N Langdown & B Moss v BI - [2020] ACTMC 6

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	N Langdown & B Moss v BI
Citation:	[2020] ACTMC 6
Hearing Date(s):	25 November 2019, 26 November 2019, and 7 February 2020
DecisionDate:	8 May 2020
Before:	Special Magistrate Hunter OAM
Decision:	See [308] - [323]
Catchwords:	CRIMINAL LAW - PARTICULAR OFFENCES - EVIDENCE Offences Against the Person, Indecent Assault, Consent, Recklessness, Advertent and Inadvertent Recklessness, Complaint Evidence.
Legislation Cited:	Crimes Act 1900 (ACT)
Parties:	N Langdown (Informant) B Moss (Informant) BI (Defendant)
Representation: Solicitors:	Ms L Sutton (Prosecution) Mr J Purnell SC (Defence) ACT Director of Public Prosecutions (Informant) Aulich (Defendant)
File Number(s):	CC2019/1934, CC19/12619-620

SPECIAL MAGISTRATE HUNTER OAM:

History

The Defendant, BI, had been charged with an act of indecency pursuant to s60 (1) Crimes Act 1900. That trial was decided by another Magistrate. The Magistrate’s decision was appealed to the Supreme Court. On appeal the matter was remitted back to the Magistrates Court to be heard by a differently constituted court.
The hearing of this matter came before me for rehearing on 25 November 2019. The Defendant claimed the charge before the Court was duplicitous and after argument and consideration of the Authorities, the Prosecutor had 2 further charges laid as a result. Those two additional charges were also the subject of the hearing, having been particularised as below at [4].
The hearing ran over several days including 25 and 26 November 2019 and 17 February 2020.
The Prosecutor alleges that all three charges were committed on 8 February 2016, between 18.30 hours and 19.00 hours at [address redacted]. The Prosecutor particularised the offences as:
(1)CC2019/12619 – Hugging of the Complainant in the wardrobe whilst she only had her bra on, without her consent;
(2)CC 2019/1934 – hugging her from the back and rubbing himself against her back and kissing her neck without her consent as she sat in her wardrobe; and
(3)CC 2019/12620 – throwing her onto the bed, pinning her down and attempting to kiss her without her consent.
I heard from Brendan Moss, a Constable of Police, and Dean Leeson, a First Constable of Police. I also received recorded evidence from the earlier proceeding from the Complainant, SK, as well as a tender bundle of documents from the previous hearing.
The Defendant also participated in a recorded police interview which I received in evidence. The Defendant gave evidence in the earlier proceeding and the transcript of that evidence was exhibited before me. I also heard evidence from the Defendant on 7 February 2020.
The Prosecution opened its case giving a history of the relationship between the Defendant and the Complainant. Both the Defendant and the Complainant were in a long-term sexual relationship which ended amicably in 2014. Both the Defendant and the Complainant remained living in the jointly owned home at [address redacted], on a friendship only basis.
On 8 February 2016 at approximately 18.30 hours, the Complainant was getting ready to go out with her friend SK and had just had a shower in her ensuite bathroom. The Complainant was only wearing a bra and walked into her walk-in wardrobe when she heard the Defendant knocking on the door of her bedroom. She called out words to the effect “don’t come in, I’m getting dressed.”
The Defendant walked into her bedroom, the Complainant repeated the warning and asked him to leave. The Complainant slid the sliding door of the robe shut and pushed against it. The Defendant forced his way into the walk-in robe. The Complainant put on some pants and again told him to leave. The Defendant began to hug her, telling her that he missed her. The Complainant slid down to get out of his embrace. The Defendant also got on the ground and threw her a skirt. The Defendant told her that he missed her body and wanted to get back together. The Defendant then kissed her neck and rubbed his crotch up against her lower back. The Defendant held her in a bear hug and sucked her neck in the course of kissing her.

10.The Defendant then picked her up, threw her on the bed, got on top of her and pinned her down, and commenced to kiss her on the face and neck. She struggled against him, turning her face away and told him to stop.
11.The Complainant then reminded him that SK would be arriving soon. The Defendant got off her. The Complainant got dressed and after some argument went upstairs. The Complainant got into her car and text messaged her friend stating that the Defendant had tried to rape her.
12.SK gave evidence at the original hearing. I had the benefit of an audio recording of her evidence, aided by a transcript, describing the Complainants demeanour and what was said by her. SK also gave evidence that after hearing from the Complainant about what had just happened, she then drove the Complainant to the police station to report the matter.
13.I received, as part of the Prosecution tender bundle, a report from a forensic officer, Jessica Wheeler, describing the examination of the Complainant.
14.DNA material was collected in the form of apparent saliva from the Complaint’s neck by CSI Wheeler as well as fingernail scrapings and photographs of marks on her person. That collection occurred the same evening as the alleged offences.
15.Ayesha Seymour, a forensic biologist, prepared a report of her findings in relation to samples collected by CSI Wheeler. A summary of her findings reveals:
(1)The fingernail scrapings were a match to the Defendant as the major source of DNA, which provides extremely strong support that it was his DNA as the major component.
(2)The Swabs from the back left of The Complainant’s neck reveal the major component strongly supports that the DNA belongs to the Defendant. The swabs of back of neck, right to middle reveal the same. Apparent saliva was detected on all the wet neck swabs.

16.I received the following documents which were exhibited before me in the summary below
(1)Recorded/transcribed evidence from the earlier proceedings:
i.A transcript of the evidence given by SK on 11 October 2016 (Exhibit P8).
ii.An audio-visual recording of the evidence given by the Complainant on 11 October 2016 (first half only).

iii.An audio recording and transcript of the evidence given by the Complainant on 11 October 2016 (Exhibit P13).
iv.An audio recording and transcript of the evidence given by the Defendant on 27 January 2017 (Exhibit P14).

(2)Statements/reports of:
i.First Constable Megan Edwards (Exhibit P1).
ii.Senior Constable Shaun Pine (Exhibit P2).
iii.Constable Nathan Langdown (Exhibit P4).
iv.Crime Scene Investigator Jessica Wheeler (Exhibit P5).
v.Forensic Biologist Ayesha Seymour (Exhibit P7).

(3)Other:
i.Nine photographs of [address redacted] taken by Senior Constable Pine (Exhibit P3).
ii.Eleven photographs of The Complainant taken by CSI Wheeler (Exhibit P6).
iii.A recording of a voicemail message (Exhibit P9).
iv.AFP Notebook 28520 belonging to Constable Moss, pages 49-51 (Exhibit P10).
v.An audio-visual recording and transcript of the Defendant’s record of interview with police (Exhibit P11).
vi.Thirteen photographs of the Defendant taken by First Constable Leeson (Exhibit P12).
vii.Eighteen photographs referred to in the Defendant’s evidence on 27 January 2017 (Exhibit P15).

(4)The defence case consisted of:
i.A transcript of the evidence given by Dr Richard Byron Collins on 27 January 2017 (Exhibit D3) and Dr Collins’ report dated 10 December 2016 (Exhibit D2).
ii.The Statement of Facts prepared by Constable Moss (Exhibit D1.)
iii.A character reference from Mr Turin Prasantha dated 11 November 2019 (Exhibit D4).
iv.Twelve photographs with dates and times recorded (Exhibit D5).
v.Text message exchanges between the Defendant and the Complainant (D5).
vi.A typed letter dated 30 October 2015 (D6).

The Evidence

The Complainant’s Evidence

Evidence-in-Chief

LL, the Complainant, gave evidence that as at 8 February 2016 she was living at [address redacted] with the Defendant in an amicable relationship. They had been in a sexual relationship for some years but had broken up. They were both owner occupiers of the home.

18.The living arrangements were that she occupied the main bedroom and ensuite, and the Defendant occupied another bedroom. On the 8^th of February 2016, after returning from work, she had a rest in her bedroom and then took a shower as she was going to dinner with her friend SK.
19.At approximately 6:30pm she had a shower and went to get dressed in her walk-in robe. The Defendant knocked on the door. She told the Defendant to go away as she was dressing. The Defendant entered the room. She closed the walk-in robe sliding door and kept a hold of it to keep him out.
20.The Defendant forced open the sliding door and came into the walk-in robe and at that time she was wearing only her bra. She repeatedly told him to leave. He refused to do so.

When he got into the walk-in robe, he said “oh you are not dressed” and she quickly put some underpants on. The Defendant began hugging her from the front telling her he missed her body.

22.She sat down at this point. The Defendant then threw a skirt he had found on the floor telling her he missed her body. The Complainant asked him to leave and asked what it would take for him to leave her alone. The Defendant replied he would only leave her if the police get involved or she stabbed him with a knife. The Complainant thought that she stood up at that point because he was now behind her, hugging her, and kissing her back and neck area.
23.They sat down and the Defendant had her in a bear hug and was moving his crotch against her back. He was kissing her on the back of her neck. He also told her that he missed her body. At that time, she told him to leave.
24.At the time she was trying to shrug him off. He picked her up, threw her on the bed, and immobilized her using his hands and legs. He then began kissing her neck again. He began to kiss her face and she moved her face from side to side to get it away from him. She said she told him to stop repeatedly but he continued so she grabbed him by the neck with one hand and the ear with the other and wrestled free of him. The Complainant told him that she had plans and SK was to arrive shortly to pick her up and what would happen if something happened to her.
25.That appeared to stop him and she then grabbed her phone and quickly put on some clothes and attempted to go upstairs, however he did not want her to do so and tried to block her getting out of her bedroom. The Complainant then went upstairs where they argued for a couple of minutes heatedly. She collected some items, placed them in her bag and left the house and ran to her car, locking herself in. The Complainant attempted to reverse her car out of the garage. The Defendant walked behind her vehicle preventing her from moving the car, but then walked off allowing her to move the vehicle.
26.The Complainant sat in her car and about this time her friend SK arrived. She had already texted her friend and her mother about what had happened. The Complainant said she told them he ‘pretty much tried to rape her, threw her on the bed and got on top of her’. Those texts were sent just minutes after the alleged incident is said to have happened.
27.The Complainant said that after her friend had arrived the Defendant came out to the post box and then went back inside. It was her impression that he pretended to check the post because he wanted to see what she was doing. The Complainant then got into her friend’s vehicle and told her what had happened. They then went to the police station at Gungahlin and reported the incident to police.
28.The Complainant gave a recorded interview with police that evening. Shortly thereafter she contacted police and gave a further recorded statement in relation to matters which occurred later that evening. The Defendant had contacted her and left a voicemail. The Complainant played that recording to police. That recording was recorded by police. The Complainant indicated that a forensic officer collected samples from her including swabs, fingernail scrapings and photographs taken of areas of her neck and back where he kissed her. The Complainant indicated that some photographs were taken depicting various mark on her body which were not there prior to the incident. The Complainant was not aware there was a ‘hickey’ on her neck until it was pointed out. The area it was found was the area the Defendant was kissing and sucking her neck. The Complainant, in evidence said that she did not give the Defendant consent to touch her in any way that evening on 8 February 2016.

