s alarm went off at 3:30am. He began shaking her and telling her she needed to get up and go to work. The accused is alleged to have slapped her on the side of her face. (Count 5). 15 Following the slap, PK tried to go to sleep. The accused is alleged to have climbed on top of PK and begun to kiss her. The accused removed PK’s underpants and kissed her around her vaginal area. She felt the accused’s penis enter her vagina, which caused a sharp pain. She tried to push the accused away with her knees. The accused removed his penis and PK masturbated the accused’s penis until he ejaculated because she was scared, believing that the rape would continue if she did not do so. (Count 6). 16 PK is alleged to have experienced pain and bleeding from her vagina in the days following. 17 On 27 August 2020, PK’s sister contacted police, who then contacted PK. Police collected PK and she was taken to the Berri Hospital and then to Yarrow Place. 18 The accused was arrested the same day and did not participate in a formal record of interview. -- 12 of 32 -- [2024] SADC 15 11 Witnesses 19 At trial PK and the accused gave evidence. 20 The accused called: • TK (PK’s sister-in-law) • AM (the accused’s older brother) • Mr Russell Wortley (character witness) • Mr Neil Martison (character witness) • Ms Maria Sialis (character witness) • Ms Monica Kumar (character witness) Elements of the Offences Rape (counts 1 & 6) 21 The offence of rape is comprised of three elements, each of which must be proved by the prosecution beyond reasonable doubt: 1. The accused had sexual intercourse with PK. Sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person, or fellatio or cunnilingus. 2. The accused had sexual intercourse with PK without her consent. Consent means a free and voluntary agreement to engage in sexual activity. 3. The accused knew that PK was not consenting or was recklessly indifferent as to the lack of consent. A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she – (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decided to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does not in fact consent, or has in fact withdrawn consent to the act before deciding to proceed; or (c) does not give any thought as to whether the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed. -- 13 of 32 -- [2024] SADC 15 12 Unlawfully choking, suffocating or strangling another (counts 2 & 3) 22 The following elements of the offence must be proven beyond reasonable doubt: 1. At the time of the alleged offending the accused was in a relationship with PK. 2. The accused applied force by choking, suffocating or strangling PK. 3. The accused did the act deliberately, that is, intentionally. 4. At the time of doing the act the accused intended to stop, hinder or restrict PK’s breathing or was recklessly indifferent as to whether the force would stop, hinder or restrict her breathing. 5. PK’s breathing was stopped, hindered or restricted by the accused’s act. 6. That the act was unlawful. Aggravated assault (counts 4 & 5) 23 The following elements of the offence must be proven beyond reasonable doubt: 1. The accused applied force to PK; 2. The application of force was intentional or deliberate; 3. The application of force was without PK’s consent; 4. The act was unlawful; 5. The accused and PK were in a relationship. General directions 24 I direct myself as follows: • The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The prosecution must prove each element of the offences beyond reasonable doubt and it is not sufficient for the prosecution to prove a mere suspicion of guilt or that the accused is possibly or probably guilty. • I must bring an open and unprejudiced mind to the case. • I must assess each witness as to their truthfulness and reliability. I can reject or accept all or a part of a witness’s evidence. -- 14 of 32 -- [2024] SADC 15 13 • PK gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give her evidence. • The accused gave evidence and was not bound to do so. I must assess his evidence in the same way as any other witness. • No onus/motive. • If, after full and careful consideration, I am unable to decide where the truth lies and who is telling the truth, the prosecution would have fallen short of proving the case beyond reasonable doubt and my verdicts should be not guilty. Evidence of PK Examination in Chief 25 PK gave evidence with the assistance of an interpreter. 26 PK said that when she first came to Australia she lived with her older sister in Woolgoolga, NSW and held a tourist visa. Her parents and other siblings were living in India. PK applied to study horticulture and had applied for a student visa. She began her studies in November 2018, through Brisbane College for 18 months, living in Woolgoolga but staying in Brisbane for two or three days a week.1 27 PK said she knew that she would enter an arranged marriage.2 She was introduced to the accused and met with him in Sydney on 3rd December 2019, when family members were present.3 On that day after the families had spoken, she and the accused decided to marry. PK said they were both “happy and … matching”.4 28 The date of the wedding was set for 25 March 2020, however due to COVID the wedding took place on 5th of February 2020.5 29 After meeting the accused and before their wedding took place, PK and the accused were in contact by phone and through Instagram. She described feeling happy and said that she had enjoyed the conversations.6 30 When she moved to South Australia, she lived in the accused’s house in Renmark with the accused’s family members including his brother and his 1 Transcript – page 21, line 28 -29. 2 Transcript – page 21, line 38. 3 Transcript – page 23, line 9-10. 4 Transcript – page 24, line 18. 5 Transcript – page 26, line 17. 6 Transcript – page 28, line 8. -- 15 of 32 -- [2024] SADC 15 14 brother’s wife and child, the accused’s younger young brother, as well as the accused’s parents and her own father. 31 After the wedding her father stayed at the house for about two and a half months, leaving on 5 June 2020. 