Director of Public Prosecutions v Barton (a pseudonym)
[2023] VCC 707
•3 May 2023.
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| CRAIG BARTON (A PSEUDONYM) | Defendant |
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JUDGE: | RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2023; 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15 & 17 February 2023. | |
DATE OF RULING: | 3 May 2023. | |
CASE MAY BE CITED AS: | DPP v Barton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 707 | |
RULING
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Subject:Trial by Judge Alone -- Charges of Rape and violence in setting of intimate partner relationships
Catchwords: Trial by Judge Alone -- 27 Charges of Common Assault, Rape, Indecent Assault, False Imprisonment and Make Threat to Kill -- Intimate partner relationships -- Two complainants -- Frequent use of sexual devices and restraints -- Accused’s tendency to take advantage of times when complainant restrained or otherwise unable to resist to commit sexual offences against them -- Accused denies all violence and says all sexual activity was consensual -- Credibility and reliability of complainants in issue -- Motive to Lie -- Collaboration or Contamination -- Standard of proof of beyond reasonable doubt
Legislation Cited: Crimes Act 1958 -- Jury Directions Act 2015 -- Criminal Procedure Act 2009 -- Evidence Act 2008.
Cases Cited:DL v The Queen (2018) 265 CLR 215 -- Woolmington v DPP [1935] AC 462 -- Browne v Dunn (1894) 6 R 67 -- He Kaw Teh v R (1985) 157 CLR 523 -- Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 -- R v Dookheea (2017) 262 CLR 402 -- Shepherd v R (1990) 170 CLR 573 -- Chamberlain v R (No 2) (1984) 153 CLR 521 -- R v Allen [2007] VSCA 97 -- Hudson v R [2017] VSCA 122 -- Knight v R (1988) 35 A Crim R 314 -- Fisher v Police (2004) 154 A Crim R 511 -- Slaveski v State of Victoria [2010] VSC 441 -- Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234 -- R v Ireland [1998] AC 147 -- R v Crabbe (1985) 156 CLR 464 -- R v Nuri [1990] VR 641 -- R v Campbell [1997] 2 VR 585 -- Edwards v Police (1998) 71 SASR 493 -- ISJ v R (2012) 38 VR 23 -- Browne v Dunn (1894) 6 R 67 -- R v Huynh [2006] VSCA 213 -- R v Rich Vic CA 17/12/1997 -- R v Alexander [2007] VSCA 178.
Verdict: Guilty – Charges 1, 4, 8 to 9, 11, 13 to 21, 23 to 27.
Not Guilty – Charges 2, 5 to 7.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr N. Batten | Office of Public Prosecutions |
| For the Defendant | Ms S. Flynn KC & Dr M. Fitzgerald | Doogue & George Criminal Lawyers |
TABLE OF CONTENTS
TRIAL BY JUDGE ALONE
WHAT PRELIMINARY DIRECTIONS APPLY TO THIS TRIAL?
GENERAL DIRECTIONS
WHAT ARE THE ELEMENTS OF EACH OFFENCE WHICH THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT?
COMMON ASSAULT
FALSE IMPRISONMENT
MAKE THREAT TO KILL
RAPE
Rape prior to 1 July 2015
Rape post to 1 July 2015
INDECENT ASSAULT
WHAT PRELIMINARY DIRECTIONS RELATE SPECIFICALLY TO THE COMPLAINANTS, MS VERNICK AND MS WEBB?
HOW DID THE PARTIES PUT THEIR CASE?
PROSECUTION OPENING
DEFENCE RESPONSE
WHAT IS THE EVIDENCE?
LARA VERNICK
Introduction
Sandringham
Interstate – Wagga Wagga
Interstate – Ipswich
The Bolt Incident – Uncharged Act
Return to Melbourne – Croydon
Throwing the Phone
The Anal Hook Incident
Emerald
Incident in the Caravan
The Spider Gag Incident
At Ms Vernick’s parents’ house on the night of the colonoscopy/gastroscopy
At Ms Vernick’s parents’ house on the night of the Night Market
NICOLA WEBB
Nature of the relationship prior to charged offences
The Coffee Table Incident
Nature of ongoing sexual relationship
Pregnant with Jonah
The Sex Chair Incident
The Toilet Incident
The Eggs Argument
A morning after Lewis was born
Argument in bed
Marriage
Separation – Christmas 2016
After the Scoresby gathering, post-reconciliation
Near the end of the relationship
INVESTIGATION
Detective Matthews and Detective Scott
HOW DID THE PARTIES PUT THEIR CASES AT THE CONCLUSION OF THE EVIDENCE?
WHAT ADDITIONAL DIRECTIONS OF LAW APPLY TO THIS CASE?
MR BARTON DID NOT GIVE EVIDENCE BUT ANSWERED QUESTIONS IN A RECORD OF INTERVIEW WITH POLICE
Did Mr Barton suffer a forensic disadvantage due to the delay in complaint?
What directions apply regarding Mr Barton’s previous good character?
What is my assessment of Mr Barton’s Record of Interview?
WHAT IS THE IMPACT OF THE DELAY IN COMPLAINT ON MY ASSESSMENT OF THE EVIDENCE OF MS VERNICK AND/OR MS WEBB?
WHAT IS THE IMPACT OF THE FACT BOTH WOMEN CONTINUED TO HAVE A RELATIONSHIP WITH MR BARTON, AND IN THE CASE OF MS VERNICK AFTER THE INTIMATE RELATIONSHIP WAS FINISHED, ON MY ASSESSMENT OF THEIR EVIDENCE?
COLLABORATION & MOTIVE TO LIE
Did either Ms Vernick or Ms Webb have a motive to lie or make false allegations against Mr Barton?
Did Ms Vernick and Ms Webb collaborate against Mr Barton?
What is the evidence regarding Ms Vernick having a motive to lie or make false allegations against Mr Barton?
What is the evidence regarding Ms Webb having a motive to lie or make false allegations against Mr Barton?
What is the evidence regarding whether Ms Vernick and Ms Webb collaborated? Was Ms Vernick influenced by her knowledge that the Department of Health and Human Services (Child Protection) were involved with Ms Webb, or that Ms Webb had made a complaint to the police?
IS THERE EVIDENCE OF A KIND WHICH MAY BE UNRELIABLE IN RELATION TO NICOLA WEBB?
What is the evidence of a kind which may be unreliable in relation to Charge 23?
What is the evidence of a kind which may be unreliable in relation to Charges 26 and 27?
Has Ms Webb transposed allegations against a former partner to Mr Barton?
WHAT DIRECTIONS APPLY TO PRIOR INCONSISTENT STATEMENTS AND DIFFERENCES IN THE ACCOUNTS OF MS VERNICK AND MS WEBB?
Prior Inconsistent Statements
Difference in complainant’s account
WHAT IS MY ASSESSMENT OF THE “OTHER MISCONDUCT” ALLEGED AGAINST MR BARTON AND HOW DOES IT AFFECT MY ASSESSMENT OF THE EVIDENCE OF MS VERNICK AND OR MS WEBB?
Do I accept that Mr Barton has the tendency the Prosecution allege; namely, does he have a tendency in these intimate relationships to take advantage of situations where his partner was restricted in her movement, to commit sexual offences against her?
CAN I ACCEPT THE EVIDENCE OF MS VERNICK?
Has the Prosecution proven the charge I am considering beyond reasonable doubt?
Throwing the Phone
The Anal Hook Incident
Incident in the Caravan
The Spider Gag Incident
Events at Ms Vernick’s parents’ house
The night of the colonoscopy/gastroscopy
The night of the Night Market
CAN I ACCEPT THE EVIDENCE OF MS WEBB?
Has the Prosecution proven the charge I am considering beyond reasonable doubt?
The Coffee Table Incident
Pregnant with Jonah
The Sex Chair Incident
The Toilet Incident
The Eggs Argument
A morning after Lewis was born
Argument in bed
After the Scoresby gathering, post-reconciliation
Near the end of the relationship
VERDICTS
HER HONOUR:
1Lara Vernick[1] and Nicola Webb[2] each had intimate relationships with the accused man, Craig Barton[3]. They both have children with him. Their sexual relationships with Mr Barton involved the use of restraints and sexual toys or devices. At times this was consensual. However both women allege that at times Mr Barton committed sexual acts or persisted in sexual activity without their consent. Both say he was sexually demanding, degrading, abusive and at times threatening. He is charged with 27 criminal offences reflecting those allegations.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
2This is a trial by judge alone. The issue for me to determine is whether he is guilty or not guilty of any of that offending.
3These are my reasons for the verdicts I will announce.
4In order to reach a verdict, the issues I must consider are as follows;
1)What preliminary directions apply to this trial?
2)What are the elements of each offence which the Prosecution must prove beyond reasonable doubt?
3)What preliminary directions relate specifically to the complainants, Ms Vernick and Ms Webb?
4)How did the parties put their case?
5)What is the evidence?
6)How did the parties put their cases at the conclusion of the evidence?
7)What additional directions of law apply to this case?
8)What is my assessment of Mr Barton’s record of interview?
a.If I find that Mr Barton told lies in his record of interview, how does that affect my assessment of his answers and specifically his denials of wrongdoing?
b.What directions apply regarding Mr Barton’s previous good character?
c.Did Mr Barton suffer a forensic disadvantage due to the delay in complaint?
d.Do I accept Mr Barton’s answers in his record of interview?
9)What is the impact of the delay in complaint on my assessment of the evidence of Ms Vernick and Ms Webb?
10)What is the impact of the fact both women continued to have a relationship with Mr Barton, including in the case of Ms Vernick contact after the intimate relationship was finished, on my assessment of their evidence?
11)Does the evidence demonstrate that either Ms Vernick or Ms Webb had or has a motive to make false allegations against Mr Barton?
12)Did the women collaborate against Mr Barton, either deliberately or as a result of contamination?
13)Was Ms Webb’s evidence of a kind which was unreliable in relation to Charges 23, 26 or 27 due to any or a combination of the following reasons?
(a) Consumption of alcohol
(b) Consumption of prescribed medication
(c) Mental health issues
(d) Illness and death of her father
(e) Exhaustion due to caring for two young children
14)Has Ms Webb transposed allegations against a former partner to Mr Barton?
15)Were there inconsistencies in the evidence of Ms Vernick or Ms Webb?
a.If so, how does that affect my assessment of their credibility and or reliability?
16)Did Ms Vernick or Ms Webb give evidence about specific allegations which was different to their earlier evidence?
a.If so, how does that affect my assessment of their credibility and or reliability?
17)What is my assessment of the other misconduct of Mr Barton?
18)Do I accept that the evidence of Ms Vernick and or Ms Webb demonstrates that Mr Barton has the tendency the Prosecution allege – namely, does he have a tendency during intimate relationships to take advantage of situations where his partners’ capacities to physically resist his sexual advances are diminished or restricted, in order to engage in extreme, violent, painful or humiliating acts with them?
19)Has the Prosecution proven the charge I am considering beyond reasonable doubt?
5For the reasons which follow I accept that both Ms Vernick and Ms Webb gave truthful accounts of their relationship with Mr Barton and I am satisfied beyond reasonable doubt that he committed various offences against each of them.
The Circumstances of the trial
6Mr Barton was charged on Indictment L11337213.2 with 27 charges of Rape, Indecent Assault, Make Threats to Kill, False Imprisonment and Common Law Assault against Ms Vernick and Ms Webb.
7Mr Barton is now 47 years of age. He was in a relationship with Ms Vernick between December 2006 and January 2014. They have one son, Gabriel[4], born July 2011. Ms Vernick is now 39 years of age.
[4] A pseudonym.