Cross-Examination

29.In cross examination the Complainant was asked questions about what she had told police in respect to ‘humping’ having occurred more than once including on the bed. The Complainant explained that she meant she described it as humping because of the wriggling and fighting that was going on. The Complainant agreed that the pair had been in a long-term relationship and that they continued to ‘co-exist’ after it had ended.
30.It was suggested that the reason the relationship broke up was because the Complainant suspected him of cheating on her. She disagreed and said it was because he was a serial sex addict and a swinger, and she could no longer stay in the relationship because of it.
31.The Complainant denied that her parents came to Australia to try to reconcile the pair. It was suggested that the relationship was one of remaining friends, going to the gym and out to dinner. The Complainant agreed that they went to the gym but seldom went out for dinner. Mostly they saw each other in the morning and evening in the kitchen and they worked hard to remain friends as they had a lot in common.
32.The Complainant was shown some photographs which she recognised as taken in her home. It was suggested that they were taken on the 7^th of February 2016, however she and was unable to say when they were taken. The Complainant agreed that one photo depicted her in her bedroom with her dog, although she was unable to say who took it and when. The Complainant denied that she was smiling in the photograph. The Complainant accepted as a possibility that it was the Defendant who took it but was unsure.
33.Ultimately it was suggested to the Complainant that the pictures depict a happy relationship between the pair and that she lied to police when she said that she felt unsafe in the house. The Complainant denied that assertion and said that she did not lie.
34.The Complainant was shown a short video and agreed that it depicts her very happy whilst playing with her dog. The Complainant agreed it was taken in her bedroom, although she does not know when.
35.The Complainant confirmed that when she was in the walk-in robe, she only had her bra on and it was at that time the Defendant knocked on the door. The Complainant clarified that she did not have any underpants on.
36.It was suggested that the Defendant told the Complainant that he wanted to discuss their relationship. The Complainant denied that and said she told him not to come in and he did not say anything at that stage. It was suggested that he said “what did your dad say?” The Complainant denied that he said that and said that he just barged into the walk-in robe unannounced and she told him to leave.
37.It was suggested to the Complainant that she told police that the walk-in robe door had a lock, although I note that she said she was not sure but after speaking with police she satisfied herself that there was no lock on that door. [There does not appear to be any inconsistency with her answers in that passage].
38.It was suggested that the Defendant waited outside the walk-in robe and when he saw she was undressed he handed her the skirt. The Complainant denied that happened. It was suggested that the skirt was in her bedroom, The Complainant denied that and said that was false. The Complainant said that he threw the skirt at her while she was sitting in the walk-in robe after he had “attacked her straight up”.
39.The Complainant denied the suggestion that he sat in front of her, saying it was more to the side, and denied that he said he wanted to have a conversation about the relationship. The Complainant said that the first hug was when they were standing up and that’s why she wanted to sit down “to evade his embrace”.
40.The Complainant denied that she pushed him at that point saying she shrugged him off. The Complainant agreed that he first hugged her from the front and then from behind. The Complainant disagreed that the Defendant gave her an affectionate kiss on the neck with a closed mouth. The Complainant said she agreed in part that he told her that he missed her and said he said he missed her body.
41.It was suggested to the Complainant that the Defendant said he did not want to leave the bedroom because he wanted to talk about the relationship. The Complainant denied that. It was suggested that he then walked away from the walk-in robe. That was denied. The argument then turned into a physical fight. The Complainant denied that the argument happened in the way put to her. The Complainant also denied that she scratched and hit him near her bed.
42.The Complainant does not deny scratching him or hitting him but says it was because she was trying to get him off her. It was suggested that during the scratching and hitting the Defendant fell onto the bed. That’s was denied.
43.The Complainant denied that she then got dressed, left and waited in her car. It was suggested that the Complainant did not grab her clothes from the wardrobe and leave. The Complainant said that was not true and that she was fearful at that stage.
44.It was suggested that the Complainant did not tell police that he physically tried to stop her exiting her bedroom. The Complainant indicated that she said so in different words with the same implication. The Complainant agreed that the Defendant had tried to call her after the incident and left a voice mail but disagreed that he was apologising to her.
45.It was suggested that the injuries sustained (bruises and marks) were not as a result of the incident and were self-inflicted. The Complainant denied that.
46.The Complainant agreed that she wanted to sell the house and the Defendant did not want to sell it. The Complainant agreed that they had discussed the sale issue on a number of occasions. The Complainant denied that the words used in relation to ‘police’ and ‘stabbing with a knife’ was about selling the house. The Complainant said that he used the house to control her financially. The Complainant agreed that at the end of the relationship he was willing to sell but that changed over time.
47.It was suggested that the reason the Complainant made the complaint to police was to force the Defendant to sell the house. The Complainant said that was not true. It was further suggested that the Defendant did not rub his crotch on her back. That was denied. It was suggested to her that he did not say to her words to the effect of “this is not rape; I will show you what rape is.” The Complainant said that he did say those words. A further suggestion was that she did not try to barricader the walk-in robe door, that was denied and said she did “100%”.

48.The Complainant agreed that she sought the advice of a family lawyer in relation to the split of assets. It was suggested that the lawyer told her that the split would be 70-30 in her favour. The Complainant said that was possible, but she could not remember.

Re-Examination

49.In relation to telling police she placed a stool against her bedroom door the Complainant agreed that was on another occasion.
50.The Complainant confirmed that the words ‘about the police and the knife’ was in relation to the end of their relationship. In relation to her statement about humping again, the Complainant clarified that the word again was in relation to the walk-in robe and was referrable to it.
51.In relation to the suggestion that she did not tell police about the reason why the relationship broke down, the Defendant being a sex addict and a swinger, the Complainant said that they did not ask her why the relationship broke down.
52.The Complainant was asked to clarify what she meant about the ‘affectionate kiss’, as it was put. The Complainant said it was not an affectionate kiss and when he did kiss her he was biting too. There was no affection of that nature between them.
53.In relation to her police interview, the Complainant was taken to several answers which she said implied the blocking and prevention of her leaving the bedroom.

SK’s Evidence

Evidence-in-Chief

54.SK’s evidence was from a transcript of her evidence tendered as Exhibit P8 from evidence given on 11/10/16. The following is a summary of her evidence.
55.SK had been a friend of the Complainant for approximately 9 years at the date of the incident. SK had made plans with the Complainant to pick her up from her home around 19.00 hours and go out for dinner.
56.When she attended the Complainant’s house, she parked her vehicle adjacent to the house on the far side of the road. SK first saw the Complainant and could clearly see her in her car which was parked outside the front of the garage of her home.
57.SK said that she observed her friend to be what she described as frantic. SK saw the Complainant but noticed the Complainant did not get out of her car. SK got her phone to call the Complainant and tell her to get into her car when she saw a ‘WhatsApp’ text she had received earlier from the Complainant. The message was timed at 19.02 hours and said, “he tried to rape me”.
58.SK was about to get out of her car when she saw the Defendant walk from the house to the letterbox, collect some letters and, as he was returning in the direction of the house, lean across to the driver’s seat of the Complainant’s car. He appeared pretty aggressive. SK described it as an aggressive movement appearing to point his finger toward the Complainant. The Defendant then returned to the house. Almost immediately the Complainant left her car carrying her dog and bag and ran toward SK’s car. The Complainant was visibly upset. SK asked her what had happened and she told her “I couldn’t believe – I just couldn’t believe what had happened. He tried to rape me.”[1]
[1] Transcript p 104 – 11/10/16
59.SK said the Complainant told her that she had a shower in preparation for meeting SK, put on some makeup - looking forward to the night out, went into the walk-in robe to get dressed, and heard a knock - it was the Defendant who did not have permission to enter. The Complainant told her she refused him permission to enter because she was only half dressed but he did so anyway. The Complainant told her that he kissed her and hugged her and she told him to stop. She told him to stop and curled onto the floor and it was at that point that he tried humping her and she was frightened. She said that he threw something at her and she told him that if something happens SK was coming to get her for dinner.
60.SK said she was told the following by the Complainant: that she told him to stop, that she managed to get away from him and she got some clothes on and sat on the floor frightened, that she repeatedly told him to stop, that he picked her up and threw her on the bed and laid on top of her and continued to kiss her, that she wriggled away from him and told him that if they wanted to talk they could do it upstairs, that she got more clothes on and went upstairs and he followed. The Complainant said that she did not stay long, got her bag, and quickly walked out to her garage and her vehicle. The Complainant said that she accused him of raping her, he said “that’s not rape; I will show you what rape is.”[2]
[2] Transcript p 106.10 11/10/16 see full passage
61.SK also said that the Complainant said when she got in her car and tried to reverse, he was standing behind her car. She parked her car and locked the doors and waited for SK to arrive. SK said that the Complainant told her this as they were driving in the car, immediately after she picked the Complainant up as well as when they were waiting at the police station.
62.SK said that she suggested they go to the police station and they did. SK said she also heard a voice mail from the Defendant which had been played to her whilst they were at the police station.

Cross-Examination

63.SK agreed that she had spoken to the Complainant on numerous occasions about what happened that night. SK said that the expression on her friends face and her movements led her to believe she was frantic. That was based on having known her for many years as a very composed person. SK said that she could clearly see ‘something had shaken her’.
64.SK said that she was close friends with The Complainant and had on occasion been out with both The Complainant and the Defendant. SK recalled her being at The Complainant’s house for her birthday. Recalls seeing the Defendant fleetingly and they (the girls) left for a hens’ night out. The Complainant appeared excited to be going out with the girls.

Brendan Moss’ Evidence

Evidence-in-Chief

65.Mr Moss, now a firefighter, was a constable of police working from Gungahlin police station in February of 2016. He was on duty when the Complainant and SK attended the front counter. The Complainant indicated that she wished to make a complaint of sexual assault perpetrated by the Defendant.
66.Mr Moss made notes of the complaint details which he read onto the record, [see t/s page 25, 25/11/19] exhibited as P10. Mr Moss said that he prepared to take a statement from the Complainant and recorded in his notebook all of the things he did in preparation. This included a forensic procedure, including fingernail scrapings, swabs for DNA, and photographs. Mr Moss briefed other officers and they ultimately arrested the Defendant. Mr Moss said that his impression of the Complainant’s demeanour was that she was upset.