32 PK said that after the wedding her daily routine involved praying in the morning at 5:30am, for 15 minutes. She then started work on the family farm at 6:50am. When she came home at around 5:00pm she began praying and then cooked dinner. She would pick and pack capsicums. She described working on the farm seven days a week, two days after the wedding. Her father-in-law and the accused told her she had to start working on the farm. 33 They would stop for two breaks during the day, one at 10:00am for a 10-minute coffee break and then around 1:00pm for a one-hour lunch break. During the lunch break she would go home, prepare the lunches, eat, and then go back to work. Food was prepared by herself, her sister-in-law, and her mother-in-law.7 Their evening prayers would take one and half hours and a shed just outside the house was allocated for praying.8 She was told to pray by her father-in-law. After praying she would usually have to do housework for one to two hours.9 Her sister-in-law would assist. 34 PK said that during this time the accused would sometimes come with her and help pick and pack the capsicums, but that outside of the house they did not do any activities together.10 She said she had left the house twice a month, to go to Big W or McDonalds with the accused and her father-in-law.11 35 While her relationship with the accused at the start of their marriage was ‘quite good’, she enjoyed spending time on the farm with her husband, and had tried to be happy, things kept changing and she was not able to spend much time with him. She described her workload increasing and only seeing the accused once a day, sometimes in the morning, sometimes at lunch time.12 36 PK said she was prescribed medication for a urine infection on 5 June 2020. The accused had taken her to the appointment. She was prescribed constipation medication from a doctor at the Berri Hospital one month later, when her brother- in-law had taken her. 37 PK said she thought her sexual relationship with the accused began two days after her wedding.13 She was having sex three or four times a week, increasing to 7 Transcript – page 39, line 3. 8 Transcript – page 39, line 11-13. 9 Transcript – page 29, line 37. 10 Transcript – page 40, line 15. 11 Transcript – page 41, line 2. 12 Transcript – page 41, line 29. 13 Transcript – page 48, line 28. -- 16 of 32 -- [2024] SADC 15 15 a couple of times a day, sometimes in the morning, sometimes at night, but always in the bedroom.14 The infection affected her sexual relationship with the accused. 38 At the beginning she was feeling happy and enjoying their sexual relationship, but it became ‘too much’,15 and she sometimes tried to refuse the accused. Sometimes did not listen to her and told her that she did not have an option to say no to him.16 39 PK said that on the evening of 6 June 2020, she and the accused were at home. He asked her if she was ready for sex and she had replied that she was having pain and so probably could not. The accused told her he would try his best not to hurt her and would “start slowly”.17 He then came over to her and started kissing her. She told him she was tired and had pain. She was trying to push the accused away with her hands and to close her legs. The accused then removed one of her legs from her underpants and put his penis into her vagina, which caused her pain. 40 His penis was in her vagina for one minute, and she was continually telling him to stop.18 At the beginning, her voice was at a low volume and then increased. The accused told her to be quiet because he didn’t want anyone to hear them.19 41 Afterwards, she was in pain, so she just lay on her side and tried to sleep. She described the accused talking to her and his tone being angry, because she had not wanted to have sex with him.20 She recalled feeling stressed, because she was concerned about their fight and wanted to stay happy. 42 After that incident they did not have sex for one week because of the infection. She told the accused she was sorry and then they began having sex regularly again.21 She was happy because she wanted to make sure her relationship was getting stronger, however, her health started to deteriorate. Her infection was better but she started becoming constipated and having issues with her digestion. She went back to the local doctor with her husband, who recommended that she go to the Berri Hospital to see the specialist surgeon. After visiting the hospital, she was put on a diet plan after having undergone some tests.22 43 PK said that she would try and tell the accused that she was not comfortable and did not want to have sex with him, but they would still have sex. She described some occasions he listened to her but that was ‘very rarely’. 14 Transcript – page 49, line 9. 15 Transcript – page 50, line 11 – 12. 16 Transcript – page 50, lines 16 – 19. 17 Transcript – page 54, line 19 – 20. 18 Transcript – page 57, line 21. 19 Transcript – page 58, line 1 – 10. 20 Transcript – page 58, line 28. 21 Transcript – page 60, line 32 – 33. 22 Transcript – page 61, line 22. -- 17 of 32 -- [2024] SADC 15 16 44 They were having sex less often because she was working on the farm all day, felt tired and her health deteriorated.23 PK said there was never any occasion where the accused was violent.24 45 PK detailed an occasion in July at around 9:00pm-10:00pm, when she and the accused were in the bedroom, and she was trying to sleep. The accused asked her to take a shower because he wanted to have sex. She told him that she had already had one and he took her by the arm and pulled her into the bathroom and told her to take a shower. She described being upset and crying. 46 She also detailed an occasion in August, where she and the accused had an argument about some lollies being put in the jar. The argument occurred during their lunch break while she and her sister-in law were in the kitchen preparing food. The rest of the household members were around the dining room table. The fight resulted in some tension between herself, and the accused and she did not talk to him until night-time because she felt insulted. She went to go to bed that night when the accused started poking her and said, “you are ignoring me, why?”