The man tried to appeal his convictions after being jailed for seven years and 10 months.
The man tried to appeal his convictions after being jailed for seven years and 10 months.
A woman who moved to New Zealand after an arranged marriage endured ongoing bullying and violence, pressure from her in-laws to work illegally and was repeatedly raped by her husband.
At trial her husband was found guilty of a representative charge of sexual violation by rape, another sexual violation by unlawful sexual connection, two charges of male assaults female and two charges of injuring with intent to injure.
He was sentenced to seven years and 10 months imprisonment by Judge Paul Mabey in the Tauranga District Court in April 2023.
Now he’s tried to appeal his convictions, claiming the judge misdirected the jury on the standard of proof, and didn’t give clear enough direction on what constitutes consent.
There were also appeal grounds that double jeopardy was at play, suggesting the jury may have relied on the same facts that related to specific violence charges, to convict him on a representative assault charge, which covered other generally violent behaviour.
It was also suggested the jury’s verdicts on the two sexual violation charges were unreasonable because they were at odds with acquittals on other charges that relied on similar types of evidence.
Marriage, beatings and a trial
In October 2017, the husband and wife were married in India as an arranged marriage and in December the husband came to New Zealand, followed by his wife in February 2018.
The pair initially lived with the husband’s parents. The wife, unlike her husband and his parents, didn’t have a work visa and said they pressured her to work illegally, but she refused.
Her evidence at trial was that from early in the marriage her husband began to demean her before it escalated to bullying and violence, including slapping her face, kicking her and pulling her hair.
She said this type of treatment happened “continuously”, and she’d told one of her husband’s friends her husband was beating her. She had black eyes and bruising on her body.
These events saw the husband charged with a representative charge of male assaults female, meaning the charge covered a range of instances of this behaviour, for which the victim couldn’t specify dates and times.
One particular incident, which led to a charge of injuring with intent to injure, happened when the wife was taken by her husband to an orchard to see if she could get work. She didn’t get the job because she didn’t have a visa.
She said when they got home, her husband began assaulting her, including slapping and kicking her, and hitting her with slippers. She photographed bruising and sent the photographs to her sister, after which some of the wife’s family came over for a family meeting.
The family members said that during the meeting the husband told them his behaviour was “normal” but then apologised and said it would not happen again.
He was convicted on that charge.
The wife also accused her husband of beating her to the point that she miscarried, twice. She’d been examined by a doctor but accepted that on neither occasion did she tell the doctor of her husband’s alleged violence. The man was acquitted of two charges of assault relating to these alleged incidents.
He was also acquitted on a charge of attempting to poison her with rat poison but convicted of other violence she said happened around the same time.
The most serious charges related to repeated rapes by the defendant, for which he was found guilty.
The wife said there were instances where she had said no, and asked him to stop, but he hadn’t.
She also said sometimes she didn’t say no, as she was too scared that he would beat her if she did. She gave evidence to the effect that her husband told her that because she was his wife, he could have sex with her as he pleased.
The husband denied ever being violent or raping his wife.
He said a black eye she suffered happened after she slipped and fell down some stairs. He also said that all sexual contact between them was consensual. .
The defence case was the wife had simply made up the allegations, as she wanted to come and live in New Zealand, but upon arrival, did not want to stay with her husband.
Defence lawyer Ron Mansfield, KC, said there had been a misdirection on consent and the judge should have given a direction that “consent reluctantly given or later regretted is nevertheless consent”.
Ron Mansfield, KC, represented a violent husband in his appeal.
Mansfield suggested there was an implied degree of belief by the husband that, because of the marriage, there was consent, albeit reluctantly given. On this basis, the husband may have reasonably believed the complainant to be consenting to sex with him.
He said a “detailed direction on consent and reasonable belief in consent” should be given in a case where the parties were in a pre-existing, cohabitating sexual relationship of some duration, given the wife’s acceptance that at the start of the marriage there was some consensual sex.
However, the Court of Appeal found this direction was not needed as the defence at trial was not based on any suggestion that the wife had consented, albeit reluctantly or later regretted.
Rather, the defence was the wife had made up the allegations of forceful and non-consensual sex, and that consent was positively and freely given by her each time sex occurred.
Another ground for appeal was the judge had failed to direct that it was not enough for “the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty”.
Mansfield said the yardstick for what should elicit a guilty verdict wasn’t clear enough.
However, the Court of Appeal found it was satisfied with the judge’s directions as indicating the standard of proof is a “very high standard”, and the jury must be sure before delivering a guilty verdict.
Mansfield also sought an appeal due to double jeopardy – the jury may have used the incidents that had specific charges to convict the husband on the representative charge, intended to represent general violence outside of the specific incidents the wife could recall.
However, the Court of Appeal found that despite there having been an opportunity for the judge to express the distinction between charges more clearly, “the jury will have understood that [the representative charge] related to the unparticularised acts of violence the complainant said had occurred regularly throughout her marriage, and that the remaining violence charges related to the specific events of violence that she described”.
There was also an appeal on the grounds that the jury had reached unreasonable verdicts on some of the charges, namely the rapes, where there was no corroboration.
Mansfield said, “As the jury acquitted [the husband] on the violence charges where there was no independent evidence, they demonstrated that they did not find [the wife] to be a wholly truthful and reliable witness, and therefore required independent evidence in order to find [the husband] guilty.”
He said this made the guilty verdicts on the rapes and sexual violations, “irreconcilable”.
The Court of Appeal judgment said, “Simply because the jury found [the husband] not guilty of some of the violence charges does not make their acceptance of [the wife’s] evidence [on the sexual violation charges] an affront to logic and common sense. On the contrary, it simply reflects that the jury was entitled to accept some but not all of [the wife’s] evidence.”
The appeal failed on all grounds, and the convictions stand.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.