8Mr Barton was in a relationship with Ms Webb between February 2014 and June 2017. They have two sons, Jonah[5] born March 2015 and Lewis[6] born March 2016. Ms Webb is now 41 years of age.
[5] A pseudonym.
[6] A pseudonym.
9In relation to Ms Vernick, Mr Barton was charged with one charge of Common Law Assault, one charge of False Imprisonment,[7] and 10 charges of Rape.[8] Those charges reflect 6 separate incidents.
[7] Common law.
[8] Nine charges pursuant to the Crimes Act 1958, s 38(1) as amended by the Crimes Amendment (Rape) Act 2007; one charge pursuant to the Crimes Act 1958, s 38(2)(b) as amended by the Crimes (Rape) Act 1991, where the allegation is failure to withdraw.
10In relation to Ms Webb, Mr Barton was charged with three charges of Indecent Assault,[9] two charges of Make Threat to Kill,[10] one charge of False Imprisonment,[11] and 9 charges of Rape.[12] Those charges reflect 9 separate incidents.
[9] Crimes Act 1958, s 39 as amended by the Crimes Amendment (Rape) Act 2007.
[10] Crimes Act 1958, s 20.
[11] Common law.
[12] Four charges pursuant to the Crimes Act 1958, s 38(1) as amended by the Crimes Amendment (Rape) Act 2007; two charges pursuant to the Crimes Act 1958, s 38(2)(b) as amended by the Crimes (Rape) Act 1991; and three charges pursuant to the Crimes Act 1958, s 38(1) as amended by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
TRIAL BY JUDGE ALONE
11The legislation creating the capacity to hold a judge alone trial makes clear that the directions set out in the Jury Directions Act 2015 (“JDA”) which would be given to a jury must be given in a trial by judge alone. Further, the Court must not accept, rely on or adopt a statement or suggestion that the JDA prohibits a trial judge from making, or a direction that the JDA prohibits a trial judge from giving in a jury trial.[13] A number of relevant amendments to the JDA came into operation on 1 January 2023.
[13] JDA, s 4A(2).
12In hearing this matter without a jury, I may make any decision that could have been made by a jury. My decision will have, for all purposes, the same effect as the verdict of a jury.[14]
[14] CPA, s 420F.
13A judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the facts on which the judge relied.[15]
[15] CPA, s 420G; DL v The Queen (2018) 265 CLR 215.
14As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must then deliver a verdict according to the evidence and nothing but the evidence.
15Mr Barton’s trial commenced on 31 January 2023 with the arraignment of Mr Barton. He pleaded Not Guilty to all 27 charges. Mr Batten opened the Prosecution case and Ms Flynn KC and Dr Fitzgerald made a Defence Response.
16The Prosecution called Ms Vernick and Ms Webb. In addition they called Ms Vernick’s mother Ms Lorraine Sherman[16], and by agreement, read portions of statements into evidence from Ms Webb’s mother Ms Susan Webb[17], Department of Health and Human Services child protection worker Ms Kristina Glisic and First Constable Kristina Clappison. The two police informants Detective Senior Constable Shaun Matthews and Detective Senior Constable Kirsten Scott gave viva voce evidence, and Mr Barton’s record of interview was played and tendered. A number of other exhibits were tendered.
[16] A pseudonym.
[17] A pseudonym.
17On 14 February 2023 the Prosecution sought to file a fresh Indictment, substituting Charge 13 of Rape with Charge 13 of Indecent Assault. I permitted the Prosecution to do so and that decision is the subject of a separate ruling.[18] The new Indictment is number L11337213.3.
[18] DPP v Barton Ruling No. 5.
18The Prosecution’s case closed on 14 February 2023.
19At the close of the Prosecution’s case, Defence Counsel made submissions of no case to answer in relation to four charges where there had been no evidence. Those applications were not resisted by the Prosecution. I granted those applications and entered verdicts of Not Guilty to Charge 3 of False Imprisonment, Charge 10 of Rape, Charge 12 of Rape, and Charge 22 of Rape.
20The Defence called no evidence.
21Counsel then assisted me through a JDA discussion.[19]
[19] JDA, ss 11 – 12.
22Addresses of Counsel proceeded on 15 and 17 February 2023.
23My task is to determine verdicts on the remaining 23 charges on the Indictment. I reserved my decision indicating that I would deliver verdicts and give reasons as soon as possible. I indicated to the parties that I was in a position to deliver my verdicts on 3 April 2023, however Counsel were unavailable. For that reason the matter has been listed for verdict today.
WHAT PRELIMINARY DIRECTIONS APPLY TO THIS TRIAL?
24I turn now to what directions I have given and followed. What I set out initially are general directions applicable in every criminal trial. There are directions that are specific to this trial which I will refer to in the appropriate place by reference to the evidence that gives rise to the directions.
GENERAL DIRECTIONS
25In accordance with Part 7 of the JDA I am required to direct myself, and I have so directed myself, in accordance with the fundamental, general directions that apply in all criminal trials.
Presumption of innocence
26Mr Barton is presumed to be innocent until proven guilty according to law. He is not required to prove his innocence.[20]
[20] Woolmington v DPP [1935] AC 462 The presumption of innocence has been enshrined in the Charter of Human Rights and Responsibilities Act 2006, s 25(1).
Onus and standard of proof
27From the start to the end of the trial, the Prosecution bears the onus of proof.[21]
[21] Woolmington v DPP [1935] AC 462; He Kaw Teh v R (1985) 157 CLR 523; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.
28The standard of proof is beyond reasonable doubt.[22] An explanation of the phrase “beyond reasonable doubt” must now be given at the start of a trial.[23]
[22] Evidence Act 2008, s 141(1).
[23] JDA, s 63.
29Beyond reasonable doubt is the highest standard of proof which our law demands. This standard of proof is often compared to the civil standard of “balance of probabilities”. Being satisfied of guilt beyond reasonable doubt does not simply mean concluding that Mr Barton may have committed the offence charged or even that it is more likely than not that Mr Barton committed the offence charged.[24] I must be satisfied beyond reasonable doubt.
[24] R v Dookheea (2017) 262 CLR 402.
30It is almost impossible to prove anything with absolute certainty when reconstructing past events and the Prosecution does not have to do so. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility. The Prosecution must prove all of the elements of an offence beyond reasonable doubt. The Prosecution must also disprove beyond reasonable doubt any defences that are raised as issues in a trial.
31I do not need to be satisfied beyond reasonable doubt of the existence of each and every fact relied upon to prove an element, or disprove a Defence, as long as I am satisfied that Mr Barton’s guilt has been proven beyond reasonable doubt on the whole of the evidence.[25]
[25] JDA, s 61; Shepherd v R (1990) 170 CLR 573
Assessment of Witnesses
32To decide what the facts are in this case, I will need to assess the evidence. It is up to me to decide how much or how little of the testimony of any witness I will believe or rely on. I may believe all, some or none of a witnesses evidence.
33It is also for me to decide what weight should be attached to any particular evidence, that is the extent to which the evidence helps me to determine the relevant issues.
34In assessing the witnesses’ evidence I must assess their credibility and reliability. Credibility relates to truthfulness and honesty. Reliability relates to accuracy. An honest witness may not be reliable.
35It is for me to judge whether a witness has told the truth and whether they correctly recalled the facts about which they gave evidence. Although that is something we do regularly in our daily lives I must take into account that giving evidence in a trial is not common for most people. It may a stressful experience and in the circumstances of this case it may relate to events which are embarrassing or difficult. People react and appear differently. Witnesses have different abilities, intellectual capacities, values and life experiences.
36While I may take into account a witness’ manner when giving evidence, I should be careful when doing so. Some people may show obvious signs of emotion or distress when giving evidence about a sexual allegation, while others may not. Both truthful and untruthful accounts may be given with or without obvious signs of emotion or distress.[26]
[26] JDA, s 54K(5)(b).
Decide solely on evidence
37I must give my verdict based solely on the evidence. The evidence is constituted by the answers to questions given by the witnesses, exhibits admitted into evidence and any agreed facts. The questions asked of witnesses and Counsels’ addresses and argument are not evidence.
Acquittal on Charges after No Case Submission
38There was argument at the conclusion of all evidence with respect to what use if any I could or should make of the fact that four charges were the subject of successful no case submissions. In relation to each of those charges there was a complete absence of evidence to found the charge.
39Mr Batten argued that I must ignore the fact of verdicts of Not Guilty being entered on those charges and must return to the evidence and base my decisions on the evidence which was given.
40Ms Flynn and Dr Fitzgerald argued that I could take into account the opening address of the Prosecution which outlined what evidence was anticipated, and the fact that no evidence was given by one or other complainant on the relevant charges. They submitted I could use that fact when assessing the credibility of each complainant. In other words that I could conclude the particular complainant has not “sworn up” to earlier evidence.
41I reject the Defence submission. I have outlined my reasons for doing so in a separate decision.[27] Put shortly, the Prosecution Opening is not the evidence and I must base my verdicts only on the evidence. In circumstances where there was simply no evidence to support the four particular charges it would require me to speculate about what was in the complainant’s statement or earlier evidence which led to the inclusion of matters in the Prosecution opening. It would in effect elevate the Prosecution opening to evidence, specifically a prior inconsistent statement; however, I would have no capacity to assess any earlier description, detail, reliability or credibility of any earlier account.
[27] DPP v Barton Ruling No. 7.
Put aside emotion or bias
42I must put aside emotional considerations and any bias or prejudice which may arise from the evidence. In this trial, where there has been a significant amount of evidence regarding what might be viewed as “extreme” or “unusual” sexual practices, I must bear in mind that both parties at times willingly engaged in such practices and I must view the evidence through that prism.
43I must not conduct my own research into the parties or any other matter relevant to the trial. I must not research the law applicable to the case, save as discussed with Counsel.
44I must assess the evidence taking into account the credibility and reliability of the witnesses.
Inferences
45The majority of the Prosecution’s case relies upon the direct evidence of Ms Vernick and Ms Webb. However, the Prosecution also relies on circumstantial evidence in support of certain inferences that they say should be drawn.
46I must draw only reasonable inferences based on facts I do find. If there is a competing inference consistent with his innocence then I must find Mr Barton not guilty.
47In determining whether an inference is reasonable, I should consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference.[28] The inference I draw must be the only reasonable inference which can be drawn from the facts.[29]
[28] Chamberlain v R (No 2) (1984) 153 CLR 521; R v Allen [2007] VSCA 97.
[29] Shepherd v R (1990) 170 CLR 573.
48The existence of a particular fact-in-issue will be the only rational inference to be drawn from circumstantial evidence if:
(a) I find those circumstances have been established; and
(b)According to the common course of human affairs, there is such a high probability that the occurrence of those circumstances would be accompanied by the existence of that fact-in-issue that the contrary cannot reasonably be supposed.
Multiple counts on the indictment
49I must consider each charge on the indictment separately and reach a separate verdict for each charge.
50If I convict or acquit Mr Barton on one charge, it is wrong to reason that he is therefore guilty or not guilty (as the case may be) of the other charges. Except for consideration as to evidence of tendency, proof of guilt upon one charge is irrelevant to the question of guilt upon any other charges. If I do find him guilty of any charge or charges I should not reason that he is the type of person who is likely to commit the other offence/s.
WHAT ARE THE ELEMENTS OF EACH OFFENCE WHICH THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT?
51I turn now to what the Prosecution must prove beyond reasonable doubt in relation to each charge on the indictment.
COMMON ASSAULT
52The Common Law Assault alleged in this case does not involve the application of force. The Prosecution must prove the following three elements beyond reasonable doubt:
First –Mr Barton committed an act that caused Ms Vernick to apprehend the immediate application of force to her body;
Second – Mr Barton intended his actions to cause such apprehension, or was reckless as to that outcome; and
Third – Mr Barton had no lawful justification or excuse for causing Ms Vernick to apprehend the application of immediate force.