.25 She tried to tell him that she was insulted, and he responded by saying everything was fine, to have a shower and “we will do the sex”.26 She explained that she had already had a shower and didn’t want to have sex. The accused suddenly came over and sat on her lap, telling her “no, we will do sex today”. He held her neck with both hands and pushed. She said that she felt like she had stopped breathing. She tried to stop him, and he squeezed her neck again. She said that: After second time he took his arm, his hand away for a second, and I try to speak and he again hold my neck, and at that time it was quite pressure, so the vision was get blurry and I was just like, I was just moving my legs as well.27 47 The accused told her that she was being dramatic, laughed at her and said he didn’t do anything so she was just pretending.28 He then grabbed her, pulling her by her wrists and again told her to have a shower and that after they “will do the sex”.29 The accused then pulled her towards the bathroom, she held the bathroom door and sat down on the floor crying. 48 PK said she did not know and did not check whether she had any marks around her neck. 49 PK said that the accused had put his hands around her throat and squeezed on another occasion in July. The accused followed her into the bedroom and told her that he wanted to do sex. She told him it was her prayer time and needed to finish all the housework. He continued to insist that she have a shower and was pulling 23 Transcript – page 62, 13 – 16. 24 Transcript – page 63, 1 – 3. 25 Transcript – page 74, 11 – 12. 26 Transcript – page 74, 21. 27 Transcript – page 75, 22 – 26. 28 Transcript – page 77, 4-5. 29 Transcript – page 77, 12 -13. -- 18 of 32 -- [2024] SADC 15 17 her arm. He hooked her leg with his leg and put her to the ground. He put her legs into her chest and told her that she could not say no to him and held her neck with one hand. He was holding her neck with his arm and he squeezed. She could not breathe. The accused got up and told her she was making drama. He left the room. 50 PK said that on 24 August the accused set alarms to wake her early in the morning to go to work. The alarm went off at 3:30am but she could not wake up. Another alarm went off at 4:30am and the accused woke her again and told her to have a shower. She told him to have a shower first and he slapped her to the right side of the face. She was trying to say something, but he slapped her to the face again. He demanded that they have sex and put his penis into her vagina. He stopped in ‘the middle’ and told her to masturbate him, which she did. 51 PK said she telephoned her sister and parents. She slept at the house on 26 August and police picked her up early in the morning of 27 August 2020. Police took her to the Berri Hospital, and she was examined by a female doctor who speaks Punjabi. She saw a second doctor when she came to Adelaide on 28 August 2020. That doctor conducted another physical examination. 52 In cross-examination, PK said she was held in the house on the day before she had contact with police. She agreed that she was locked in her bedroom. She said she realised that the lock was from the inside, so she just opened the door and went out. She said although she had been living in the house for many months and knew that she could not be locked in the room, there were so many things going on at that time, she did not realise. PK denied that she had lied to police. PK said that she had told her sister-in-law that the accused had slapped her and forced her to have sex. She agreed that her sister-in-law was a confident, intelligent woman who was comfortable in the household. 53 She agreed that during her last contact with the accused when he had raped her, it involved no kissing. She said she did not recall telling police that in that last incident he began kissing her. She said it was a long time ago and she did not remember how it started. She did not remember telling police that he had lifted her shirt and kissed her body. She said that she now thought that he did kiss her somewhere at the start. When it was put to PK that she had told police the accused had opened her underpants, pulled them down and kissed her in the area of her vagina, she said that she did not remember. She just remembered that when he was quickly doing the sex, she pushed him and told him she did not want to do it. 54 PK insisted that at the time she spoke to police, she told them everything that had happened. She did not remember anything regarding bleeding because between then and now many things had been going on. She remembered police had asked her about injuries but did not remember what she said. She did not remember whether she ever sustained any injury to her vagina. Whatever she told the doctor was the truth. She did not make up anything. -- 19 of 32 -- [2024] SADC 15 18 55 PK said that she had no issues with the wedding and was only sad because her family was not there.30 56 PK had written a diary after leaving the accused’s home, which she then sent on to police. She was unsure if she was writing in the diary continuously or in parts because she was unwell at the time. She wrote in the diary retrospectively about the events that occurred while she was living at the accused’s house. 57 She said she wrote that she was upset because things that occurred were different to what she was told, so she was not in control, and everything was new to her. She said she was sad because her family wasn’t there. She was not angry about having to work but explained that it was different to what she expected. She felt that they had tricked her and only wanted her to work. She agreed that she told police that “Indian brides are not supposed to work for about a month, and I assumed that this would be the case for me”. She explained that what she meant when she gave her statement was that in her culture it is customary that people from the neighbourhood send relatives to come and see the bride and so the bride must be available for the visits and thus would not be able to work during this time.31 58 PK said that she was expecting to go on a trip to Singapore for their honeymoon because the accused had promised her. She said she was not angry that the honeymoon did not happen, but she accepted that she was sad. 59 PK said that initially she tried to make herself heard in the house, but she gave up because after some time, everybody started ignoring her and telling her that it was her fault and that she should apologise for any argument. She said she thought the accused must have been telling his family members about the arguments they were having as a couple. 