Cross-Examination

67.Mr Moss agreed that he was meticulous in recording and noting details given to him by the Complainant. Mr Moss agreed he had prepared a ‘statement of facts’ - exhibited as D1. [I read the ‘statement of facts. It appears to accord with the evidence given by the Complainant and SK.]

Dr Collins’ Evidence

Dr Collin’s Report

68.A report of Dr Collins was exhibited as D2. Dr Collins is a suitably qualified forensic pathologist, bound by the Expert Witness Code of Conduct. Dr Collins was asked to comment on marks and injuries sustained by the Complainant, allegedly resulting from the indecent assault against her by the defendant.
69.Dr Collins had available to him transcripts of evidence given by the Complainant and SK, the statement of facts, the reports of CSI KX and Forensic Biologist Seymour, together with a bundle of photographs taken by CSI KX.
70.Dr Collins observed that the photographs were of “less than optimal quality” with which to make his interpretation of those injuries. Dr Collins observed that whilst aging bruises is fraught with difficulties, the bruises appeared to be recent - of 1-2 days in age. Dr Collins opined that they could have preceded the incident.
71.Dr Collins opined the punctate bruising on the neck could have been from kissing but with an open mouth not closed lips, such as suction type causation. Dr Collins could not say with any certainty, but it could have been caused by inflammation or an infective process and was less likely to be caused by application of the lips in a sucking motion.
72.Ultimately, whilst not being able to say conclusively how long the bruises were there, he opined that it may have been 1-2 days, was consistent with day to day living, and he would expect areas of bruising to of a greater extent and severity if the Complainant had been assaulted in the manner she described.

Evidence-in-Chief

73.I had a transcript of Dr Collins’ evidence exhibited as D3. Dr Collins was asked to comment on his conclusions in respect to the bruising depicted in photos 4, 5, and 11, showing the side of the Complainant’s neck. Dr Collins explained about the difficulty in aging bruises (which I note is clearly well known in his circle of experts).
74.Dr Collins also explained that he did not have the opportunity of examining the bruising on the Complainant and that there may have been other signs such as swelling or tenderness. Dr Collins noted that there did not appear to be swelling shown in the photographs. It appeared to be a fresh bruise but could be otherwise.
75.Dr Collins said that he was limited in his ability to make a conclusion because of the poor quality of the photographs. His Honour clarified with Dr Collins about what he meant by fresh, Dr Collins explained it as having been hours or up to 2 days old.
76.In relation to the area on the neck, Dr Collins could not with any precision say what it was other than it was an area of redness. In relation to the Complainant’s left arm, Dr Collins said it appeared to be mottled purplish-brown bruising caused most likely by blunt force trauma. Dr Collins could not say what caused it, but it appeared to be day to day living type bruising.
77.Dr Collins said that given what he had been told about the throwing onto the bed and gripping of the Complainant by the Defendant, he would have expected other areas of bruising. He noted the bruises present appeared minor. Dr Collins confirmed that the punctate areas could not be caused by simple kissing.[3]
[3] Transcript p 105- 27/1/17

Cross-Examination

78.Dr Collins agreed that the photographs should have been of forensic quality with a colour balance chart to gauge the bruising in order for him to make better comparisons of the colour of the areas of injury. Dr Collins agreed that when not supplied with optimal photographs, he was making an educated guess.
79.Dr Collins agreed that what he meant by recent was from 0 hrs to 48 hours. In relation to the punctate bruising, he said it would have required damage to the blood vessels and that it could not be caused by closed-lip kissing. In respect to the neck Dr Collins confirmed that he could not say what caused it.
80.In relation to the bruising on the limbs, Dr Collins agreed that the bruises could be from 0 hours to 48 hours old. Dr Collins agreed that some contact with blunt force trauma leaves bruising and some does not. Dr Collins also agreed that it’s possible that being restrained may not leave any bruising, but it is reasonable to expect that if there was forceful gripping that that would leave bruises dependent on the level of force applied.
81.Dr Collins agreed there are other factors, such as age, sex and whether a person has any conditions or medications, which lend to bleeding. It may also depend on the area. Dr Collins opined that in this case it was unusual that there were only scattered bruises around.

Re-Examination

82.In re-examination, Dr Collins opined that he could not say with any certainty how likely the Complainant would have received bruises from the struggle because he had insufficient information about her medical history.

Dean Leeson’s Evidence

Evidence-in-Chief

83.Constable Leeson worked at Gungahlin police station in 2016 and was on duty on 8 February 2016. He was briefed by then Constable Moss in relation to the complaint by the Complainant and met with her. He gained her permission to enter her home, attended the Defendant’s home with Constable Edwards, and arrested the Defendant.
84.The Defendant showed Constable Leeson where the Complainant’s room was. Constable Leeson observed the bed to be unmade, the doona crinkled and wrapped up, and clothing all over the floor (I note that from the photographs that did not appear to be correct).
85.Constable Leeson took part in an interview with the Defendant which was recorded. The interview was played and exhibited as Exhibit P11. Constable Leeson took a buccal swab from the Defendant and photographs of him.

The Defendant’s Evidence

A Summary of the Defendant’s Record Interview with Police

86.The Defendant described that he went to the Complainant’s room to talk about their relationship and what she had said to her father the night before. A heated argument ensued and there was some pushing at each other. He tried to stop her scratching him and she tried to scratch his face. The Defendant said he never raised his hands at her, he blocked her in self-defence. The Complainant then got ready to go out, her friend picked her up, she took the dog and left. The Defendant said he tried to call her a few times and she did not answer. The Defendant said he spoke to her father and he left a message asking her to come home because her father was worried about her.
87.The Defendant told police that they had been together for 10 years but had recently separated. After telling police it was recent, he then told them they separated in 2014 but they lived under the same roof. They were living in separate bedrooms but got on well and mostly did everything together. After the Complainant decided to move out and sell the house things changed. The Defendant did not want her to do so.
88.The Defendant said on the night he knocked on the bedroom door and went in. The Defendant said she was in the walk-in robe wearing underwear (bra and pants). The Defendant said that she asked him to leave saying get out of my room. The Defendant said he told her he wanted to discuss the house issue. The Complainant told him she was leaving because her friend was picking her up. The Defendant told her he wanted to have a chat. The Defendant said he did not know why he did not leave the room when she asked him to.
89.The Defendant said after that they argued and yelled at each other; he wanted to talk, she said it’s not the time to do so, and she pushed him saying get out of the room. He grabbed her and said no as he wanted to talk to her. The Complainant refused and said she did not want to talk. He grabbed her and she scratched him, and he tried to defend himself.
90.The Defendant described that they were sitting on the floor in the walk-in robe, he grabbed her around the waist, and she scratched him. He said he wanted to talk, they walked out of the walk-in robe. She was hitting his face and he blocked her. She put on some clothes, they walked upstairs, and sat at the dining room table as she waited for her friend. She threatened him by saying she was going to police, he said “what for I’ve done nothing wrong”. She then waited in her car until her friend arrived and he went inside. The Defendant denied raising his hand to her.
91.The Defendant described the relationship as complicated - on again and off again. The Defendant said that they agreed to ‘give it a go’ until her parents arrived in December. The Defendant said they had not had a sexual relationship since the breakup in 2014.
92.Despite there being no sexual relationship between them, the Defendant described that they touch each other, go to the gym together, lift weights and the like together. The Defendant described that he grabbed her around her waist because she was pushing him away and he recalled saying that he missed her a lot. The Defendant said his body was behind her hugging her.
93.The Defendant said they moved into the main bedroom and, in order to defend himself, jumped on the bed. He then moved off the bed and she got dressed. At that point he was standing next to the bedroom door. They both walked upstairs, sat at the table, and she said that she was going to the cops. He denied doing anything wrong and told her she should speak to her parents first.
94.The Defendant said that she walked to her car and got in. He requested his passport, which was in the car, but she refused to open the car door and drove out of the garage. She stopped the car and waited, then grabbed the dog and put it in the car.
95.The Defendant said that he went inside the house and when SK arrived, he went to the letterbox. He then waved at the Complainant and she waved back. He asked her for the dog and she refused. The Defendant said he had tried to call her three times and left a message.
96.The Defendant denied rubbing himself on her or groping her and denied his pants touched her. When he was asked if any saliva would be found he admitted that he kissed her on the left side of her neck when he was at her back. The Defendant denied using his tongue to kiss her. When asked why he did not mention the kiss prior to being asked about the possibility of saliva he said he “missed that”. The Defendant said that he only kissed her once. The Defendant admitted that she did not consent for him to kiss her.
97.The Defendant described that he kissed her despite her hostilities towards him because of his feelings. The Defendant said that each of them would go into each other’s’ rooms when they were naked or semi-naked and that this had occurred every couple of weeks or weekly in the last 12 months.
98.The Defendant said that something similar happened a couple of weeks prior to the 8^th of February. The Defendant said he does not know why he did not just leave when she asked. The Defendant admitted that he went into her bedroom while she was asleep and sat on her bed patting the dog and looking at her and did so because he missed her. The Defendant admitted he also went through her mobile phone recently. The Defendant said they both do this to each other.
99.The Defendant denied that the Complainant was fearful of him at the time of this incident and she did not appear scared in his view. In relation to how they came to be on the bed the Defendant gave a version of them both pushing each other and somehow ending up on the bed. The Defendant could not explain why he did not leave when asked and said he probably made a mistake and should have left.

A Summary of the Defendant’s Evidence given in the Original Hearing (Exhibit P14)

Evidence-in-Chief

The Defendant said he stands by what he said in his interview with police. The Defendant clarified what he meant when he told police that he tried to stop her from scratching him, but that there was no wrong intention and said that he hugged her to say sorry that they were going through the separation.
The Defendant further clarified that when he hugged her, he was behind her and they were sitting on the floor. The Defendant said that when she sat down, he went around her and sat down.
The Defendant clarified that what he meant when he said to police that they had only separated recently was that he wasn’t sure if they were separated or were reconciling which is why they invited the parents to come to Australia.
The Defendant was asked to identify several documents which had been marked as exhibit D1. The Defendant identified that it showed the Complainant and the dog. The Defendant stated that the photograph was taken on 7 February 2016 in the morning. The Defendant stated that he took other photographs on 27 December 2015. Those persons identified in those photos were himself, the Complainant, and her parents. The Defendant also identified further photographs in that bundle.