FALSE IMPRISONMENT
53To prove the charge of False Imprisonment the Prosecution must prove the following three elements beyond reasonable doubt:
First – Mr Barton deprived Ms Webb of her liberty;
Second – Mr Barton intended to deprive her of her liberty; and
Third – The deprivation of liberty was unlawful.
MAKE THREAT TO KILL
54To prove a charge of Make Threat to Kill the Prosecution must prove the following three elements beyond reasonable doubt:
First –Mr Barton made a threat to Ms Webb to kill her;
Second – Mr Barton either:
(i)Intended Ms Webb to fear that the threat would be carried out; or
(ii)Was reckless as to whether or not Ms Webb would fear that the threat would be carried out; and
Third – The threat was made without lawful excuse.
RAPE
55There are 14 charges of Rape which I must determine. Charges 2, 4, 5, 6, 8, 9, 11, 14, 15, 17 and 21 are charges which pre-date 1 July 2015. Charges 24, 26 and 27 post-date 1 July 2015.
Rape prior to 1 July 2015
56Charges 2, 5, 6, 8, 9, 11, 17 and 21 are charged pursuant to s.38(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Rape) Act 2007.
57Charges 4, 14 and 15 are charged pursuant to s.38(2)(b) of the Crimes Act 1958, as amended by the Crimes (Rape) Act 1991. As was accepted practice with regards to the framing of indictments pertaining to the time of the alleged offending, those are allegations that after sexual penetration there was a failure to withdraw.
58The four elements which the Prosecution must prove beyond reasonable doubt of the offence of Rape for the pre-1 July 2015 charges are as follows:
First – Mr Barton sexually penetrated Ms Vernick/Ms Webb in the way alleged;
Second – Mr Barton did this intentionally;
Third – Ms Vernick/Ms Webb did not consent to the sexual penetration; and
Fourth – Mr Barton had one of the following three states of mind about Ms Vernick/Ms Webb’s consent –
(a)Mr Barton was aware that Ms Vernick/Ms Webb was not consenting; or
(b)Mr Barton was aware that Ms Vernick/Ms Webb might not be consenting; or
(c)Mr Barton was not giving any thought to whether Ms Vernick/Ms Webb was not or might not be consenting.
Intentionally
59If I am satisfied that the relevant act of sexual penetration occurred, Defence take no issue with the second element; namely, that it will have occurred intentionally.
Sexual Penetration
60Before 1 July 2015 “sexual penetration” was defined as the introduction (to any extent) by a person of his penis into the vagina, anus or mouth of another person, whether or not there is emission of semen, or the introduction (to any extent) by a person of an object or a part of the body (other than the penis) into the vagina or anus of another person[30].
[30] Crimes Act 1958, s 35.
Consent
61“Consent” is defined in the Crimes Act 1958 to mean “free agreement”.[31]
[31] Crimes Act 1958, s 36 (before 1 July 2015 and on or after 1 July 2017), and Crimes Act 1958 s 34C (between 1 July 2015 and 30 June 2017).
62Relevantly, the law prior to 1 July 2015 pursuant to s.36 of the Crimes Act 1958 identified the following circumstances where a complainant is “deemed” under s.36 not to have freely agreed to penetration:
(a)the person submits because of force or the fear of force to that person or someone else;
(b)the person submits because of the fear of harm of any type to that person or someone else;
(c) the person submits because she or he is unlawfully detained;
(d)the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing.
63The above circumstances are not exhaustive. I can be satisfied beyond reasonable doubt on any basis arising from the evidence that Ms Vernick/Ms Webb was not consenting.
64The fact that a person did not say or do anything to indicate free agreement to a sexual act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.[32]
[32] Crimes Act 1958, s 37AAA(d).
65I cannot regard Ms Vernick/Ms Webb as having freely agreed just because she (a) did not protest or physically resist Mr Barton, (b) did not sustain physical injury, or (c) had previously consented to engage in another sexual act on that occasion or an earlier occasion with Mr Barton or another person.[33] However, these are relevant factors for me to consider.
[33] Crimes Act 1958, s 37AAA(e).
Awareness of Consent
66In considering whether the Prosecution has proved that Mr Barton was aware that Ms Vernick/Ms Webb was not consenting or might not be consenting to an act of penetration, I must consider any evidence that demonstrates a belief by Mr Barton that she was consenting or which raises a doubt about whether he was aware she was not or might not be consenting.
67In deciding whether Mr Barton believed Ms Vernick/Ms Webb was consenting I should consider the reasonableness of that belief. Although the law prior to July 2015 does not require a belief to be reasonable, that may be a guide to whether he did hold such a belief. If I found such evidence then I could not find this element proven.
68In considering the reasonableness of Mr Barton’s belief, if I have found one of the circumstances outlined in s.36 or s.37AAA(d) or (e) exists, then I must consider whether he was aware of that circumstance.
69I should also consider whether Mr Barton took any steps to find out whether the particular complainant was consenting and if so the nature of those steps.
70In addition I should take into account anything said or done by either party at the time of penetration, their history and any direct or circumstantial evidence.
71I remind myself it is not for Mr Barton to prove that he believed that Ms Vernick/Ms Webb was consenting. It is for the Prosecution to disprove the existence of a belief in consent which would have prevented him from having an awareness that Ms Vernick or Ms Webb was not consenting or might not have been consenting.
72The Prosecution must satisfy me that he was aware that Ms Vernick/Ms Webb was not or might not be consenting, even if he believed the particular woman was consenting. I must consider the strength of any belief he may have had in determining whether the Prosecution has proven this element.
Rape post to 1 July 2015
73The three Rape charges which post-date 1 July 2015 relate to Ms Webb. For offences committed after 2015, namely Charges 24, 26, and 27 the three elements the Prosecution must prove beyond reasonable doubt are as follows –
First – Mr Barton intentionally sexually penetrated Ms Webb.
Second – Ms Webb did not consent to the sexual penetration.
Third – Mr Barton did not reasonably believe that Ms Webb consented to the sexual penetration.
Sexual Penetration
74Relevantly, between 1 July 2015 and 30 June 2017 “sexual penetration” was defined to include:[34]
(a)Penile penetration of the vagina, the anus or the mouth of another person.
[34] Crimes Act 1958, s 37D.
75The definition of “sexual penetration” at that time also included the act of continuing to keep a body part or object in the vagina or anus once introduced, or the act of continuing to keep a penis in the mouth once introduced.[35] This removed the need to distinguish between an act of sexual penetration and an act of failure to withdraw after sexual penetration had commenced.
[35] Crimes Act 1958, s 37D(1)(d)-(f).
Consent
76Consent continues to be defined as “free agreement”. Section 36 Crimes Act 1958 was extended to include additional circumstances where a complainant is regarded not to have consented, relevantly –
(d) The person is asleep or unconscious;
(l) The person does not say or do anything to indicate consent to the act;
(m)Having initially given consent to the act, the person later withdraws consent to the act taking place or continuing.
77The above circumstances are not exhaustive. I can be satisfied beyond reasonable doubt on any basis arising from the evidence that Ms Webb was not consenting.
78Post 1 July 2015, I must have regard to the fact that just because a person is not physically injured, subjected to violence, or threated with physically injury or violence, it does not mean that they consented. There are many different circumstances in which a person does not consent to sexual penetration.[36]
[36] JDA, s 47D.
79Likewise, there is no typical, proper or normal response to a non-consensual sexual act. Just because Ms Webb did not protest or resist, it does not mean she consented.[37]
[37] JDA, s 47E.
80Prior to 1 July 2015, the law says that I am not to regard a complainant as having freely agreed just because they agreed to engage in another sexual act on that occasion with the accused, or that they agreed to engage in another sexual act with the accused on an earlier occasion. This is reflected in the law post 1 July 2015, which states that in assessing the evidence I must take into account that experience shows the fact that the complainant has consented to sexual activity with a person on one occasion does not mean that they consented to sexual activity with that person on another occasion.[38]
[38] JDA, s 47F.
Belief in Consent
81For offences committed after 2015, the third element the Prosecution must prove is that Mr Barton “did not reasonably believe that Ms Webb consented to the penetration”. The fault element will be satisfied by any one of the following mental states:
(a) Mr Barton believed that Ms Webb was not consenting; or
(b)Mr Barton gave no thought as to whether Ms Webb was consenting; or
(c)Mr Barton believed Ms Webb was consenting, but his belief was not reasonable in the circumstances.
82Again, it is not for Mr Barton to prove that he believed the relevant complainant was consenting, but for the Prosecution to prove beyond reasonable doubt that he had one of the three states of mind.
83A belief will be reasonable if, after considering all of the circumstances, there are reasonable grounds for a person in the position of Mr Barton to hold that belief. I must consider all the circumstances in making that determination.
84I should take into account whether Mr Barton took any steps to find out whether Ms Webb was consenting or might not be consenting and, if so, the nature of those steps.
INDECENT ASSAULT
85To prove a charge of Indecent Assault, the Prosecution must prove the following five elements beyond reasonable doubt:
First – Mr Barton assault Ms Webb;
Second – That he did so intentionally;
Third – That he did so without lawful justification;
Fourth – That he did so while being aware that Ms Webb was not consenting or might not be consenting or while not giving any thought to whether she was not consenting or might not be consenting;
Fifth – That the assault occurred in indecent circumstances.[39]
[39] Crimes Act 1958, s 39.
86The first element that the Prosecution must prove is that Mr Barton assaulted Ms Webb. In this case, the allegation on each occasion relates to the application of force to the body of Ms Webb.
87If I am satisfied that the various assaults occurred in the manner alleged, there is no issue taken by Defence here with element two, that they were intentional.
88In relation to s.39, the definition of consent is relevant both to the question of whether Ms Webb "consented" to the conduct (thus providing a lawful justification for that conduct - the third element), and Mr Barton’s mental state in respect of that consent (the fourth element). The definition picks up the definition of consent used in a charge of Rape (prior to July 2015).
89The awareness element can be constituted by any one of three different mental states on the part of Mr Barton:
One – An awareness that Ms Webb was not consenting; or
Two – An awareness that Ms Webb might not be consenting; or
Three –A failure to give any thought to whether or not Ms Webb was consenting.[40]
[40] Crimes Act 1958, s 39(2).
90The Prosecution must prove that the assault occurred in indecent circumstances. That is an ordinary English word. Defence Counsel did not make any submission in relation to this element. If I am satisfied the assault occurred as alleged, the part of the body involved and the wider circumstances have a sexual connotation and I could conclude were indecent.
WHAT PRELIMINARY DIRECTIONS RELATE SPECIFICALLY TO THE COMPLAINANTS, MS VERNICK AND MS WEBB?
Use of audio-visual link
91Ms Vernick and Ms Webb each gave evidence from a remote witness facility.[41] That is an extension of the Court room. This is standard procedure in cases of this type. I do not give the evidence any greater or lesser weight due to it being given in this manner. I do not draw any negative inference against Mr Barton because it was given in that way. I will treat this evidence in exactly the same way I would had it been given from the witness box in the actual courtroom.
[41] Criminal Procedure Act 2009, s 360.
Use of support person and court dog
92I also do not draw any inference against Mr Barton due to the presence of a support person or court dog with the witnesses while they were giving evidence, nor do I give their evidence any more or less weight due to this fact.