60 PK said that she had no issues with the work. Initially she was able to take breaks but after a while when she needed a break, she would normally get a response from the accused along the lines of “you can’t take a break, you have to go to work”. 61 PK agreed that she told police that for 5 months she worked 7 days a week from 6.30am to 5:00pm but gave evidence that the initial period was only until lunch time. She sometimes had time off if there was a family function or a family dinner. 62 If there was not a capsicum harvest, there were other things like pruning work to be done. Most of the time her sister-in-law was working with her, particularly during pruning of the grapes, but if she had to feed her baby she would leave. She 30 Transcript – page 120, 22. 31 Transcript, page 123. -- 20 of 32 -- [2024] SADC 15 19 told police that the daughters-in-law were given specific breaks, where the boys could have breaks whenever they wanted. 63 When she came home from work she was expected to do household chores. She wrote in her diary that there were a couple of times they would finish the chores at 11:00pm. She remembered that this happened because as a punishment, she had to do prayers over the speaker.32 Her main duties were cleaning and the laundry, while her sister-in-law would do the cooking and then if there was time, they would help each other. She then corrected herself and said that her mother- in-law did most of the cooking, but her sister-in-law would sometimes give the baby to her mother-in-law and assist her with the cooking. 64 PK said that she was required to do the prayers every day over the loudspeaker, initially with her sister-in-law. They were praying for 3-4 hours together. 65 PK said she was expected to have sex three times a day. She gave evidence that she barely saw the accused except during the lunchbreaks, and initially they were having sex during the lunch breaks. When her health deteriorated, she told the accused that they could not have sex three times a day and he agreed to once a day. 66 PK accepted that she had been in Australia since 3 July 2018 and was enrolled in a cert III and diploma in horticulture from 5 November 2018 - 8 May 2020, which was conducted in English. She explained that despite completing study in English, she was not giving evidence in English because the incidents were stressful and she becomes nervous in talking about these matters. 67 PK said that initially both she and the accused did not share anything with the family, but when the family started realising that there was something wrong with them, they started taking the accused’s side, eventually saying that they should separate. 68 There was an occasion where they were having dinner with the family, the family left and then the accused slapped her. There was also another occasion where the accused insulted her in front of the family, telling her that she was barking like a dog.33 PK denied that the accused ever kicked her. She said that what she told police was the truth including that there were not “huge gaps” between the assaults, confirming that the assaults may have occurred every couple of days. 69 PK said she could not remember what she said to the doctor on 27 August 2020, but she did remember talking about what was happening at that time. She said that her memory was better back then and everything she told the doctor was the truth. 32 Transcript – page 132. 33 Transcript -page 151, 14-16. -- 21 of 32 -- [2024] SADC 15 20 70 She spoke to a doctor at Yarrow Place in Adelaide through an interpreter and told them was the truth. She remembered that the doctor checked every body part and asked questions. 71 PK said she had visited the doctor a few times in early 2020. She confirmed that during the time she had an infection, she was having sex three time a day as the accused still forced her to do so. The accused was accompanying her to the doctors’ appointments.34 72 PK underwent a procedure at the Riverland general hospital on 6 August 2023. 73 She said that she was forced to have sex with the accused two days later. 74 The first conversation PK had with police was interpreted by her sister-in-law. She did not remember the details of the conversation but said that she was not able to speak properly because she was having a lot of headaches and had to be taken to hospital. She told police that she was not able to use her phone, she had limited data usage on her phone, and she was unable to speak to her family. 75 When asked whether the reason she was asked to use WhatsApp rather than her phone, was due to a $200 bill that she received after a phone call to her mother, PK maintained that she was not allowed her phone at the workplace. She said there were that there were restrictions placed on her phone use, such as having to use her phone in the dining room.35 76 When she first spoke to police there were discussions about her residency status. She had come to understand that her student visa had expired. PK denied conspiring or planning anything regarding her visa and submitted she just told the police what she knew at that time. She denied thinking of seeking compensation. 77 PK was shown an email, Exhibit D5, she had sent to the investigating officer. She said that a social worker had mentioned that after the divorce, within three years, at any time she could apply for compensation, but that she decided not to apply. She denied lying to the court. 