In relation to the message he left on the Complainant’s phone, the Defendant stated that what he said was not that “I put you into this situation” but “we are in this situation”. [I have reviewed very carefully the audio and it is clear without doubt that the Defendant said in that recorded message “I put you into this situation”. My comment].
In that message, the Defendant said that the Complainant’s father said he would cut off his hands. The Defendant clarified that what he believed the Complainant’s father had said was not that he would cut his hands off but rather that he would cut them loose – the difference being result of English/Russian translation difficulties.
The Defendant also identified several photographs of the Complainant said to have been taken on 12 November 2015 where the Complainant was trying on a dress.

Cross-Examination

The Defendant was asked why he left the translation of the message from the Complainant’s father for so long before confirming what her father had actually said, given he had left that message for the complainant some hours before. The Defendant did not explain why. It was suggested that the message was a threat to him that he would have his hands cut off. The Defendant denied that it was and said it was something to do with the translation.
The Defendant denied that he considered those words to be a threat. It was suggested to him that indeed he thought it was a threat and he had a guilty conscience as a result of that threat. That is why he made the reference to the Complainant.
It was suggested that in fact he had a guilty conscience and that is why he apologised for putting the Complainant into that situation. The Defendant denied that. It was suggested to the Defendant that the reason he talked about putting the house on the market was also that he felt guilty because of what had happened earlier that evening. The Defendant denied that. The Defendant denied that the message was in fact an apology for what had happened that evening.
The Defendant agreed that the sliding door to the walk-in robe was open only slightly; that he pulled it open and walked in. He also agreed that the Complainant asked him to leave, although he denied it was a command and said she asked him to please leave I am getting ready. The Defendant accepted that he did not leave the walk-in robe. The Defendant also accepted that she asked him again to leave because she only had her underwear on.
The Defendant said that he slid open the door and walked in. He said she told him to leave, he picked up a skirt from the walk-in robe, and gave it to her. The Defendant said the Complainant was sitting down as he picked up the skirt and he sat down behind her. He said they both had their legs crossed and that he hugged her by putting his arms around her waist. The Defendant denied that she struggled against him but said that before he actually sat down, she tried to scratch him and slap him and it was at that time that he went round and sat behind her.
The Defendant said that the Complainant was sitting on the floor and he was standing up and she tried to scratch him and slap him. The Defendant accepted that despite her trying to slap and scratch him he did not leave but denied that the Complainant was resisting him and trying to shrug him off. The Defendant said she pushed him a couple of times with her elbow.
The Defendant ultimately agreed that she was trying to stop him holding her at the time. The Defendant agreed that he continued to hold her and he knew that she did not want him to do so. The Defendant also agreed that he kissed her on the back of the neck but denied that it was obvious she didn’t want him to do that either. Ultimately the Defendant agreed that she had not consented to him kissing her. The Defendant agreed that he had not asked her consent and that she was flailing her arms towards him.
The Defendant said that when they left the walk-in robe she was trying to scratch and hit him and was coming toward him. That is when they fell on the bed somehow. The Defendant agreed that he should have left her room, but he did not think it at the time.
It was suggested to him that in fact that was not how the matters transpired that evening, the Defendant denied that. The Defendant denied that he heard the Complainant tell him not to come into the bedroom. The Defendant also denied that she had closed the walk-in wardrobe door or that he opened it when she attempted to stop him doing so.
The Defendant said that the reason he gave her the skirt was to wear because she was getting ready. He did so, he said, because he wanted to have a conversation with her despite the fact, she was trying to get ready to go out. The Defendant denied sitting down or that she was telling him to leave and was not interested in speaking to him.
The Defendant denied making physical contact with her prior to sitting down and denied throwing a skirt at her. The Defendant also denied rubbing his crotch against her back. The Defendant denied holding her from behind and said he put his arms around her but denied that he was holding her from behind. The Defendant denied sucking on her neck or kissing her neck many times.
The Defendant indicated that he only kissed her once on the neck and it was on the inside left neck, indicating a point below the collar line on the left-hand side of the neck towards the left shoulder.
It was suggested to the Defendant that his DNA was found on the right-hand side of her neck. The Defendant said he was not aware of that and denied that he kissed her more than once. The Defendant denied picking her up and throwing her on the bed and pinning her down, continuing to attempt to kiss her. The Defendant denied that the Complainant continued to ask him to leave. The Defendant denied being controlling or possessive of the Complainant.
The Defendant agreed that a couple of weeks prior to this incident he had snuck into her room at night while she was asleep and went through her phone. The Defendant also accepted that he watched her and the dog sleeping.
The Defendant agreed that he had said to the Complainant “you can’t do this to me” referencing her wanting to leave him. The Defendant denied that he did not accept that the relationship with the Complainant was over or that the Complainant had insisted that it was over.
It was suggested that because the Defendant was very possessive of her, he forced himself upon her. The Defendant denied that. The Defendant does accept that she did not consent to him hugging her or holding her and that was clear because she was slapping and hitting him. The Defendant agreed that it was pretty clear that she was not consenting to being held and she wanted the relationship over. The Defendant denied that it was clear to him that the Complainant did not want to kiss him despite the fact that she was kicking and scratching him and telling him to leave.
The Defendant agreed that after this incident in the bedroom they both walked upstairs and sat at the dining room table where he asked her to have a chat with him. He also agreed that she said to him “this is it I’m going to the cops”.
The Defendant then gave this very curious answer “she previously said that the only way we could separate probably is going through police or through our parents. So, I didn’t exactly know what she was thinking at that spot.”[4]
[4] Transcript p 87 – 21/1/17
When it was suggested to the Defendant that even on his version of events after the struggle in the bedroom and walk in robe, with the Complainant rejecting his advances, that he should have known what she was talking about, the Defendant said he still did not know 100% what she meant.
The Defendant suggested that he did not think it was wrong to hold her against her will despite her struggling against him and him doing so without her consent. The Defendant does not appear to accept this in hindsight either. It was suggested to him that he was going to talk to her that evening whether she wanted to or not. The defendant said no, he wanted to discuss the issue with her because she had said she would talk later.
The Defendant agreed that at the interview with police he didn’t think he’d done anything wrong and he knew that he should tell them everything. However, he missed out telling the police about kissing the back of the Complainant’s neck, despite the fact that the allegation had been one of an act of indecency. The Defendant’s answer to that fact was “I missed that bit”[5]. It was suggested to the Defendant that the only reason he mentioned kissing was because of the possibility of saliva been found on her neck. The Defendant denied that.
[5] Transcript p 89 27/1/17
The Defendant denied fabricating the story to fit the evidence as he was confronted with it. The Defendant denied that he said more than once that he missed her and denied outright that he said he missed her body.
[In relation to what he told police about the incident, I must say I found it difficult trying to understand how if he was standing up and she was sitting down, how she could have tried to scratch him or hit him or reach him indeed unless he was leaning down toward her. That was not explained in evidence. My comment.]

The Defendant’s Evidence given before me

Evidence-in-Chief

The Defendant indicated that despite them being separated, they were very close and would do many things together such as go to the gym, go to the coast, and go out for dinner. The Defendant also indicated that he would kiss her emotionally on the head or forehead as well as the neck. [I note that was never put to the Complainant. My comment.] The Defendant indicated that they had never had sex during the 2-year separation.
The Defendant also said that the Complainant’s parents were coming to Australia and he offered to stay at a friend’s house and the Complainant said to him, “no they have come to see both of us” and in terms of the reconciliation of the relationship she said “let’s give it a go”. [I note that was also not put to the Complainant. My comment.]
The Defendant described that she was the one who would be violent and have physical altercations and he would be the one to calm her down. He said that over the 10 years, that would take place approximately every 2 to 3 months. [I note that was not put to The Complainant either. My comment.]
It was suggested that when the physical altercations took place and the Complainant tried to punch and scratch him, he would try to calm her down by hugging her, trying to control her arms and he had done that on a number of occasions and it mostly worked. [That was never put to The Complainant either. My comment.]
The Prosecutor identified that the Browne v Dunn rule had not been complied with. I indicated I was concerned about that also. It was accepted by all that Senior Counsel for the Defendant was not counsel at the time the Complainant gave her evidence. The Complainant was not recalled so I will need to consider that factor and how much weight I can give to that evidence.
It was suggested to the Defendant that it was normal for the couple to see each other in various stages of undress. The photographs, it was said, depicted that as well. It was also suggested that they shared loving memories, particularly birthday times and the like, together. The defendant agreed with those propositions.
The Defendant was taken to some text messages sent almost a year earlier as well as documents indicating they were partners together in or around October 2015.
The Defendant indicated that on 8 February 2016 he went into the Complainant’s room because he wanted to speak about their relationship and what she had talked to her father about the night before. The Defendant indicated that he was not aware that she was going out with her girlfriend that evening prior to him going into her room.
The Defendant indicated that when he walked to her room he knocked, heard her voice, walked into the walk-in robe and saw her there. The Defendant indicated she was wearing a bra and underpants. The Defendant indicated that he could hear her say something to the effect of “I’m getting ready I do not want to talk at the moment”.[6]
[6] Transcript p 109 – 7/2/20
The Defendant said that when he first went into her room the first thing he said was “what did your dad say? I want to have a conversation about our relationship.” She said “I’m half-dressed I am semi dressed – I’m semi dressed and I’m getting ready, please, I do not want to talk to you about the relationship at the moment.”[7] The Defendant then said that he gave her a skirt, which was on the floor, to wear. The Defendant stated that the skirt was on the walk-in robe side of the sliding walk-in robe door.
[7] ibid
The Defendant said that when he handed the skirt to her he was at the door of the walk-in robe. He confirmed it was a sliding door and said that the door was open and that it was not shut when he was with her in that area on that night.
The Defendant said he bent down, picked up the skirt, and handed it to her. She took it and sat down on the floor of the walk-in robe. The Defendant said that he sat behind her and put his arms around her waistline all the way around to the front. The Defendant said he put his arms around her and kissed her on the neck and said, “I miss you”.[8]
[8] Transcript p -111 – 7/2/20
The Defendant said that the Complainant cocked her elbow at 90° facing backwards and essentially tried to hit his body. The Defendant said she appeared angry with him about the relationship. The Defendant said after she had done that, he then kissed her on the neck on the left-hand side indicating on the top of his shoulder at the collar area where he kissed her. The Defendant said he probably kissed her for about 4 to 5 seconds, and she did nothing.
The Defendant said the Complainant stood up and he stood up as well. The Defendant said she then pushed him and shoved him and tried to hit and scratch him and that she did hit him and scratch him on his arms, shoulder, neck, and face, and left marks on him.
The Defendant said he tried to fend her off, trying to get her arms under control, and calm her down. The Defendant said that his efforts in the past to calm her down had worked on previous occasions.
It was at that point that they moved and ended up on the bed which was within a metre of the walk-in robe. The Defendant said that the bed was at his back and she was facing the bed toward him and they both ended up on the bed. The Defendant said it was his memory that he was the one that ended up on the bed first and that they were there for approximately 30 seconds.
The Defendant said that they were lying sideways facing each other and she was throwing her arms trying to scratch him, punch him, and hit him, and he tried to fend her off. The Defendant denied ever trying to get on top of her or pinning her down.
The Defendant said that she got off the bed, went into the walk-in robe, got some clothes on, and told him that she was going for dinner with a friend.
The Defendant denied rubbing his penis against her back that evening. He denied that she had only a bra on and said she had a bra and underpants on at the time. The Defendant indicated that the Complainant placed the skirt over herself as a cover. The Defendant denied throwing the Complainant onto the bed or pinning her down. The Defendant denied kissing her on the face or neck while she was on the bed.
The Defendant denied that the Complainant was struggling whilst on the bed and said she was trying to hit him. The Defendant denied any sexual intent in his mind that evening and it was his view that he wanted to resolve the disharmony in his relationship.
The Defendant also denied that the Complainant grabbed him by the neck with one hand and by the ear with the other hand. The Defendant also denied that he forced the sliding door open as she was trying to hold it shut.