Preliminary directions regarding consent and reasonable belief in consent
93Pursuant to amendments to the JDA which came into operation on 1 January 2023 I am required to give preliminary directions on various matters relating to the complainants in a trial for sexual offences.[42] Some of those directions repeat and expand on those already outlined pertaining to the elements which the Prosecution must prove. These are mandatory directions to be given at the commencement of a trial for sexual offences. As such, I announced the following in open court:
[42] JDA, Part 5.
94In relation to the charges of Rape which are alleged to have occurred after 1 July 2015, namely Charges 24, 26 and 27, I directed myself as follows:
95In relation to consent:[43]
(a)A person can consent to an act only if the person is capable of consenting and free to choose whether or not to engage in or allow the act; or
(b)Where a person has given consent to an act, the person may withdraw that consent either before the act takes place or at any time while the act is taking place.
[43] JDA, s 46(3).
96In relation to Mr Barton’s reasonable belief in consent, I directed myself that:
(a)If I conclude Mr Barton knew or believed that one of the circumstances listed below existed in relation to Ms Webb, that knowledge or belief is enough to show that Mr Barton did not reasonably believe that Ms Webb was consenting to the act:[44]
[44] JDA, s 47(a).
(i)she submitted to the act because of force or the fear of force to themselves or another person;
(ii) she submitted to the act because of the fear of harm of any type, whether to that person or someone else or an animal;
(vi)she was is asleep or unconscious.
(b)In determining whether Mr Barton who was intoxicated had a reasonable belief at any time:[45]
(i) if the intoxication was self-induced, regard must be had to the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances as Mr Barton at the relevant time; and
(c)In determining whether Mr Barton had a reasonable belief in consent, I must consider what the community would reasonably expect of Mr Barton in the circumstances in forming a reasonable belief in consent.[46]
(d)In determining whether Mr Barton had a reasonable belief in consent, I may take into account any personal attribute, characteristic or circumstance of Mr Barton.[47]
[45] JDA, s 47(b).
[46] JDA, s 47(d).
[47] JDA, s 47(e).
97The following directions apply to all trials regarding sexual offences regardless of when they are alleged to have been committed.[48]
[48] JDA, Part 5 – Division 1A.
98I directed myself that experience shows that:[49]
(a)There are many different circumstances in which people do and do not consent to a sexual act; and
(b)People who do not consent to a sexual act may not be –
(i) physically injured or subjected to violence; or
(ii) threatened with physical injury or violence.
[49]JDA, s 47D.
99I also directed myself that experience shows that:[50]
(a)People may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response; and
(b)People who do not consent to a sexual act may not protest or physically resist the act.
[50] JDA, s 47E.
100Further, I directed myself that experience shows that people who do not consent to a sexual act with a particular person on one occasion may have, on one or more other occasions, engaged in or been involved in consensual sexual activity:[51]
(a) With that person or another person; or
(b) Of the same kind or a different kind.
[51] JDA, s 47F.
101I directed myself that experience shows that:[52]
(a)There are many different circumstances in which people do and do not consent to a sexual act; and
(b)Sexual acts can occur without consent between all sorts of people, including –
(i)people who know each other;
(ii)people who are married to each other; and
(iii)people who are in a relationship with each other.
[52] JDA, s 47H.
102I continued to direct myself that experience shows that: [53]
(a)People may react differently to sexual offences and there is no typical, proper or normal response to a sexual offence; and
(b)Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint; and
(c)Delay in making a complaint in respect of a sexual offence is a common occurrence; and
(d)There may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.
[53] JDA, s 52(2A).
103I directed myself experience shows that: [54]
[54] JDA, s 54H(5).
(a)People may react differently to a sexual act to which they did not consent, and there is no typical, proper or normal response; and
(b)Some people who are subjected to a sexual act without their consent will never again contact the person who subjected them to the act, while others –
(i)may continue a relationship with that person; or
(ii)may otherwise continue to communicate with them; and
(c)There may be good reasons why a person who is subjected to a sexual assault without their consent –
(i)may continue a relationship with the person who subjected them to the act; and
(ii)may otherwise continue to communicate with that person.
104Finally, I directed myself that experience shows that:[55]
(a)Because trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not; and
(b)Both truthful and untruthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress.
[55] JDA, s 54K(5).
HOW DID THE PARTIES PUT THEIR CASE?
105Before I turn to consider the evidence in the trial I wish to outline in summary form the way the Prosecution opened the case and in particular the Defence response which outlined what was in issue.
PROSECUTION OPENING
106Mr Batten opened the case by providing an outline of the chronology of relationships between Mr Barton and Ms Vernick and Ms Webb. He then outlined generally the nature of each relationship, including their sexual relationships, before turning to the individual allegations founding each charge. He also outlined an uncharged act alleged by Ms Vernick and outlined that both women would say Mr Barton was at times sexually demanding and physically and verbally abusive to each of them. The Prosecution relied on this evidence as evidence of context. I will return to this.
107Mr Batten also referred to evidence of tendency which is relied on by the Prosecution. In short, the Prosecution submit that the evidence of Ms Vernick and Ms Webb in relation to each sexual allegation, the charge of false imprisonment, and the uncharged act alleged by Ms Vernick, establishes that Mr Barton had a tendency to behave in a certain way, namely to take advantage of situations where Ms Vernick or Ms Webb’s capacity to physically resist his sexual advances were diminished or restricted in order to engage in extreme, violent, painful or humiliating sexual acts with them.
108The Prosecution submit I should consider the evidence of each complainant when considering each charge for a sexual offence and the charge of false imprisonment, and use tendency reasoning, namely reason that Mr Barton’s tendency to behave in the way alleged makes more likely the charged act. Again, I will return to this in due course.
DEFENCE RESPONSE
109In the Defence response, Ms Flynn confirmed there is no issue regarding the chronology of the relationships and the fact there are children from both relationships.
110There is no issue that Mr Barton and both Ms Vernick and Ms Webb engaged in consensual sexual activity and at times with devices and restraints.
111Ms Flynn stated that ‘in the plainest terms’ Mr Barton denies each of the charged acts occurred as alleged and says any sexual activity was consensual.
112Mr Barton also denies behaving in a verbally or physically abusive or aggressive way to either Ms Vernick or Ms Webb. Mr Barton participated in a lengthy record of interview on 14 February 2019.
113Ms Flynn alerted me to the issue of communications between Ms Vernick and Ms Webb and the timing of their complaints being made to police.
114It is clear that the credibility and reliability of both Ms Vernick and Ms Webb is the central issue in the trial. Before I could find Mr Barton guilty of any charge I would need to accept the particular woman’s evidence of that charge beyond reasonable doubt.
WHAT IS THE EVIDENCE?
115I will now turn to the evidence. For convenience I will include extracts from Mr Barton’s record of interview which are relevant to each charge as I go along. Although I am extracting the relevant portions of Mr Barton’s interview in that way, I am of course mindful of the fact that my task is not to compare and contrast the evidence of Ms Vernick and Ms Webb with the interview of Mr Barton and determine which I prefer. The only way I could return a verdict of Guilty in relation to any charge is if I am satisfied beyond reasonable doubt of the complainant’s evidence of that offence, taking into account all the evidence in the trial.
LARA VERNICK
Introduction
116Ms Vernick gave evidence over 4 days. The following facts are not in issue;
(a) She and Mr Barton met via an online dating site in December 2006;
(b) Mr Barton was 30 years old and Ms Vernick was 23 years old;
(c) Mr Barton had two daughters from a previous relationship;
(d) Mr Barton was living in Rowville[56];
(e) He and Ms Vernick signed a lease on a property in Moorabbin[57] and moved in together in approximately March 2007;
(f) Ms Vernick was working as a disability support worker;
(g) Mr Barton was employed as a theatre technician.
[56] Location changed.
[57] Location changed.
117During the period in Moorabbin Ms Vernick said she and Mr Barton attended Sexyland and purchased sexual aids. She said she only ever went there with Mr Barton.[58] She said Mr Barton purchased a penis pump and vagina pump. She said ‘we didn’t purchase them together. He purchased the products’. She stated she did not like being there.
[58] T 63.
118In cross examination she confirmed ‘I went on a couple of occasions with Craig. Craig would go by himself when he was going to work’.[59]She said the penis pump and vagina pump were kept by Mr Barton in his bedside table and were used in their relationship in that period.
[59] T 192.
Record of Interview
119In his record of interview Mr Barton stated that he and Ms Vernick would go to Sexyland ‘only always together’. He said ‘it gets a bit weird going in by yourself’.[60] And further, ‘no, never been by myself, ever’. He denied that Ms Vernick refused to go after a few times and said ‘In fact I’d say no, I know Lara went once by herself’.
[60] ROI Q210.
120He stated that the visits to Sexyland occurred ‘maybe every few months’.[61] He said any sex toys with Ms Vernick ‘… would be just very basic and maybe a dildo and vibrators’[62] that came from Sexyland. He said neither of them had sex toys prior to meeting. When asked specifically whether he purchased a penis pump he said ‘It would have been just – I think it was just dildos and vibrators. That’s all we – all we ever bought’.[63]
[61] ROI Q214.
[62] ROI Q52.
[63] ROI Q215.
Sandringham
121In approximately November 2007, the couple moved to Sandringham.[64]
[64] Location changed.
Interstate – Wagga Wagga
122Ms Vernick stated that in late 2007 or early 2008, Mr Barton was accepted to join the Army. At some point in 2007 or 2008 they became engaged and had an engagement party at Mr Barton’s parents’ house. Shortly after, they moved to Wagga Wagga[65]. Ms Vernick said she was ‘pretty sure’ this was at the end of 2007 or beginning of 2008.
[65] Location changed.
123They resided in two different properties in Wagga Wagga. She said they had to move from the first property after 4 to 5 months when asked to vacate by the landlord. In cross examination she agreed they moved after 6 months.
124Ms Vernick said Mr Barton’s behaviour started to change in Wagga Wagga and the relationship started to deteriorate. She described an incident which she viewed as a ‘red flag’ where Mr Barton became angry and upset with her over damage removalists had caused to a Corvette vehicle.
125Ms Vernick stated that Mr Barton was extremely demanding sexually. She said, ‘he would require sex every day, whether I wanted to participate or not’.[66]
[66] T 69.
126Ms Vernick described an occasion at the second house in Wagga Wagga where she refused to have sex. Mr Barton told her to get out of the room. She went to the spare bedroom and hopped into bed. She said within 10 minutes he came into the spare room and turned the light on and said ‘“If I’m not gonna sleep, then you’re not gonna sleep” because he can’t sleep without having sex’. She told him to go away and leave her alone. She was ‘quite upset’.[67]
[67] T 67.
127She then described Mr Barton taking the doona off her and the sheet off the bed ‘anything that was of comfort’. She used the mattress protector to cover herself. He left the room with the light on and put the evaporative cooling on full. She said ‘it was really cold at the time and he’s put the evaporative cooling on’.She said Mr Barton came back through the night a couple of times – ‘I was really petrified.. but just thought if I stay in bed I should be safe… And that was because I refused to have sex’, and later, ‘That was … the first time he'd escalated to ... coming after me after I’d left the bedroom’.[68]
[68] T 67-68.
Cross examination
128Ms Vernick was cross examined about this incident. It was put to her that this never occurred. She said ‘Oh, no, you’re wrong. That happened’.[69] It was also put to her that Mr Barton was not verbally abusive to her and she said ‘Oh you’re wrong, absolutely. I deny that’.[70]
[69] T 205.
[70] T 206.
129Ms Vernick agreed that in her statement she said this incident occurred in Winter. She said she could not recall now but could recall that it was very cold inside the house. It was suggested to her that she and Mr Barton moved to the relevant house in Wagga Wagga in November of 2008. She replied, ‘That's your suggestion. I can't recall’.[71]
[71] T 205.