78 In re-examination, PK confirmed that she had a conversation with a social worker regarding compensation but was never seeking compensation. She said that she never received any money from her divorce with the accused. 79 PK said she had started writing the diary she had given to police after she went back to her sister in NSW. The diary was written in Punjabi language, but the dates were in English. 34 Transcript page 155 – 158. 35 Transcript – page 167. -- 22 of 32 -- [2024] SADC 15 21 Evidence of the Accused 80 The accused was 27 years old and born in New Zealand, moving to Australia in 2001. Since completing his degree in pharmaceutical science, the accused had been elected to his local council, held a board position, had run for public office and held a position in a political party. 81 He first met PK in Sydney in 2019. He said it was not an arranged marriage in the sense that he was not forced to get married and that it was “between the boy and the girl” to make the final decision. The process in Sydney involved spending time with each other’s family. The accused and his family were in Sydney for the “whole day” and then they left the following morning. After the meeting in Sydney, he and PK they stayed in touch over the phone, calling and messaging every day. 82 The original plan, prior to COVID, was for their marriage to occur on 4 or 5 April 2020, but as the borders started to close, they decided to bring the marriage forward. The accused described this as being upsetting and that prior to COVID, they had discussed a honeymoon. 83 The wedding was held on 25 March 2020. His immediate family were present on the day, as well as PK’s father. The accused said that his sexual relationship with PK commended about one month after their marriage and that they only had sexual relations in the bedroom. He denied having sex more than once a day and said that sexual intercourse took place about three-four times a week. 84 The accused said that every day on the farm was different and was weather dependent. There were no specific hours, and the busiest periods were from about October to the end of March. The family-owned multiple properties across Renmark. 85 His mother mainly stayed at the house cooking, and his sister-in-law and PK would help on the farm picking or packing. He said PK was never left on her own on the farm. Some days she worked only three to four hours and the ‘women’ never worked seven days a week. 86 He said the males in the family helped with the household duties and that “we are a family at the end of the day and, you know, we help each other out”.36 87 The accused said that it was up to every individual as to how long they wanted to pray.37 He would pray for about 30-40 minutes in the morning and then for about 15-20 minutes in the evening. There was a microphone that anyone was allowed to use to pray, however, his father used it most. 88 The accused agreed that PK visited the doctor during their relationship and that he would drive her because she didn’t have a licence. He could not accompany 36 Transcript – page 203, line 10. 37 Transcript – page 204. -- 23 of 32 -- [2024] SADC 15 22 PK into the appointments at the hospital due to the COVID restrictions. The accused denied attempting to engage in any form of sexual relations with PK when she was unwell or suffering from an infection. He said he would assist her with her medical issues and much as he could. 89 PK had her own mobile phone and there was never an occasion where the phone was taken away from her. She did not make calls to her family in the presence of others. There was an issue in relation to a call to her mother which cost $200 or $300 and the family told her that if she was going to make international calls, that she should use WhatsApp. 90 The accused said that at the start he and PK got on well. He thought PK was “a little bit childish” but their relationship was relatively okay. The accused said that that the constipation issues did give rise to some irritation. PK was a bit argumentative about not going to Singapore and was upset about his commitments and the time he had to spend in his meetings. The accused denied ever being violent towards the accused and said that he is not an angry or aggressive person. 91 Their relationship came to an end when PK left the family home. He had called police when he noticed PK was missing from home. He said her departure was surprising. He had not seen PK leading up to her departure due to having consecutive meetings. He said he had not stayed in their bedroom the night before her departure because he was busy with the council meeting preparation. 92 The accused confirmed the locks in the house were very straight forward. He denied ever locking PK in any room in the house and that in any event this would have been impossible. The accused said that you could hear noise between the walls in the house. 93 In cross examination, the accused said that he had been arrested on Thursday, 27 August, the same morning that the accused woke up and realised that PK was missing. He said that he had attended two meetings on the days leading up 27 August. On that Monday there was an all-day strategic planning meeting and a subcommittee meeting on the Wednesday. On the morning of the Wednesday, 26 August he had not slept in his bedroom the night before. He said that had not been the first night that he had not slept in his bedroom after a meeting, because he needed to do a lot of work to prepare. 94 The accused said that he “wouldn’t ask my then wife to start working immediately” after the wedding.38 He said that in Sydney PK was aware of the accused’s family’s “lifestyle”, explained that there was a YouTube video of their farm and family that she viewed. He believed it was discussed that she would be working on the farm, and had expected that PK would do so. 95 The accused said he had discussed the travel restrictions that were occurring due to COVID and this impacting their honeymoon to Singapore. PK would get 38 TT 224. 