Cross-Examination

The Defendant agreed that the Complainant had said to him that she wanted him to go away and she did not want to talk to him. The Defendant also agreed that she had said to him that she was half dressed.
The Defendant agreed that on his version she was wearing a bra and underpants. However, the Defendant did not recall her saying “I’m half-dressed and getting ready to go out”. It was suggested to the Defendant that in the interview with police that same evening he told them that she asked him to get out. After being reminded of that fact the Defendant then accepted that she did say that.
The Defendant agreed that the Complainant had made it clear to him that she was not interested in having a conversation with him that night and she made it clear to him that she did not want him in her room.
The Defendant agreed that she had told him that she wanted him out because she said, “I’m half-dressed” and she wanted him out of the room. The Defendant did not agree that she said so because she was uncomfortable with him being there while she was in her underwear because they had seen each other in underwear previously.
The Defendant agreed that his priority was to resolve the disharmony between them respectfully, yet he completely ignored her clear repeated requests to leave. It was suggested that he had no respect for her privacy given her clear intention, the Defendant said his intention was to talk about what happened the night before.
The Defendant agreed that he was intent on having a conversation with her despite her protestations. It was suggested that he was not interested in anything she wanted, he was only interested in having a conversation with her and he didn’t care about what she wanted. He denied that and made some comments about being frustrated. It was suggested that the reason he did not agree that he didn’t care, was because he said he wasn’t thinking that way.
The Defendant agreed with Counsel that despite her saying “please leave I am half-dressed”, he did not consider that an indication she felt uncomfortable with him being there. Despite the fact that when he threw the skirt to her she used it to cover herself up, the suggestion that was an indication that she was uncomfortable at being exposed in his presence was avoided. The Defendant didn’t answer the question and said that she was angry and didn’t want to talk to him. It was pressed upon him and he said “no it did not indicate that she was uncomfortable.”[9]
[9] Transcript p 123 7/2/20
The Defendant was asked whether it was usual for him to decide what outfits an adult woman would wear. His answer was that was because he wanted to have a conversation with her, and she had said she was half dressed, he gave her the skirt as a mark of respect. The Prosecutor again suggested to the Defendant the proposition that he did not seem to recognise that by her being concerned about her lack of dress that she didn’t want to speak to him and that because he gave her a skirt, clearly that was a recognition that she was uncomfortable with him being there in her underwear and he knew it. The Defendant did not seem to understand the contradiction in his evidence, yet he said he did.
Eventually, the Defendant recognised that by giving her the skirt, he recognised that she was uncomfortable about being exposed. However, he indicated that it wasn’t his intention and that it was because he wanted to have a conversation with her.
It was suggested to him that by sitting down on the floor when she was supposed to be getting ready to go out that was rather odd behaviour. The Defendant disagreed. The Defendant agreed that it was clear to him at that stage when she sat down, given what happened in the past, that she had no interest in conversing with him.
The Defendant ultimately agreed that he had no intention of leaving despite her protestations because he wanted a conversation with her, although he disagreed that he cared more about the conversation than respecting her wishes and privacy.
It was suggested to him that the Complainant had the right to refuse him entry to her bedroom given that it was her bedroom and he had his own bedroom. Ultimately, he agreed that she did although, he disagreed that his actions that night did not respect that privacy.

The Defendant clarified that it was at the stage when she sat down, and he put his arms around her and kissed her neck, that she first showed physical resistance. The Defendant was shown passages of the evidence he gave in the first court proceeding about what had occurred in the walk-in robe which was clearly different to the evidence given on 7 February 2020. The Defendant agreed that he had misspoken and said something different. It was suggested that the Defendant could not after four years be sure on precise details. The Defendant rejected that assertion and said he would not forget that day.
The Defendant was again reminded of his prior evidence in respect to what occurred that day. The Defendant was also reminded that his evidence was clearly different from the first proceedings and he was given the example that he had said in the earlier proceedings that before he even sat down she tried to scratch him, whereas in evidence (before me) he said that happened after he had placed his hands around her and kissed her on the neck.
Despite the differences in the evidence given, which the Defendant agreed was quite stark in places; he still indicated that his memory was spot on 4 years after the event. In questions from me about whether his memory was better than in 2017 he said it’s hard for him to say but as far as he can recall it was.
It was suggested to the Defendant that the reason there were several versions given by him was because he made it up. He denied that. The recorded interview was then put to him about what he said about that evening. That was also in stark difference to what he’d said in previous evidence and on 7 February 2020. It was further suggested to him that what he said in evidence on 7 February 2020 was certainly not the version he told police. The Defendant said it was pretty close to what he’d said in his evidence and to the police.
It was suggested to the Defendant that the court could not be satisfied what evidence was truthful given he had given three different versions. The Defendant ultimately rejected that there was any difference between his responses or evidence as to what occurred that evening.
The Defendant denied that he knew the Complainant was telling him to get out or that she tried to hold the door shut in the walk-in robe or that she was only wearing a bra and nothing else. The Defendant also denied that she put on a pair of underpants when he first walked in or that when he first grabbed her in a hug, they were both standing. The Defendant also denied that it was at that stage he should have known that she did not want to be held or touched by him. When it was suggested to him that she was saying ‘get out please leave’ he said, “that’s how she normally reacts”.[10]
[10] Transcript p 132 – 7/2/20
It was suggested to the Defendant that when she had said to him please leave get out, he ignored her. The Defendant said that was not the case and that his intention was to get something out of her as he was frustrated and wanted an answer.
The Defendant denied that he knew that the Complainant did not want him to touch her despite the fact she was telling him to leave. The Defendant agreed that it was obvious she did not want to speak to him.
The Defendant agreed with The Prosecutor that despite her physically resisting his embraces, he maintained kissing her for at least 4 to 5 seconds. The Defendant denied sucking her neck despite being referred back to the evidence of Dr Collins about the punctate bruising on her neck.
The Defendant was referred again to the evidence of Dr Collins indicating that the area where he says he kissed her, and where the photographs show the punctate bruising, was an area which Dr Collins indicated was not consistent with a simple kiss. The Defendant again denied sucking on her neck.
The Defendant agreed that he said that the kiss was innocent, and was an affectionate display done by him to calm her down and therefore there was nothing for him to hide. It was also suggested that he had a number of opportunities to tell the police he kissed her neck, yet he failed to mention the kiss to police until they mentioned it to him at some point later about whether they would find evidence. The Defendant agreed that was the case.
It was suggested to the Defendant that the only reason he told them about the kiss was because they confronted him with the possibility that there would be forensic evidence of saliva. The Defendant denied that. It was suggested to the Defendant that the only reason he gave for failing to tell them about the kiss was that he missed it; that he overlooked the detail. The Defendant agreed that it was a detail he forgot because he been woken up at 2 AM on the morning.
It was suggested to the Defendant that even though he had given specific and significant detail about that precise aspect of the incident, he failed to tell police that he kissed her on the neck for 4 to 5 seconds. It was suggested that he deliberately left that out until he was caught out. The Defendant denied that. Further, it was suggested his behaviour was done in a sexual way and that he also deliberately left out the part about rubbing his crotch up against her back.
The Defendant denied any sexual intent or sexual gratification on his part. The Defendant also denied picking up the Complainant in the walk-in robe and putting her on the bed. The Defendant also denied pinning her down and kissing her face and neck. He denied that that was part of sexual gratification.
The Defendant indicated that when the Complainant went toward her car she was angry about the relationship but the Defendant indicated that he could not get a clear resolution. When it was suggested to him that it was pretty clear that she told him it was over, he agreed with that suggestion and said he did not take it seriously when she told him it was over because she had done it before with a different result.
The Defendant denied that it was puzzling that the Complainant decided to get into her car given that she was being met by SK, her friend, who was coming to her home to pick her up.
The Defendant indicated that it was the Complainant who had behaved badly and wasn’t giving him answers and she was the one who was angry. The Defendant did not consider himself to have acted badly.
The voicemail that he left the Complainant was read to him. It was suggested that that call was apologetic in tone. The Defendant agreed with that proposition. The Defendant also agreed there was no anger or frustration expressed in that message and that it was an apology to the Complainant.
It was pointed out to the Defendant he had given various excuses for why he decided to apologise, on the one hand he did not except the relationship was over when speaking about the reason for staying in the walk-in robe and bedroom room that evening yet some two hours later he agreed that the relationship was over. The Defendant could not explain why he said “I’m sorry that I put you in the situation” and said it was about the relationship.
It was suggested to the Defendant that the context of his voice message apologising to the Complainant was that he had completely crossed the line in his actions toward her that night. The Defendant denied that. It was suggested that because he had hugged her, kissed her, and pinned her to the bed against her will, he was willing then to do anything to try and make up for what he had done. The Defendant denied those assertions.
It was also suggested that during the whole of the breakup of the relationship for some 2 years prior to the 8 February 2016 they had never resumed a sexual relationship. The Defendant agreed that they had not had a sexual relationship in that time. The Defendant also accepted that he had not kissed her on the lips in a sexual manner in that time either.
The Defendant ultimately accepted that there was a difference between an affectionate kiss to say a relative and a person who is in a sexual relationship.
The Defendant also indicated that he wanted to resume a sexual relationship with the Complainant. However, he knew that she did not want to have a sexual relationship with him and he accepted that.