Record of Interview
130In his record of interview Mr Barton was asked about this allegation. He said ‘I don’t think anything like that – at Wagga Wagga I was probably the most focused I’ve ever been. I’ve – I’d purely just study’.[72]
[72] ROI Q225.
Interstate – Ipswich
131In 2010, Mr Barton and Ms Vernick moved to Ipswich[73] so that he could take up a posting. In relation to their sex life she said he was ‘extremely demanding’ in Ipswich, and that ‘he would require sex every day, whether I wanted to participate or not’.[74]
[73] Location changed.
[74] T 69.
132She said there were a number of times where she told him she didn’t want to have sex. She said, ‘he would just often insult me, you know, call me names, silent treatment if I had refused - on one occasion though, he was very angry that I had refused to have sex, so he turned around and he spat in my face’.[75]
[75] T 70.
The Bolt Incident – Uncharged Act
133Ms Vernick said that Mr Barton told her he was going to put a bolt in the ceiling. She said he was in the garage. She asked what for and he told her it was for the purpose of tying her up.
134She came home from work one day and the bolt had been installed in the ceiling of their bedroom, in the middle of the bed towards the feet end. She said, ‘Craig wanted to engage in unusual sexual practices that I hadn’t even heard of before…. He wanted to tie me up to the roof and he wanted to fist my vagina. He had a fascination with being able to insert his fist into my vagina… I told him ‘that’s sick, disgusting, I don’t want to do it. What’s wrong with you?’.[76]
[76] T 71.
135In general she said sexual activity in Ipswich may start consensually ‘then he’d want something else as well, whether it be anal sex ah, which I didn’t want to do, or he’d ask me to masturbate him or to give him oral sex’. If she declined, she said ‘he sort of – you know, ‘bad luck you have to learn your place, you know? You’ve got no choice. It has to happen’.[77]
[77] T 72 - 73.
136When she discovered the bolt had been installed in the ceiling, she again told him ‘That you’re crazy, I’m not doing it. You’re disgusting’… ‘I did not want to participate. … Craig would quite often request that I’d do sexual things I didn’t want to do and said I had to do them’.[78]
[78] T 72.
137Ms Vernick stated that Mr Barton had previously tied her up with ropes on her arms and legs, tying her to the bed. When asked if that was done with her consent, she said ‘I participated – I didn’t want to but I did it… I felt like I had no choice’.[79]
[79] T 73.
138She said he asked more than once for her to be tied up to the bolt, ‘that was a constant nagging thing that went on for a couple of months’. Ms Vernick said there was one occasion when she said yes and described the following –
He had set a bit of a romantic scene in the bedroom; lit some candles. Said he was going to be really gentle - not going to hurt me, just wanted to tie me up, and he was going to just be really gentle - tickle me and blindfold me and there wasn't going to be anything, um, wrong.
Yes?---Um, I had to trust that he wasn't going to hurt me. Um, I had mentioned to him previously I said look, if you want to engage in these sorts of practices, you know, you've got to have word, there's got to be communication. He wasn't interested in any of that. He would often laugh at me when I suggested that.
Yes?---So I really was just trying to protect myself from further harm. So he did tie me up and I consented to that.
Yes?---But from what happened next was not consensual.[80]
[80] T 73.
139Ms Vernick described being tied to the bolt in the ceiling with a rope. She was standing naked on the footer end of the bed. The rope was tied around her wrists which were together, and her arms stretched up above her head. She was blindfolded, though could see beneath the blindfold.
140She said she could not remember any intercourse beforehand but remembered Mr Barton touching the top half of her body with his hands as he stood on the floor in front of her. His head was at her breast height. She then said ‘he’s pretty much gone straight in, uh, with his full fist and put it in my vagina’. –
Um, it didn't go in at first, and I have screamed and said, 'Stop'. Um, and he's told me to – 'Shh, it's nearly there, just wait a little bit longer, just stretch – it's stretching, it won't take long'. And he kept pushing. Um, I was in excruciating pain and just saying, 'Stop, stop'. He wouldn't stop. I felt his knuckle, uh, uh, connect with bone it felt like, um, and I started to pull, uh, against the bolt. I was trying to break the rope if possible, something, to get away. Um, so I was pulling as hard as I could on the ropes, but there was no way they were going to break. Um, and he still had his hand inside my vagina. He pulled it out, um, eventually, and I had somehow, the – the ropes came loose, um, or I'd broken something, and I fell to the floor immediately, just in absolute agony. And Craig stood over me and laughed, um, saying, 'What's wrong, what's wrong'. Um, I was just in absolute agony, I was just withering on the floor after it happened.[81]
[81] T 76.
141She described Mr Barton saying to her ‘oh sorry, I didn’t – you know, “I didn’t wanna hurt you.” But he didn’t offer me any assistance’.
142She continued, ‘I had tears in my vagina. Um, obviously psychologically I felt destroyed. I was so scared of him’. [82] She said she was bleeding from her vagina after the incident and the bleeding continued for at least three to four days.
[82] T 78.
Cross examination
143Ms Vernick was cross examined about the period in Ipswich generally and about this incident. It was put to her that it was not the case that Mr Barton required sex every day. She said, ‘You’re wrong’.[83] It was suggested that sexual relations occurred about three times a week but she denied that.
[83] T 206.
144Ms Vernick was asked to describe the bolt and did so in detail including that it was made of quite thick-gauge metal, with thread at one end and at the other a round end ‘so it’s a piece of straight steel … that's obviously been made into a round circle, um, with a thread on it. Something you would purchase, say, if you were wanting to hang something heavy up from a pergola’.[84] She clarified that the end had a loop bent into an “o” shape. She said ‘being tech savvy’ Mr Barton has attached it to the ceiling.
[84] T 207.
145Ms Vernick was challenged regarding conversations prior to the “bolt incident”. She confirmed her evidence in chief that she had a conversation with Mr Barton in the garage about the bolt, and within a few days of that conversation the bolt went up in the ceiling ‘really quick’, but that she was not there when it was installed.
146In her police statement, she agreed that she said ‘He didn’t talk to me about this [putting the bolt in the ceiling] before he did it, and when I asked him about it, he told me that he wanted to tie me up. I told him I was not interested in that’.[85]
[85] T 209.
147She was challenged on that evidence. She said the conversation she referred to in evidence in chief was when she first saw the bolt in the garage, and that there was no other conversation prior to the bolt being installed. When it was suggested her statement and evidence differed, she said –
I doesn't - I don't feel that they're very different.
Well, in the version that you've told this court, there was a conversation in the garage prior to the installation, is that right?---Yes.
And in your statement to the police, you say that he didn't talk to you about it before it was installed, that's right?---Yes, well that's right because I have said - am I allowed to comment or not?
HER HONOUR: Yes, you're allowed to - - -?---Okay. Because the question asked was did you see the bolt beforehand. So I've walked into the garage, seen the bolt, asked what it is. He's told me he's going to put it in the ceiling. I haven't believed him. I've walked out and then no, I haven't had a conversation before installation. It has just been installed.[86]
[86] T 210.
148Ms Vernick was asked about conversations regarding Mr Barton wanting to put his fist into her vagina –
MS FLYNN: Now you say after the bolt has been installed in the ceiling, that there was a conversation with Mr Barton where he told you that he wanted to tie you up to the roof and he wanted to fist your vagina?---He told me that he wanted to tie me to the roof, he didn't say - he had told me he wanted to fist my vagina but not in relation to being - not that I recall now, being tied up and fisted at the same time.[87]
[87] T 215.
149She was reminded of her evidence in chief as follows –
MS FLYNN: All right, so on Tuesday you said to this court that there was a conversation with Mr Barton where he said he wanted to tie you up to the roof and he wanted to fist your vagina. Is that right?---Yes.
So as far as you were concerned, that was the purpose of the installation of the bolt in the ceiling?---No.
Well what did you think it was for?---To be tied up to the ceiling.
Yes. So when you gave evidence to this court on Tuesday that the conversation about the bolt was that he wanted to tie you up to the roof and to fist your vagina, that was wrong?---It's not wrong.
…
Do you say that there was a conversation before you were tied up with the bolt where there was a discussion about tying you to the roof and that Mr Barton wanted to fist your vagina?--- No, I would never have consented had I have known I was going to be fisted.
If you could just listen to the question Ms Vernick, I didn't say anything about consent. I'm asking you whether or not there was a conversation between you and Mr Barton before the incident - that is before you say you were tied up and fisted, where he said to you he wanted to tie you up to the roof and he wanted to fist your vagina?---Yes, he had mentioned that that's what he wanted to do, but not before the incident. That's something that he had said on occasions. The purpose of this thing was there for. Because like we said, from the time I saw it to installation to use.
If you gave evidence to that effect on Tuesday, that was wrong was it?---Not going to agree it's wrong. No, it's not wrong.[88]
[88] T 216.
150Ms Vernick agreed that she had consented to being tied up to the bolt using a white rope and that this happened a month or two after the bolt was installed. She said she was blindfolded. She denied any conversation at that time about the use of a safe word.
151She was then asked about how the event unfolded. She described the ropes being tied around her wrists and that Mr Barton then started touching her breasts. She denied any vaginal penile intercourse but said –
Craig then went down to my vagina - - -
Yes?--- - - - uh, and started fingering me. But that turned into him pushing his fist inside my vagina.[89]
[89] T 221.
152She confirmed her evidence in chief that she was pulling on the rope as hard as she could and that she was moving around on the bed. She said she weighed approximately 114 or 115 kilograms at the time. She confirmed and agreed with what she said in her police statement that she was jumping around on the bed to try ‘to get him out of me’ and that she was pulling as hard as she could but the bolt did not pull out of the ceiling.
153She confirmed that she was screaming loudly when Mr Barton had his fist in her vagina. She was asked about the distance to the neighbouring houses and confirmed there were two neighbouring houses, one approximately 3 metres between the roof lines and the other approximately 5-6 metres from her house to the fence and then about a metre to the neighbour’s house.
154She confirmed what she had said in her evidence in chief that the incident ended by the ropes coming loose or that she had broken them –
So you think you actually broke the rope?---No, I don't feel I actually broke them, no. I feel they came loose, the knots have come loose as I've hopped up - the only way off is off the bed and straight down to the floor, so they must have come loose. I was in pain, I didn't check the condition of the ropes.
Well didn't you give evidence on Tuesday that you thought you'd broken the rope?---Yeah, I felt I'd broke the rope - broke free form the rope.
Well just to be fair to you, p77, line 4, were you asked this question on Tuesday by Mr Batten; 'Was he standing on the bed?---No, on the floor because this bolt was positioned towards the foot of the bed. I'm standing on the edge of the mattress basically um, and I think I've broken that rope as I've just used the weight of my body and gone off the mattress onto the floor'. Now you were asked that question and you gave that answer on Tuesday Ms Vernick, is that right?---Yes.
So do you say that your evidence is you think you broke the rope or not?---No, it's not that I broke the rope. I've broken free. Broken free. It was impossible to break a rope like that.
…
So the evidence that you gave on Tuesday, the answer that I just read out, the part where you said you think - I think I've broken that rope?---Yeah.
That was wrong was it?---No, it's not wrong, that's your interpretation of broken and mine.
Well they're your words Ms Vernick, aren't they?---That's my words.
Yes. Wasn't it the case that Craig untied you from the rope you say?---I believe once I'm on the floor, those ropes have been removed.
Well didn't you say to the police that Craig had untied you before you fell to the floor?---You'll have to go back and read the statement to me, I can't agree to that. [90]
[90] T 224.