8-9/ -- 24 of 32 -- [2024] SADC 15 23 upset at him for not being able to travel and he thought she was being childish about not understanding his obligations and commitments.39 96 The accused said he would make the doctors’ appointments for PK at her request. He would interpret for her at those appointments if needed. He thought there was one time that his brother drove her. He accepted that there were several doctors’ appointments, starting around May 2020. PK she had lots of digestive system issues as well as a vaginal infection. He was aware that she was told to avoid sexual contact until she was healed. 97 The accused said that during the winter months when there wasn’t much work on the farm and that PK would be doing housework or pruning grapes on the other properties the family owned. 98 The accused said that if PK did not want to work, she did not.40 If she was unwell or had a headache she did not work. 99 The accused said the household chores were mainly done by the females of the house. His mother would be at home most of the time, and there was enough work to keep her busy, but the others ‘chipped in’ where needed. 100 On 5 June, PK went to the doctors and her father left. The accused denied having sex with her the next day. He denied choking PK or that there was an argument over lollies. He denied an occasion where he set the alarm early or slapping her. The accused denied having sex with PK on 25 August, stating “because I know we didn’t have sex”.41 101 Around the time that PK left they discussed not being compatible. The accused said that that he did not think they were suited because “I guess she wasn't entirely happy with my workload and meetings, and not spending enough time together.”42 Evidence of TK 102 PK was 23 years old and born in India. She is married to the accused’s older brother, and lives on the family farm. They have two children. 103 She said that she and PK were able to communicate with each other freely. PK had never the made a complainant to her about any violence she received at the hands of the accused. She observed the complainant using a phone and explained that that it was never taken away from her.43 104 TK said that prayer in the household was a matter for each individual and no one ever forced PK to pray. She confirmed that there was a microphone that the 39 TT 227. 40 TT 237. 18. 41 TT 241. 42 TT 242. 13-14. 43 TT 249. 9-10. -- 25 of 32 -- [2024] SADC 15 24 family could use for prayer but it was her father-in-law who would generally use the microphone. 105 While her mother-in-law did most of the cooking, all shared the household chores. Mainly the men would work on the farm. She said “men in the house go first, early morning sometime, and we go, like, some time at 9 or 10am, but mainly the men go first”.44 There was no fixed times for the work. There were times that they worked after lunch, but only if there was work to be done and the work is busier in the summertime. She said that she and PK never worked seven full days a week. 106 In cross-examination, TK confirmed that her marriage was arranged and that none of her family came to Australia with her at the time but had visited later. Since moving to Australia, she has lived with her husband’s family and relies on them financially. 107 For the five months PK lived in the family home, TK saw her every day. There were no set days when they did the farm work, it would depend on the work they were doing. She said that during the time PK lived on the farm, it was a quiet time so there wasn’t much work.45 108 In the days leading up to PK leaving, they had worked on the farm together. She had not discussed anything with PK leading up to her departure and was unaware of the discussions between PK and the accused about ending their marriage. 109 She denied observing an argument between PK and the accused about lollies falling on the floor. 110 At the time PK left, there was no work at all, and it was very quiet.46 AM 111 The accused’s brother was 28 years old at the time of the trial. He lives and works on the family farm in Renmark, is married to TK and has two children. 112 He worked on the farm with the accused, and his father. 113 Most of the farm work fell to the males of the house and the work caried on over the course of the year according to the seasons with the “peak of the season around November-February.47 Over harvest they work longer days, starting around 7:00am-8:00am, with the women starting after 8:00am-9:00am. The end of the workday varied between 4:00-5:00pm and breaks were flexible. 44 TT 252. 17-19. 45 TT 256. 16. 46 TT 259. 1-9. 47 TT 265. 6-9. -- 26 of 32 -- [2024] SADC 15 25 114 The females of the house were mainly responsible for the household duties that being cleaning and cooking. 115 He would usually pray for 30-40 minutes in the morning as a personal ritual and for about 20 minutes in the late evening. His father would typically use the loudspeaker to facilitate communal prayers. He said that both PK and his wife used the speaker, but not often. 116 He never saw the accused act violently towards PK. He never saw an argument or debate between the two. 117 He took PK to a medical appointment because he had an injury and a medical appointment on the same day and PK did not have a licence. 118 In cross-examination, AM said that work on the farm was done by the family on an as needs basis, which included some weekend work where needed. During the “peak” season they would be required to work longer hours. 119 He denied that there was ever a time where he was asked to do extra prayers because of their fear of COVID. 