The Parties’ Submissions

The Prosecution’s Submissions

The Prosecutor set out the history of the proceedings. The Prosecutor also set out the particulars of the three offences now charged:
(1)CC 2019/12619 – the Defendant hugged the Complainant without her consent as she stood in her walk-in robe wearing only a bra and underpants.
(2)CC 2016/1934 – the Defendant hugged the Complainant from behind, rubbed his crotch against her back, and kissed her on the back of the neck without her consent as she was sitting in her walk-in robe.
(3)CC 2019/12620 – the Defendant threw the Complainant onto her bed, climbed on top of her, pinned her down with his arms and legs, and attempted to kiss her face and neck without her consent.
The Prosecutor set out the elements of the offence pursuant to section 60 of the Crimes Act 1900 (ACT) which provides:
(1)a person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence, on conviction, by imprisonment for seven years.
(2)for this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness
The Prosecutor submitted that the offence is made up of the following elements:
(1)the Defendant commits an act;
(2)the Defendant intends to commit an act;
(3)the act is indecent according to the contemporary standards of morality and decency held by ordinary members of the community;
(4)the other person does not consent to the act; and
(5)the Defendant is reckless as to whether the other person is consenting to the act.
The Prosecutor then set out the prosecution case which consisted of identifying the various exhibits before the court and who provided them. Further, the Prosecutor summarised the evidence given by each witness including the Complainant.
The Prosecutor clearly identified that there was a factual dispute between the Complainant and the Defendant as to what occurred in that short period of time in the walk-in robe and in the bedroom on the evening of 8 February 2016.
The Prosecutor properly identified that it was the physical acts constituting the offences and the Defendants state of mind when the acts were said to have occurred which are to be determined. The Prosecutor properly identified that it is for the prosecution to prove each element of the offence beyond a reasonable doubt.
The Prosecutor further identified that even though the Defendant gave evidence in the proceedings, the Prosecutor must satisfy the court that the Defendant’s version of events should not be accepted as a version of truth.
The Prosecutor further identified that if the court did reject the Defendant’s evidence and accepted the Complainant’s evidence beyond a reasonable doubt regarding the physical acts, the court will then need to consider two issues:
(1)Firstly, did the Defendant’s actions constitute acts of indecency? And
(2)Secondly, was the Defendant reckless as to whether the Complainant did not consent to the acts?
The Prosecutor submitted that in order to determine the facts in this proceeding the Court must carefully examined the credibility and reliability of all witnesses. The Court must also consider the Complainant’s evidence in light of the decision of R v Murray (1987) 11 NSWLR 12. The Prosecutor submitted that I must scrutinise the Complainant’s evidence very carefully prior to reaching a conclusion that the offences were committed as charged.
The Prosecutor submitted that the Complainant gave her evidence in a frank, straightforward, and believable fashion. Her evidence was detailed, inherently plausible, and nothing about the manner of her evidence undermined her credibility.
The Prosecutor submitted that although she was argumentative with the cross-examination at times, it was more to do with her personality than any attempt to avoid or deflect her evidence. In fact, the thrust of her evidence remained wholly consistent from the time of her initial complaint to her friend SK (which was almost immediately after the events had occurred), to her complaint to police, and throughout the evidence she gave in court.
The Prosecutor provided an example of where, in cross-examination, it was suggested that the Complainant had not spoken to police about covering her body with the skirt when she had said something to police which was consistent with the evidence she gave. That appeared to be as a direct result of her actual memory of the incident rather than recalling the statement she gave to police. That evidence was confirmed.
The Prosecutor submitted that the Complainant conceded where she ought to have and did not minimise her own behaviour particularly given that she had scratched and hit the Defendant and she did not exaggerate his conduct either.
The Prosecutor further submitted that many aspects of the Complainant’s evidence were corroborated by other evidence, including independent evidence. That included defence counsel’s expert who gave an opinion as to the age of the bruising identified on the Complainant’s person as well as the punctate bruising on her neck. The presence of apparent saliva on two areas of her neck was consistent with where she says she was kissed and where the Defendant sucked on her neck. There was also the voicemail from the Defendant after the incident essentially apologising for putting her into that situation.
The Prosecutor submitted that there were some inconsistencies in the Complainant’s testimony but that was not unusual as memory can be fallible and words are not always chosen with precision. There was no pattern of exaggeration or downplay which would lead to a conclusion that the witness was lying or would be otherwise unreliable and, after careful scrutiny, the inconsistencies in her evidence were not the kind which would lead to a conclusion of untruthfulness.
The Prosecutor submitted in respect to the bruising, said by Dr Collins to have been limited and he would have expected bruising to be of greater distribution and severity to those in the exhibited photographs, there was no evidence as to how much force was used by either the Complainant or the Defendant. I note that, with the throwing onto the bed incident, the Complainant indicated that he picked her up demonstrating picking up someone with two hands one under the legs and one under the shoulders and he then threw her on the bed.
The Prosecutor submitted that Dr Collins had drawn conclusions about the force used, but his evidence in court and also in his report did not touch on the level of force required to cause bruising of the nature he expected to find. It was never suggested to Dr Collins that the evidence from the Complainant was that the Defendant lifted her with two hands under the legs and shoulders then threw her onto the bed.
The Prosecutor submitted that the Defendant’s evidence consisted of an initial version in a recorded interview with police, followed by two versions given in court.
The Prosecutor submitted that the Defendant was an unimpressive witness whose credibility was seriously undermined by the many inconsistencies across his 3 versions of what happened that night. The Prosecutor submitted that he prevaricated and was unwilling to make concessions on key points of fact when he should have. The Prosecutor submitted the objective evidence did not match his version of what happened.
The Prosecutor then set out the inconsistencies within the three versions given by the Defendant. The Prosecutor also pointed out the fact that the Defendant stated his memory was much clearer when giving his evidence before me about the events of 8 February 2016 “as it is a day he would never forget”. Despite that assertion his evidence was replete with inconsistencies. An example of some of those inconsistencies was in relation to his evidence about where he picked up the skirt from. On one version he said he picked it up outside of the walk-in robe on the bedroom floor (latest version) while in an earlier version said he picked it up on the inside of the walk-in robe.
In respect to the sliding door, on the earlier version he indicated that the door was closed but for 80 mm and he had to slide it to get it open. However, on the later version he said that the door was open and he denied that it was ever shut on that night when the Complainant was inside the walk-in robe.
The next event was in respect to the physical contact between himself and the Complainant. In his police interview, he said the first physical contact came from her as she began to push him out of the room and was hitting and scratching him. His response was to grab her from behind around the waist.
In his evidence before the court in 2017, he maintained that she physically lashed out at him and he placed his arms around her waist. Indicating that it was before he sat down. The Defendant indicated that she was sitting down when she was trying to scratch and slap him, and it was then that he sat down behind her.
In his evidence before me he said the first physical contact between them was when he gave her the skirt; he sat behind her and put his arms around her waist. Whilst his arms were around her waist, she began to push him away and tried to scratch him. It was his evidence that that was the first physical contact. That evidence is different and inconsistent with his evidence given previously in court and what he told police. The Prosecutor submitted that when he explained what he did to police it was in a defensive response to her violence, and in 2017 it was an action born of sympathy according to his evidence.
In respect to why he did not leave when she told him to do so, he told police that it was his feelings and the fact he missed her that drove him to continue. His recent evidence was different because he said he was trying to calm her down or soothe her as he had done before.
When it was suggested to him that it was not true that, as he had indicated, the kiss was quite innocent and done with the mere intention of calming her down, the Defendant said it was an emotional kiss to calm her down. The Prosecutor submitted that across the three versions he gave in evidence before the court, either as a recorded interview or in person, he left out important details and avoided questions he did not want to answer.
An example of such was in his recorded interview with police when asked about physical contact and what body parts touched hers. The Defendant had made no mention when specifically questioned about the kiss until it was suggested that there would possibly be forensic evidence on the Complainant. The Defendant had immediately responded that he had kissed her and that it was mere forgetfulness on his part as to why he had not said anything about kissing her.
In respect to the text message exchange with the Complainant’s father and the voicemail he left for the Complainant at approximately 11 PM that night there was dialogue in respect to the inaccuracy of translation in relation to the message he got from the Complainant’s father about cutting off his hands. Ultimately, the Defendant said it was because of the poor translation with his translation service on his phone that it turned out he’d said cutting you loose rather than cutting your hands.
It was suggested to him that, despite receiving the father’s message at 9 o’clock, he did not realise that the words were wrongly translated for some two hours and only after he had made the recorded message to the Complainant. That is despite the fact that he had been talking to her father that evening, yet it didn’t click that he’d interpreted the wrong meaning of those words. The Defendant said he had not been clarifying the meaning with the father only talking about other things.