155She was taken to her police statement which read, 'I was screaming the house down. When he untied me, I fell to the floor and was lying on the floor crying and shouting out that I was in pain', and accepted that she told police that Mr Barton untied her first and then she fell to the floor.
156Ms Vernick confirmed that she was bleeding but did not seek any medical treatment. She confirmed Mr Barton apologised to her when she was lying on the ground and that this was not in her police statement.
157In relation to whether there was a conversation during this event about the use of a safe word, Ms Vernick’s police statement was put to her as follows –
'On this night Craig told me that he would be gentle and that he would stop when I wanted him to stop, and he tried to make it out to be a romantic night. I agreed to be restrained. Craig used ropes to tie me to the bolt in the ceiling. I was standing on the bed. My wrists were tied together with my arms above my head. Craig put a blindfold on me. I mentioned having a safe word to Craig, one that I could use when I wanted him to stop, and he would stop'. Now, did you follow that sequence in your police statement?---I read along with you, yes.
Yes?---I'm now up to point 25, yep.
Yes. And you would agree that in your police statement you set out that you did have a conversation with Craig about a safe word during this particular incident?---No. That's how you've interpreted it, but no, that's not how I – I'm interpreting it. Shall I explain, or?
Well, you would agree that in this statement you set out the sequence of events on what happened - - -?---Yep.
- - - during this time at Ipswich?---Uh, that's not an event. Point 25 is not an event. That's an – that's, uh, a – an insight into our relationship and how I was trying to navigate being with someone who was sexually demanding and aggressive, and trying to teach them that if this is what they're wanting to do people are mature enough that they have safe words. That conversation's around me trying to educate Craig previously, and being laughed at - at these suggestions, but still being made to engage in these practices.
Pardon me?---I – I don't feel 25 can be linked to any date or event. It's a general – general statement.
All right, so you say that is not part of the sequence of events of this particular incident?---Correct.
Yes. So you say there was no agreement or use of a safety word at all during this particular incident?---No.[91]
[91] T 218.
158It was put to Ms Vernick that there was no discussion about Mr Barton “fisting” her in the lead up to or during this incident. She said she could not remember. It was also put to her that there was no bolt in the ceiling at Ipswich and that this event did not occur –
MS FLYNN: Do you agree with that?---You're wrong, no, disagree.
Yes, and I suggest that the incident that you described happen, that is being tied to the bolt and what you said occurred to you by Mr Barton, just never happened?---Oh no it happened. It happened Ms Flynn.[92]
[92] T 227.
Re-examination – Ipswich
159In re-examination Ms Vernick was asked about her evidence regarding “safe words”. She was again taken to paragraphs 24 and 25 of her statement –
All right, and can you see – without repeating it all again, can you see that paragraph 23 and 24 relate to the incident that you described taking place in Ipswich where there was a bolt in the ceiling, you say?---That's right.
Yes, and you recall that paragraph 24 was read out to you in cross examination, and towards the latter part of it, it was read out that – you said 'I was standing on the bed and my wrists were tied with my arms above my head. Craig put a blindfold on me'. You see that?---Yes.
Yes. And paragraph 25, a separate paragraph, the first sentence of which, 'I mentioned having a safe word to Craig, one that I could use when I wanted him to stop, and he would stop'. You see that?---Yes.
And remember you were asked about that?---Yes.
Yes, and paragraph 25 immediately following that sentence reads, does it, 'I talked to him about a safe word a lot, but he wouldn't listen to me, and he told me that I was stupid. I also tried to have conversations with him about trust and maturity in relation to restraining me. I told him that I didn't trust him to stop when I wanted him to. Craig would laugh and tell me not to be silly, trying to make me feel silly for wanting to have the conversations'. All right, now, does that – is that the remaining portions of paragraph 25 I've now read out to you?---You have, yes.
All right. And that's what you said in your statement to police?---Yes.
And was it the truth?---It's the truth.[93]
[93] T 337.
Record of Interview
160Mr Barton was asked about early ‘honeymoon’[94] period of their relationship in his record of interview. He agreed that there were ‘probably’[95] times when he wanted to have sex and Ms Vernick did not. He denied ever pushing her, saying ‘Oh, that was, yeah, O.K. Like, obviously there’s always another day’. He was asked whether there was a time when he really wanted sex and she didn’t. He responded ‘Oh, not – not really, but it’s like nice but...’ He was asked, ‘Did you ever push the issue a little bit further?’, and answered ‘No’.[96] He stated that he accepted her on what ‘would’ve been the first time she said no, yeah, no’.[97]
[94] ROI Q63.
[95] ROI Q88.
[96] ROI Q98.
[97] ROI Q99.
161He could not think of a time when sexual activity began but then Ms Vernick indicated she wasn’t interested in having sex any more, but stated, ‘it’s a long time ago’.[98] He specifically denied that sex with Ms Vernick would often start out consensually but then become non-consensual and that he would continue until finished.
[98] ROI Q139.
162Mr Barton specifically denied ever restraining Ms Vernick to a fixture in the ceiling. He said –
Q 123And when you - you say you restrained her probably with, like, neckties, did you ever restrain her to a fixed object such as like a hook in a roof? So a fixed - - -
A No.
Q 124 fixed fitting in a ceiling that you could then tie somebody to?
A No, no.
…
Q 230In Ipswich she talks about a bolt that you put in the ceiling of the bedroom so a fitting in the ceiling. You didn't talk to her about it before you put it in there. So you said earlier that you had never restrained to a fix - a fixture in the ceiling of a house?
ANo.
Q 231 Is that correct?
A No, they're all - all rentals. You can't
163When the specific incident was put to him and he was asked, ‘So she agreed to be restrained and you used ropes to tie her to the bolt in the ceiling’, he said, ‘No’.[99]
[99] ROI Q232.
164He denied ever “fisting” Ms Vernick –
Q 141As part of your - your sex acts with Lara, was there any digital penetration? And by "digital" I mean fingers.
AOh, possibly.
Q 142 Yeah. What about your whole fist?
A No.
Q 143 Did you ever attempt
A No. Like, fingers or something but - yeah.
Q 144Yeah. So did you ever attempt to put your whole hand inside Lara's vagina?
ANo.
Q 145 Did you ever talk to her about putting your fist or - or fisting her?
A No.
Return to Melbourne – Croydon
165Mr Barton was discharged from the army in Ipswich. Ms Vernick was pregnant. She returned to Melbourne towards the end of 2010 to look for accommodation and work. She said that was just before the floods in Ipswich.
166Mr Barton was required to stay for a further three months. He returned to Victoria in about March 2011 by which time Ms Vernick had found a property to rent in Croydon[100]. She was working full time in Malvern. Mr Barton was not working when he returned to Melbourne.
[100] Location changed.
167Ms Vernick said sexual activity during her pregnancy was consensual, stating ‘he didn’t, um, tend to want to do anything hardcore or extreme’.[101]
[101] T 82.
168In relation to sexual activity, she said –
Craig would bring up fisting quite often. It was a fantasy of his, um, that he wanted to do. He said once I'd had the baby that I would be, uh, more stretched and he would be able to fist me then.
All right?---Something he spoke about all the time, it was not invited conversation.[102]
[102] T 82.
169When asked about the general state of her relationship with Mr Barton after the birth of their son, she said –
Uh, look it was – it was really bad after, uh, Gabriel was born. Craig wasn't coping with having another child in the house. Um, he was drinking excessively during the evenings. I was, um, recovering from a very difficult birth, uh, and I also had a child who had colic and that was crying all night. Um, and I didn't have any support, uh, from Craig, and he was getting quite upset that I was not recovering quick enough to have sex.[103]
[103] T 82.
Throwing the Phone
Charge 1 – Common Law Assault
170She said there was an occasion when Mr Barton got angry at her. She was planning on taking Mr Barton’s two daughters on a camping trip to the Mornington Peninsula. He became upset about the fact she had booked a campsite and emptied the contents of a glass of coke at her. She said –
Um, there was another time where I was sitting on the corner of the couch in our loungeroom in Croydon, and I was holding Gabriel, uh, he would've only been less than six months. Craig was really angry about something, I don't remember what. He'd come home from work, he was still in his uniform and he's grabbed the cordless phone, um, from near the kitchen bench and just launched it at Gabriel and I sitting on the corner of the couch. It's gone above my head and smashed into the wall above me. Um, and he just acted like nothing had happened, like, uh, that – that really scared me.[104]
[104] T 84.
171She said this event occurred around the same time she was planning the camping holiday and that Gabriel ‘couldn’t support himself at that stage… so it gives you an indication of how young he was’.[105]
[105] T 85.
172That event of the throwing of the phone is the basis of Charge 1 – Common Law Assault, charged between 1 November 2011 and 30 November 2011.
Cross Examination
173Under cross examination, Ms Vernick gave the following evidence about that incident –
MS FLYNN: … your evidence is that Mr Barton came home from work, that he was angry about something and he just grabbed the cordless phone and launched it. Is that right?---Yes.
It was just something that happened sort of out of the blue?---Yes.
And you say that it was thrown in such a way that it did miss you?---It did miss us.
And it was about, you say about a metre or so above your head?---Correct.
And I suggest, Ms Vernick, that this particular incident did not happen, that Mr Barton did not throw the phone at the wall. What do you say about that?---The incident happened.[106]
[106] T 228.
Record of Interview
174Mr Barton was asked about an argument with Ms Vernick when they lived in Croydon shortly after Gabriel’s birth. He said, ‘I can never remember having an argument with Lara the whole time we went out’.[107]
[107] ROI Q94.
175In response to the specific allegation of throwing the phone he denied that incident occurred. He repeated, ‘Cause I don’t even ever recall having – even having an argument with Lara’.[108]
[108] ROI Q248.
The Anal Hook Incident
Charge 2 – Rape
176Ms Vernick gave the following evidence –
MR BATTEN: Was there any occasion in Croydon where you consented to being restrained or tied up in some way in the course of sexual activity?---Yeah, when - when we were living in Croydon, um, Craig made an anal hook. I remember that. I was pregnant. I went into the garage to see what he was up to and he was making a device called an anal hook. I'd never heard of one before. I had no idea what it was. It was, ah, shaped in a hook with a round ball on one end and a loop on the other. And he told me what it was for and that he was gonna use it on me. And I said, 'No way. You're crazy. Forget it'. Um, and he did use that anal hook on me, ah, when we were at the Croydon house. Ah, I do remember that being used on me after I'd given birth to Gabriel.[109]
1223In those circumstances it would have been apparent that that type of activity is only harmless for the person inflicting the assault. A person who engages in extreme sexual practices cannot claim that such an extreme response from their partner is just part of the agreement. It remains incumbent on them to obtain free agreement to each aspect of the sexual activity.
1224Given my acceptance of Ms Webb’s evidence that she was crying, screaming, bucking in the chair and pushing the chair backwards to get away, that she was ‘very, very frightened’ and in pain, it could hardly be argued that Mr Barton was not aware of her lack of consent.
1225I accept the Prosecution has proven beyond reasonable doubt that Mr Barton was aware Ms Webb was not consenting at each stage of that event. I am therefore satisfied of the fourth element in relation to each charge of Indecent Assault.
1226There is no argument that these assaults, if found to have occurred, were committed in indecent circumstances. The context and parts of the body involved amply demonstrate the indecent nature of the assaults. I am satisfied of the fifth element beyond reasonable doubt.
1227Therefore, in relation to Charges 18, 19 and 20 I am satisfied beyond reasonable doubt that the Prosecution has proven each element of each of those charges and I find Mr Barton Guilty of each of those offences of Indecent Assault.