120 He said he had been unaware of any difficulties PK and the accused were having before she had left the farm. Character Witnesses 121 I heard evidence regarding the accused’s character from Mr Russell Wortly, a member of the legislative council who had known the accused for nine years, Mr Neil Martison, a former Mayor of the Renmark Paringa Council, who had known the accused for seven years, Ms Maria Sialas a business owner in the Riverland who knew the accused and his family since 2009-2010, and Ms Monica Kumar, a lecturer at TAFE. All these witnesses spoke about the accused in what can only be described as ‘glowing’ terms. The accused was described as someone who was highly regarded in the community and someone who was kind, not aggressive, polite and hard working. Counsel Submissions 122 Both counsel provided written submissions, which I briefly summarise as follows: Prosecution submissions 123 The prosecution submitted that PK presented as an honest witness who gave an accurate account of what occurred during her short marriage to the accused. Any suggestion concerning inconsistencies or any motive on her part to lie are without significant weight and should not detract from PK’s credibility and reliability. -- 27 of 32 -- [2024] SADC 15 26 124 It was submitted that many of the inconsistencies put forward were merely statements made out of court that provided more detail than those given by PK in Court. It was not, the prosecution argued, unexpected that her evidence might not contain the same level of detail as her statement, but this did not impact on her credibility. 125 With respect to the medical notes and the statements made to police, PK did not check the notes to ensure accuracy and we are not to know the questions that were asked. As to the note made by Dr Latif about the last intercourse being 8 days ago, we do not know whether a distinction was made between rape and consensual intercourse and therefore cannot assess whether this is even an inconsistency. 126 As to whether PK had a motive to lie regarding a pursuit of compensation, PK said she had no desire to seek compensation and any suggestion as to an entitlement had not originated from PK. PK was not even aware that the current allegations would entitle her to any kind of visa. 127 The series of witnesses called to speak on behalf of the accused’s character, without exception, spoke to his good character within the context of their relationship with him. However, whilst impressive, not one of them could provide any useful evidence about how he might behave in an intimate relationship, behind closed doors. 128 The prosecutor submitted that the accused’s denials were entirely self-serving and unconvincing and that insofar as his evidence was inconsistent with PK’s evidence, it should be rejected. Defence submissions 129 Defence counsel submitted that I could not accept PK’s evidence beyond reasonable doubt given the inconsistencies in her evidence, the intrinsic improbability of events occurring as claimed, the absence of any eyewitness as to the events or injuries sustained, the accused’s good character, and the failure to exclude the accused’s evidence as a reasonable possibility. 130 PK’s evidence as to the conditions in which she lived and worked were, in defence counsel’s submission, both outrageous and ridiculous considering the evidence given by the accused and his family. 131 Defence counsel argued that complaints as to work, prayer, intolerable living arrangements and her disappointment regarding a honeymoon provided a powerful motive for a false complaint. 132 It was, in defence counsel’s view, of some relevance that PK was “comparatively young and clearly selfish in her prioritising her enjoyment as opposed to the importance of being part of a household and otherwise respecting -- 28 of 32 -- [2024] SADC 15 27 the need to maintain the household and the associated business and her husband’s pre-existing commitments to community welfare”. 133 PK’s evidence that she was forced to work on the farm alone was completely contradicted by others within the household. 134 PK claimed that she had no knowledge about “technical things” associated with her visa but her discussions with police revealed an interest relevant to her status within Australia. 135 Defence counsel argued that the issue of compensation provided insight into PK’s capacity to lie. Her evidence that she had not thought about compensation or taken any advice in relation to it was at odds with the email correspondence she had forwarded to police. 136 Defence counsel submitted that the accused and his family are persons of good character who gave honest and logical narratives contradicting PK’s claims. It was implausible for the events described by PK to have occurred without anyone in the house being aware. Her evidence as regards the violence inflicted on her by the accused was at odds with what she had told police and the examining doctor at Yarrow Place. While there was considerable contact between PK and medical practitioners during the period of allegations, no injury was noted. 137 PK complained that she had been locked in her bedroom the day prior to contact with police, was clearly fabricated given the lock was applied from within the bedroom and PK had lived in the house for many months. 138 Furthermore, PK’s evidence that the accused took her phone was at odds with what she first told police which suggested that she had her phone with her. 139 Defence counsel described PK’s evidence as entirely unsatisfactory, and I was urged to return verdicts of acquittal in relation to all charges. Analysis 140 PK presented as a young and somewhat naïve woman who I have no doubt genuinely believed the accused had behaved as she had alleged. Her evidence on occasion was difficult to follow and at times she did not appear to address the nature of questions that were asked of her by either counsel. I have examined her evidence with care to determine whether that may have been because her evidence was on occasion given through an interpreter. It appeared to me that PK’s understanding of English was of such a level that her apparent inability to respond to the questions asked could not be attributed solely to a language difficulty. While I make no criticism of her decision to give evidence with the assistance of an interpreter, there were many times when she did not appear to require that assistance, consistent with her studies and written course work being carried out in English. On numerous occasions in cross-examination, PK resorted to an inability to remember what had occurred and relied on whatever it was that she -- 29 of 32 -- [2024] SADC 15 28 had told police or medical practitioners as the truth. It did not appear that she had genuine memories of many of the events she described and while I accept that lack of memory may be attributed to trauma and stress, the inconsistencies between what she did remember and what she had previously reported caused me concern. 