I found that the evidence given by the Complainant was consistent with the version she gave to police and also to SK. Having carefully scrutinised her evidence I found her to be a witness of truth in all of her evidence. There is also independent evidence which corroborates her version and is to some extent inconsistent with the Defendant’s version.
Where there are just the Complainant’s and the Defendant’s versions to consider I must be cautious. In my view this is a case where the principles in R v Murray have limited application.
The Murray direction is generally given if requested by defence, in respect to a warning given to a jury about the unreliability or at least the potential unreliability of uncorroborated evidence given by a Complainant in a sexual offence and in particular, children. There has been much controversy over this warning, and it is accepted that generally speaking it should now not be given in matters where child Complainants give evidence to infer that child Complainants are inherently unreliable because they are children.
That warning is given where there is only one witness asserting the commission of the crime. The evidence of that witness must be scrutinised with great care before a guilty verdict is returned.[11] I note his Honour Lee J said at 19:
“In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.”[12]
[11] R v Murray (1987) 11 NSWLR 12, 19.
[12] Ibid.
It seems to me, however, that one must always be cautious when considering evidence where there are only two persons able to give evidence about what occurred. I have very carefully scrutinised all the evidence having regard to that principle.
Defence counsel referred me to Liberato, a seminal case where his honour Justice Brennan sets out the test to determine evidence of what is essentially one-on-one complaint. It is worthwhile setting it out again;
“[T]he jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to reasonable doubt as to that issue.”
In this case, however, there is not just uncorroborated evidence from the Complainant. There is complaint evidence given to SK almost immediately after the incident was said to have taken place. There is independent evidence of material said to be saliva recovered from the Complainant’s person - found in at least two places on her neck. This material was matched to the DNA of the Defendant. There was no suggestion that the saliva did not belong to the Defendant.
There was bruising to the Complainant’s neck which was consistent with her version that the Defendant was sucking on her neck. This bruising was confirmed by Dr Collins as punctate bruising which was no more than 48 hours in age and was fresh. That punctate bruising could only be caused by sucking and not by a kiss by lips alone. That area where the punctate bruising was seen produced saliva which was compared to the Defendant’s DNA and was a positive match. I note this independent evidence is inconsistent with his version of events. I note he says he only kissed her with his lips, once around the collar area.
There is also evidence by the Defendant which corroborates to some extent the complaint made by the Complainant about his behaviour. That evidence was that he accepted that she told him to leave because she was undressed on several occasions, and that there was no consent to him hugging her or kissing her whilst in the walk-in robe. The Defendant also indicated that she scratched and punched him because she wanted him to leave her alone.
I turn to the Defendant’s evidence where he accepted that he entered her bedroom and the walk-in robe without consent and while she was telling him to leave. The Defendant accepted that he threw a skirt at her because she was in state of undress - even on his version of events in a bra and underpants.
On the Defendant’s version of events she was trying to hit and scratch him and in order to stop her from doing so he placed his arms around her waist. That was clearly against her will and consent on his version.
On his version she was clearly telling him to leave and did so on a number of occasions. Despite this he continued in his actions and not only placed his hands around her waist but commenced kissing her as well. I note that when he was giving his recorded interview with police just some hours after the incident he did not at any stage tell police that he had kissed her on the neck until they suggested that there may be evidence which would prove that he did. It was only then that he confessed that he had kissed her but said it was only once.
Clearly that is not true. There is independent evidence of the DNA material found in more than one place on the Complainant’s neck as well as the punctate bruising (what is colloquially known as a hickey or love bite). This evidence discloses that he had kissed her more than once and sucked her neck. The Defendant’s evidence is inconsistent with the independent evidence. I note the independent evidence is consistent with the Complainant’s version of what happened that evening.
I note that the Defendant told police in his interview that he kissed her because of his feelings for her. The Defendant also told police that he would go into her room, and she into his, when they were not fully dressed and that it happened quite a lot. The Defendant also admitted going into her room while she was asleep, sitting on her bed patting her dog, and looking at her because he missed her.
It is instructive that the Defendant accepted that he wanted to re-establish a sexual relationship with the Complainant, and it appears that was part of his motivation for his behaviour that evening. Despite the Defendant saying that the actions were not sexual, in my view they were.
I also note that the Defendant’s version indicated that when telling police, he found the skirt on the inside of the wardrobe yet in evidence before me he said he found it on the outside of the wardrobe and was adamant about that. That was another inconsistency in his evidence and demonstrated his reluctance to concede he was in error.
I also note that when he was speaking with police in his recorded interview, he said that they jumped on the bed and then moved off the bed and she got dressed. In his evidence before me the Defendant described it as they fell on the bed as part of the struggle, another inconsistency.
I note that in his evidence before the court in the first proceeding, the Defendant said he had told police that they had only recently separated and he wasn’t sure if they were separating or reconciling, which is why they had invited the Complainant’s parents to come to Australia.
I had the benefit of photographs of the bedroom which depicted where the walk-in robe was in relation to bed. I have compared the evidence of the Complainant to the evidence of the Defendant in respect to what I would call the bed incident. Having reviewed the photographs and the evidence, I consider his evidence - that because of the short distance between the walk-in robe and the bed he somehow fell onto the bed with the Complainant - is far-fetched and I prefer the evidence of the Complainant in that regard.
I also note that the Defendant stated that what he said in his message to her was ‘we are in this situation’ not “I put you into the situation”. I have listened to the recording on a number of occasions very carefully and there is no doubt in my mind that what the Defendant said in that recorded message was “I put you into this situation”. In my view, that was his admission that it was his fault that the situation arose as it did. This evidence, in my view, would raise the possibility that his evidence about that was a lie, demonstrating a consciousness of guilt. If it were, I would need to consider the principles enunciated in R v Edwards about lies as consciousness of guilt.
There is also the evidence in respect to the translation of the Complainant’s father’s words and whether that was also a lie to cover up his behaviour. The Defendant suggested that when he told the Complainant in the recorded message that her father would cut his hands off, it was only later he translated the message and it suggested that he would cut them loose. I found that evidence to be incredulous given that he had apparently spoken to her father yet did not clarify those words. Was this also a lie demonstrating a consciousness of guilt?
It had been suggested to the Defendant that it was lie, but he denied that. It was further suggested the message was an apology, the Defendant seemed to deny that however ultimately accepted that it was an apology to her.
I turn to the law in relation to lies as consciousness of guilt. In R v Edwards, Deane, Dawson and Gaudron JJ, after considering Reg. v. Lucas (Ruth) ((20) (1981) QB 720) said of the test:
“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest ((31) See M v. R, unreported, Court of Criminal Appeal of South Australia, 18 August 1993). And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it ((32) See, e.g., Credland v. Knowler (1951) 35 Cr App R 48; Tripodi v. The Queen [1961] HCA 22; Buck (1982) 8 A Crim R 208, Reg. v. Preval (1984) 3 NSWLR 647; Reg. v. Evans (1985) 38 SASR; People v. Showers (1968) 440 P 2d 939) and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of "a realisation of guilt and a fear of the truth".
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt ((33) See, e.g., Lonergan v. The Queen (1963) Tas S R 158; Broadhurst v. The Queen (1964) AC, at p.457.). A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.
If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms.”
In relation to the message, it is evident that the Defendant did not recite the words accurately. That may have been because he knew it would implicate him or it may have been because he forgot and was reluctant to admit it. The translation issue cannot be resolved because there was no direct evidence as to what the translation actually was.
No doubt the message, in my view, was an apology. But for what? I can’t be satisfied that the lie in relation to the words actually used, and what was meant, would establish the Defendant’s guilt according to the test in Edwards.
The Defendant argued that he was not angry with the Complainant and was trying to stop her from attacking him. However, I find that difficult to believe given SK saw him and formed the view that he was aggressive toward the Complainant when in her car on the driveway. That is consistent with the Complainant’s description of him as well.
In terms of his evidence to the court on the first occasion when he described what happened when he first went into the walk-in robe, he said she was sitting and he was standing.
I found it difficult to understand that if he was standing up and she was sitting down when she first started to scratch and hit him, how could she scratch on him unless he was leaning down toward her? That issue was not explained in evidence.
The Defendant also said that he would kiss the Complainant emotionally on the head or forehead as well as the neck. As I noted earlier, that was never put to the Complainant.
The Defendant also indicated that the Complainant was the one who would be violent and have physical altercations with him and he was the one to calm her down and that had happened every 2 to 3 months of their relationship. I note that was never put to the Complainant either.
The Defendant also gave evidence that when she tried to punch and scratch him at times, he would calm her down by hugging her and trying to control her arms and had done that on a number of occasions and it mostly worked. I note that was also never put to the Complainant.
These omission clearly raise issues as to the weight of that evidence and I will need to consider that evidence very carefully.
I note that the Defendant denied forcing open the sliding door to the walk-in robe and said that the door was open. In earlier evidence, however, he said that the door was 80% shut. This inconsistency was not resolved by any evidence.
In relation to the bed incident I note the Defendant gave a version completely at odds with the version given by the Complainant. Having considered both versions and the context in which the behaviour occurred; the Defendant’s explanation is unbelievable in my view. I find it unbelievable that they would fall on the bed facing each other and that she would then be hitting, kicking, and scratching him and wriggling around to get him off of her if they were side by side. I accept that the Defendant denies that was her purpose, but I do not accept his explanation as to how they came to be on the bed or what happened when they were on it.
I also find it incongruent that the Defendant would not accept that it was a clear indication from the Complainant that she was uncomfortable having the Defendant in her room because of her state of undress (having only her underwear on in his presence),.
I also find it incongruent that he did not recognise that by giving her the skirt he clearly recognised that she was uncomfortable with him being there whilst only in her underwear. Otherwise, why did he give her the skirt? Certainly not to help her get dressed, as he asserted, because it was a skirt for wearing around the house not to go out in. The Complainant gave evidence of that fact and that evidence was not contradicted.
I also note the Defendant denied the suggestion put to him in cross examination that he had no intention of leaving despite her protestations for him to leave, that it was because he just wanted what he wanted and that the defendant didn’t consider what she wanted at all. That inference is clearly available on the evidence he gave.
I note that the Defendant denied the suggestion that, despite her protestations for him to leave which he ignored, he did not respect her privacy. On the evidence he gave himself that inference could be drawn.
The Defendant accepted that he had given contrary evidence to the first court proceeding in the second court proceeding on 7 February 2020. The Defendant said he may have misspoken those words but said in evidence before me that even after four years he would not forget that day and therefore was precise on the detail. I took that to mean that his memory was better after 4 years than it was when he gave evidence on the last occasion and when he spoke to police shortly after the incident.
That evidence was significant in that in the first proceedings he said that before he sat down, she tried to scratch him. Whereas in evidence before me he said that happened after he placed his hands around her waist and kissed her neck. This demonstrates yet another inconsistency in his evidence.
The Defendant indicated that his actions (of hugging her, kissing her and the like) were not unusual for their relationship. I note that was never put to the Complainant and therefore the weight I can give that evidence is limited. I also note that the Defendant accepted that there had not been any sexual relations during the course of the breakup nor were there any kisses on the lips. I note they had been broken up for 2 years prior to the events of 8 February 2016
The Defendant accepted, somewhat reluctantly, that there was a difference between kissing someone such as a relative or friend and someone who is in a sexual relationship with them. I note the Defendant said in evidence that he wanted to resume a sexual relationship with the Complainant and knew that she did not want to do so.

