Arranged marriage: Woman was raped, intimidated and beaten by her husband after moving to New Zealand

He has now attempted to appeal his convictions, claiming the judge gave the jury wrong instructions on the standard of proof and failed to give clear enough instructions on what constitutes consent.

There were also grounds on appeal to claim that double jeopardy was at issue, suggesting the jury may have relied on the same facts relating to specific violence charges to convict him of a representative assault charge, which covered other generally violent behaviour.

It was also suggested that the jury’s verdicts on the two rape charges were unreasonable because they contradicted acquittals on other charges that were based on similar types of evidence.

Marriage, beatings and a trial

In October 2017, the husband and wife were married in India through an arranged marriage and in December the husband arrived in New Zealand, followed by his wife in February 2018.

Initially, the couple lived with the husband’s parents. The woman, unlike her husband and parents, did not have a work visa and said she was pressured to work illegally, but refused.

Her testimony at trial was that from the beginning of their marriage her husband began to belittle her before the situation escalated to intimidation and violence, including slapping, kicking and pulling her hair.

She said this kind of treatment happened “constantly” and that she had told one of her husband’s friends that he beat her. She had black eyes and bruises on her body.

These events resulted in the husband being charged with a crime representing male assault on a woman, meaning the charge covered a variety of instances of this behavior, for which the victim was unable to specify dates and times.

One particular incident, which led to a charge of wounding with intent to injure, occurred when the husband took the wife to an orchard to see if she could get a job. She was unable to get the job because she did not have a visa.

She said that when they got home, her husband started assaulting her, including slapping, kicking and hitting her with slippers. She photographed the bruises and sent them to her sister, after which some members of the wife’s family came to meet her.

Relatives said that during the meeting the husband told them his behavior was “normal,” but then apologized and said it would not happen again.

He was convicted of that charge.

The woman also accused her husband of beating her to the point of causing her to miscarry twice. She was examined by a doctor, but admitted that on neither occasion did she tell the doctor about her husband’s alleged violence. The man was acquitted of two charges of assault related to these alleged incidents.

He was also acquitted of attempting to poison her with rat poison, but was found guilty of other acts of violence which she says occurred around the same time.

The most serious charges related to repeated rapes by the accused, for which he was found guilty.

The wife said there were times when she told him no and asked him to stop, but he didn’t.

She also said that sometimes she did not say no to him because she was afraid that he would hit her if she did. She testified that her husband had told her that since she was his wife, he could have sex with her whenever he wanted.

The husband denied being violent or raping his wife.

He said the eye injury he suffered occurred after he slipped and fell down a flight of stairs. He also said any sexual contact between them was consensual.

The defence argued that the wife had simply fabricated the allegations as she had wanted to come and live in New Zealand but did not want to stay with her husband upon arrival.

Rape and the question of consent

Defense attorney Ron Mansfield of KC said there was a misinterpretation of consent and the judge should have given an instruction that “consent given reluctantly or later regretted is nonetheless consent.”

Mansfield suggested that the husband had a degree of implicit belief that because of the marriage there was consent, although this had been given reluctantly. On this basis the husband might reasonably have believed that the complainant was consenting to sexual intercourse with him.

He said that “detailed instructions on consent and reasonable belief in consent” should be given in a case where the parties were in a pre-existing cohabiting sexual relationship of some duration, given the wife’s acceptance that there was some consensual sexual intercourse at the start of the marriage.

However, the Court of Appeal held that this order was not necessary as the defence at trial did not rely on any suggestion that the wife had consented, however reluctantly or later regretted it.

Rather, the defense was that the wife had fabricated the allegations of forced and non-consensual sex, and that she had positively and freely given her consent each time there was sexual intercourse.

This ground of appeal was dismissed.

Another ground of appeal was that the judge had not ordered that it was not sufficient “for the Crown to persuade him that the accused is probably guilty or even that he is very likely to be guilty”.

Mansfield said the criteria for determining a guilty verdict were not clear enough.

However, the Court of Appeal found that it was satisfied with the judge’s instructions that the standard of proof was a “very high standard” and that the jury must be sure before returning a guilty verdict.

Mansfield also requested an appeal because of double jeopardy: The jury may have used the incidents that had specific charges to convict the husband on the representative charge, meant to depict general violence outside of the specific incidents the wife could remember.

However, the Court of Appeal found that even though the judge had the opportunity to express the distinction between the charges more clearly, “the jury will have understood that (the representative charge) related to the non-particular acts of violence which the complainant said had occurred regularly throughout her marriage, and that the remaining charges of violence related to the specific events of violence which she described.”

There was also an appeal on the grounds that the jury had reached unreasonable verdicts on some of the charges, namely rape, for which there was no corroboration.

Mansfield said: “As the jury acquitted (the husband) of the violence charges when 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 to find (the husband) guilty.”

He said this made the guilty verdicts for rape and sexual abuse “irreconcilable”.

The Court of Appeal judgment said: “The mere fact that the jury found (the husband) not guilty of some of the charges of violence does not mean that its acceptance of (the wife’s) plea (on the rape charges) is an affront to logic and common sense. On the contrary, it simply reflects that the jury was entitled to accept some of (the wife’s) pleas, but not all of them.”

The appeal failed on all counts and the convictions stand.

Hannah Bartlett is an Open Justice reporter based in Tauranga at NZME. She previously covered the courts and local government for Nelson’s Mailand before that he was a radio reporter at Newstalk ZB.