141 The accused was no doubt aware that PK was unhappy, which he attributes only to his inability to spent time with her, her disappointment over the wedding and the inability to go on a honeymoon to Singapore. It is somewhat difficult to accept that her level of dissatisfaction was such that she was motivated to lie to the extent that the defence say she was. However, PK was at the time of her marriage only 20 years of age. She had moved to Australia from India. She had met the accused only very briefly before her engagement, moved to Renmark, and was required to work on the accused’s family farm and live with the accused’s family members. No doubt she found herself in an environment that she believed was not particularly supportive. It may have been not what she expected from married life. It appears she did feel “tricked”. She was isolated, without her own family or friends and was unwell. No doubt COVID restrictions would have amplified the sense of isolation that she may have felt. It is not difficult to appreciate that PK was desperately unhappy with her life. In my assessment of her evidence it was this level of unhappiness that may have affected her perceptions. 142 While defence counsel has emphasised the significance of the evidence given by the accused’s family as to PK’s her work on the farm and that they were not witness to any of the accused’s behaviour she had described, that is not surprising in the circumstances. While I have not found that the accused’s family members have been untruthful, clearly the accused and his family share a very close relationship and it is not difficult to accept that their loyalty to the accused was their paramount concern. Furthermore, while I accept that the accused is held in high regard by those who know him well, it is difficult to place a great deal of reliance on such assessments in matters of a more private nature. 143 As I have said, the inconsistencies between what PK said in her evidence in court, and what she had told police and medical practitioners are of concern. I set out some of the more significant inconsistencies as follows: • PK described having had limited contact with the accused during the day, inconsistent with her allegation that she was sometimes forced to have sexual intercourse three times a day. • PK told police that she had been kicked by the accused and that he was attacking her ‘every other day’. She told Dr Latif that the accused was slapping, kicking and pushing her. This behaviour was not described by PK in her evidence. She said he had not been violent. • PK told Dr Latif that she was raped in her sleep and while she had her period. PK did not give evidence of those event, or report those matters to police. -- 30 of 32 -- [2024] SADC 15 29 • On 27 August 2020, PK told Dr Latif that she had sustained injuries and was bleeding and torn and experienced abdominal pain. She said that she and the accused last had intercourse 8 days before. On examination, no injuries were observed. In her evidence, PK said that she last had sexual intercourse with the accused in the lead up to leaving the accused’s house. • PK told Dr Latif that she had been strangled twice over the previous 2 months but not on 25 August 2020, inconsistent with the evidence she gave. Furthermore, PK had told her mother that on 26 August 2020, which was the day she left the accused’s house, she had been strangled by the accused for 2-3 minutes. • PK told the medical practitioner at Yarrow Place that she did not black out or lose consciousness. This was inconsistent with the evidence she gave in court. On 31 August 2020, PK told police that she saw the accused’s face and then everything disappeared and that she was losing her sight and her breath. • PK told police that on 26 August 2020, she had been locked in her bedroom and unable to go to work. In her evidence PK said that she had not realised that the door was locked from the inside. This evidence was difficult to accept given that she had lived in the house for some months and was seemingly now aware of the subsequent investigation into the locks at the house. • PK said in evidence that the accused had taken her phone, contrary to what she had told police. • PK had told her mother that the accused only took her to see a medical practitioner on one occasion, contrary to the evidence which showed she had made numerous visits to seek medical assessment and treatment, including undergoing a colonoscopy and endoscopy. • PK said in evidence that on the day following the surgical procedures, the accused tried to force her to have sexual intercourse. PK told police that there was no sexual offence committed on that day but was subjected to a ‘beating’ by her husband. 144 I am left finding that it is likely PK has embellished or perhaps in some cases even fabricated certain events to emphasise what she genuinely believed were the intolerable circumstances in which she found herself while married to the accused, and it is difficult to know where the truth lies. There is of course no onus on the accused to prove a motive on PK’s part, and the prosecution must prove that the allegations she has made are truthful. Clearly she was disappointed with her life with the accused and I cannot exclude the possibility that her disappointment has featured in the nature of the allegations against him. Even allowing for PK’s youth and the stress associated with giving evidence, there is no satisfactory explanation for these inconsistencies, some of which were very significant and directly relevant to the offences with which the accused has been charged. -- 31 of 32 -- [2024] SADC 15 30 145 I cannot accept PK as either a credible or reliable witness in relation to any of the charged offences. In those circumstances, I must find the accused not guilty. -- 32 of 32 --