Warning as to Standard of Proof and the Defendant’s Evidence

I must warn myself that the Defendant does not have to prove anything in this case. The Defendant always remains innocent until proven otherwise. It is for the prosecution to prove each element of the offence beyond reasonable doubt. The onus of proof always falls upon the prosecution to prove its case. I have given myself that warning. See Parkinson v Alexander [2017] ACTSC 201 at 84.
I also note that the Defendant may remain silent if he so chooses. In this case, the Defendant chose to give evidence. I must treat his evidence like I would any other witness. I can accept all or some of his evidence or I can reject some or all of his evidence.
The Defendant gave evidence before me, as well as in a prior trial before a different Magistrate, and participated in an interview with police. I noted that his evidence in those instances was littered with inconsistencies throughout. I also note that his evidence was not consistent with independent evidence given by his own witness, Dr Collins. That evidence was in relation to his DNA being found on more than one spot on the Complainant’s neck and the punctate bruising which could only be caused by him sucking on her neck. I note that the marks, scratches, and bruises on his body were consistent with the Complainant’s evidence of what happened. The bruising found on her could also be consistent with her evidence.
Having considered all of the Defendant’s evidence before me, I found there were a number of inconsistencies in his evidence before this court, the first court hearing, and what he told police. Some of which I have outlined in my reasons and some which have been referred to when setting out a summary of the evidence and submissions.

My impression of the Defendant was that he was untruthful as to what occurred in the walk-in robe and the bedroom. In my view he was an unimpressive witness whose evidence about what happened that evening was unbelievable. The Defendant’s evidence was littered with inconsistencies with his own evidence and also the independent evidence. The Defendant’s version was not supported by the independent evidence, particularly the punctate bruising and the DNA material found on the Complainant’s neck. I note that the independent evidence corroborates the Complainant’s version of events.
Even if I do not believe the evidence given by the Defendant, the matter does not end there. I must be satisfied beyond a reasonable doubt that the evidence given by the other witnesses proves to the requisite standard the elements of the offences.
I note that the Defendant gave evidence that he had no criminal history and that he was a person of otherwise good character. I note that he carries out a responsible managerial position in his work. I also had the benefit of statements of character references tendered in evidence before me. I have taken those factors into account when considering his evidence and the evidence of the other witnesses.
I note the evidence given by SK, as to what she was told by the Complainant, is consistent with the evidence given by the Complainant as to what happened. SK gave evidence about the Complainant’s demeanour and that of the Defendant. In my view that also corroborates the Complainant’s version of what happened. The Complainant told SK what had happened very shortly after the incident and in my view with little time to make up any story.
I’m fortified in that view because of the impression by SK that the Complainant was generally a very calm and composed person but was very upset and appeared frantic that evening. SK opined that was because of what happened that evening. That is also consistent with the Complainant’s evidence about how scared and upset she was about what had happened.
I also note that the evidence given by the Complainant was generally consistent with what she told SK, the police, and what she said in her evidence in court.
Having considered all of the evidence, including the summary of evidence I have given in my reasons, I am in no doubt as to the following:
(1)The Complainant had just had a shower and was in her bathroom getting ready to go out that evening with her friend SK.
(2)At the time, she had been putting on makeup in the bathroom area and only had her bra on. The Defendant knocked on the door and the Complainant told him to go away. I am also satisfied that the Defendant came into her bedroom despite being told to leave.
(3)The Complainant tried to close the sliding door to the walk-in robe to keep the Defendant out and the Defendant opened it against her will and despite her telling him she did not want to speak with him and despite her telling him to leave.
(4)The Defendant came into the walk-in robe by forcing the door open and observed the Complainant to be in a state of undress. I am satisfied that at that time she only had her bra and no underpants on. I am satisfied that when the Defendant came in, the Complainant put on underpants and the Defendant hugged her whilst in that state of undress.
(5)The Complainant then sat on the ground and covered herself as best she could with her hands. I am satisfied that the Defendant saw her in that state and threw a skirt at her which he found in the walk-in robe.
(6)The Defendant sat down, placed his arms around her waist, and began rubbing himself against her. He was kissing the back of her neck whilst holding her in a bear hug around her waist. At that point in time they were sitting on the ground and he was behind her.
(7)The Defendant told her that he missed her and that he missed her body. I am satisfied that he continued to hold her and kiss her and that at the time she was telling him in no uncertain terms to stop and to leave because she was undressed.
(8)The Defendant picked up the Complainant in the way she described as lifting her up under her back and her knees and then walked to the bed and threw her on it. I am also satisfied that he got on top of her, pinning her arms and legs, and was kissing her neck.
(9)The Complainant struggled and ultimately was able to get away from him, get dressed, and go upstairs. I am satisfied that the Defendant sustained the scratches on his face and arms in the struggle when he threw her onto the bed.
I have found to the requisite degree those facts. That is, I have found those facts proved beyond a reasonable doubt.
I now turn to whether those acts as described are acts of indecency upon the Complainant. I turn to the description given by Refshauge J in the decision of R v McDonald; R v Deblaquire (2013) 223 A Crim R 185 where his Honour held:
“What is important is what Campbell JA said in Eades v DPP (New South Wales) (2010) 77 NSWLR 173 (as now reported) at 185, [61]:
There is justification in principle for it being permissible to take matters of context into account in deciding whether an act that is incited is one of indecency. It arises from the test, stated in R v Manson and set out at 180 [39] above [see [20] above] for what is an indecent act. The law does not proceed on the basis that right-minded persons make a decision about whether an act is contrary to community standards of decency by an artificial exercise of abstracting an action performed from the context in which it is performed. That is so whether the act in question is one actually performed, or one that one person is urging another to perform. Any of the surrounding circumstances that right-minded persons would take into account in deciding whether a particular action was contrary to community standards of decency can be taken into account in deciding whether an offence under S61N (one) has been committed.”

Act of Indecency

I have considered the authorities which set out the test of what constitutes the legal definition of an act of indecency. See R v Girvan (No 2) [2013] ACTSC 138 per Refshauge J citing his Honour’s own decision in R v DM [2010] ACTSC 137 at [219]-[221] in relation to the test of whether an act is indecent:
“The meaning of indecency is now well known. In R v Court [1989] AC 28 (at 42) Lord Ackner said the Judge in assisting the jury in his summing up as to the meaning of an indecent assault adopted, inter-alia, a definition used by Prof Glanville Williams, textbook of criminal law, second edition (1983), p 231. “Indecent” may be defined as “overly sexual”. This is a convenient shorthand expression, since most, not necessarily all, indecent assaults will be clearly of a sexual nature although they, as in this case, may have only sexual undertones. A simple way of putting the matter to the jury is to ask them to decide whether ‘right minded persons would consider the conduct indecent or not’. It is for the jury to decide whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent.”
Clearly it is imperative that I consider the acts complained of in the context in which they were committed. In my view any right-minded person would consider the acts of kissing and hugging the Complainant while she was in the state of undress that included at one point only having her bra on and at another point only her bra and underpants on, was indecent on any test.
This behaviour was done in the context of the Complainant demanding that the Defendant leave her bedroom and her walk-in robe where she was attempting to get dressed. This behaviour included the Defendant throwing her on the bed whilst she was still in a partial state of undress, pinning her to the bed attempting to kiss her when at all times the Complainant was demanding that he stop what he was doing and leave her room.
Regardless of whether the two had been in a sexual relationship previously, there had been no sexual activity between them for some 2 years and it was clear on any version of the evidence that the Complainant did not want the Defendant to do what he was doing. In that context, even kissing her on the back and neck in the state of undress she was in was clearly indecent on any standard. I reject the Defendant’s evidence that this type of activity occurred every 2-3 months of their past relationship. It was never put to The Complainant that it was.
I also note that the Defendant in his evidence said that he wanted to recommence a sexual relationship with the Complainant. I note that even on his own evidence he did not take no for an answer. The Complainant was clearly not consenting to his behaviour and told him in no uncertain terms that she was not. The Defendant ignored this and continued to kiss and hug her. I reject his evidence as to why he did so, that being that he was trying to calm her down!
Having considered the legislative provisions as well as the common law, it is my view that a person in that state of undress demanding that the Defendant leave, and the Defendant then grabbing her by the waist and kissing her on the neck is in itself indecent. Further, by rubbing his groin area on her back whilst touching and kissing her neck and back is also indecent by any standard. There was clearly no consent to this behaviour.
Further by throwing her on the bed and getting on top of her, pinning her to the bed and trying to kiss her while she was violently resisting is certainly indecent in my view and could be nothing but indecent in all of the circumstances.
I have considered the authorities submitted by both counsel. I have also considered the law in relation to the question: what is an indecent act? I have also considered recklessness in relation to commission of an act of indecency.
Referring to Sims v Drewson [2008] ACTSC 91 (‘Sims’) at 23 Besanko J said:
“Speaking generally, advertent recklessness is where an accused person is aware of the risk that the alleged victim is not consenting but makes a decision to proceed regardless of this fact. Non-advertent recklessness is where the accused person is so indifferent to the rights of the alleged victim as to ignore completely the requirement of consent.
Further in ‘Sims’ at 29, referring to Banditt v The Queen (2005) 224 CLR 262 (‘Banditt’) where the High Court considered the meaning of recklessness and whether inadvertent recklessness could constitute recklessness, Justices Gummow, Hayne and Heydon said in respect to this issue at 275:
It may well be said that ‘reckless’ is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, reckless may indicate conduct, which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an objective, the latter a subjective, hue.”
His Honour Besanko J, after considering ‘Banditt’ as well as other New South Wales decisions, proceeded on the basis that recklessness in section 60 (1) of the Crimes Act 1900 (NSW) includes non-advertent as well as advertent recklessness.
In this matter I find it incomprehensible that the Defendant did not advert to the possibility that the Complainant did not consent to his behaviour. The Complainant told him on numerous occasions that she did not want his attention. The Defendant chose to ignore her protestations and could not be in any doubt that she did not consent to his actions. I am satisfied that the actions of the Defendant were indecent in all of the circumstances.
I have found that the Defendant’s behaviour by kissing the Complainant on the neck whilst she was in her walk-in robe in a state of undress was indecent. I find that by kissing her on the neck and rubbing his groin area on her back whilst doing so was indecent. I find that by lying on top of the Complainant and pinning her to the bed, trying to kiss her whilst she was protesting for him to stop, was indecent.
I am satisfied that the acts were indecent. I am satisfied that the Defendant knew the Complainant was not consenting to the acts he perpetrated, and I am satisfied that the Defendant knew or was reckless as to the lack of consent to those acts of indecency upon her. I find each of the three acts as described proven beyond a reasonable doubt.
I find the Defendant guilty on all three counts as charged.

I certify that the preceding three hundred and twenty-six [326] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Special Magistrate Hunter OAM

Associate: James Harris

Date: 8 May 2020