False imprisonment
1228In relation to the charge of False Imprisonment, there was no real issue taken that Ms Webb was deprived of her liberty. That is obvious on the evidence. Ms Webb’s ability to leave or move from the chair was entirely restricted. She was tied to the chair in the way she described by Mr Barton. I am satisfied beyond reasonable doubt that he deprived her of her liberty in that way.
1229Similarly there was no real argument about the second element that this was his intention. Given the deprivation involved the acts of tying her by her arms, legs and her breasts I am satisfied beyond reasonable doubt that it was Mr Barton’s intention to deprive her of her liberty.
1230Which brings me back to consideration of any lawful excuse. In the context of this case, whether the Prosecution has proven that her ongoing restraint occurred without her consent.
1231As I have indicated, although I could not be satisfied to the requisite standard that the initial restraint of Ms Webb occurred unlawfully, I am satisfied that it soon became unlawful. Her lack of consent to being tied up was communicated by her words and actions. She said ‘I can remember just bucking in that chair trying to get away from it’. In particular her distress and her efforts to push the chair away from Mr Barton palpably demonstrated the fact that she wanted to be released and in that way was not agreeing to the ongoing restraint.
1232I am therefore satisfied beyond reasonable doubt that the deprivation of liberty was unlawful.
1233I am satisfied beyond reasonable doubt that the Prosecution has proven each element of the charge of False Imprisonment and I find Mr Barton Guilty of that offence.
The Toilet Incident
Charge 21 – Rape
1234Ms Webb gave evidence about Mr Barton entering the toilet and pushing his penis into her mouth. That is the foundation for Charge 21 – Rape.
1235To prove this charge the Prosecution must prove beyond reasonable doubt that the sexual penetration occurred as described.
1236Ms Webb described Mr Barton’s entry into the toilet as a recurring event. However she was able to describe a particular incident in 2015 when Jonah was still a baby and when she was in the toilet for the purpose of defecating. She recounted the conversation between herself and Mr Barton including his comment that ‘he had to take his opportunities when they arise’. In that context he put his penis into her mouth.
1237Mr Barton’s comment about taking his opportunities when they arise is in line with my findings that he was a man with a voracious sexual appetite and was sexually demanding. It accords with what both Ms Vernick and Ms Webb described as his frustration about the lack of sexual activity after the birth of a baby.
1238Taking those matters into account and the description given by Ms Webb I am satisfied beyond reasonable doubt that the sexual penetration occurred as she described.
1239I am satisfied that penetration was deliberate and intentional. I am therefore satisfied beyond reasonable doubt of the second element.
1240I must then consider whether the Prosecution has proven that Ms Webb did not consent to the sexual penetration.
1241Her comments to Mr Barton, firstly ‘you realise that I’m taking a shit at the moment’, and secondly, her threat to him that ‘if you do this I’m going to bite you’, followed by her biting his penis demonstrate a lack of consent to the sexual penetration.
1242Given her immediate circumstances this was clearly unwelcome.
1243I am satisfied beyond reasonable doubt that she did not consent to Mr Barton putting his penis into her mouth and that she made her feelings clear by not only threatening to bite him but in fact biting him.
1244Ms Webb’s comment and behaviour in that regard also inform my conclusion in relation to whether the Prosecution have proven that Mr Barton was aware that Ms Webb was not consenting.
1245There was nothing in her immediate circumstances or her behaviour which could have indicated to Mr Barton that she was freely agreeing to his sexual advance. She did nothing and said nothing to indicate to him that she was consenting. In fact her comments and behaviour were clearly intended by her to communicate that this was unwelcome. I am satisfied he must have been aware of that fact.
1246In those circumstances I am satisfied beyond reasonable doubt that the Prosecution have also proven that he was aware she was not consenting.
1247I am therefore satisfied beyond reasonable doubt of the fourth element of this offence.
1248I am therefore satisfied that the Prosecution has proven each element of Charge 21 and has done so beyond reasonable doubt. I therefore find Mr Barton Guilty of Charge 21 – Rape.
The Eggs Argument
Charge 23 – Make Threat to Kill
1249In order to prove Make Threat to Kill, the Prosecution must prove beyond reasonable doubt the first element – that Mr Barton made a threat to Ms Webb to kill her. That element can be satisfied by words or conduct or a combination of both.[435]
[435] R v Rich Vic CA 17/12/1997
1250I do not have to be satisfied that Mr Barton actually intended to carry out the threat, and I do not need to be satisfied that Ms Webb herself thought that he would carry out the threat. It is enough for me to be satisfied that a reasonable person in those circumstances would have feared that the threat would be carried out.[436]
[436] R v Alexander [2007] VSCA 178
1251Here the allegation is that the combination of words spoken and the action of choking Ms Webb constitutes the threat.
1252Ms Webb gave detailed evidence about the pre-cursor argument which arose over the eggs and her discussion with Mr Barton’s daughter. She detailed why she became so angry about something which may seem trivial – namely that their financial situation was parlous. Mr Barton in his record of interview told police that once Georgia came to live with them there were arguments about expenses.
1253Ms Webb detailed what occurred afterwards when she went outside to complain to him about undermining her, and that she stormed off and Mr Barton followed her inside.
1254Although she conceded that she did not have a clear recollection of words spoken, Ms Webb repeatedly recounted the nature of those words and repeatedly detailed that he said, ‘he hates me, he hates the kids and that he wished I was dead’ at which point Mr Barton pushed her against the bookcase, put his hands around her throat and tried to choke her.
1255She also said she was going to take Jonah and go but could not recall if this was before or after being choked. Despite her concession about her memory of precise words, she was also able to confirm that in response to going to pick up Jonah and leave, Mr Barton said to her ‘if you leave, I will kill you’.
1256I am satisfied that Mr Barton said both that he wished Ms Webb was dead and threatened that ‘if you leave, I will kill you’. I am satisfied that he pushed her against the bookcase and choked her.
1257Defence Counsel relied on the prior inconsistent statement that Ms Webb said in her statement this occurred in the boys’ bedroom, and in evidence that it occurred in the hallway. To my mind that inconsistency does not undermine her evidence. She confirmed in evidence that the argument occurred in both locations. The focus of her memory, understandably, was of being pushed against a bookcase, choked, and threatened.
1258I am satisfied beyond reasonable doubt that those actions occurred and the threat was spoken ‘if you leave, I will kill you’. The combination of words and deeds demonstrate Mr Barton made a threat to kill her. I am therefore satisfied of the first element.
1259I have also considered evidence of complaint made to Ms Glisic in June 2017. She said Ms Webb ‘disclosed an incident that occurred about 18 months ago where Craig grabbed her by the throat and threw her against a wall’. That complaint was relied on by the Prosecution in support of this allegation.
1260I am satisfied that Ms Webb made that complaint. I can use the evidence of complaint in two ways when I assess the evidence of Ms Webb – first, as evidence of the facts contained in it, and second when I assess her credibility and reliability it may demonstrate consistency.
1261I have taken into account that the source of the complaint ultimately was Ms Webb. In my view the complaint she made is consistent with the evidence she gave in court, and in that way enhances her credibility.
1262The Prosecution must then prove that Mr Barton either intended Ms Webb to fear that the threat would be carried out or was reckless as to whether or not she would fear that the threat would be carried out.
1263This was a heated argument. Ms Webb was candid that she was angry. She was candid that she said things she did not mean. None of that detracts from Mr Barton’s words and behaviour. Choking someone in the context of a heated argument of itself connotes an intention to threaten serious harm. I can reasonably infer most people understand choking; i.e., cutting off breath supply, can harm or kill. Here, the choking was forceful enough to cause light bruising to Ms Webb’s neck in the days which followed. It occurred while being pushed against the bookcase.
1264Coupled with words spoken – ‘I wish you were dead’; and ‘if you leave I will kill you’ – it reflects Mr Barton’s intention. This was not a casual slur in the heat of argument; there was a deliberate act which, coupled with his words, communicated his intention. He wanted her to take seriously and to fear him if she dared to leave with his child. That is clear. For those reasons I am satisfied beyond reasonable doubt that Mr Barton intended Ms Webb to fear his threat.
1265Having reached that conclusion, there was no issue taken with the third element – namely whether the Prosecution proved that the threat was made without lawful excuse. There is no evidence to suggest Mr Barton had any lawful excuse for making that threat. I am satisfied beyond reasonable doubt of that element.
1266I am satisfied beyond reasonable doubt that the Prosecution has proven each element. I therefore find Mr Barton Guilty of Charge 23 – Make Threat to Kill.
A morning after Lewis was born
Charge 24 – Rape
1267This offending is charged as having occurred in March 2016. It postdates the amendments to the elements of Rape made from 1 July 2015 by the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.
1268To prove this charge of Rape I must first be satisfied beyond reasonable doubt that the intentional sexual penetration occurred as alleged.
1269In response to a non-leading question about sexual activity ‘in the period after Lewis was born’, Ms Webb detailed this allegation. She recalled the ‘routine’ of the household and also the variations to that routine. She was able to recall this event happened in the morning and commenced when she woke to Mr Barton starting to penetrate her vagina with his penis. She was able to detail words spoken. She detailed the baby starting to cry and what her response was.
1270Ms Webb described the timeframe and the fact that she still had her caesarean scar. In cross examination she confirmed it was the wound, and likely still dressed. Defence Counsel point to a difference between her evidence at trial that there was contact with her caesarean wound, as compared to her evidence at the committal hearing. That was relied on to make a submission to the effect that ‘if this had occurred and there was contact with her wound, she would never have forgotten that’. I have considered that difference, noting the directions.
1271I do not find that there is a real difference, despite Ms Webb saying she had ‘now’ recalled there was contact. In evidence at the committal hearing, she said she did not recall whether there was contact, but her main memory was obvious – ‘I do remember that it was, it was very, very sore’. It is apparent from her description of this event that it was fairly brief – starting as she was woken from sleep and then stopping soon after when the baby started crying.
1272Ms Webb said Mr Barton’s penis had gone part way into her vagina by the time she was waking up. Penetration of the vagina to any extent is enough. This element is not concerned with ejaculation.
1273Ms Webb detailed that she was on her back when she woke up and that Mr Barton was on top of her and starting to penetrate her in that way. In those circumstances I am also satisfied that the sexual penetration was intentional.
1274I am satisfied beyond reasonable doubt that the sexual penetration occurred as she described it. I note his behaviour on this occasion accords with his tendency. I am satisfied beyond reasonable doubt of the first element.
1275I am also satisfied beyond reasonable doubt that Ms Webb did not consent to the sexual penetration. A person can only consent to sexual penetration if they are capable of consenting and free to choose whether or not to allow the act of penetration. It follows as a matter of law that a person cannot consent to sexual penetration if they are asleep. Given penetration was occurring as Ms Webb was waking up, I can conclude that it commenced as she was asleep and incapable of consenting.
1276If there was any doubt about that fact, she also communicated her lack of consent by saying, ‘I don’t want to have sex’, ‘stop it’, and that she had just had a Caesar.
1277She also described the broader circumstances namely her exhaustion at the fact she had a new baby and an infant toddler.
1278In the circumstances of her being asleep combined with the broader circumstances and her words spoken I am satisfied beyond reasonable doubt that Ms Webb did not freely agree to the sexual penetration and therefore I am satisfied of the second element.
1279The Prosecution must prove that Mr Barton did not reasonably believe that Ms Webb was consenting to the penetration.
1280Relevantly, pursuant to section 36 of the Crimes Act 1958 if I find that Mr Barton knew or believed that Ms Webb was asleep at the time he sexually penetrated her, that is enough to conclude that the Prosecution has proven he did not reasonably believe she was consenting. I am so satisfied. I am satisfied because of the fact he rolled her over onto her back and obviously did so from her state of sleep.
1281If there was any doubt in relation to that, I am also satisfied that Mr Barton believed was not consenting given the words she spoke to him which included saying, ‘no’, ‘I don’t want to have sex’, and ‘stop it’. Those are clear indicators to him of her lack of consent. In the close confines of the bed he would have heard those comments and understood them but persisted regardless. His response was to tell her ‘just give me a minute’.
1282For those reasons I am satisfied beyond reasonable doubt of the third element; namely, that Mr Barton did not reasonably believe that Ms Webb was consenting to the act of sexual penetration.
1283I am therefore satisfied that the Prosecution has proven each element of this charge beyond reasonable doubt. I find Mr Barton Guilty of Charge 24 – Rape.
Argument in bed
Charge 25 – Make Threat to Kill
1284I must be satisfied that Mr Barton made a threat to kill Ms Webb. Again, I may reach that satisfaction when looking at conduct or words or a combination of both.
1285The allegation of Make Threat to Kill founding Charge 25 arises from issues pertaining to child care when Lewis was only a few weeks old, Jonah was a very young toddler and when there was an argument about Georgia being up late. Ms Webb described being up to settle Jonah and that she observed Georgia’s light was still on and had a conversation with her and that it was close to midnight.
1286She was able to give a lot of detail about the ‘heated discussion’ which then occurred with Mr Barton. She candidly conceded that she said ‘some not nice things’, telling Mr Barton that he was a terrible father, husband and an awful person who was ‘not helping someone crying out for support’.
1287She described his response in vivid terms namely that ‘he just got so cross,… So angry’ and that he then pushed her down onto her back on the bed and put his hands around her neck before threatening her.
1288She detailed the words spoken, namely ‘he has told me how much he hates me’ and that he said ‘I’m going to kill you’.
1289She described in vivid terms her feelings and actions, ‘I literally thought that I was going to die… I can remember that my hands were on his hands trying to get them off. I think I wet the bed a little bit… It was awful… I couldn’t do anything. I felt so powerless and I was. I was powerless. … and then I can remember the look in Craig’s eyes. It was just of someone who was completely out of control. And then Lewis started just screaming at the top of his lungs and then the pressure was gone. He stopped. And I can remember just gasping for breath…’
1290There is no doubt in my mind that Ms Webb was describing a real event which was terrifying and memorable. There is no doubt in my mind that Mr Barton made the verbal threat in the context of the physical threat of choking her. I am satisfied beyond reasonable doubt of the first element.
1291I have again considered evidence of complaint made to Ms Glisic in June 2017. She said Ms Webb told her of a second threat to kill namely that ‘Craig grabbed her by the throat and said he will kill her.’ That complaint was relied on by the Prosecution in support of this allegation.
1292I am satisfied that Ms Webb made that complaint. I can use the evidence of complaint in two ways when I assess the evidence of Ms Webb – first, as evidence of the facts contained in it, and second when I assess her credibility and reliability it may demonstrate consistency.
1293I have taken into account that the source of the complaint ultimately was Ms Webb. In my view the complaint she made is consistent with the evidence she gave in court, and in that way enhances her credibility.
1294In considering Mr Barton’s intention I have taken into account the following. Ms Webb also described the fact that Mr Barton was ‘squeezing my throat… He’s got two hands around my throat and he’s squeezing it and like I just couldn’t breathe. And I’m trying to pull his hands away from my neck’. That is, he was applying pressure to her throat and was doing so in the face of her physical efforts to pull his hands away. Those matters, combined with the words spoken, clearly convey an intention to put her in fear that he would carry out his threat to kill her. For those reasons I am satisfied beyond reasonable doubt of the second element, that he intended her to fear his threat would be carried out.
1295There is no argument in relation to the third element; namely, that if made the threat was made without lawful excuse. I am satisfied beyond reasonable doubt that he had no lawful excuse to threaten to kill her.
1296I am therefore satisfied that the Prosecution has proven each element of Charge 25 and has done so beyond reasonable doubt. I therefore find Mr Barton Guilty of Charge 25 – Make Threat to Kill.
After the Scoresby gathering, post-reconciliation
Charge 26 – Rape
1297This is also a charge of penile/anal penetration which post-dates July 2015. It is charge which alleges Mr Barton continued to keep his penis in her anus without her consent or a reasonable belief in her consent.
1298It was suggested to Ms Webb that this incident did not occur and that there was no sexual activity the night of the Scoresby gathering.
1299To prove this charge the Prosecution must prove beyond reasonable doubt the intentional sexual penetration occurred as alleged. I am satisfied that they have for the following reasons.
1300Again, Ms Webb’s description was palpably real. She recounted the event at Mr Barton’s boss’ house and where that was. She detailed what alcohol was consumed and what she did when she returned home.
1301She detailed lying on her stomach with her arms ‘wrapped around the pillow’ as she tried to go to sleep before Mr Barton pulled her up to hands and knees.
1302She was candid that anal sex had previously occurred consensually but recalled vividly the fact Mr Barton used no lubricant on this occasion and that ‘the pain… it was horrendous’. She recounted in vivid terms the aftermath of that penetration when she was in the shower.
1303I am not persuaded that the fact she said in evidence that she ‘resisted’ being pulled to all fours is a significant difference which causes me to doubt her account.
1304I am satisfied beyond reasonable doubt of the first element; namely, that the intentional sexual penetration occurred in that way. Again, her description communicated that she was recalling a real event.
1305I turn to the second element. The Prosecution must prove Ms Webb did not consent to that sexual penetration. For the following reasons I am satisfied the initial penetration occurred without her consent and continued without her consent.
1306Ms Webb did nothing to indicate free agreement to that act. Indeed, she indicated her lack of consent initially by saying something along the lines of ‘not tonight… I’m tired.. I want to go to sleep’ prior to the penetration, and later ‘I said stop… I can remember I was crying… begging him to stop…’ Each of those expressions communicate her lack of free agreement to what was occurring.
1307I take into account the direction that previous consensual activity of the same type with the same person does not mean a person will always consent. On this occasion Ms Webb did not. I take into account Mr Barton in his interview said Ms Webb did not like anal sex. He agreed it was rare, occurring about 5 times in the entire relationship and only if she initiated it.
1308I am satisfied beyond reasonable doubt of the second element for those reasons.
1309I take Ms Webb’s words into account when considering whether the Prosecution has proven Mr Barton did not reasonably believe that Ms Webb consented to the act of sexual penetration. A belief will be reasonable if, after considering all the circumstances, there are reasonable grounds for a person in Mr Barton’s position to hold that belief.
1310I take into account again his acknowledgement generally that Ms Webb did not like anal sex. In that context it was incumbent on him to ascertain whether she wanted to participate in it on this occasion. Rather, he took no steps to determine whether Ms Webb was consenting.
1311Instead, as Ms Webb begged him to stop he ‘was saying shh, shh, shh. That’s all I can remember. Just him shushing me’. That description of Mr Barton “shushing” is one used by both Ms Vernick and Ms Webb. Given my findings that there was no collaboration between the two women, it is a small detail which is compelling. Both of them give evidence that this was Mr Barton’s response to their efforts to resist him.
1312In those circumstances of Mr Barton pushing his penis into her anus without lubrication, ignoring her pleas to stop and “shushing” her, and pushing her face down into the mattress, there is no possibility of a reasonable belief in consent in my view.
1313If he was in any doubt initially, that doubt was immediately expunged by her words, by her tears and her repeated entreaties for him to stop. He did not do so and the fact he told her to “shush” demonstrates his awareness of her lack of consent. He persisted to ejaculation.
1314I am satisfied beyond reasonable doubt that the Prosecution has proven Mr Barton believed Ms Webb was not consenting. He had no reasonable basis for believing otherwise.
1315I am therefore satisfied beyond reasonable doubt that the Prosecution has proven all elements of this offence. I find Mr Barton Guilty of Charge 26 – Rape.
Near the end of the relationship
Charge 27 – Rape
1316This is also a charge which post-dates the legislative change of July 2015.
1317I must be satisfied of the first element; namely, that there was intentional sexual penetration in the way alleged.
1318Ms Webb described being woken by Mr Barton when he rolled her over. She detailed the conversation which occurred. She described her feelings of her loss of libido in the context of having young children, of not wanting to have sex, but of having given up struggling and ‘waiting for him to finish… you know, waiting for him to ejaculate and get off me’.
1319She described Mr Barton ‘climbing on top of me… between my legs… trying to kiss me and I’m just turning my head away…’ She described Mr Barton’s using spit as lubricant ‘what Craig called ‘devil’s lube’. I accept her evidence as truthful and reliable. These were all clear descriptions of a memory she was recounting. She described him penetrating her vagina with his penis.
1320I am satisfied beyond reasonable doubt that that act occurred as she described. I am therefore satisfied of the first element.
1321Ms Webb did nothing and said nothing to indicate her consent prior to the penetration. Indeed, she indicated her disinterest by telling him no and that she did not feel very loved. She communicated her lack of free agreement by turning her head when he tried to kiss her.
1322During the penetration she made a direct comment to him about her lack of consent. Defence Counsel rely on the difference in her evidence about that comment. In evidence in chief she was confident recounting her ‘exact words’ as ‘I don’t consent. I do not consent to this’. She confirmed that in cross examination. In her statement to police in 2017 she said her ‘exact words’ were ‘this is not consensual’.
1323I do not find that difference to be of any moment. What is clear is that she indicated in absolutely clear terms that she did not consent to the sexual penetration. I am satisfied beyond reasonable doubt that she did not consent.
1324I am also satisfied beyond reasonable doubt that Mr Barton had no reasonable belief in her consent. At this stage of the relationship Ms Webb was in a fragile state. She described being tired and having mental health issues. Those matters were known to Mr Barton. As such he should have taken steps to ascertain her interest in having sex with him. He did not.
1325He rolled her over from her state of sleep. Clearly she had done nothing prior to indicate her interest in sexual activity. He then ignored her moving her head way from him as he tried to kiss her and finally he ignored her direct and incontrovertible assertion that she did not consent.
1326I am therefore satisfied that the Prosecution has proven all elements beyond reasonable doubt. I find Mr Barton Guilty of Charge 27 – Rape.
VERDICTS
1327My verdicts which will be recorded in the Orders of the Court are as follows –
i.On Charge 1 of Common Law Assault I find you Guilty.
ii.On Charge 2 of Rape I find you Not Guilty.
iii.On Charge 4 of Rape I find you Guilty.
iv.On Charge 5 of Rape I find you Not Guilty.
v.On Charge 6 of Rape I find you Not Guilty.
vi.On Charge 7 of Rape I find you Not Guilty.
vii.On Charge 8 of Rape I find you Guilty.
viii.On Charge 9 of Rape I find you Guilty.
ix.On Charge 11 of Rape I find you Guilty.
x.On Charge 13 of Indecent Assault I find you Guilty.
xi.On Charge 14 of Rape I find you Guilty.
xii.On Charge 15 of Rape I find you Guilty.
xiii.On Charge 16 of False Imprisonment I find you Guilty.
xiv.On Charge 17 of Rape I find you Guilty.
xv.On Charge 18 of Indecent Assault I find you Guilty.
xvi.On Charge 19 of Indecent Assault I find you Guilty.
xvii.On Charge 20 of Indecent Assault I find you Guilty.
xviii.On Charge 21 of Rape I find you Guilty.
xix.On Charge 23 of Make Threat to Kill I find you Guilty.
xx.On Charge 24 of Rape I find you Guilty.
xxi.On Charge 25 of Make Threat to Kill I find you Guilty.
xxii.On Charge 26 of Rape I find you Guilty.
xxiii.On Charge 27 of Rape I find you Guilty.
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